Family Homes on Reserves and Matrimonial Interests or Rights Act

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Sections386

• 1Short title

  This Act may be cited as the Family Homes on Reserves and Matrimonial Interests or Rights Act.

• 2Definitions
• 2(1)

  The following definitions apply in this Act.

• 2(1)[p3]

  council, in relation to a First Nation, has the same meaning as the expression council of the band in subsection 2(1) of the Indian Act. (conseil)

• 2(1)[p4]

  court, unless otherwise indicated, means, in respect of a province, the court referred to in any of paragraphs (a) to (e) of the definition court in subsection 2(1) of the Divorce Act. (tribunal)

• 2(1)[p5]

  designated judge, in respect of a province, means any of the following persons who are authorized by the lieutenant governor in council of the province to act as a designated judge for the purposes of this Act:

• 2(1)[p5](a)

  a justice of the peace appointed by the lieutenant governor in council of the province;

• 2(1)[p5](b)

  a judge of the court in the province; or

• 2(1)[p5](c)

  a judge of a court established under the laws of the province. (juge désigné)

• 2(1)[p9]

  family home means a structure — that need not be affixed but that must be situated on reserve land — where the spouses or common-law partners habitually reside or, if they have ceased to cohabit or one of them has died, where they habitually resided on the day on which they ceased to cohabit or the death occurred. If the structure is normally used for a purpose in addition to a residential purpose, this definition includes only the portion of the structure that may reasonably be regarded as necessary for the residential purpose. (foyer familial)

• 2(1)[p10]

  First Nation means a band as defined in subsection 2(1) of the Indian Act. (première nation)

• 2(1)[p11]

  First Nation member means a person whose name appears on the band list of a First Nation or who is entitled to have their name appear on that list. (membre de la première nation)

• 2(1)[p12]

  interest or right means

• 2(1)[p12](a)

  the following interests or rights referred to in the Indian Act:

• 2(1)[p12](a)(i)

  a right to possession, with or without a Certificate of Possession or a Certificate of Occupation, allotted in accordance with section 20 of that Act,

• 2(1)[p12](a)(ii)

  a permit referred to in subsection 28(2) of that Act, and

• 2(1)[p12](a)(iii)

  a lease under section 53 or 58 of that Act;

• 2(1)[p12](b)

  an interest or right in or to reserve land that is subject to any First Nation law as defined in subsection 2(1) of the Framework Agreement on First Nation Land Management Act or to any land code within the meaning of subsection 2(2) of that Act, to any First Nation law enacted under a self-government agreement to which Her Majesty in right of Canada is a party, or to any land governance code adopted, or any Kanesatake Mohawk law enacted, under the Kanesatake Interim Land Base Governance Act; and

• 2(1)[p12](c)

  an interest or right in or to a structure — that need not be affixed but that must be situated on reserve land that is not the object of an interest or right referred to in paragraph (a) — which interest or right is recognized by the First Nation on whose reserve the structure is situated or by a court order made under section 48. (droit ou intérêt)

• 2(1)[p19]

  matrimonial interests or rights means interests or rights, other than interests or rights in or to the family home, held by at least one of the spouses or common-law partners It excludes interests or rights that were received from a person as a gift or legacy or on devise or descent, and interests or rights that can be traced to those interests or rights. (droits ou intérêts matrimoniaux)

• 2(1)[p19](a)

  that were acquired during the conjugal relationship;

• 2(1)[p19](b)

  that were acquired before the conjugal relationship but in specific contemplation of the relationship; or

• 2(1)[p19](c)

  that were acquired before the conjugal relationship but not in specific contemplation of the relationship and that appreciated during the relationship.

• 2(1)[p23]

  Minister means the Minister of Indigenous Services. (ministre)

• 2(1)[p24]

  peace officer means a person referred to in paragraph (c) of the definition peace officer in section 2 of the Criminal Code. (agent de la paix)

• 2(1)[p25]

  spouse includes either of two persons who have entered in good faith into a marriage that is voidable or void. (époux)

• 2(2)Words and expressions

  Unless the context otherwise requires, words and expressions used in this Act have the same meaning as in the Indian Act.

