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

Act current to 2019-06-06 and last amended on 2018-12-13. Previous Versions

Enactment of First Nation Laws (continued)

Community Approval

Marginal note:Submission to members

  •  (1) If a First Nation intends to enact First Nation laws under section 7, the council of the First Nation must submit the proposed First Nation laws to the First Nation members for their approval.

  • Marginal note:Eligibility to vote

    (2) Every person who is 18 years of age or over and a member of the First Nation, whether or not resident on a reserve of the First Nation, is eligible to vote in the community approval process.

  • Marginal note:Information to be provided

    (3) The council must, before proceeding to obtain community approval, take reasonable measures that are in accordance with the First Nation’s practices to locate voters and inform them of their right to vote, the means of exercising that right and the content of the proposed laws.

  • Marginal note:Publication of notice

    (4) The council must publish a notice of the date, time and place of a vote.

Marginal note:Approval by members

  •  (1) The proposed First Nation laws that have been submitted for community approval are approved if a majority of those who participated in the vote voted to approve them.

  • Marginal note:Minimum participation

    (2) Despite subsection (1), the proposed laws are not approved unless at least 25 per cent of the eligible voters participated in the vote.

  • Marginal note:Increased percentage

    (3) A council may, by resolution, increase the percentage of eligible voters required under subsection (2).

Marginal note:Approved laws

 When a First Nation approves the proposed First Nation laws, its council must, without delay after the vote, inform the Minister in writing of the result of the vote and send a copy of the approved laws to the Minister, the organization designated by the Minister, if any, and the Attorney General of any province in which a reserve of the First Nation is situated.

Coming into Force

Marginal note:Force of law and judicial notice

  •  (1) The First Nation laws come into force and have the force of law on the day on which they are approved or on any later day that may be specified in or under them and judicial notice must from then on be taken of the laws in any proceedings.

  • Marginal note:Evidence of laws

    (2) In the absence of evidence to the contrary, a copy of the First Nation laws appearing to be certified as a true copy by an officer of the First Nation is proof of the original without proof of the officer’s signature or official character.

  • Marginal note:Access to First Nation laws

    (3) A copy of the First Nation laws, as amended from time to time, must be maintained by the council for public inspection at locations designated by the council.

  • Marginal note:Notice of amendments

    (4) If a First Nation amends its laws, the council must, without delay, send a copy of the amended laws to the Minister, the organization designated by the Minister, if any, and the Attorney General of any province in which a reserve of the First Nation is situated.

  • Marginal note:Notice on repeal

    (5) If a First Nation repeals its laws, the council must, without delay and in writing, notify the Minister, the organization designated by the Minister, if any, and the Attorney General of any province in which a reserve of the First Nation is situated.

  • Marginal note:List

    (6) The Minister must maintain a list of First Nations whose laws are in force and must publish in any manner that the Minister considers appropriate the list and any amendments to the list.

Provisional Federal Rules

Application

Marginal note:First Nations with reserve lands

  •  (1) Sections 13 to 52 only apply to a First Nation that has reserve lands and that is not referred to in subsection (2) or (3) if the First Nation laws that it enacts under section 7 are not in force.

  • Marginal note:First Nations Land Management Act

    (2) Sections 13 to 52 only apply to a First Nation, as defined in subsection 2(1) of the First Nations Land Management Act, if

    • (a) on the day on which this subsection comes into force, the land code that the First Nation adopts under section 6 of that Act is not in force; and

    • (b) the First Nation laws that it enacts under section 7 of this Act or paragraph 20(1)(c) of that Act are not in force.

  • Marginal note:Self-governing First Nations that retain reserve land

    (3) Sections 13 to 52 only apply to a First Nation that has the power to manage its reserve land under a self-government agreement into which the First Nation has entered and to which Her Majesty in right of Canada is a party if

    • (a) on the recommendation of the parties to the agreement, the Minister makes a declaration, by order, that those sections apply to the First Nation; and

    • (b) the First Nation laws referred to in section 7 that it enacts under that section or under the self-government agreement are not in force.

  • Marginal note:Declaration

    (4) In the declaration referred to in paragraph (3)(a), the Minister must specify that sections 13 to 52 apply to the First Nation until the First Nation laws referred to in section 7 that it enacts under that section or under the self-government agreement come into force.

  • Marginal note:List

    (5) The Minister must maintain a list of First Nations in respect of which the Minister has made a declaration and must publish in any manner that the Minister considers appropriate the list and any amendments to the list.

  • Marginal note:Notice on coming into force

    (6) If a First Nation in respect of which the Minister has made a declaration enacts the First Nation laws referred to in section 7 under that section or under the self-government agreement, and those laws come into force, the First Nation must notify the Minister in writing without delay.

  • 2013, c. 20, s. 12
  • 2018, c. 27, s. 384

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.

 
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