Other Provisions

Marginal note:Family violence

22. For greater certainty, a designated judge or a court may find that family violence has occurred for the purposes of this Act whether or not, in respect of the act or omission in question, a charge has been laid, dismissed or withdrawn or a conviction has been or could be obtained.

Marginal note:Interest or right not affected

23. For greater certainty, an order made under any of sections 16 to 18, 20 or 21 does not change who holds an interest or right in or to the family home nor does it prevent an executor of a will or an administrator of an estate from transferring such an interest or right to a named beneficiary under the will or to a beneficiary on intestacy, or a court from ordering the transfer of such an interest or right under section 31 or 36.

Marginal note:Notice

24. The person in whose favour an order is made under section 17, 18 or 20 must, without delay, give notice of the order to any person against whom the order is made and any person specified in the order. However, a peace officer must serve a copy of the order on those persons if the court so directs.

Marginal note:Contiguous property

25. For the purposes of sections 16, 20 and 21, if the reserve land on which the family home is situated is the object of an interest or right referred to in subparagraph (a)(i) of the definition “interest or right” in subsection 2(1), exclusive occupation of the family home includes exclusive occupation of the portion of that land that is contiguous to the family home and that is strictly necessary for the use and enjoyment of the family home.

Marginal note:Leases

26. When an order made under any of sections 16 to 18, 20 or 21 grants exclusive occupation of the family home to a spouse, common-law partner or survivor who is not a lessee under the lease for the family home, the spouse, common-law partner or survivor is bound by the lease during the period of the order.

Marginal note:Offence

27. Any person who contravenes an order made under any of sections 16 to 19, a provision referred to in paragraph 20(4)(a) contained in an order made under section 20 or a provision referred to in paragraph 21(4)(b) contained in an order made under section 21 is guilty of an offence punishable on summary conviction and liable

• (a) in the case of a first offence, to a fine not exceeding $2,000 or to imprisonment for a term not exceeding three months, or to both; or

• (b) in the case of a subsequent offence, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding one year, or to both.

Division of the Value of Matrimonial Interests or Rights

Breakdown of a Conjugal Relationship

Marginal note:Division of value

• 28. (1) When a conjugal relationship breaks down, each spouse or common-law partner is entitled, on application made under section 30, to an amount equal to one half of the value, on the valuation date, of the interest or right that is held by at least one of them in or to the family home and to the amounts referred to in subsections (2) and (3).

• Marginal note:First Nation members

  (2) A spouse or common-law partner who is a member of the First Nation on whose reserve are situated any structures and lands that are the object of interests or rights that are held by the other spouse or common-law partner is also entitled to an amount equal to the total of

  • (a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in paragraphs (a) and (b) of the definition “matrimonial interests or rights” in subsection 2(1) that are held by the other spouse or common-law partner in or to structures and lands situated on a reserve of that First Nation,

  • (b) the greater of

    • (i) one half of the appreciation in value, between the day on which the conjugal relationship began and the valuation date inclusive, of matrimonial interests or rights referred to in paragraph (c) of that definition that are held by the other spouse or common-law partner in or to structures and lands situated on a reserve of that First Nation, and

    • (ii) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures and lands situated on a reserve of that First Nation that are the object of matrimonial interests or rights referred to in that paragraph (c) that are held by the other spouse or common-law partner, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments, and

  • (c) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures and lands situated on a reserve of that First Nation that are the object of interests or rights that are held by the other spouse or common-law partner that would have been matrimonial interests or rights referred to in that paragraph (c) if they had appreciated during the conjugal relationship, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments.

