May 27, 2015 By: Alex Keenan
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The breakdown of a relationship or the death of a spouse is always a difficult experience. For many First Nations couples living on reserve, the experience may be even more difficult due to a lack of effective legal mechanisms for allocating family property.

Canada’s Constitution assigns family property matters to provincial jurisdiction while matters going to the core of Indigenous rights and reserve lands are considered to fall within the exclusive sphere of the federal government. As a result, courts have refused to apply provincial legislation to a number of matrimonial property issues on reserves, leaving couples to try and apply federal law (which may be under-developed or even non-existent in this area) to settle their legal disputes. Indigenous legal traditions are typically not even part of the discussion. Even where provincial law does apply to these matters, it is not necessarily well-suited to the particular circumstances and values of First Nations and their members.

In response, the federal Government enacted the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRA) in December 2014. The Act provides options for First Nations in dealing with matrimonial interests and rights to property on reserve. It also provides a measure of certainty in what has long been a jurisdictional vacuum.

More importantly, the FHRA recognizes that First Nations have a right to pass local laws regulating member’s rights in, and entitlements to, property located on reserve during a conjugal relationship and after its breakdown. It also provides a set of “provisional” rules that will apply to those First Nations that have not enacted their own laws.

The provisional rules provide a system for allocating interests and rights in family property when at least one partner is an “Indian” (as defined by the Indian Act) and the property is located on a reserve. These rules deal with rights to occupy the matrimonial home; create processes for obtaining emergency protection orders in the event of family violence; regulate the division of property upon breakdown of a relationship; and set out a person’s property entitlements upon the death of a spouse, among other things. Notably, the provisional rules give fairly extensive rights to a spouse who is not a member of the First Nation on whose territory the property is located.

The rules give courts flexibility to vary the application of the rules in order to ensure that outcomes are not “unconscionable”. They also provide for the involvement of First Nations in the court process, permitting an interested First Nation to make submissions to the court about matters occurring on its lands. Finally, the provisional rules deal with enforcement of court orders that are made under the FHRA.

While the FHRA provisional rules were drafted with First Nations in mind and arguably represent a vast improvement over the uncertain, patchwork approach that previously existed, these rules were designed to apply to a large diversity of First Nations across Canada. As a result, they can fall short in addressing the issues faced by a particular community.

The most significant aspect of this legislation is the recognition that First Nations have the right to make their own local laws concerning family property. The passage of the Act has spurred discussions across the country and this is an ideal time for First Nations councils to engage with their citizens and talk about whether a local family property law would be right for them.

There are many reasons why a customized family property law may be appropriate. Here are just five of them.

#1: The provisional FHRA rules do not apply to all First Nations

Some First Nations are not subject to the provisional rules. For example, those that are self-governing under an agreement with the Government of Canada and those named in the First Nations Land Management Act. These groups may still find themselves in the legal limbo that caused so much difficulty before the enactment of the FHRA or they may be subject to provincial laws that do not adequately address their needs and traditions.

Self-governing First Nations may find that their power to enact local family property laws already exists, independent of the FHRA. It may be that they simply have not acted on that power or that local laws have not been translated into a form that can be understood and applied by the courts. With the new federal law on people’s minds, this is a good time to engage your community in a discussion about how family and matrimonial property should be allocated in the event of a breakdown or death.

#2: The provisional rules may not play nicely with provincial family laws

Since many aspects of family law fall under provincial jurisdiction, rules can be different from province to province. A judge applying the FHRA provisional rules to a couple that has recently broken up or divorced will have to consider those rules in the context of the applicable provincial law, which may lead to confusion.

This concern is especially pronounced in Quebec, where the Civil Code of Quebec creates a very different regime for unmarried couples from that which is found in the rest of Canada.

For example, a couple in Quebec may opt for a civil union, which is a formal union governed by the Civil Code. The FHRA does not refer to civil union spouses at all. It may be that they would be considered “married” spouses for the purposes of the FHRA but, at this point in time, their status and rights under the Act are far from certain.