• 2(3)Agreement between spouses or common-law partners

  For greater certainty, for the purposes of this Act, an agreement between spouses or common-law partners includes an agreement reached through the use of traditional dispute resolution.

• 2(4)Former spouse or common-law partner

  For the purposes of the definition matrimonial interests or rights in subsection (1), subsection (3), section 6, subsections 15(2), (4) and (5) and sections 16, 20, 26, 28 to 33, 43, 45, 48, 49 and 54, a spouse or common-law partner includes a former spouse or common-law partner.

• 2(5)Term not restrictive

  The use of the term application to describe a proceeding in a court under this Act must not be construed as limiting the name under which and the form and manner in which that proceeding may be taken in that court, and the name, manner and form of the proceeding in that court are those that are provided for by the rules regulating the practice and procedure in that court.

• 2(6)Kanesatake

  For the purposes of this Act, a reference to a reserve is also a reference to the Kanesatake Mohawk interim land base as defined in subsection 2(1) of the Kanesatake Interim Land Base Governance Act.

• 3Binding on Her Majesty

  This Act is binding on Her Majesty in right of Canada or a province.

• 4Purpose

  The purpose of this Act is to provide for the enactment of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.

• 5Title to First Nation land

  For greater certainty,

• 5(a)

  title to reserve lands is not affected by this Act;

• 5(b)

  reserve lands continue to be set apart for the use and benefit of the First Nation for which they were set apart; and

• 5(c)

  reserve lands continue to be lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.

• 6Spouses or common-law partners

  This Act applies to spouses or common-law partners only if at least one of them is a First Nation member or an Indian.

• 7Power to enact First Nation laws
• 7(1)

  A First Nation has the power to enact First Nation laws that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on its reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on its reserves.

• 7(2)Contents

  The laws must include procedures for amending and repealing them and may include

• 7(2)(a)

  provisions for administering them; and

• 7(2)(b)

  despite subsection 89(1) of the Indian Act, provisions for enforcing, on a reserve of the First Nation, an order of a court that includes one or more provisions made under the laws or a decision made or an agreement reached under the laws.

• 7(3)Notice to provincial Attorney General

  When a First Nation intends to enact laws, the council must so notify the Attorney General of any province in which a reserve of the First Nation is situated.

• 7(4)Non-application of Statutory Instruments Act

  The Statutory Instruments Act does not apply in respect of the laws.

• 8Submission to members
• 8(1)

  If a First Nation intends to enact First Nation laws under section 7, the council of the First Nation must submit the proposed First Nation laws to the First Nation members for their approval.

• 8(2)Eligibility to vote

  Every person who is 18 years of age or over and a member of the First Nation, whether or not resident on a reserve of the First Nation, is eligible to vote in the community approval process.

• 8(3)Information to be provided

  The council must, before proceeding to obtain community approval, take reasonable measures that are in accordance with the First Nation’s practices to locate voters and inform them of their right to vote, the means of exercising that right and the content of the proposed laws.

• 8(4)Publication of notice

  The council must publish a notice of the date, time and place of a vote.

• 9Approval by members
• 9(1)

  The proposed First Nation laws that have been submitted for community approval are approved if a majority of those who participated in the vote voted to approve them.

• 9(2)Minimum participation

  Despite subsection (1), the proposed laws are not approved unless at least 25 per cent of the eligible voters participated in the vote.

• 9(3)Increased percentage

  A council may, by resolution, increase the percentage of eligible voters required under subsection (2).

• 10Approved laws

  When a First Nation approves the proposed First Nation laws, its council must, without delay after the vote, inform the Minister in writing of the result of the vote and send a copy of the approved laws to the Minister, the organization designated by the Minister, if any, and the Attorney General of any province in which a reserve of the First Nation is situated.

• 11Force of law and judicial notice
• 11(1)

  The First Nation laws come into force and have the force of law on the day on which they are approved or on any later day that may be specified in or under them and judicial notice must from then on be taken of the laws in any proceedings.

• 11(2)Evidence of laws

  In the absence of evidence to the contrary, a copy of the First Nation laws appearing to be certified as a true copy by an officer of the First Nation is proof of the original without proof of the officer’s signature or official character.

