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

Marginal note:Improvident depletion

32 On application by a spouse or common-law partner, 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 applicant in an order made under section 20 or any interest or right that might be transferred to the applicant in an order made under section 31; or

• (b) the value of the interests or rights that will be used to determine the amount that might be payable to the applicant in an order made under section 30.

Marginal note:Enforcement of agreements

33 If spouses or common-law partners enter into a written agreement, after they cease to cohabit, that sets out the amount to which each is entitled and how to settle the amount payable by one of the methods referred to in subparagraph 30(1)(b)(i), (ii) or (iv) or any combination of those methods, 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 both parties to the agreement was free and informed, and that the agreement is not unconscionable, having regard to, among other things, the factors listed in section 29.

Death of a Spouse or Common-Law Partner

Marginal note:Entitlement of survivor

• 34 (1) On the death of a spouse or common-law partner, the survivor is entitled, on application made under section 36, to an amount equal to one half of the value, on the valuation date, of the interest or right that was held by the deceased individual in or to the family home and to the amounts referred to in subsections (2) and (3).

• Marginal note:First Nation members

  (2) A survivor 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 were held by the deceased individual 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 were held by the deceased individual 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 were held by the deceased individual in or to structures and lands situated on a reserve of that First Nation, and

    • (ii) the difference between the payments that the survivor 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 were held by the deceased individual, 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 survivor 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 were held by the deceased individual 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 survivor 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 were held by the deceased individual 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 were held by the deceased individual 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 were held by the deceased individual in or to structures situated on a reserve of that First Nation, and

    • (ii) the difference between the payments that the survivor 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 were held by the deceased individual, 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 survivor 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 were held by the deceased individual, and

    • (ii) structures that are the object of interests or rights that were held by the deceased individual 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 survivor and the executor of the will or the administrator of the estate, 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 before the day on which the death occurred,

    • (ii) the day on which the spouses ceased to cohabit as a result of the breakdown of the marriage, and

    • (iii) the day on which the spouse who is now the survivor 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 earlier of the following days:

    • (i) the day before the day on which the death occurred, and

    • (ii) the day on which the common-law partner who is now the survivor 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

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 within the meaning of subsection 2(2) of the Framework Agreement on First Nation Land Management Act, subject to any land code within the meaning of that subsection or First Nation law as defined in subsection 2(1) of that Act 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.