Matrimonial Real Property (MRP) On Reserve

Matrimonial Real Property (MRP) On Reserve - Discussion Guide

BACKGROUND

 WHAT DOES THE ISSUE MEAN FOR OFF-RESERVE ABORIGINAL PEOPLE ?

Until the 1970s there were few laws – federal or provincial – to deal with matrimonial property disputes. This was a matter left to the courts and the common law, and in most cases women in particular suffered unequal treatment (their contribution to marital property was seldom recognized). After a number of court cases in the 1970s, every province and territory introduced matrimonial property laws, and those laws apply on reserve as well – with two exceptions:

• Provincial/Territorial matrimonial laws do not apply in the case of “real” property – land and things attached to the land, like  homes.

• Even though provincial laws do apply to disputes over other matrimonial property (cars, bank accounts, etc.) these laws are often unable to be enforced on reserve.

The Indian Act is silent on matrimonial or family law issues.  The Indian Act ignores that provincial family laws apply to on-reserve, subject only to the terms of the Indian Act or a Treaty.  The Indian Act ignores the fact that provincial law remedies are not available   The Indian Act simply leaves the issue up to the courts for a resolution.    

The courts have held that provincial laws dealing with matrimonial property disputes do not apply to the land or real property on a reserve, which is what creates the “legislative gap” facing couples living on reserve and disputing the possession or sale of real property (houses) on reserve.

Because Parliament has not yet acted to close this major gap, four types of problems have emerged:

1. There is no effective way to stop a spouse from selling the family home if it is in his or her name.  Spouses who don’t share formal ownership of the home have no recourse (even if they are members of the Band).  Off of reserves, any spouse can apply to a court to stop the home jointly occupied in a marriage from being sold off in this way.

2. A non-member of the band cannot ask the provincial courts to grant interim or permanent possession of the family home, eliminating one of the main tools available to protect a spouse and children in the case of family violence.

3. Provincial court orders for compensation by one spouse to another – something that is legal every where else – are unrealistic or impossible to enforce since provincial courts cannot require the sale of the family home to allow for a fair division of matrimonial property.

4. When a non-status Indian or non-Indian is facing marital breakdown with a band member on reserve, they cannot obtain a court order to compensate them from the non-real property of their former spouse (movable property such as bank-accounts, automobiles, etc.) since only status Indians can receive such property under the Indian Act.