• 11(3)Access to First Nation laws

  A copy of the First Nation laws, as amended from time to time, must be maintained by the council for public inspection at locations designated by the council.

• 11(4)Notice of amendments

  If a First Nation amends its laws, the council must, without delay, send a copy of the amended laws to the Minister, the organization designated by the Minister, if any, and the Attorney General of any province in which a reserve of the First Nation is situated.

• 11(5)Notice on repeal

  If a First Nation repeals its laws, the council must, without delay and in writing, notify the Minister, the organization designated by the Minister, if any, and the Attorney General of any province in which a reserve of the First Nation is situated.

• 11(6)List

  The Minister must maintain a list of First Nations whose laws are in force and must publish in any manner that the Minister considers appropriate the list and any amendments to the list.

• 12First Nations with reserve lands
• 12(1)

  Sections 13 to 52 only apply to a First Nation that has reserve lands and that is not referred to in subsection (2) or (3) if the First Nation laws that it enacts under section 7 are not in force.

• 12(2)Framework Agreement on First Nation Land Management Act

  Sections 13 to 52 apply to a First Nation, within the meaning of subsection 2(2) of the Framework Agreement on First Nation Land Management Act, only if

• 12(2)(a)

  on the day on which this subsection comes into force, the land code that the First Nation adopts under the Framework Agreement, as defined in subsection 2(1) of that Act, is not in force; and

• 12(2)(b)

  the First Nation laws that it enacts under section 7 of this Act or subclause 18.3 of that Framework Agreement are not in force.

• 12(3)Self-governing First Nations that retain reserve land

  Sections 13 to 52 only apply to a First Nation that has the power to manage its reserve land under a self-government agreement into which the First Nation has entered and to which Her Majesty in right of Canada is a party if

• 12(3)(a)

  on the recommendation of the parties to the agreement, the Minister makes a declaration, by order, that those sections apply to the First Nation; and

• 12(3)(b)

  the First Nation laws referred to in section 7 that it enacts under that section or under the self-government agreement are not in force.

• 12(4)Declaration

  In the declaration referred to in paragraph (3)(a), the Minister must specify that sections 13 to 52 apply to the First Nation until the First Nation laws referred to in section 7 that it enacts under that section or under the self-government agreement come into force.

• 12(5)List

  The Minister must maintain a list of First Nations in respect of which the Minister has made a declaration and must publish in any manner that the Minister considers appropriate the list and any amendments to the list.

• 12(6)Notice on coming into force

  If a First Nation in respect of which the Minister has made a declaration enacts the First Nation laws referred to in section 7 under that section or under the self-government agreement, and those laws come into force, the First Nation must notify the Minister in writing without delay.

• 13During conjugal relationship

  Each spouse or common-law partner may occupy the family home during the conjugal relationship, whether or not that person is a First Nation member or an Indian.

• 14After death

  When a spouse or common-law partner dies, a survivor who does not hold an interest or right in or to the family home may occupy that home for a period of 180 days after the day on which the death occurs, whether or not the survivor is a First Nation member or an Indian.

• 15Consent of spouse or common-law partner
• 15(1)

  Subject to the Indian Act, a spouse or common-law partner who holds an interest or right in or to the family home must not dispose of or encumber that interest or right during the conjugal relationship without the free and informed consent in writing of the other spouse or common-law partner, whether or not that person is a First Nation member or an Indian.

• 15(2)Setting aside

  If a spouse or common-law partner disposes of or encumbers their interest or right in or to the family home without the required consent of the other spouse or common-law partner, a court may, on application by the other spouse or common-law partner, by order, set aside the transaction and impose conditions on any future disposition or encumbrance of that interest or right by the spouse or common-law partner to whom the interest or right reverts.

• 15(3)Exception

  However, the disposition or encumbrance may not be set aside if the other contracting party acquired it for value and acted in good faith.

• 15(4)Damages

  A spouse or common-law partner who has not given consent to a transaction for which it was required may, without prejudice to any other right, claim damages from the other spouse or common-law partner.