So-called “common-law” or “de facto” spouses pose another challenge, particularly in Quebec. The FHRA defines “common-law partners” as two people who have been cohabiting in a conjugal relationship for at least one year. For the purposes of the FHRA, this definition will apply across the country. Yet various provinces impose different requirements for a couple to be considered “common-law” and the Civil Code of Quebec does not recognize these unions at all. Under Quebec law, “de facto spouses” (Quebec’s rough equivalent to common-law spouses) are not entitled to a division of family property in the same way as married and civil union spouses.

Under the FHRA provisional rules, common-law spouses are subject to the same property-sharing regime as married spouses. However, issues not covered by the FHRA rules may be resolved by looking at the provincial law and that law may be based on very different principles. The result may lead to confusion and complicated legal proceedings rather than certainty and clarity for Indigenous families.

It is therefore important for a First Nation to consult a legal team that is familiar with family law in the province where its lands are located. These legal advisors can help craft a set of family property rules that are consistent with the legal reality faced by that First Nation and its members.

#3: The provisional rules don’t make allowances for extended families

The provisional rules focus on couples. They are clear about spouses’ rights in and to their home and matrimonial property. But what happens when their parents, grandparents, siblings, cousins, nieces or nephews also live in the home and contribute to the household’s assets? What are these family members’ rights when the couple separates or one partner dies?

For most First Nations, such extended-family living arrangements are the norm. Although these arrangements are desirable for many reasons, the provisional rules in the FHRA do not address them and are probably inadequate to resolve any difficulties that may arise.

Local family property rules that address these specific issues can be used to craft a much more workable solution for your community.

#4: The rights given to non-members may not always be realistic

The provisional rules provide extensive rights to individuals who are not members of the First Nation on whose territory the family property is located. As long as one of the spouses is an Indian (as defined by the Indian Act), then both of the spouses – whether status Indians, Band members, or none of the above – have certain entitlements under the new Act. These include the ability to remain in the home after separation or after the death of a spouse, exclusive occupation of the home in cases of violence, and allocation of a share of the family’s assets located on the reserve.

For many First Nations these rules will be reasonable, although it may be wise to refine them to suit local conditions. After all, the spouses of members often become valued members of the community who should not be deprived of their homes or property interests if the relationship breaks down or their partner dies.

Other First Nations simply don’t have the resources or space to provide housing and other property rights to non-members. For these communities, again, local family property rules can provide a much more realistic and workable solution.

#5: Community customs and values can’t be standardized

The “one size fits all” approach cannot accommodate the broad diversity of First Nation traditions and values in Canada. For example, one First Nation may recognize partnerships that do not fall within the categories recognized by the FHRA. Another may have its own traditions concerning the distribution of property upon separation or death. The FHRA recognizes that these First Nations have a fairly broad power to enshrine their culture and traditions within local family property laws adapted to their specific needs.

In order to be recognized by the courts, any First Nations law enacted in accordance with the FHRA must comply with that act and with the Constitution of Canada. For example, it must include a method for enforcing decisions that are made with respect to family property and it should not discriminate on the basis of certain personal characteristics, such as gender or sexual orientation. However, subject to such limitations, it is possible to draft a local family and matrimonial property law that recognizes local conditions and values and is a true exercise of the right to self-government.

Conclusion

The FHRA recognizes that First Nations have the right to regulate the division of family property in accordance with their own customs and values, an essential component of indigenous self-government. The provisional rules contained in the Act give many First Nations something to fill the gap while they engage in discussions about how to craft fair, modern and culturally appropriate rules for their individual communities.

The time is ripe for these discussions to take place, whether the provisional rules apply to a given community or not. The legal landscape is changing and First Nations have an opportunity to shape it in a way that makes sense for their culture, their families and their lives.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Indigenous Law