Marginal note:Variation of amount

35. On application by an executor of a will or an administrator of an estate, a court may, by order, vary the amount owed to the survivor under section 34 if the spouses or common-law partners had previously resolved the consequences of the breakdown of the conjugal relationship by agreement or judicial decision, or if that amount would be unconscionable, having regard to, among other things, the fact that any children of the deceased individual would not be adequately provided for.

Marginal note:Determination by court

• 36. (1) On application by a survivor made within 10 months after the day on which the death of their spouse or common-law partner occurs, a court may, by order, determine any matter in respect of the survivor’s entitlement under sections 34 and 35 including

  • (a) determining the amount payable to the survivor; and

  • (b) providing that the amount payable to the survivor be settled by

    • (i) payment of the amount in a lump sum,

    • (ii) payment of the amount by installments,

    • (iii) if the survivor is a First Nation member, by the transfer of an interest or right, referred to in subparagraph (a)(i) or paragraph (b) or (c) of the definition “interest or right” in subsection 2(1), in or to any structure or land situated on a reserve of that First Nation, or

    • (iv) any combination of the methods referred to in subparagraphs (i) to (iii).

• Marginal note:Extension of time

  (2) On application by the survivor, a court may, by order, extend the period of 10 months by any amount of time that it considers appropriate, if the court is satisfied that the survivor failed to make an application within that period for any of the following reasons:

  • (a) the survivor did not know of the death of their spouse or common-law partner until after the period expired;

  • (b) circumstances existed that were beyond the control of the survivor; or

  • (c) only after the period expired did the applicant become aware of any interests or rights referred to in subsections 34(1) to (3).

• Marginal note:Clarification

  (3) A transfer may be ordered under subsection (1)

  • (a) in the case of a First Nation that is not referred to in any of paragraphs (b) to (d), despite sections 24 and 49 of the Indian Act;

  • (b) in the case of a First Nation as defined in subsection 2(1) of the First Nations Land Management Act, subject to any land code or First Nation law as defined in that subsection to which the First Nation is subject;

  • (c) in the case of a First Nation that has entered into a self-government agreement to which Her Majesty in right of Canada is a party, subject to any First Nation law enacted under the agreement; or

  • (d) in the case of the Mohawks of Kanesatake, subject to any land governance code adopted, or any Kanesatake Mohawk law enacted, under the Kanesatake Interim Land Base Governance Act.

• Marginal note:Variation of trust

  (4) On application by a survivor, an executor of a will or an administrator of an estate, the court may, by order, vary the terms of a trust that is established under the terms of the deceased individual’s will so that the amount that is payable to the survivor may be paid.

• Marginal note:Notice to affected persons

  (5) An applicant for an order under this section must, without delay, send a copy of the application to the following persons, to the Minister and to any other person specified in the rules regulating the practice and procedure in the court:

  • (a) in the case where the applicant is the survivor, to the executor of the will or the administrator of the estate, if the applicant knows who those persons are; or

  • (b) in the case where the applicant is the executor of a will or an administrator of an estate, to the survivor.

• Marginal note:Notice to beneficiaries

  (6) On receipt of the copy of the application, the executor of the will or the administrator of the estate or, if neither has been appointed, the Minister must, without delay, send a copy of the application to the named beneficiaries under the will and the beneficiaries on intestacy.

Marginal note:Survivor’s choice

37. If a court decides, after the death of a spouse or common-law partner, that an amount is payable to the survivor under section 30 or 36, the survivor may not, in respect of the interest or right in or to the family home and of the matrimonial interests or rights, benefit from the deceased individual’s will or sections 48 to 50.1 of the Indian Act.

Marginal note:Distribution of estate

• 38. (1) Subject to subsection (2), an executor of a will or an administrator of an estate must not proceed with the distribution of the estate until one of the following occurs:

  • (a) the survivor consents in writing to the proposed distribution;

  • (b) the period of 10 months referred to in subsection 36(1) and any extended period the court may have granted under subsection 36(2) have expired and no application has been made under subsection 36(1) within those periods; or

  • (c) an application made under subsection 36(1) is disposed of.

• Marginal note:Advances to dependants

  (2) Subsection (1) does not prohibit reasonable advances to survivors or other dependants of the deceased spouse or common-law partner for their support.

