New legislation regarding who can stay in the family home on reserve
As of December 16, 2014, the Family Homes on Reserve and Matrimonial Interests or Rights Act came into effect. This Act changes the laws around who can stay in the family home on reserve in the event of a relationship breakdown or when a spouse or common-law partner dies. We have added a page to our Aboriginal Legal Aid in BC website that describes the changes and what they mean for people living on reserve, Your home on reserve. In general, the new Act applies 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 common law for at least a year, or
- you’re married.
(See the Aboriginal website for exceptions.) The new Act applies even if only one partner or spouse is a First Nation member or a status Indian. 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 if your relationship breaks down or your partner dies.
Under the new Act, when making decisions about who can stay in the family home, it’s important for the court to take into account the children’s best interests. The Act also says that it’s important for the court to take into account the children’s connection with the First Nation. For example, if staying in the family home is in the children’s best interests, the court may allow them to stay with their primary caregiver in the family home until the they’re 19. It doesn’t matter if the primary caregiver is not a First Nation member or a status Indian. The court can do this through an Exclusive Occupation Order.
In cases of family violence, the partner or spouse fleeing violence may still have a right to live in the home, even if they’re not a First Nation member or a status Indian.
When one partner or spouse dies, the survivor has the right to stay in the family home for at least 180 days. They can apply to live in the home for longer; the court will take into account a number of factors when deciding whether the survivor can stay in the home and for how long.
Please note that our fact sheet Staying in the Family Home on Reserve is no longer legally accurate. Please recycle any copies you have and refer to the Aboriginal website instead. Community and Publishing Services is producing a new print publication with information on the new Act and how it affects people living on reserve. We aim to make this new publication available in Spring 2015.