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Real property ownership and family homes on reserves

Region: Ontario Answer # 0658

The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.

Ownership of real property on reserves

Under the Indian Act, all land on reserves is owned by the Crown (Government of Canada), but it is given to the First Nation or the Band to hold as a community. In other words, Aboriginal title is a collective right of an Aboriginal group, which provides a beneficial interest in land.

This legal structure creates the issue of who is entitled to the communal property. Bands have different ways of dividing reserve property. Most often, a certificate – called a certificate of possession, or a certificate of occupation – is given to create the ownership of the property. It is important to note however, that Aboriginal title is not the same as fee simple ownership, which is complete ownership with no limitations or restrictions. Aboriginal title is unique and comes with limitations and conditions.

The person who holds the certificate will have the right to occupy the land, but will not have the right to sell, transfer or mortgage it, unless sold or transferred to the Crown. 

Property rights on reserves, under the Indian Act

The Indian Act is an important law because it deals with many aspects affecting property rights on reserves. It sets out many rules including:

  • Who qualifies as an Indian,
  • What land qualifies as a reserve,
  • The possession of land on reserves, and
  • What qualifies as a family home.

 

1.  Who qualifies for property rights under the Indian Act?

In order to have property rights on a reserve, a person must qualify under the definition of “Indian” and “member of a band” under the Indian Act:

Indian means a person who, under the Indian Act is registered as an Indian or is entitled to be registered as an Indian.

Member of a band means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List.

2.  What land is considered to be a reserve?

Under the Indian Act, a reserve means a tract of land, the legal title to which is vested in Her Majesty (the Government of Canada), that has been set apart by Her Majesty for the use and benefit of a band.

In addition, the Indian Act states that a band member may be legally in possession of the land if:

  • the land was allotted to him or her by the council of the band, and
  • the Minister approved the transaction.

3.  Possession of land on a reserve

If the land is legally given to a band member, a certificate of possession or a certificate of occupation will be granted. Possession or occupation of the land involves using the land for the purpose of building a house, constructing a business, or exploiting its resources. The certificate grants the person the right to lawfully use and occupy the land.

4.  Family home on a reserve

Across Canada, both on and off reserves, the law treats family homes differently than other types of real property. The Indian Act, and the Family Homes on Reserves and Matrimonial Interests or Rights Act are the two main laws that apply to family homes that are located on reserves.

What is considered a family home?

Under the Indian Act, the family home is:

“the structure habitually occupied during the conjugal relationship until the breakdown of that relationship or the death of one of the partners. Only the portion of the structure that is used for residential purposes is covered by the definition.”

A family home can be any type of structure, such as a house, apartment, condominium, trailer, and so on. If part of the building or structure is being used for a purpose other than residential living, such as running a convenience store, only the part of the structure used for residential purposes is considered to be a family home.

5.  Who is considered a spouse?

Under the Indian Act, the rules concerning the family home apply to both married couples, and couples who have been living together in a conjugal relationship for at least one year. If one of the partners has died, a survivor means their surviving spouse or common-law partner.

Matrimonial rights if the family home is on a reserve 

Rights under the Family Homes On Reserves And Matrimonial Interests Or Rights Act (‘Family Homes on Reserves Act’)

1.  When does the Family Homes on Reserves Act apply?

Canada’s Family Homes on Reserves and Matrimonial Interests or Rights Act (‘Family Homes on Reserves Act’) deals only with the use, occupation, or possession of family homes on reserves where the spouses or common-law partners live. The partners may be separated, but this Act can still apply up until the date the relationship ended. This Act is useful and important because it allows the First Nation the power to enact its own laws that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner. It deals with the division of the value of any interests or rights held by the spouses or partners in structures and lands on its reserves.

In order for the Family Homes on Reserves Act to apply to a couple they must:

  • meet the Indian Act definition as spouses or common-law partners;
  • the family home must meet the definition of a family home on reserve; and
  • at least one of the parties must be an “Indian” as defined in the Indian Act.

2.  What is an interest or right to reserve land?

An interest or right to reserve land includes interests or rights to possession, leases and permits under:

  • the Indian Act, such as a right to possession with or without a Certificate of Possession or a Certificate of Occupation;
  • any land code, First Nation law, or self-government agreement;
  • the First Nations Land Management Act, the Kanesatake Interim Land Base Governance Act;and
  • interests or rights to structures or permanent improvements on reserve land that have not been allotted under the Indian Act.

