Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

Family Homes on Reserves and Matrimonial Interests or Rights Act (S.C. 2013, c. 20)

Act current to 2021-11-17 and last amended on 2019-07-15. Previous Versions

Provisional Federal Rules (continued)

Family Home

Occupation

Marginal note:During conjugal relationship

 Each spouse or common-law partner may occupy the family home during the conjugal relationship, whether or not that person is a First Nation member or an Indian.

Marginal note:After death

 When a spouse or common-law partner dies, a survivor who does not hold an interest or right in or to the family home may occupy that home for a period of 180 days after the day on which the death occurs, whether or not the survivor is a First Nation member or an Indian.

Marginal note:Consent of spouse or common-law partner

  •  (1) Subject to the Indian Act, a spouse or common-law partner who holds an interest or right in or to the family home must not dispose of or encumber that interest or right during the conjugal relationship without the free and informed consent in writing of the other spouse or common-law partner, whether or not that person is a First Nation member or an Indian.

  • Marginal note:Setting aside

    (2) If a spouse or common-law partner disposes of or encumbers their interest or right in or to the family home without the required consent of the other spouse or common-law partner, a court may, on application by the other spouse or common-law partner, by order, set aside the transaction and impose conditions on any future disposition or encumbrance of that interest or right by the spouse or common-law partner to whom the interest or right reverts.

  • Marginal note:Exception

    (3) However, the disposition or encumbrance may not be set aside if the other contracting party acquired it for value and acted in good faith.

  • Marginal note:Damages

    (4) A spouse or common-law partner who has not given consent to a transaction for which it was required may, without prejudice to any other right, claim damages from the other spouse or common-law partner.

  • Marginal note:Proof of consent

    (5) The spouse or common-law partner who disposed of or encumbered the interest or right in or to the family home has the burden of proving that the other spouse or common-law partner consented to the disposition or encumbrance.

  • Marginal note:Authorization

    (6) Subject to the Indian Act, a court may, on application by the spouse or common-law partner who holds an interest or right in or to the family home, by order, authorize that person, subject to any conditions that the court considers appropriate, to dispose of or encumber that interest or right without the required consent of the other spouse or common-law partner if the court is satisfied that the other spouse or common-law partner cannot be found, is not capable of consenting or is unreasonably withholding consent.

Emergency Protection Order

Marginal note:Order of designated judge

  •  (1) On ex parte application by a spouse or common-law partner, a designated judge of the province in which the family home is situated may make an order for a period of up to 90 days that contains one or more of the provisions referred to in subsection (5) and that is subject to any conditions that the judge specifies, if the judge is satisfied that

    • (a) family violence has occurred; and

    • (b) the order should be made without delay, because of the seriousness or urgency of the situation, to ensure the immediate protection of the person who is at risk of harm or property that is at risk of damage.

  • Marginal note:Applicant

    (2) The spouse or common-law partner may make the application even if that person has been forced to vacate the family home as a result of family violence.

  • Marginal note:Acting on behalf of applicant

    (3) A peace officer or other person may also make the application on behalf of the spouse or common-law partner with that person’s consent, or if that person does not consent, with leave of the designated judge granted in accordance with the regulations.

  • Marginal note:Considerations

    (4) In making the order, the designated judge must consider, among other things,

    • (a) the history and nature of the family violence;

    • (b) the existence of immediate danger to the person who is at risk of harm or property that is at risk of damage;

    • (c) the best interests of any child in the charge of either spouse or common-law partner, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;

    • (d) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;

    • (e) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home;

    • (f) the period during which the applicant has habitually resided on the reserve; and

    • (g) the existence of exceptional circumstances that necessitate the removal of a person other than the applicant’s spouse or common-law partner from the family home in order to give effect to the granting to the applicant of exclusive occupation of that home, including the fact that the person has committed acts or omissions referred to in subsection (9) against the applicant, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home.