• 15(5)Proof of consent

  The spouse or common-law partner who disposed of or encumbered the interest or right in or to the family home has the burden of proving that the other spouse or common-law partner consented to the disposition or encumbrance.

• 15(6)Authorization

  Subject to the Indian Act, a court may, on application by the spouse or common-law partner who holds an interest or right in or to the family home, by order, authorize that person, subject to any conditions that the court considers appropriate, to dispose of or encumber that interest or right without the required consent of the other spouse or common-law partner if the court is satisfied that the other spouse or common-law partner cannot be found, is not capable of consenting or is unreasonably withholding consent.

• 16Order of designated judge
• 16(1)

  On ex parte application by a spouse or common-law partner, a designated judge of the province in which the family home is situated may make an order for a period of up to 90 days that contains one or more of the provisions referred to in subsection (5) and that is subject to any conditions that the judge specifies, if the judge is satisfied that

• 16(1)(a)

  family violence has occurred; and

• 16(1)(b)

  the order should be made without delay, because of the seriousness or urgency of the situation, to ensure the immediate protection of the person who is at risk of harm or property that is at risk of damage.

• 16(2)Applicant

  The spouse or common-law partner may make the application even if that person has been forced to vacate the family home as a result of family violence.

• 16(3)Acting on behalf of applicant

  A peace officer or other person may also make the application on behalf of the spouse or common-law partner with that person’s consent, or if that person does not consent, with leave of the designated judge granted in accordance with the regulations.

• 16(4)Considerations

  In making the order, the designated judge must consider, among other things,

• 16(4)(a)

  the history and nature of the family violence;

• 16(4)(b)

  the existence of immediate danger to the person who is at risk of harm or property that is at risk of damage;

• 16(4)(c)

  the best interests of any child in the charge 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;

• 16(4)(d)

  the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;

• 16(4)(e)

  the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home;

• 16(4)(f)

  the period during which the applicant has habitually resided on the reserve; and

• 16(4)(g)

  the existence of exceptional circumstances that necessitate the removal of 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, including the fact that the person has committed acts or omissions referred to in subsection (9) against the applicant, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home.

• 16(5)Content of order

  The order may contain

• 16(5)(a)

  a provision granting the applicant exclusive occupation of the family home and reasonable access to that home;

• 16(5)(b)

  a provision requiring the applicant’s spouse or common-law partner and any specified person who habitually resides in the family home — whether or not they are First Nation members or Indians — to vacate the family home, immediately or within a specified period, and prohibiting them from re-entering the home;

• 16(5)(c)

  a provision directing a peace officer, immediately or within a specified period, to remove the applicant’s spouse or common-law partner and any specified person who habitually resides in the family home — whether or not they are First Nation members or Indians — from the family home;

• 16(5)(d)

  a provision prohibiting any person who is required to vacate the family home under a provision referred to in paragraph (b) from attending near the family home;

• 16(5)(e)

  a provision directing a peace officer, within a specified period, to accompany the applicant’s spouse or common-law partner or any specified person to the family home or other location in order to supervise the removal of personal belongings; and

• 16(5)(f)

  any other provision that the designated judge considers necessary for the immediate protection of the person who is at risk of harm or property that is at risk of damage.

• 16(6)Notice of order

  Any person against whom the order is made and any person specified in the order are bound by the order on receiving notice of it.

• 16(7)Service by peace officer

  A peace officer must serve a copy of the order on the persons referred to in subsection (6) either directly or, if authorized by the court in the province in which the designated judge has jurisdiction, by substituted service in the manner, under the circumstances and on the conditions prescribed by regulation. The peace officer must inform the applicant as soon as each service is effected.

• 16(8)No personal liability

  An action or other proceeding must not be instituted against a peace officer for any act or omission done in good faith in the execution or intended execution of the peace officer’s duties under this section.

• 16(9)Definition of family violence

  For the purposes of this section, family violence means any of the following acts or omissions committed by a spouse or common-law partner against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home:

• 16(9)(a)

  an intentional application of force without lawful authority or consent, excluding any act committed in self-defence;

• 16(9)(b)

  an intentional or reckless act or omission that causes bodily harm or damage to property;

• 16(9)(c)

  an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;

• 16(9)(d)

  sexual assault, sexual abuse or the threat of either;

• 16(9)(e)

  forcible confinement without lawful authority; or

• 16(9)(f)

  criminal harassment.

