Indigenous Families: Difference between revisions
From Clicklaw Wikibooks
→Family property and family debt
Nate Russell (talk | contribs) No edit summary |
Rhaea Bailey (talk | contribs) |
||
| Line 76: | Line 76: | ||
Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. | Dividing property can be a bit of a problem for Aboriginal spouses when real property on reserve is involved. | ||
In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Act]'' gives the federal government exclusive authority over laws relating to First Nations | In a nutshell, the ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Act]'' gives the federal government exclusive authority over laws relating to First Nations property and reserve lands. This means the provincial governments cannot pass laws dealing with First Nations property or their lands. Accordingly, in British Columbia, the ''[[Family Law Act]]'' can't be used to divide an interest in real property on reserve lands. Making matters worse, people living on reserve generally don't own their property the way that off-reserve property can be owned. The only kind of ownership individuals on reserve lands can have is a Certificate of Possession that gives the owner the right to occupy the land but not the legal title to that land. | ||
If a treaty First Nation has negotiated the right to dispose of reserve lands, the rules are a bit different and the court may be able to make orders about real property on reserve lands under the '[[Family Law Act]]''. Section 210 of the ''[[Family Law Act]]'' says this: | |||
<blockquote><tt>(1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5, in which</tt></blockquote> | <blockquote><tt>(1) If provided for by the final agreement of a treaty first nation, the treaty first nation has standing in a proceeding under Part 5, in which</tt></blockquote> | ||
| Line 89: | Line 89: | ||
These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'': | These are the general rules about family property and the court's authority under the ''[[Family Law Act]]'': | ||
*'''Financial Assets:''' Cash, bank accounts, stocks, bonds and whatnot are called ''moveable property''. The court can deal with these sorts of assets. | *'''Financial Assets:''' Cash, bank accounts, stocks, bonds and whatnot are called ''moveable property''. The court can deal with these sorts of assets if they are not situated on reserve lands. | ||
*'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer of immovable property, but it can deal with other assets, like moveable property, to compensate a spouse for an interest in property which the court cannot deal with. | *'''Real Property:''' Property and structures on reserve lands are ''immovable property''. The court cannot order the transfer of immovable property, but it can deal with other assets, like moveable property, to compensate a spouse for an interest in property which the court cannot deal with. | ||
*'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value. | *'''Certificates of Possession:''' The court generally cannot deal with real property located on a reserve, however, the bulk of real property located within reserve lands is not "owned" the way a house off-reserve can be. People holding real property on reserve lands are generally only allowed to have and use the land by way of a Certificate of Possession. Since Certificates of Possession are dispensed under the authority of the federal government, the court cannot make an order for the transfer of the Certificate under the ''[[Family Law Act]]''. The spouse who has the Certificate will usually have to compensate the other spouse for their interest in the Certificate, providing that the Certificate can be shown to have a value. | ||
*'''Exclusive Use of Property:''' Section 90 of the ''[[Family Law Act]]'' allows someone to apply for an order giving them exclusive use of the family home, but does not apply to family homes located on reserve lands. | *'''Exclusive Use of Property:''' Section 90 of the ''[[Family Law Act]]'' allows someone to apply for an order giving them exclusive use of the family home, but does not apply to family homes located on reserve lands. | ||
''' | |||
'' | |||
'''''Family Homes on Reserves and Matrimonial Interests or Rights Act''''' | |||
'' | |||
In December 2013, the Federal Government proclaimed a new law, the Family Homes on Reserves and Matrimonial Interests or Rights Act (the “Act”).This Act, finally provides a process for dealing with family homes on reserve, during a relationship between married spouses or common-law partners, after that relationship breaks down or when a spouse or partner dies. | |||
The Act is divided into two parts. The first part of the Act provides a mechanism for First Nations to enact laws respecting homes on reserve. This part of the Act has been in force since December 16, 2013. | |||
The second part of the Act came into force a year later on December 16, 2014, and provides rules to deal with homes on reserve until such time as a First Nation opts to enact its own laws to deal with homes on reserve. | |||
Generally, this law applies to married couples and common-law spouse living on reserve, where at least one of them is a First Nation band member or First Nation person entitled to be band member or status Indian whose First Nation has not opted to take over responsibility for the management and control of their reserve lands and resources under the First Nations Land Management Act or manage their lands pursuant to a self-government agreement. | |||
'''Division of the Value and Interests or Rights to the Family Home''' | |||
The Act sets out that spouses or common-law partners are entitled to one half of the value of the interest or right that either of them holds in the family home in the event of relationship breakdown or death of one of the spouses. | |||
Sections 28 and 34 of the Act outline the details on how value of the family home is to be determined. It takes into consideration the appreciation in value that may have occurred during the relationship, contributions made by each spouse and any debts or liabilities; and is typically based on the amount that a buyer would reasonably be expected to pay for comparable interests. | |||
'''Emergency Protection Orders''' | |||
While the Act provides that designated judges have the power to make emergency protection orders, the Province has decided it will not designate judges to make emergency protection orders under the Act at this time. Currently, the only protection orders available are those made under section 183 of the Family Law Act, which remain available both on and off reserve. | |||
''' | |||
'''Death of a Spouse or Common Law Partner''' | |||
Paragraph 14 of the Act provides that a spouse who does not hold a right or interest in the family home on reserve can stay in the home for a period of 180 days after the day on which the death of their spouse or common law partner occurs. | |||
==Getting legal help== | ==Getting legal help== | ||