3.  What is a matrimonial interest or right?

Matrimonial interests or rights means interests or rights (not including the family home), held by one or both of the spouses or common-law partners that:

  • were acquired during the conjugal relationship;
  • were acquired before the conjugal relationship, but in specific contemplation (preparation) of the relationship; or
  • were acquired before the conjugal relationship but not in specific contemplation of the relationship and that appreciated during the relationship.

It does not include interests or rights that were received from a person as a gift, through a will or estate, or bought with money from any of those sources.

4.  Division of value of matrimonial interests or rights

Generally, upon the breakdown of a conjugal relationship, each of the spouses or partners is entitlement to a half share (1/2) in the interest or right to the family home.

First Nation spouse or partner entitlement

A spouse or common-law partner 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 held by the other spouse or common-law partner (who is also a member of that First Nation) is entitled to:

  • one-half of the value of the structures or lands on the reserve that were acquired by the other spouse or common-law partner either during the relationship, or before the relationship but in specific contemplation of the relationship;
  • the greater of either one-half of the appreciation in the value of certain other structures or lands held by the other spouse or common-law partner that are situated on the reserve or, the amount of any monetary contributions made by them to improvements to those structures or lands less any remaining outstanding debt for those contributions; and
  • where certain other structures or lands held by the other spouse or common-law partner that are situated on the reserve did not appreciate in value, the amount of any monetary contributions they may have made to them less any remaining outstanding debt for those contributions.

Interests or rights that were received as a gift or under a will or from an estate, or through inheritance, and interests or rights that can be traced to those interests or rights are excluded.

Not a First Nation member spouse or partner entitlement

A spouse or common-law partner 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 held by the other spouse or common-law partner (who is a member of that First Nation) is entitled to:

  • one-half of the value of the structures that are situated on the reserve, that were acquired by the other spouse or common-law partner either during the relationship, or before the relationship but in specific contemplation of the relationship;
  • the greater of either one-half of the appreciation in the value of certain other structures held by the other spouse or common-law partner that are situated on the reserve or, the amount of any monetary contributions made by them to improvements to those structures less any remaining outstanding debt for those contributions; and
  • the difference between the amount of any monetary contributions to certain lands or structures held by the other spouse or common-law partner and any remaining outstanding debt for those contributions.

Non-member spouses and common-law partners cannot benefit from the value or appreciation of land situated on reserve as such land is set aside for the use and benefit of Indians. The exception is to the extent that they have directly contributed to improvements to that land. Interests or rights that were received under a will or from an estate, or through inheritance, and interests or rights that can be traced to those interests or rights are excluded.

Method of valuation

The value to be divided between spouses or common-law partners would be the difference between what a buyer would be reasonably expected to pay for similar interests and any debts related to the interest or rights. However, spouses or common-law partners can choose another method of valuation if they can agree.

Valuation date

The valuation date is the date on which the value of matrimonial interests and rights is fixed for the purpose of calculating their value. Under the Family Homes on Reserves Act, the valuation date can be the earliest of a number of possible dates, The Court will consider the specific facts of each situation in determining which of the possible valuation dates will apply.

 Valuation date for married spouses is the earliest of the following:

  • the day on which the spouses separated with no reasonable prospect of reconciliation,
  • the day a divorce was rendered,
  • the day on which the marriage was declared a nullity, or
  • the day in which there was no relationship anymore.

Valuation date for common-law couples is the earliest of the following:

  • the day on which one of the common-law partners had the intention not to continue the conjugal relationship, or
  • the day a common-law partner made any application relating to the breakdown of the relationship.

5.  Transfer of interests or rights  

During a conjugal relationship

The family home cannot be sold or otherwise disposed of or encumbered during the conjugal relationship without the free and informed written consent of the other spouse or common-law partner, regardless of whether that spouse or common-law partner is a First Nation member. The provisions of the Indian Act regarding transfer of the right or interest will continue to apply even where the spouse or common-law partner consents to the transaction.

Upon breakdown of a conjugal relationship

If a conjugal relationship breaks down, a court can order that an interest in, or right to a structure or land on a reserve be transferred.

The Family Homes on Reserves Act also allows the Court to grant an order to protect and preserve:

  • the value of the family home, or
  • any matrimonial interests or rights.