  • Marginal note:Content of order

    (5) The order may contain

    • (a) a provision granting the applicant exclusive occupation of the family home and reasonable access to that home;

    • (b) a provision requiring the applicant’s spouse or common-law partner and any specified person who habitually resides in the family home — whether or not they are First Nation members or Indians — to vacate the family home, immediately or within a specified period, and prohibiting them from re-entering the home;

    • (c) a provision directing a peace officer, immediately or within a specified period, to remove the applicant’s spouse or common-law partner and any specified person who habitually resides in the family home — whether or not they are First Nation members or Indians — from the family home;

    • (d) a provision prohibiting any person who is required to vacate the family home under a provision referred to in paragraph (b) from attending near the family home;

    • (e) a provision directing a peace officer, within a specified period, to accompany the applicant’s spouse or common-law partner or any specified person to the family home or other location in order to supervise the removal of personal belongings; and

    • (f) any other provision that the designated judge considers necessary for the immediate protection of the person who is at risk of harm or property that is at risk of damage.

  • Marginal note:Notice of order

    (6) Any person against whom the order is made and any person specified in the order are bound by the order on receiving notice of it.

  • Marginal note:Service by peace officer

    (7) A peace officer must serve a copy of the order on the persons referred to in subsection (6) either directly or, if authorized by the court in the province in which the designated judge has jurisdiction, by substituted service in the manner, under the circumstances and on the conditions prescribed by regulation. The peace officer must inform the applicant as soon as each service is effected.

  • Marginal note:No personal liability

    (8) An action or other proceeding must not be instituted against a peace officer for any act or omission done in good faith in the execution or intended execution of the peace officer’s duties under this section.

  • Definition of family violence

    (9) For the purposes of this section, family violence means any of the following acts or omissions committed by a spouse or common-law partner against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home:

    • (a) an intentional application of force without lawful authority or consent, excluding any act committed in self-defence;

    • (b) an intentional or reckless act or omission that causes bodily harm or damage to property;

    • (c) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;

    • (d) sexual assault, sexual abuse or the threat of either;

    • (e) forcible confinement without lawful authority; or

    • (f) criminal harassment.

Marginal note:Order sent to court for review

  •  (1) Immediately after making an order under section 16, a designated judge referred to in paragraph (a) or (c) of the definition designated judge in subsection 2(1) must forward a copy of the order and all supporting materials to the court in the province in which the designated judge has jurisdiction.

  • Marginal note:Review by court

    (2) The court must review the order within three working days after the day on which it is received or, if a judge is not available within that period, as soon as one becomes available.

  • Marginal note:Decision

    (3) The court, on reviewing the order and the materials, must, by order,

    • (a) confirm the order if the court is satisfied that there was sufficient evidence before the designated judge to support the making of the order; or

    • (b) direct a rehearing of the matter by the court if the court is not satisfied that the evidence before the designated judge was sufficient to support the making of all or part of the order.

  • Marginal note:Notice

    (4) The court must give notice to the parties and any person specified in the order made by the designated judge of its decision and of any consequent procedures.

  • Marginal note:Confirmed order

    (5) An order that is confirmed is deemed to be an order of the court.

  • Marginal note:Rehearing — order continues

    (6) If the court directs that a matter be reheard, the order continues in effect and is not stayed unless the court orders otherwise.

  • Marginal note:Evidence at rehearing

    (7) The materials referred to in subsection (1) must be considered as evidence at the rehearing, in addition to any evidence presented at the rehearing, including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands.

  • Marginal note:Order on rehearing

    (8) On a rehearing, the court may, by order, confirm, vary or revoke the order made under section 16, and may extend the duration of the order beyond the period of 90 days referred to in subsection 16(1).

  • Marginal note:Section 18 application

    (9) If an application is made under section 18 and a rehearing has been ordered but has not begun, that application must be heard at the rehearing.

Marginal note:Application to vary or revoke order

  •  (1) Any person in whose favour or against whom an order is made under section 16 or 17 or any person specified in the order may apply to the court in the province in which the designated judge has jurisdiction to have the order varied or revoked

    • (a) within 21 days after the day on which notice of the order made under section 16 is received, or within any further time that the court allows; and

    • (b) at any time if there has been a material change in circumstances.

  • Marginal note:Confirm, vary or revoke order

    (2) The court may, by order, confirm, vary or revoke the order, and may extend the duration of the order beyond the period of 90 days referred to in subsection 16(1).

