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

Act current to 2020-10-05 and last amended on 2019-07-15. Previous Versions

Provisional Federal Rules (continued)

Family Home (continued)

Exclusive Occupation Order (continued)

Marginal note:Order after death

  •  (1) A court may, on application by a survivor whether or not that person is a First Nation member or an Indian, order that the survivor 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 the survivor, 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 the will;

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

    • (d) 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;

    • (e) the medical condition of the survivor;

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

    • (g) the fact that the family home is the only property of significant value in the estate;

    • (h) the interests of any person who holds or will hold an interest or right in or to the family home;

    • (i) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom the survivor is the caregiver;

    • (j) the existence of exceptional circumstances that necessitate the removal of a person from the family home in order to give effect to the granting to the survivor 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 survivor, any child in the charge of the survivor, or any other family member who habitually resides in the family home; and

    • (k) 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 survivor to preserve the condition of the family home;

    • (b) a provision requiring any specified person, whether or not that person holds an interest or right in or to the family home, to vacate it immediately or within a specified period, and prohibiting them from re-entering the home; and

    • (c) a provision requiring the executor of the will, the administrator of the estate or the holder of an interest or right in or to the family home to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of it.

  • Marginal note:Notice of order

    (5) The survivor must, without delay, give notice of an order made under this section to those who received a copy of the application. However, a peace officer must serve a copy of the order on those persons if the court so directs.

  • Marginal note:Application to vary or revoke order

    (6) The survivor, the executor of the will or the administrator of the estate, any person specified in an order made under subsection (1) or the holder of an interest or right in or to the family home may apply to the court to have that 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 the executor of the will or the administrator of the estate, if the applicant knows who those persons are, to the Minister, 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.

Other Provisions

Marginal note:Family violence

 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

 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

 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

 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

 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

 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

  •  (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.

 
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