Aboriginal Legal Aid in BC

Your home on reserve
Who can stay in the family home on reserve?

As of December 16, 2014, there are new laws about homes on reserves. These laws change who can stay in the family home on reserve if you and your partner break up or your partner dies. These laws may apply to you if:

  • you live on a First Nation reserve,
  • at least one of you is a member of the First Nation or a status Indian, and
  • you've been living with your girlfriend or boyfriend for at least a year (you're common-law partners), or
  • you're married (spouses).

The new law applies even if only one of you is a status Indian or a First Nation member. For example, if your partner is a First Nation member and you're not, you may still be able to stay in the family home.

Your home on Reserve

How has the law changed?

Before, when your relationship broke up or your partner died, you may not have been able to stay in the family home on reserve if you weren't a First Nation member. For example, this often meant that when their relationship ended, women and their children would leave the family home. This affected their family ties, social supports, and cultural connections.

On this page we use the word partner to refer to your common-law partner or your married spouse.

The new law is called the Family Homes on Reserve and Matrimonial Interests or Rights Act. On this page, we call it "the Act." The Act has many different parts. In the Act, the laws that set out who can stay in the family home are called matrimonial real property laws.

Why did the law change?

The law changed to give you and your partner rights and options during your relationship. It also gives you rights and options when your relationship breaks up or your partner dies.

The new Act says that, when making decisions about who can stay in the family home, it's important for the court to take into account your children's best interests. The Act also says it's important for the court to take into account your children's ability to keep their connection with the First Nation.

For example, if staying in the family home is in your children's best interests and it will keep them connected to the First Nation, the court may allow you to stay in the family home with them until the children are 19.

Find out more

Indigenous and Northern Affairs Canada

Indigenous and Northern Affairs Canada — Matrimonial Real Property on Reserves — Information about the new Act

Centre of Excellence for Matrimonial Real Property

Centre of Excellence for Matrimonial Real Property — Supports First Nations with the implementation of the new Act

Centre of Excellence for Matrimonial Real Property — Toolkits — Training materials on the new Act for First Nations and their professional associates

Centre of Excellence for Matrimonial Real Property — FAQ — Frequently asked questions on the new Act

Native Women's Association of Canada

Native Women's Association of Canada — Matrimonial Real Property — Information on matrimonial real property


Who does the Act apply to?

In general, the Act applies to you if:

  • you live on a First Nation reserve,
  • you've been living common law for at least a year, or
  • you're married, and
  • at least one of you is a status Indian or First Nation member.

The Act applies to opposite sex and same sex couples. The Act also applies even if only one of you is a status Indian or First Nation member.

Is there anyone the Act doesn't apply to?

The Act won't apply to anyone living on a First Nation that:

  • has its own matrimonial real property laws. Under the Act, bands can create their own laws. If you're not sure if this is the case for your band, Indigenous and Northern Affairs Canada has a list. Or you can contact your band administration. (See the Guide to Aboriginal Organizations and Services in British Columbia if you're not sure how to contact your band.) The band administration can also give you a copy of the laws;
  • has a self-government agreement. See the Indigenous and Northern Affairs Canada website for a list. Currently these First Nations are excluded from the Act:
    • Nisga'a,
    • Tsawwassen,
    • Maa-nulth,
    • Yale, and
    • Tla'amin;
  • has a land code in place under the First Nations Land Management Act. Indigenous and Northern Affairs Canada has a list of the nations that have their own land codes; or
  • is under the First Nations Land Management Act, but doesn't yet have its own land code. These nations will have until June 19, 2016, to develop their own matrimonial real property laws.

Who owns the family home?

If you or your partner are from the same First Nation where the home is located and a Certificate of Possession is only in one of your names, the court can add the other person's name. This means that the home can't be transferred without your permission.

Who can sell the interest in the home?

You or your partner can't sell any interest in the home without the other person's consent (agreement). But when one person consents to selling the interest:

  • the consent must be in writing,
  • they must understand what they're consenting to, and
  • they must give their consent freely. This means that they can't be tricked or forced into giving their consent.

What if we have a written agreement?

Sometimes couples who break up can come to an agreement about how to divide the profits when they sell the interests in the family home. A written agreement means you don't need to involve the courts.

It's very important to get legal advice before you sign an agreement. See Who can help you reach an agreement on our Family Law in BC website. Or see the legal help options lists under Who can help? at the bottom of this page.

If you and your partner make a written agreement regarding the home, the court can make an order to enforce it if:

  • you both consented (agreed) to the agreement,
  • you both knew what you were agreeing to, and
  • the court agrees it's fair.

When the court enforces an agreement, that means that it makes sure you both follow the terms of the agreement.

Find out more

Family Law in BC website

Family Law in BC website — Making an agreement after you separate — A fact sheet on making agreements

Family Law in BC website — Who can help you reach an agreement — A fact sheet letting you know what your options are for getting help with agreements

Family Law in BC website — How to write your own separation agreement — A step-by-step guide to writing an agreement


If you break up

You and your partner each have an equal right to stay in the family home until you break up.