• 17Order sent to court for review
• 17(1)

  Immediately after making an order under section 16, a designated judge referred to in paragraph (a) or (c) of the definition designated judge in subsection 2(1) must forward a copy of the order and all supporting materials to the court in the province in which the designated judge has jurisdiction.

• 17(2)Review by court

  The court must review the order within three working days after the day on which it is received or, if a judge is not available within that period, as soon as one becomes available.

• 17(3)Decision

  The court, on reviewing the order and the materials, must, by order,

• 17(3)(a)

  confirm the order if the court is satisfied that there was sufficient evidence before the designated judge to support the making of the order; or

• 17(3)(b)

  direct a rehearing of the matter by the court if the court is not satisfied that the evidence before the designated judge was sufficient to support the making of all or part of the order.

• 17(4)Notice

  The court must give notice to the parties and any person specified in the order made by the designated judge of its decision and of any consequent procedures.

• 17(5)Confirmed order

  An order that is confirmed is deemed to be an order of the court.

• 17(6)Rehearing — order continues

  If the court directs that a matter be reheard, the order continues in effect and is not stayed unless the court orders otherwise.

• 17(7)Evidence at rehearing

  The materials referred to in subsection (1) must be considered as evidence at the rehearing, in addition to any evidence presented at the rehearing, including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands.

• 17(8)Order on rehearing

  On a rehearing, the court may, by order, confirm, vary or revoke the order made under section 16, and may extend the duration of the order beyond the period of 90 days referred to in subsection 16(1).

• 17(9)Section 18 application

  If an application is made under section 18 and a rehearing has been ordered but has not begun, that application must be heard at the rehearing.

• 18Application to vary or revoke order
• 18(1)

  Any person in whose favour or against whom an order is made under section 16 or 17 or any person specified in the order may apply to the court in the province in which the designated judge has jurisdiction to have the order varied or revoked

• 18(1)(a)

  within 21 days after the day on which notice of the order made under section 16 is received, or within any further time that the court allows; and

• 18(1)(b)

  at any time if there has been a material change in circumstances.

• 18(2)Confirm, vary or revoke order

  The court may, by order, confirm, vary or revoke the order, and may extend the duration of the order beyond the period of 90 days referred to in subsection 16(1).

• 18(3)Evidence at hearing

  The supporting materials for the order made by the designated judge must be considered as evidence at the hearing, in addition to any evidence presented at the hearing, including evidence on the collective interests of the First Nation members, on whose reserve the family home is situated, in their reserve lands.

• 19Confidentiality
• 19(1)

  Subject to subsection (2), on application by the parties or on its own motion, the court in the province in which the designated judge has jurisdiction may make an order that contains one or more of the following provisions and that is subject to any conditions that the court specifies:

• 19(1)(a)

  a provision excluding members of the public, other than the parties, from all or part of a rehearing referred to in section 17 or a hearing referred to in section 18;

• 19(1)(b)

  a provision prohibiting the publication or broadcasting of any information from the rehearing or hearing, including the name of a party, witness or child in the charge of either party or any information likely to identify any of those persons; and

• 19(1)(c)

  a provision prohibiting disclosure to the public of any information in a court document or record related to a proceeding under section 17 or 18.

• 19(2)Conditions

  The court may only make the order if it is satisfied that

• 19(2)(a)

  the order is necessary for the safety of a party or witness or the safety or physical or emotional well-being of a child; or

• 19(2)(b)

  protecting a party, witness or child from an undue hardship or adverse effect that could be caused by making the information public outweighs the public’s right to the information.

• 20Court order
• 20(1)

  A court may, on application by a spouse or common-law partner whether or not that person is a First Nation member or an Indian, order that the applicant 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.

• 20(2)Interim order

  The court may make, on application by either spouse or common-law partner, an interim order to the same effect, pending the determination of the application under subsection (1).

