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.
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.
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 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.
- 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:
- Yale, and
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.
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 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.
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 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.
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 (24 hours a day)
VictimLink provides services in over 100 languages, including 17 North American Aboriginal languages.
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 (elsewhere in BC)
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 Safety Planning in our Live Safe, End Abuse fact sheets folder for detailed information on how to make a safety plan.
If your partner passes away
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.
For more information, see Wills and estates on reserve.
Centre of Excellence for Matrimonial Real Property — "Understanding Estates Management" booklet. Click link to download booklet.
Access Pro Bono — Free legal help for people facing limitations in the justice system.
Indigenous Services Canada — Information about the Family Homes on-reserves and Matrimonial Interests or Rights Act.
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
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 — 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