This allows a court to protect the interest of the spouse or common-law partner, if the other spouse or common-law partner intends to deliberately lessen the value of the family home or matrimonial interests or rights.

Emergency Protection, Occupation, and Possession Orders under the Family Homes on Reserves Act 

The Family Homes on Reserves Act is the most recent law dealing with family homes on reserves. It is not intended to change the current laws concerning land on reserves. This means that it does not change the title of the lands affected or change the status of reserve lands to which the Family Homes on Reserves Act applies.

However, the Family Homes on Reserves Act is important because it allows spouses and common-law partners to enforce their matrimonial rights or interest in ways that are not dealt with in other Acts. Examples of rights or interests include the right to:

  • possession,
  • a permit under s. 28(2) of the Indian Act, or
  • a lease under s. 53 or 58 of the Indian Act .

In certain circumstances, a spouse or common-law partner can make an application for one of the following orders:

  • Emergency Protection Order – used in cases of violence
  • Occupation Order
  • Exclusive Occupation Order
  • Order after Death – used in cases of death and survivorship

It is important to keep in mind that a grant of exclusive occupation or other similar order does not affect the underlying interest in or right to the family home. Orders for exclusive occupation focus only on who may or may not inhabit the family home and do not transfer the interests or rights in the land. This is particularly important in the reserve context where only a member of the First Nation on whose reserve the family home is located can hold a right to the family home.

1. Emergency Protection Order

An Emergency Protection Order is used in circumstances of family violence. This includes abuse against a spouse or partner, abuse against children, and/or abuse of property. This type of order is unique because it deals with emergency situations. Victims of abuse can make an application for an Emergency Protection Order to a designated judge of the province where the family home is located. Because the situation is serious and usually urgent, this type of application can be made by one of the spouses or partners without notifying the other spouse or partner.

In addition, even if a spouse or common-law partner left the family home because of family violence, he or she can still apply for an emergency order for temporary exclusive occupation of the family home.

An emergency order can be made for up-to 90 days. However, the Court may, by order, confirm, vary or revoke the order, and may extend the duration of the order beyond 90 days.

A designated judge may grant an Emergency Protection Order if he or she finds that:

  • family violence has occurred, and
  • there is a serious or urgent situation that requires an immediate response to protect a person from the risk of harm, or property from the risk of damage.

Family violence is any act or omissions committed by a spouse or common-law partner against:

  • the other spouse or common-law partner,
  • any child in the care and control of either person,
  • any other person who usually resides in the family home, or
  • any damage done to property.

Examples of abuse include sexual assault, sexual abuse, threats, or criminal harassment. This order can be kept private if it the applicant wishes to do so, to allow for privacy of the victims of abuse.

If an emergency order is granted, notice of the order must be given to the other spouse, common-law partner, or other person specified by the judge. Because of the nature of the situation, and in order to minimize the risk of further violence, a peace officer will be the one to deliver a copy of the order, and after which to tell the applicant that the order was served. The person against whom the order is made is bound by the order as soon as they receive notice of it.

An emergency order can include many conditions, such as:

  • the applicant has exclusive occupation of the family home and reasonable access to that home;
  • having the applicant’s spouse or common-law partner (and any other person, specified by the judge, who usually lives in the family home) vacate the family home immediately, or within a certain time-period set by the judge; and prohibit them from re-entering the home. Whether the spouse, partner or other person named by the judge is a First Nation member or Indian doesn’t matter;
  • a condition directing a peace officer to remove the applicant’s spouse or common-law partner (and any other person, specified by the judge, who usually lives in the family home) — whether or not they are First Nation members or Indians — from the family home;
  • a provision prohibiting any person who is required to vacate the family home under an emergency order from being near the family home;
  • a condition directing a peace officer, within a specified period, to accompany the applicant’s spouse or common-law partner (or any other person specified by the judge) to the family home, or other location, in order to supervise the removal of their personal belongings; and
  • any other condition that the judge considers necessary for the immediate protection of the person who is at risk of harm, or for the protection of property that is at risk of damage.