• Marginal note:Two survivors

  (3) When there are two survivors — a common-law partner and a spouse with whom the deceased individual was no longer cohabiting — and an amount is payable to both under an order referred to in section 36, the executor of the will or the administrator of the estate must pay the survivor who was the common-law partner before paying the survivor who was the spouse.

Marginal note:Improvident depletion

39. On application by a survivor, a court may make any order that it considers necessary to restrain the improvident depletion of the interest or right in or to the family home and of the matrimonial interests or rights for the purpose of protecting

• (a) the right that might be granted to the survivor in an order made under section 21 or any interest or right that might be transferred to the applicant in an order made under section 36; or

• (b) the value of the interests or rights that will be used to determine the amount that might be payable to the survivor in an order made under section 36.

Marginal note:Enforcement of agreements

40. If a survivor and the executor of the will or the administrator of the estate enter into a written agreement that sets out the amount to which the survivor is entitled and how to settle the amount payable by one or both of the methods referred to in subparagraph 36(1)(b)(i) or (ii), a court may, on application by one of them, make an order to enforce that agreement if the court is satisfied that the consent of the survivor to the agreement was free and informed and that the agreement is not unconscionable.

Notice to Council and Views of Council

Marginal note:Notice of application

• 41. (1) An applicant for an order under this Act, except under sections 16 and 19, must, without delay, send a copy of the application to the council of any First Nation on whose reserve the structures and lands in question are situated.

• Marginal note:Representations by council

  (2) On the council’s request, the court that is seized of the application must, before making its decision, allow the council to make representations with respect to the cultural, social and legal context that pertains to the application and to present its views about whether or not the order should be made.

Marginal note:Notice of order

42. When the court makes an order under this Act, except under section 19, the person in whose favour the order is made must send, without delay, a copy of the order to the council of any First Nation on whose reserve the structures and lands in question are situated.

Jurisdiction of Courts

Definition of “application”

• 43. (1) For the purposes of this section, “application” means an application made under any of sections 15, 20, 29 to 33, 48 or 52.

• Marginal note:Divorce proceeding pending

  (2) When a divorce proceeding — as defined in subsection 2(1) of the Divorce Act — between spouses is pending, the court that has jurisdiction to hear and determine the matter has jurisdiction to hear and determine an application by one of the spouses.

• Marginal note:Other proceedings pending

  (3) When a proceeding, other than a divorce proceeding, related to the consequences of the breakdown of a spouse’s or common-law partner’s conjugal relationship is pending, the court that is seized of the matter has jurisdiction to hear and determine an application by the spouse or common-law partner.

• Marginal note:No pending proceedings

  (4) If no divorce proceeding is pending and no court is seized of a matter referred to in subsection (3), the court that has jurisdiction to hear and determine an application by a spouse or common-law partner is the court in the province in which the structures and lands in question are situated or, if that property is situated in more than one province, the court in one of those provinces whose jurisdiction is accepted by both spouses or common-law partners or, in the absence of agreement, either the court in the province in which they habitually reside or, if they have ceased to cohabit, in which they habitually resided on the day on which they ceased to cohabit.

• Marginal note:Exception

  (5) Despite subsection (4), if the court in a province that is seized of the matter referred to in subsection (3) is not a court as defined in subsection 2(1), the court that has jurisdiction to hear and determine an application by the spouse or common-law partner is the court, as defined in subsection 2(1), in that province.

Marginal note:Proceedings on death

• 44. (1) A court that is seized of a matter related to the distribution of property on the death of a spouse or common-law partner has jurisdiction to hear and determine an application made under section 21, 35, 36, 39 or 40 by the survivor, the executor of the will or the administrator of the estate.

• Marginal note:No pending proceedings

  (2) If no court is seized of a matter referred to in subsection (1), the court that has jurisdiction to hear and determine the application is the court in the province in which the structures and lands in question are situated or, if that property is situated in more than one province, the court in the province in which both spouses or common-law partners habitually resided on the day on which the death occurred or, if they ceased to cohabit before the death, in which they habitually resided on the day on which they ceased to cohabit.

• Marginal note:Exception

  (3) Despite subsection (2), if the court in a province that is seized of the matter referred to in subsection (1) is not a court as defined in subsection 2(1) and the Minister has not consented to the exercise of jurisdiction by the court or directed the matter to the court under section 44 of the Indian Act, the court that has jurisdiction to hear and determine the application is the court, as defined in subsection 2(1), in that province.

Marginal note:Possibility of joinder

45. An application made under this Act, except under sections 16, 18 and 19, may be heard in the same proceeding as another application related to the consequences of the breakdown of the conjugal relationship or the death.