After you break up, the court can order one person to leave the home for a long time. This is called an Exclusive Occupation Order. For example, the court may allow the children's primary caregiver to stay in the family home with the children until they're 19. The other person would have to move out until then. The court will make these decisions based on what's in your children's best interests.

It's a very good idea to get legal help. A lawyer can help you decide what's best for you and your family. They can also help you with the process of getting an Exclusive Occupation Order. See the legal help options listed under Who can help? at the bottom of this page.

If family violence is an issue

If you've left your home due to family violence, you may still have a right to live in the home. It doesn't matter that you were the one to leave. It also doesn't matter whether you're a status Indian or First Nation member.

Sometimes leaving your partner can trigger more violence. It's very important to stay safe. If you're in immediate danger, call 911. To find the nearest victim service worker, safe house, or transition house call VictimLink BC at 1-800-563-0808 (no charge, 24 hours a day). VictimLink provides services in over 100 languages, including 17 North American Aboriginal languages. See also Who can help? at the bottom of this page.

It's also very important to get legal help. Phone Legal Aid right away to find out if you qualify for a free lawyer: 604-408-2172 (Greater Vancouver) or 1-866-577-2525 (call no charge outside Greater Vancouver). Or see the legal help options listed under Who can help? at the bottom of this page.

For more information about abuse and family violence, see our Abuse and family violence page. This page has important information on making a safety plan. A safety plan is made up of steps you can take to protect yourself and your children. It's a good idea to ask a friend, advocate, or victim service worker to help you make a safety plan. See our fact sheet Safety Planning for detailed information on how to make a safety plan.

Find out more



If your partner dies

If your partner dies, you can stay in the home for at least 180 days (six months). You can apply to live in the home for longer than 180 days. The court will take into account a number of different things when it decides whether you can stay in the home and for how long.

What you're entitled to when your partner dies depends on whether you're a member of the First Nation. Talk to a lawyer to find out what your rights are. See the legal help options listed under Who can help? on the right-hand side for where to get legal help. For more information, see Wills and estates on reserve.


Who can help?

Safe houses, transition houses, victim services

100 Mile House & District Women's Centre Society — Call 250-395-4093

Battered Women's Support Services – Indigenous Women's Programs — Across BC

BC211 — Helps people in Metro Vancouver and Fraser Valley districts to find available shelters — Call 211

Elizabeth Fry Society — Burns Lake — Call 250-692-5720 (24 hours a day)

Elizabeth Fry Society — Prince George — Call 1-866-563-1113 (no charge, 24 hours a day)

Helping Spirit Lodge Society — Spirit Lodge Transition House — Call 604-872-6649

Native Courtworker and Counselling Association — Culturally appropriate support, explain legal situations — Call 1-877-811-1190 (no charge)

Vernon Women's Transition House Society — Call 250-542-1185

VictimLink BC — Counselling, information, and referrals — Call 1-800-563-0808 (no charge, 24 hours a day, 7 days a week)

Women Against Violence Against Women — Counselling program — Call 604-255-6344 — Vancouver

Women Against Violence Against Women — 24-hour Crisis Line — Call 1-877-392-7583 (no charge, 24 hours a day, 7 days a week) — Across BC

Find an advocate

BC211 — Free confidential referrals to help and information — Call 211

PovNet — Information about poverty issues and links to organizations that can help

BC Association of Friendship Centres — Find a friendship centre in your area

Ministry of Aboriginal Relations and Reconciliation — See their A Guide to Aboriginal Organizations and Services in British Columbia for organizations that can help

Legal help

Legal information

Aboriginal community legal workers — Give legal information and limited advice services

Centre of Excellence for Matrimonial Real Property — Helps First Nations understand their rights under the act — Call 1-855-657-9992 (no charge)

Legal information outreach workers — Give legal information and provide referrals


Legal advocacy and advice

Access Pro Bono Law Clinics — Free legal help

Carole James, MLA, Community Office — Free legal clinic, including family matters — Call 250-412-7794

Family duty counsel — Free legal advice — Kwadacha and Tsay Key Dene — Call 1-877-601-6066 (no charge)

First Nations and Métis Outreach Program (The Law Centre) — Free legal help, including family matters — Victoria

Legal Aid BC — Free legal advice clinics — Carrier Chilcotin Tribal Council and Williams Lake — 604-681-8021

Bella Coola Legal Advocacy Program — Free legal help — Bella Coola

UBC Indigenous Community Legal Clinic — Free legal help on various legal matters — 604-684-7334 (Greater Vancouver) or 1-888-684-7334 (call no charge)

Upper Skeena Counselling & Legal Assistance Society — Free legal help — Hazelton

Victoria Native Friendship Centre — Free legal clinic, including family matters — Call 250-412-7794