• Marginal note:Non-members

  (3) A spouse or common-law partner who is not a member of the First Nation on whose reserve are situated any structures and lands that are the object of interests or rights that are held by the other spouse or common-law partner is also entitled to an amount equal to the total of

  • (a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in paragraphs (a) and (b) of the definition “matrimonial interests or rights” in subsection 2(1) that are held by the other spouse or common-law partner in or to structures situated on a reserve of that First Nation,

  • (b) the greater of

    • (i) one half of the appreciation in value, between the day on which the conjugal relationship began and the valuation date inclusive, of matrimonial interests or rights referred to in paragraph (c) of that definition that are held by the other spouse or common-law partner in or to structures situated on a reserve of that First Nation, and

    • (ii) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to structures situated on a reserve of that First Nation that are the object of matrimonial interests or rights referred to in that paragraph (c) that are held by the other spouse or common-law partner, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments, and

  • (c) the difference between the payments that the spouse or common-law partner made towards improvements made, between the day on which the conjugal relationship began and the valuation date inclusive, to the following lands and structures situated on a reserve of that First Nation, and the amount of debts or other liabilities outstanding on the valuation date that were assumed to make the payments:

    • (i) lands that are the object of matrimonial interests or rights that are held by the other spouse or common-law partner, and

    • (ii) structures that are the object of interests or rights that are held by the other spouse or common-law partner that would have been matrimonial interests or rights referred to in that paragraph (c) if they had appreciated during the conjugal relationship.

• Marginal note:Determination of value

  (4) For the purposes of subsections (1) to (3), the value of the interests or rights is the difference between

  • (a) the amount that a buyer would reasonably be expected to pay for interests or rights that are comparable to the interests or rights in question, and

  • (b) the amount of any outstanding debts or other liabilities assumed for acquiring the interests or rights or for improving or maintaining the structures and lands that are the object of the interests or rights.

• Marginal note:Agreement by parties

  (5) Despite subsection (4), on agreement by the spouses or common-law partners, the value of the interests or rights may be determined on any other basis.

• Definition of “valuation date”

  (6) For the purposes of this section, “valuation date” means

  • (a) in the case of spouses, the earliest of the following days:

    • (i) the day on which the spouses separated with no reasonable prospect of reconciliation,

    • (ii) the day on which the judgment granting their divorce was rendered,

    • (iii) the day on which the marriage was declared a nullity,

    • (iv) the day on which one of the spouses made an application related to the consequences of the breakdown of the marriage, and

    • (v) the day on which one of the spouses made an application to restrain improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights that is subsequently granted; or

  • (b) in the case of common-law partners, the earliest of the following days:

    • (i) the day on which one of the common-law partners manifested the intention not to continue the conjugal relationship,

    • (ii) the day on which one of the common-law partners made an application related to the consequences of the breakdown of the conjugal relationship, and

    • (iii) the day on which one of the common-law partners made an application to restrain improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights that is subsequently granted.

Marginal note:Variation of amount

29. On application by a spouse or common-law partner, a court may, by order, vary the amount owed to or by the applicant under section 28 if that amount would be unconscionable, having regard to, among other things,

• (a) the applicant’s financial responsibility related to the care and upbringing of the children in the applicant’s charge;

• (b) the amount of debts or other liabilities referred to in that section incurred by each spouse or common-law partner;

• (c) any significant change in the value of the interests or rights in question between the valuation date as defined in subsection 28(6) and the day on which the order is made, inclusive;

• (d) the fact that one of the spouses or common-law partners may obtain exclusive occupation of the family home on agreement or under an order referred to in section 20;

• (e) the availability of accommodation that is comparable to the family home and that is situated on the same reserve as the family home;

• (f) the duration of the conjugal relationship;

• (g) the terms of any agreement between the spouses or common-law partners;

• (h) the reduction of the value of the interests or rights in question as a result of acts or omissions by the applicant’s spouse or common-law partner including the disposition of any such interest or right for less than its fair value, the improvident depletion of any such interest or right, the disposition or encumbrance of the interest or right in or to the family home without the applicant’s required consent, and the encumbrance of that interest or right after the valuation date as defined in subsection 28(6); or

• (i) other determinations that the court may make on any matters related to the consequences of the breakdown of the conjugal relationship.