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Difference between revisions of "Indigenous Families"
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*'''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 this section 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 this section 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''. This act finally provided a process for dealing with family homes on a reserve. It applies: | |||
* during a relationship between "married spouses" or "common-law partners" (as the federal act refers to unmarried spouses), | |||
* after that relationship breaks down, or | |||
* when one of them dies. | |||
In December 2013, the Federal Government proclaimed a new law, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act''. This act finally | |||
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 a reserve. This part of the act has been in force since December 16, 2013. | 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 a reserve. This part of the act has been in force since December 16, 2013. | ||
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====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. | 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. | ||
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====Emergency protection orders==== | |||
While the act provides that ''designated'' judges have the power to make emergency protection orders, the Province of British Columbia has decided not to designate any judges under the act at this time. Currently, the only protection orders available are those made under section 183 of the ''[[Family Law Act]]'', which are available to people both on and off a reserve. See the chapter on [[Family Violence Overview|Family Violence]] for a discussion of protection orders and other laws to protect people at risk of domestic violence. | |||
====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 the reserve can stay in the home for a period of 180 days after the day | Paragraph 14 of the act provides that a spouse who does not hold a right or interest in the family home on the reserve can stay in the home for a period of 180 days after the day their spouse or common-law partner died. | ||
==Getting legal help== | ==Getting legal help== | ||
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===Links=== | ===Links=== | ||
* [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website | * [http://aboriginal.legalaid.bc.ca/ Legal Services Society's website for Aboriginal Legal Aid] | ||
* [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law] | * [https://www.clicklaw.bc.ca/global/search?so=r&f=Aboriginal Clicklaw Resources and Common Questions on Aboriginal Law] | ||
* [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information] | * [http://www.aadnc-aandc.gc.ca/eng/1100100031292/1100100031293 Nisga'a Final Agreement and Background Information] | ||