• 20(3)Considerations

  In making an order under this section, the court must consider, among other things,

• 20(3)(a)

  the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;

• 20(3)(b)

  the terms of any agreement between the spouses or common-law partners;

• 20(3)(c)

  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;

• 20(3)(d)

  the period during which the applicant has habitually resided on the reserve;

• 20(3)(e)

  the financial situation and the medical condition of the spouses or common-law partners;

• 20(3)(f)

  the availability of other suitable accommodation that is situated on the reserve;

• 20(3)(g)

  any existing order made on a matter related to the consequences of the breakdown of the conjugal relationship;

• 20(3)(h)

  any family violence;

• 20(3)(i)

  any acts or omissions by one of the spouses or common-law partners that reasonably constitute 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 habitually resides in the family home;

• 20(3)(j)

  the existence of exceptional circumstances that necessitate the removal of 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, including the fact that the person has committed acts or omissions that constitute family violence, or reasonably constitute psychological abuse, against the applicant, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;

• 20(3)(k)

  the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;

• 20(3)(l)

  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

• 20(3)(m)

  the views of any person who received a copy of the application, presented to the court in any form that the court allows.

• 20(4)Content of order

  An order made under this section may contain provisions such as

• 20(4)(a)

  a provision requiring the applicant’s spouse or common-law partner and any specified person — whether or not they are First Nation members or Indians — to vacate the family home, immediately or within a specified period, and prohibiting them from re-entering the home;

• 20(4)(b)

  a provision requiring the applicant’s spouse or common-law partner to preserve the condition of the family home until that person vacates it;

• 20(4)(c)

  a provision directing the applicant to make payments to the other spouse or common-law partner toward the cost of other accommodation; and

• 20(4)(d)

  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.

• 20(5)Emergency protection order revoked

  An existing order made under any of sections 16 to 18 in favour of or against one of the spouses or common-law partners is revoked when the court makes an order under this section, except to the extent specified in that order.

• 20(6)Application to vary or revoke order

  Any person in whose favour or against whom an order is made under subsection (1), any person specified in the order, or the holder of an interest or right in or to the family home may apply to the court to have the order varied or revoked if there has been a material change in circumstances. The court may, by order, confirm, vary or revoke the order.

• 20(7)Notice to affected persons

  An applicant for an order under this section must, without delay, send a copy of the application to any person who is of the age of majority or over, whom the applicant is seeking to have the court order to vacate the family home, to any person who holds an interest or right in or to the family home and to any other person specified in the rules regulating the practice and procedure in the court.

• 21Order after death
• 21(1)

  A court may, on application by a survivor whether or not that person is a First Nation member or an Indian, 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.

• 21(2)Interim order

  The court may make, on application by the survivor, an interim order to the same effect, pending the determination of the application under subsection (1).

• 21(3)Considerations

  In making an order under this section, the court must consider, among other things,

• 21(3)(a)

  the best interests of any children who habitually reside in the family home, including the interest of any child who is a First Nation member to maintain a connection with that First Nation;

• 21(3)(b)

  the terms of the will;

• 21(3)(c)

  the terms of any agreement between the spouses or common-law partners;

• 21(3)(d)

  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;

• 21(3)(e)

  the medical condition of the survivor;

• 21(3)(f)

  the period during which the survivor has habitually resided on the reserve;

• 21(3)(g)

  the fact that the family home is the only property of significant value in the estate;

• 21(3)(h)

  the interests of any person who holds or will hold an interest or right in or to the family home;

• 21(3)(i)

  the interests of any elderly person or person with a disability who habitually resides in the family home and for whom the survivor is the caregiver;

• 21(3)(j)

  the existence of exceptional circumstances that necessitate the removal of a person from the family home in order to give effect to the granting to the survivor of exclusive occupation of that home, including the fact that the person has committed acts or omissions that constitute family violence, or reasonably constitute psychological abuse, against the survivor, any child in the charge of the survivor, or any other family member who habitually resides in the family home; and

• 21(3)(k)

  the views of any person who received a copy of the application, presented to the court in any form that the court allows.