In making an emergency order for exclusive possession, the judge must consider many things, including:

  • how long the violence has occurred;
  • what kind of acts have been committed;
  • whether there is an actual need for an emergency order to be made, such as a reasonable and prominent fear of further abuse;
  • the best interests of any child in the care and control of either spouse or common-law partner, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;
  • the interests of any elderly person or person with a disability who usually lives in the family home and for whom either spouse or common-law partner is the caregiver;
  • the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home;
  • the period during which the applicant has usually resided on the reserve; and
  • the existence of exceptional circumstances that makes it necessary to remove a person other than the applicant’s spouse or common-law partner from the family home in order to give the applicant exclusive occupation of that home.

Peace officer can act on behalf of applicant

It is important to note that a peace officer can act on behalf of the applicant. This means that a peace officer can bring the application for an Emergency Protection Order on behalf of the spouse or common-law partner with that person’s consent. If that person does not consent, the peace officer can get permission from the judge to make the application. In addition, a court or judge may determine that family violence has occurred regardless of whether or not the police have laid charges or a court has determined whether the acts or omissions constituted criminal offences.

2.  Occupation Order

Occupation Orders allows the spouse or partner who made the application to use and occupy the family home and/or land.

During a conjugal relationship, each spouse or common-law partner may occupy the family home, regardless of whether that person is a First Nation member or an Indian.

Automatic right of occupation upon the death of a spouse or common-law partner: A survivor spouse or partner, who does not hold an interest or right to the family home, may occupy that home for a period of 180 days after the day on which the death occurs, regardless of whether the survivor is a First Nation member or an Indian. This provision meets the unique needs identified for the reserve. It also provides an automatic right of occupation of the family home to a survivor where they have established a family home on reserve. This provision is not generally found in provincial and territorial family law legislation because of different ideas towards ownership of property off-reserve. 

3.  Exclusive Occupation Order

This type of order falls under the category of Occupation Orders, however it allows for one party to have exclusive occupation of the family home.

An application for an Exclusive Occupation Order would include a request for one spouse or common-law partner to temporarily have exclusive occupation of the family home for a specified period of time as part of the family law consequences of the breakdown of a marriage or common-law partnership. Unlike Emergency Protection Orders, family violence is not necessarily involved and the Court may determine the maximum time period. The Court may order that one spouse or common-law partner may have exclusive occupation of the family home for a specified period of time, regardless of whether that person is a First Nation member or an Indian.

In making an order for exclusive occupation, the Court must consider many things, including:

  • the best interests of any children who usually live in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;
  • the terms of any agreement between the spouses or common-law partners;
  • the collective interests of First Nation members in their reserve lands, and the representations made by the council of the First Nation on whose reserve the family home is situated with respect to the cultural, social and legal context that pertains to the application;
  • the period during which the applicant has usually lived on the reserve;
  • the financial situation, and the medical condition of the spouses or common-law partners;
  • the availability of other suitable accommodation that is located on the reserve;
  • any existing order made on a matter related to the consequences of the breakdown of the conjugal relationship;
  • any family violence;
  • any psychological abuse against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other family member who usually lives in the family home;
  • the existence of exceptional circumstances that make if necessary to remove a person, other than the applicant’s spouse or common-law partner, from the family home in order to give effect to the granting to the applicant of exclusive occupation of that home,
  • the interests of any elderly person or person with a disability who usually lives in the family home and for whom either a spouse or common-law partner is the caregiver;
  • the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home; and
  • the views of any person who received a copy of the application, presented to the court in any form that The court allows.

An order made under this section may contain provisions such as:

  • The requirement of one party to leave the family home (whether they are First Nation or not does not matter), immediately or within a specified period, and prohibiting them from re-entering the home;
  • a provision requiring the applicant’s spouse or common-law partner to preserve the condition of the family home until that person vacates it;
  • a provision directing the applicant to make payments to the other spouse or common-law partner toward the cost of other accommodation; and
  • a provision requiring either spouse or common-law partner to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of the family home, or to make payments to the other spouse or common-law partner for those purposes.

Getting an Exclusive Occupation Order may revoke any previous orders (such as an Emergency Protection Order).

4.  Order after death

On application by a survivor spouse or partner, a court may order that the survivor be granted exclusive occupation of the family home and reasonable access to that home, subject to any conditions and for the period that the Court specifies, regardless of whether the survivor is a First Nation member or an Indian. In deciding whether to make an order upon death of a spouse or partner, the Court will take into consideration the same things as mentioned in the Exclusive Occupation Order, as outlined above.

For more information, visit the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website. For further resources, check our Aboriginal Law links.


 

 



								

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