Marginal note:Right of appeal — divorce proceeding

• 46. (1) An order made under this Act in a divorce proceeding as defined in subsection 2(1) of the Divorce Act is deemed, for the purposes of section 21 of that Act, to be an order made under that Act.

• Marginal note:Right of appeal — other proceeding

  (2) Any other order made under this Act, except under any of sections 16 to 19, may be appealed to the court exercising appellate jurisdiction over the court that made the order.

Rules of Practice and Procedure

Marginal note:Definitions

• 47. (1) The following definitions apply in this section.

  “appellate court”

  « cour d’appel »

  “appellate court”, in respect of an appeal from a court, means the court exercising appellate jurisdiction with respect to that appeal.

  “competent authority”

  « autorité compétente »

  “competent authority”, in respect of a court in a province, a court established under the laws of a province or an appellate court in a province, means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.

• Marginal note:Rules

  (2) Subject to subsection (3), the competent authority may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, and to any proceedings under section 16 in a court established under the laws of a province, including, without limiting the generality of the foregoing, rules

  • (a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings;

  • (b) respecting the conduct and disposition of any proceedings under this Act without an oral hearing;

  • (c) regulating the sittings of the court;

  • (d) respecting the fixing and awarding of costs;

  • (e) prescribing and regulating the duties of officers of the court;

  • (f) respecting the transfer of proceedings under this Act to or from the court; and

  • (g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.

• Marginal note:Exercise of power

  (3) The power to make rules conferred by subsection (2) on a competent authority must be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules conferred on that authority by the laws of the province.

• Marginal note:Not statutory instruments

  (4) Rules made under this section by a competent authority that is not a judicial or quasi-judicial body are deemed not to be statutory instruments within the meaning and for the purposes of the Statutory Instruments Act.

Other Provisions

Marginal note:Determination by court — interest or right

48. For the purposes of this Act, a court may, by order, determine whether a spouse, a common-law partner, a survivor or an estate of a deceased spouse or common-law partner holds an interest or right in or to a structure or land situated on a reserve, on application by one of the spouses or common-law partners, the survivor, the executor of the will, the administrator of the estate or the council of the First Nation on whose reserve the structure or land is situated.

Marginal note:Proceedings on death

• 49. (1) When a spouse or common-law partner makes an application under any of sections 29 to 33 and both spouses or common-law partners or one of them dies before the application is disposed of, the application may be continued by or against the executor of the will or the administrator of the estate of the spouse or common-law partner who dies.

• Marginal note:Application by survivor

  (2) When a survivor makes an application under section 36, 39 or 40 and the survivor dies before the application is disposed of, the application may be continued by the executor of the will or the administrator of the estate of the survivor.

• Marginal note:Application by executor or administrator

  (3) When an executor of a will or an administrator of an estate makes an application under section 35 or 40 and the survivor dies before the application is disposed of, the application may be continued against the executor of the will or the administrator of the estate of the survivor.

Marginal note:Notice to Minister or council

50. When a court makes an order under this Act, except under section 19, the applicant must, without delay, send a copy of the order to the Minister or, if the order is in respect of any structure or land situated on the following reserves or land base, to the council of the First Nation:

• (a) a reserve of a First Nation that is subject to a land code as defined in subsection 2(1) of the First Nations Land Management Act;

• (b) a reserve of a First Nation that is on the list referred to in subsection 12(5); or

• (c) the Kanesatake Mohawk interim land base as defined in subsection 2(1) of the Kanesatake Interim Land Base Governance Act.

Marginal note:Provincial laws of evidence

51. Subject to this Act, the laws of evidence of the province in which any proceedings under this Act are taken, including the laws of proof of service of any document, apply to those proceedings.

Marginal note:Enforcement of orders

• 52. (1) On application by a person who is neither a First Nation member nor an Indian and in whose favour an order is made under subsection 30(1), section 33, subsection 36(1) or section 40, a council may, on behalf of the person, enforce the order on a reserve of the council’s First Nation as if the order had been made in favour of the First Nation.

• Marginal note:Payment into court

  (2) If the council notifies the person that it will not enforce the order or does not enforce it within a reasonable period after the application is made, a court may, on application by the person, vary the order to require the person against whom the order was made to pay into court the amount payable that was specified in the order, if the court is satisfied that it is necessary for the enforcement of the order.