• 21(4)Content of order

  An order made under this section may contain provisions such as

• 21(4)(a)

  a provision requiring the survivor to preserve the condition of the family home;

• 21(4)(b)

  a provision requiring any specified person, whether or not that person holds an interest or right in or to the family home, to vacate it immediately or within a specified period, and prohibiting them from re-entering the home; and

• 21(4)(c)

  a provision requiring the executor of the will, the administrator of the estate or the holder of an interest or right in or to the family home to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of it.

• 21(5)Notice of order

  The survivor must, without delay, give notice of an order made under this section to those who received a copy of the application. However, a peace officer must serve a copy of the order on those persons if the court so directs.

• 21(6)Application to vary or revoke order

  The survivor, the executor of the will or the administrator of the estate, any person specified in an order made under subsection (1) or the holder of an interest or right in or to the family home may apply to the court to have that order varied or revoked if there has been a material change in circumstances. The court may, by order, confirm, vary or revoke the order.

• 21(7)Notice to affected persons

  An applicant for an order under this section must, without delay, send a copy of the application to the executor of the will or the administrator of the estate, if the applicant knows who those persons are, to the Minister, to any person who is of the age of majority or over, whom the applicant is seeking to have the court order to vacate the family home, to any person who holds an interest or right in or to the family home and to any other person specified in the rules regulating the practice and procedure in the court.

• 22Family violence

  For greater certainty, a designated judge or a court may find that family violence has occurred for the purposes of this Act whether or not, in respect of the act or omission in question, a charge has been laid, dismissed or withdrawn or a conviction has been or could be obtained.

• 23Interest or right not affected

  For greater certainty, an order made under any of sections 16 to 18, 20 or 21 does not change who holds an interest or right in or to the family home nor does it prevent an executor of a will or an administrator of an estate from transferring such an interest or right to a named beneficiary under the will or to a beneficiary on intestacy, or a court from ordering the transfer of such an interest or right under section 31 or 36.

• 24Notice

  The person in whose favour an order is made under section 17, 18 or 20 must, without delay, give notice of the order to any person against whom the order is made and any person specified in the order. However, a peace officer must serve a copy of the order on those persons if the court so directs.

• 25Contiguous property

  For the purposes of sections 16, 20 and 21, if the reserve land on which the family home is situated is the object of an interest or right referred to in subparagraph (a)(i) of the definition interest or right in subsection 2(1), exclusive occupation of the family home includes exclusive occupation of the portion of that land that is contiguous to the family home and that is strictly necessary for the use and enjoyment of the family home.

• 26Leases

  When an order made under any of sections 16 to 18, 20 or 21 grants exclusive occupation of the family home to a spouse, common-law partner or survivor who is not a lessee under the lease for the family home, the spouse, common-law partner or survivor is bound by the lease during the period of the order.

• 27Offence

  Any person who contravenes an order made under any of sections 16 to 19, a provision referred to in paragraph 20(4)(a) contained in an order made under section 20 or a provision referred to in paragraph 21(4)(b) contained in an order made under section 21 is guilty of an offence punishable on summary conviction and liable

• 27(a)

  in the case of a first offence, to a fine not exceeding $2,000 or to imprisonment for a term not exceeding three months, or to both; or

• 27(b)

  in the case of a subsequent offence, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding one year, or to both.

• 28Division of value
• 28(1)

  When a conjugal relationship breaks down, each spouse or common-law partner is entitled, on application made under section 30, to an amount equal to one half of the value, on the valuation date, of the interest or right that is held by at least one of them in or to the family home and to the amounts referred to in subsections (2) and (3).

• 28(2)First Nation members

  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 that are held by the other spouse or common-law partner is also entitled to an amount equal to the total of

• 28(2)(a)

  one half of the value, on the valuation date, of matrimonial interests or rights referred to in paragraphs (a) and (b) of the definition matrimonial interests or rights in subsection 2(1) that are held by the other spouse or common-law partner in or to structures and lands situated on a reserve of that First Nation,

• 28(2)(b)

  the greater of

• 28(2)(b)(i)

  one half of the appreciation in value, between the day on which the conjugal relationship began and the valuation date inclusive, of matrimonial interests or rights referred to in paragraph (c) of that definition that are held by the other spouse or common-law partner in or to structures and lands situated on a reserve of that First Nation, and