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

Act current to 2019-06-20 and last amended on 2018-12-13. Previous Versions

Provisional Federal Rules (continued)

Division of the Value of Matrimonial Interests or Rights (continued)

Breakdown of a Conjugal Relationship (continued)

Marginal note:Variation of amount

 On application by a spouse or common-law partner, a court may, by order, vary the amount owed to or by the applicant under section 28 if that amount would be unconscionable, having regard to, among other things,

  • (a) the applicant’s financial responsibility related to the care and upbringing of the children in the applicant’s charge;

  • (b) the amount of debts or other liabilities referred to in that section incurred by each spouse or common-law partner;

  • (c) any significant change in the value of the interests or rights in question between the valuation date as defined in subsection 28(6) and the day on which the order is made, inclusive;

  • (d) the fact that one of the spouses or common-law partners may obtain exclusive occupation of the family home on agreement or under an order referred to in section 20;

  • (e) the availability of accommodation that is comparable to the family home and that is situated on the same reserve as the family home;

  • (f) the duration of the conjugal relationship;

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

  • (h) the reduction of the value of the interests or rights in question as a result of acts or omissions by the applicant’s spouse or common-law partner including the disposition of any such interest or right for less than its fair value, the improvident depletion of any such interest or right, the disposition or encumbrance of the interest or right in or to the family home without the applicant’s required consent, and the encumbrance of that interest or right after the valuation date as defined in subsection 28(6); or

  • (i) other determinations that the court may make on any matters related to the consequences of the breakdown of the conjugal relationship.

Marginal note:Amount payable

  •  (1) On application by one of the spouses or common-law partners made within three years after the day on which they ceased to cohabit, a court may, by order, determine any matter in respect of each spouse’s or common-law partner’s entitlement under sections 28 and 29 including

    • (a) determining the amount payable by one spouse or common-law partner to the other; and

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

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

      • (ii) payment of the amount by installments,

      • (iii) the transfer of an interest or right under an order referred to in section 31,

      • (iv) the set-off or compensation of any amounts owed by one spouse or common-law partner to the other, or

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

  • Marginal note:Extension of time

    (2) On application by a spouse or common-law partner, a court may, by order, extend the period of three years by any amount of time that it considers appropriate, if the court is satisfied that the applicant failed to make an application within that period for either of the following reasons:

    • (a) circumstances existed that were beyond the control of the applicant; or

    • (b) only after the period expired did the applicant become aware of any interests or rights referred to in subsections 28(1) to (3).

Marginal note:Order to transfer interests or rights

  •  (1) When a conjugal relationship breaks down, a court may, on application by a spouse or common-law partner who is a First Nation member, order that 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 be transferred to the applicant if the court is satisfied that

    • (a) the spouses or common-law partners agreed in writing to the transfer of the interest or right, the consent of both parties was free and informed and the agreement is not unconscionable, having regard to, among other things, the factors listed in section 29;

    • (b) the applicant had previously held the interest or right before the cessation of cohabitation; or

    • (c) the transfer is appropriate in the circumstances because the spouses or common-law partners hold more than one such interest or right in or to structures and lands situated on a reserve of that First Nation.

  • Marginal note:Clarification

    (2) 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 section 24 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:Improvident depletion

 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

 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

  •  (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.

 
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