From Derrickson to the Family Homes on Reserves and Matrimonial Interests or Rights Act: Understanding the Law as it Relates to Family Property on Reserve in Canada

Derrickson v. Derrickson (1986)

What was this case about?

In Derrickson, for the first time, the Supreme Court of Canada discussed how provincial matrimonial property laws apply to First Nation people living on reserve. 

In this case, a husband and wife, who were both First Nations, were separating. At separation, the wife applied to receive half of the interest in the lands that her husband possessed through a Certificate of Possession. She applied for this division under the British Columbia Family Relations Act. 

Certificates of Possession are issued by band council with approval of the Minister of Indian Affairs. It gives a First Nations person the right to possess and use land on reserve while the Crown continues to actually own the land. 

What did the court decide? 

The Supreme Court of Canada decided, through analyzing Canada’s Constitution, that provincial matrimonial property laws do not apply on reserve. So, the wife could not be granted an interest in her husband’s lands held under his Certificate of Possession. This was because the provincial laws around matrimonial property came into conflict with the Indian Act, which gives the federal government the right to hold reserve land for the “use and benefit” of First Nations people. Because of this conflict, the Supreme Court of Canada said that provincial laws could not apply on reserves, or it would intrude on this federal right.

However, the Supreme Court of Canada decided that a partner could apply under provincial law for compensation for the value of their ex-partner’s Certificate of Possession land, as this does not intrude on the federal government’s interest in reserve land.

What were some criticisms of this decision?

Firstly, the Supreme Court of Canada was criticized for only focusing on the financial aspects of property without recognizing the Indigenous importance of a spiritual connection to the land. 

This decision was also seen as having a disproportionate impact on Indigenous women.  The Crown’s practice was to issue Certificates of Possession almost exclusively to men, which did not take into account the Indigenous tradition of women having control over family assets. So, when a relationship broke down, it was likely that the woman would have no interest in reserve property and would have to move outside of the community. 

This decision was especially problematic in domestic violence cases. Even where an Emergency Protection Order was issued, a court could not grant the woman the right to live in the family home exclusively if she did not hold a Certificate of Possession to the land, which she usually did not. So, the abused woman would be the one forced to move out of the family home, usually off reserve, to get away from the violence.

Solely categorizing this issue as a constitutional one failed to recognize the Indigenous perspective, as well as the social and political aspects of this conflict, which had real, detrimental effects on the lives of Indigenous women.

 What did this decision lead to?

The criticisms of the Derrickson decision, as well as a pushback from Indigenous groups and law reform advocates, eventually led to the enactment of the Family Homes on Reserves and Matrimonial Interests or Rights Act, although not until 27 years later.

Family Homes on Reserves and Matrimonial Interests or Rights Act (2013)

Who does the Act apply to?

The Act applies to couples who live on reserve if at least one of them is a member of a First Nation band or a Status Indian under the Indian Act. It applies equally to common-law partners and married spouses. 

The Act is based on common elements of provincial matrimonial property laws, but also deals with issues specific to reserve lands, such as the collective importance of land and the inability to privately sell reserve land under the Indian Act. Any application can be brought to provincial superior courts, like the Nova Scotia Supreme Court – Family Division. Partners may also come to their own agreements on how to deal with these issues, which the court can enforce.

Who can live in the family home?

The Act gives the right for each partner to live in the family home on reserve during the relationship whether they are First Nation or not.

The Act states that if both partners are from the reserve where the home is located, but the Certificate of Possession is only in one partner’s name, the court can add the other’s name to the Certificate of Possession.

The Act also states that consent from the other partner is necessary if the partner holding the Certificate of Possession wishes to transfer or get rid of their interest in the home. 

Who can stay in the family home after a break-up?

On separation, each partner, whether they are First Nation or not, may apply to the court for an Exclusive Occupation Order, giving them the right to stay in the family home, either temporarily or more permanently depending on the circumstances. 

The court must consider various things, such as the best interests of their children, the length of time each partner has lived on reserve, the availability of other suitable accommodation on reserve, and any family violence, when making a decision on an Exclusive Occupation Order.

What if there was domestic violence?

Either partner, whether First Nation or not, may apply to the court for an Emergency Protection Order of up to 90 days. It will be granted if the partner can prove that violence occurred, and that the situation was so serious or urgent that immediate protection is required to prevent more harm. In situations where the court is satisfied that violence has occurred, they can grant an Exclusive Occupation Order of the family home to the spouse in danger, whether they are a First Nations member or not and whether they hold a Certificate of Possession to the land or not.

How is property divided?

A partner, whether First Nation or not, is entitled to half of the value of the interest in the family home and other matrimonial assets that either partner obtained during the relationship. The value of the interest in the family home and other assets is based on what a buyer would reasonably pay a seller for the home or the asset.

  The Act allows for transferring the interest in the family home to the partner who does not hold the Certificate of Possession if both are members of the First Nation reserve. If one is not a member, then they are only entitled to half of the value of the home and not a transfer of interest.

If the couple was leasing the property, then whoever is granted exclusive occupation will be bound by the lease and responsible for the rent.

What happens if one partner/spouse dies?

If one partner dies and the surviving partner is a member of the First Nation reserve, they can apply to transfer the Certificate of Possession into their name.  If they are not a member, they can apply to receive the value of their interest in the home and other assets (unless the deceased’s will says differently).

If they do not have a Certificate of Possession, the surviving partner can live in the home for up to 180 days after their partner’s death and can also apply to the court to extend that period.  

Right to Enact Band’s Own Laws (sections 7-11 of the Act)

The Act gives the power to First Nation bands to enact their own laws regarding the use, occupation, possession, and division of property for family homes on reserves.  

When a band wants to enact its own laws, they must notify the Attorney General of the province, and then receive approval from the majority of band members through a vote. 25% of members must participate in the vote for it to be legitimate. If the proposed laws pass the vote, then the band must send a copy of them to the Minister and Attorney General.

In Nova Scotia, Pictou Landing First Nation, Sipekne’katik First Nation, Millbrook First Nation, Bear River First Nation, Paqtnkek Mi’kmaw Nation, and Membertou First Nation have all enacted their own matrimonial property laws, which are available on their respective band websites. A review of these band’s laws shows that band-enacted legislation is quite similar to the Act, but there are noticeable differences.

Pictou Landing First Nation’s laws are quite similar to other band-enacted legislation in Nova Scotia. Below are examples of some differences found in Pictou Landing’s legislation:

• Encourages separating couples to enter into a domestic agreement to divide property and interests. 

• Makes clearer distinctions between band-owned and non-band-owned homes.

• Prioritizes the right of a child (who is a band member) to occupy the family home over the right of any spouse or partner to occupy the family home. 

• Distinguishes that if only one partner is a band member, then they will receive exclusive occupation of the family home, while if both are band members, the court will look at factors similar to those in the Act to determine who will live in the home. 

• Recommends that if disputes arise, the couple should first make reasonable attempts to resolve them through the use of a mediator in a process sensitive to the traditions, customs, and practices of the band before taking those disagreements to court.

Sources

Centre of Excellence for Matrimonial Real Property, “Matrimonial Real Property (MRP) Toolkit” (2017)

Derrickson v. Derrickson, [1986] 1 SCR 285

Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c. 20

Mary-Ellen Turpel, “Home/Land”(1991) 10 Can. J. Fam. L. at 30.

Pictou Landing First Nation Matrimonial Real Property Law (2014).