Who can stay in the family home on reserve?
In December 2014 the federal government made new laws about homes on reserves. These laws changed who can stay in the family home on reserve if you and your partner break up or your partner dies. These laws might 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 might still be able to stay in the family home.
How has the law changed?
Before the law changed, when your relationship broke up or your partner died you might 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 the word partner means your common-law partner or your married spouse.
The new law is called the Family Homes on Reserves 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 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 might allow you to stay in the family home with them.
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 couples and same-sex couples. The act also applies even if only one of you is a status Indian or First Nation member.
Who doesn't the act apply to?
The act doesn'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 land code in place under the First Nations Land Management Act. Indigenous and Northern Affairs Canada has list of the nations that have their own land codes.
- is under the First Nations Land Management Act, but doesn't yet have its own land code.
- has self-government agreement. See the Indigenous and Northern Affairs Canada website for a list. Currently these First Nations are excluded from the act:
Who owns the family home?
You can't sell, encumber (make a claim or lien against it), or transfer the family home without your partner's consent (agreement). This means:
- the consent must be in writing
- your partner must understand what they're agreeing to
- they must give their consent freely (they can't be tricked or forced into agreeing)
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 listed at the bottom of this page.
If you and your partner make a written agreement about the home, the court can make an order to enforce it if:
- you both consented (agreed) to the agreement
- you both knew what you agreed to
- the court agrees it's fair
When the court enforces an agreement that makes sure you both follow the terms of the agreement.
If you and your partner 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 might make an exclusive occupation order. An exclusive occupation order means you and your children can stay in the family home for a period of time, and your partner might have to leave the family home.
For example, if you look after your children most of the time, the court might say you can stay in the family home with them to protect their best interests. Your partner might have to move out. The court decides what's best for your children.
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 to get an exclusive occupation order.
If family violence is an issue
If you've left your home because of family violence, you might 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 VictimLinkBC:
1-800-563-0808 (24 hours a day)
VictimLinkBC provides services in over 100 languages, including 17 North American Aboriginal languages.
It's also very important to get legal help. Call Legal Aid BC right away to find out if you qualify for a free lawyer:
604-408-2172 (Greater Vancouver)
1-866-577-2525 (elsewhere in BC)
For more information about abuse and family violence, see our Abuse and family violence page. This page has important information about how to make 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 Safety Planning in our Live Safe, End Abuse resource for details about how to make a safety plan.
If your partner passes away
Whether or not you're a First Nation member or status Indian, if your partner dies:
- you can stay in the family home for 180 days
- if you get an exclusive occupation order, you might be able to stay in the family home for a longer period, especially if you have children
- you might get a share in the value of your partner's property interests or rights if you apply to court within 10 months from the day your partner died
If you aren't a First Nation member, property can't be transferred to you. But you might get payment.
Your rights as the surviving spouse might also be affected if your partner has a legal will, or by estate rules under the Indian Act. Talk to a lawyer to find out what your rights are.
For more information, see Wills and estates on reserve.
Indigenous and Northern Affairs Canada — Matrimonial Real Property on Reserves— Information about the new act
Assembly of First Nations — First Nations Matrimonial Property Law Resource Handbook — Information to help First Nations prepare, draft, and enact matrimonial property laws
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
Centre of Excellence for Matrimonial Real Property — Pamphlet — A guide to applying for exclusive occupation of a family home on reserve in BC
Native Women's Association of Canada — Matrimonial Real Property — Information on matrimonial real property
Family Law in BC website — Making an agreement after you separate — Information about making agreements
Family Law in BC website — Who can help you reach an agreement? — Information about letting you know what your options are for getting help with agreements
Family Law in BC website — Write your own separation agreement — A step-by-step guide to writing an agreement
Lawyer Referral Service — Helps you find a lawyer to take your case — Call 604-687-3221 (Greater Vancouver) or 1-800-663-1919 (elsewhere in BC)