In December 2014 the federal government made new laws about homes on reserves. The law is the Family Homes on Reserves and Matrimonial Interests or Rights Act. This act changed who can stay in the family home on reserve:
- during your relationship
- if you and your partner separate (break up)
- if your partner dies
On this page the word partner means your spouse you're married to or live common law with.
What the act does
The Family Homes on Reserves and Matrimonial Interests or Rights 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. The most common example of matrimonial property is the family home. Matrimonial means marriage or marriage-like relationship.
- gives partners who live on reserve some of the same rights and protections to their family home as partners who live off reserve
- gives First Nations the right to make their own matrimonial real property laws
- gives partners who live on reserve some rights and protections until their First Nation makes its own matrimonial real property laws
Before the new laws, you and your children might have left the family home on reserve when your relationship ended. You probably would have lost your family ties, social supports, and cultural connections.
The act says it's important that children stay connected with their First Nation. This means court orders that judges make about the family home must in the best interests of any children. That includes the right of a child who's a First Nation member to stay connected with their First Nation.
Who the act applies to
In general, the act applies to you if:
- you live on a First Nation reserve
- you're married or have lived common law for one year or more
- at least one of you is a First Nation member or status Indian
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 the act doesn't 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 Services 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?
Under the act, family home means:
- the structure you and your spouse now live in on reserve
- the structure you and your spouse lived in on reserve before your relationship ended
Under the act, matrimonial interests or rights means your rights to any other property (not the family home) you or your spouse got:
- during your relationship
- before your relationship began, and the property went up in value during your relationship
Matrimonial interests or rights don’t include interests or rights you got as a gift from someone, or in a will.
You can't sell, transfer, encumber (place a legal claim or financial charge, like a mortgage, against a property) or do anything that affects your interests or your partner's interests in the family home, unless you have 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 have equal rights to stay in the family home until you break up.
After you break up, you can apply to the the court for 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 may have to leave the family home.
For example, if you look after your children most of the time, the court may say you can stay in the family home with them to protect their best interests. Your partner may 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 left your home because of family violence (abuse that's emotional, psychological, physical, sexual, and/or financial), you may still have the right to live in the home. It doesn't matter that you were the one to leave. It also doesn't matter whether or not you're a First Nation member or status Indian. You can:
- apply to court for an exclusive occupation order to stay in the family home, with your children
- apply to court to get your fair share of the value of the family home
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 dies
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 may be able to stay in the family home for a longer period, especially if you have children
- you may get a share of the value of your matrimonial real 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 may get a share of the value of your matrimonial real property.
Your rights as the surviving spouse may 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.
Centre of Excellence for Matrimonial Real Property — Booklet on Understanding Estates Management
Guide to Indigenous Organizations and Services in British Columbia for organizations that can help
Indigenous Services Canada — Information about the Family Homes on Reserves and Matrimonial Interests or Rights Act
Centre of Excellence for Matrimonial Real Property — Toolkits — Training materials on the 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 — Booklet — A guide to applying for exclusive occupation of a family home on reserve in BC
Indigenous and Northern Affairs Canada — Matrimonial Real Property on Reserves— Information about the new act
Native Women's Association of Canada — Matrimonial Real Property — Information on matrimonial real property
Access Pro Bono Law Clinics — Free legal help
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)