  • Marginal note:Evidence at hearing

    (3) The supporting materials for the order made by the designated judge must be considered as evidence at the hearing, in addition to any evidence presented at the hearing, including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands.

Marginal note:Confidentiality

  •  (1) Subject to subsection (2), on application by the parties or on its own motion, the court in the province in which the designated judge has jurisdiction may make an order that contains one or more of the following provisions and that is subject to any conditions that the court specifies:

    • (a) a provision excluding members of the public, other than the parties, from all or part of a rehearing referred to in section 17 or a hearing referred to in section 18;

    • (b) a provision prohibiting the publication or broadcasting of any information from the rehearing or hearing, including the name of a party, witness or child in the charge of either party or any information likely to identify any of those persons; and

    • (c) a provision prohibiting disclosure to the public of any information in a court document or record related to a proceeding under section 17 or 18.

  • Marginal note:Conditions

    (2) The court may only make the order if it is satisfied that

    • (a) the order is necessary for the safety of a party or witness or the safety or physical or emotional well-being of a child; or

    • (b) protecting a party, witness or child from an undue hardship or adverse effect that could be caused by making the information public outweighs the public’s right to the information.

Exclusive Occupation Order

Marginal note:Court order

  •  (1) A court may, on application by a spouse or common-law partner whether or not that person is a First Nation member or an Indian, order that the applicant be granted exclusive occupation of the family home and reasonable access to that home, subject to any conditions and for the period that the court specifies.

  • Marginal note:Interim order

    (2) The court may make, on application by either spouse or common-law partner, an interim order to the same effect, pending the determination of the application under subsection (1).

  • Marginal note:Considerations

    (3) In making an order under this section, the court must consider, among other things,

    • (a) the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;

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

    • (c) the collective interests of First Nation members in their reserve lands and the representations made by the council of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application;

    • (d) the period during which the applicant has habitually resided on the reserve;

    • (e) the financial situation and the medical condition of the spouses or common-law partners;

    • (f) the availability of other suitable accommodation that is situated on the reserve;

    • (g) any existing order made on a matter related to the consequences of the breakdown of the conjugal relationship;

    • (h) any family violence;

    • (i) any acts or omissions by one of the spouses or common-law partners that reasonably constitute psychological abuse against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;

    • (j) the existence of exceptional circumstances that necessitate the removal of a person other than the applicant’s spouse or common-law partner from the family home in order to give effect to the granting to the applicant of exclusive occupation of that home, including the fact that the person has committed acts or omissions that constitute family violence, or reasonably constitute psychological abuse, against the applicant, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;

    • (k) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;

    • (l) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home; and

    • (m) the views of any person who received a copy of the application, presented to the court in any form that the court allows.

  • Marginal note:Content of order

    (4) An order made under this section may contain provisions such as

    • (a) a provision requiring the applicant’s spouse or common-law partner and any specified person — whether or not they are First Nation members or Indians — to vacate the family home, immediately or within a specified period, and prohibiting them from re-entering the home;

    • (b) a provision requiring the applicant’s spouse or common-law partner to preserve the condition of the family home until that person vacates it;

    • (c) a provision directing the applicant to make payments to the other spouse or common-law partner toward the cost of other accommodation; and

    • (d) a provision requiring either spouse or common-law partner to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of the family home, or to make payments to the other spouse or common-law partner for those purposes.

  • Marginal note:Emergency protection order revoked

    (5) An existing order made under any of sections 16 to 18 in favour of or against one of the spouses or common-law partners is revoked when the court makes an order under this section, except to the extent specified in that order.

  • Marginal note:Application to vary or revoke order

    (6) Any person in whose favour or against whom an order is made under subsection (1), any person specified in the order, or the holder of an interest or right in or to the family home may apply to the court to have the order varied or revoked if there has been a material change in circumstances. The court may, by order, confirm, vary or revoke the order.

  • Marginal note:Notice to affected persons

    (7) An applicant for an order under this section must, without delay, send a copy of the application to any person who is of the age of majority or over, whom the applicant is seeking to have the court order to vacate the family home, to any person who holds an interest or right in or to the family home and to any other person specified in the rules regulating the practice and procedure in the court.

 
Date modified: