MRP Desk Manual€¦ · 1024 Mississauga Street Curve Lake, ON K0L 1R0 Canada Phone: (705) 657-9992...

MRP Desk Manual for First Nations Land Managers

Centre of Excellence for Matrimonial Real Property

National Aboriginal Lands Managers Association

June 5, 2015 Version 1.0

The Centre of Excellence for Matrimonial Real Property (COEMRP) has provided this Desk Manual

for First Nations operating under the Provisional Federal Rules of the Family Homes on Reserves and

Matrimonial Interests or Rights Act (FHRMIRA). The manual is intended to help First Nations staff

and members manage these forms and procedures. This manual should be used in conjunction with the

MRP Toolkit already published by and available from the COEMRP.

Centre of Excellence for Matrimonial Real Property 1024 Mississauga Street Curve Lake, ON K0L 1R0 Canada Phone: (705) 657-9992 Toll free: (855) 657-9992 Fax: (705) 657-2999 www.coemrp.ca

The Centre of Excellence is hosted by the National Aboriginal Lands Managers Association 1024 Mississauga Street Curve Lake, ON K0L 1R0 Canada Phone: (705) 657-7660 Toll free: (877) 234-9813 Fax: (705) 657-7177 www.nalma.ca

NOTE

This Desk Manual is intended to provide information relating to

general practices in the First Nation’s administration of forms

and procedures relating to FHRMIRA only, and thus should not

form the basis for legal advice of any kind.

The COEMRP will not provide legal advice or opinions.

MRP Desk Manual

1 - Introduction ........................................................................................................................ 5

2 - A Note on FHRMIRA ........................................................................................................... 6

3 - The Role of NALMA and the COEMRP .............................................................................. 8

4 - Role of First Nation Staff ................................................................................................... 9

5 - Role of AANDC ................................................................................................................. 10

6 - A Note on Survivor’s Entitlements ................................................................................. 11

7 - AANDC MRP Forms.......................................................................................................... 12 Definitions ...................................................................................................................................... 13 7.1 - Assessment of Matrimonial Real Property and Statutory Declaration .............................. 16 7.2 - Statutory Declaration of Spouse or Common-law Partner ................................................. 20 7.3 – Statutory Declaration of Executor of a Will or Administrator of an Estate ....................... 24 7.4 – Statutory Declaration of Executor of a Will or Administrator of an Estate who is also the

Surviving Spouse or Common-Law Partner ....................................................................... 28 7.5 – Statutory Declaration of Surviving Spouse or Common-Law Partner .............................. 32 7.6 – Transfer of a Right to Possession of Reserve Land by Court Order under FHRMIRA .... 36

8 – Sample Situations............................................................................................................ 38 Scenario 1 - Simple Scenario ....................................................................................................... 38 Scenario 2 - Joint Tenancy ........................................................................................................... 39 Scenario 3 - Estates ...................................................................................................................... 40 Scenario 4 –Transfer to a Third Party .......................................................................................... 41 Scenario 5 – Assignment of Lease ............................................................................................... 42 Scenario 6 – Assignment of Lease ............................................................................................... 43

9 - Notes on Various Clauses of the Act .............................................................................. 44

10 - Additional Reference Material ....................................................................................... 55

TABLE OF CONTENTS

5

1 - Introduction

This MRP Desk Manual has been produced by the Centre Of

Excellence for Matrimonial Real Property (COEMRP) to help you

manage the administrative aspects of the Family Homes on Reserves

and Matrimonial Interests and Rights Act (FHRMIRA).

“You” may be an official of your First Nation such as a Chief or

Councillor, a technician at the Band Office, a lawyer or advisor to

the First Nation, an Executor of a Will, or an Administrator of an

Estate involving reserve land.

As with any new law, there will be new administrative procedures

and record keeping requirements to help keep track of the cases that

arise out of this new legislation. Aboriginal Affairs and Northern

Development Canada (AANDC) has developed new forms and

administrative procedures in relation to FHRMIRA that First

Nations technicians and members will be expected to comply with

when registering documents in the ILRS. Revisions to these forms

can be expected over the months and years ahead.

What is MRP?

Matrimonial Real Property (MRP) includes land held by one or both spouses or common-law partners

and used by the family, as well as houses, sheds and any other property that is attached to the land.

FHRMIRA deals with a wide range of issues related to such property in the event of marriage

breakdown or death.

Property is important to families, to communities, to governments. You may well play an essential role

in assisting your First Nation to address property issues covered in FHRMIRA. We hope this Desk

Manual will assist you in the efficient execution of your administrative duties.

If you have any questions or suggestions related to this manual, please address them to:

Kathy McCue Administration and Communication

Coordinator

[email protected]

Christopher Angeconeb

Legislative Analysis Coordinator

[email protected]

mailto:[email protected]

6

2 - A Note on FHRMIRA

As of December 16, 2014 all sections of the Family Homes on Reserves and Matrimonial

Interests or Rights Act (FHRMIRA) came into effect.

FHRMIRA applies to married couples and common-law partners living on reserve, where at

least one of them is a First Nation member or an Indian as defined in the Indian Act. FHRMIRA

seeks to provide basic protections and rights to individuals living on reserves regarding the

family home and other matrimonial interests and/or rights, during a conjugal relationship, in the

event of a breakdown of that relationship, and on the death of a spouse.

FHRMIRA includes an interim set of Provisional Federal Rules that provide specific protections

to individuals living on reserve until a First Nation community establishes its own MRP law

under FHRMIRA or other Federal Legislation.

What rights and protections do the Provisional Federal Rules (PFR) in the Act provide?

The PFRs provide the following rights and protections:

Equal right to occupancy of the family home

Requirement of spousal consent for the sale or disposal of the family home

Emergency Protection Orders

Exclusive Occupation Orders

Entitlement of each member spouse or common-law partner to an equal division of the value

of the family home and any other matrimonial interests or rights

Order for the transfer of matrimonial real property between member spouse or common-law

partners

FHRMIRA deals with what is referred to as Matrimonial Real Property (MRP). The family

home is the most common type of MRP. The Provisional Federal Rules, which are now in effect,

provide specific protections, including the requirement for spousal consent for any transfers or

encumbrances of reserve land on which the family home is situated.

7

IMPORTANT NOTE

You must determine which rules apply on your First Nation.

If your First Nation is signatory to either the First Nation Land Management

Act (FNLMA) or a Self-Government Agreement, then FHRMIRA may not

apply to you.

However, depending on your FNLMA status on the date of Royal Assent,

June 19, 2013, these rules may or may not apply to your First Nation. For

specific information on the applicability of this legislation to your First

Nation, please contact your advisor at the Lands Advisory Board or the


If your First Nation has enacted its own MRP law under FHRMIRA, the

Provisional Federal Rules no longer apply.

The passage of FHRMIRA has implications for First Nations technicians in ensuring compliance

with the spousal consent provisions contained within this legislation and in the administration of

reserve lands and estates that fall under the jurisdiction of the Indian Act. This Desk Manual is

intended for use by these technicians to assist them in making informed decisions regarding their

duties to their members and community.

Note that the procedures set out in this manual are subject to evolving public policy direction,

future legislative changes, and case law. Consequently, First Nation officials and staff will find

that a comprehensive understanding of the principles of FHRMIRA and continued

communication with AANDC and COEMRP are necessary practices.

NOTE

AANDC is currently developing procedures for the registration of

documents for those First Nations who have enacted their own MRP law.

8

3 - The Role of NALMA and the COEMRP

Since inception in 2000, the National Aboriginal Land Managers Association (NALMA) has

built a reputation for providing support to First Nations across Canada with respect to the

management of reserve lands. NALMA’s achievements provide an excellent foundation upon

which to build the Centre of Excellence for Matrimonial Real Property.

NALMA responded to a call for proposals posted on the AANDC website. The proposal was

reviewed by an Assessment Committee comprised of representatives from Aboriginal Affairs

and Northern Development Canada, the Royal Canadian Mounted Police, Status of Women

Canada, and Public Safety Canada; the Assessment Committee provided a recommendation to

the Minister.

Based on NALMA’s extensive experience and connection to reserve land issues, on November

14th, 2013 Minister Bernard Valcourt officially announced NALMA as the host of the Centre of

Excellence for Matrimonial Real Property.

The Centre operates at arm’s length from the Government of Canada,

and provides the following services:

• Guide First Nations who are opting to develop their own MRP law

• Provide information on the protections and rights available to

individuals and families living on reserve

• Assist with implementing the provisional federal rules

• Provide research on alternative dispute resolution mechanisms

COEMRP invites First Nations and their professional advisors to take

advantage of its various printed resources, its training courses, and the

expertise of its staff in matters related to the Act. These resources and

other information can be found at: www.coemrp.ca

The COEMRP does not provide legal advice.

9

4 - Role of First Nation Staff

New Law - New Rights - New Responsibilities

As of December 16, 2014, the full provisions of the Family Homes on Reserve and Matrimonial

Interests or Rights Act (FHRMIRA) came into effect. It includes a set of Provisional Federal Rules

(PFR) that provide protection to individuals living on reserve during a relationship, in the event of

a relationship breakdown, and on the death of a spouse or common-law partner.

There are many roles for the First Nation regarding the implementation of this legislation,

including the opportunity to make representation to the courts in response to applications made

under FHRMIRA. However, as the Land Manager, your role may be specific to the registration of

documents. The provisions regarding

the requirements for Spousal Consent for the sale,

disposal, or encumbrance of the family home, or

a court order relating to the MRP between

member spouses or common-law partners, or

the administration of an estate

necessitate the completion of additional forms to

ensure the protection of matrimonial rights or

interests.

This Desk Manual will provide an understanding of the necessary forms and guidelines for their

selection and completion.

BEST PRACTICE

The guidelines in this Desk Manual relate specifically to the completion of MRP

related forms under FHRMIRA. Land Managers should refer to the Land

Management Manual and/or the Indian Lands Registry Manual for a comprehensive

understanding of all forms necessary to effect transactions.

NOTE

It should be noted that the registration of orders, obtained pursuant to the PFRs, is

the sole responsibility of AANDC. If you are provided with a copy of a court order for

exclusive occupation, it is important that you treat this information in accordance

with the First Nation’s privacy policy.

10

5 - Role of AANDC

Aboriginal Affairs and Northern Development Canada (AANDC) is the Federal Government

department responsible for administrative issues and support arising from FHRMIRA. AANDC

completes the registration of documents submitted by Land Managers and successful applicants for

registration in the Indian Lands Registry System (ILRS).

To ensure that rights and protections contained in FHRMIRA are properly observed, AANDC has

developed a new set of forms and procedures.

While each First Nation will have a principal contact with one of the regional offices across Canada,

AANDC has identified a list of regional contacts to advise on the use and completion of the registry

forms.

Region Name Phone E-Mail

BC Gabriele Behrens (604) 775-6065 [email protected]

AB Brenda Becker (780) 495-2922 [email protected]

SK Robbin Lloyd (306) 501-3561 [email protected]

MB Emmanuel Atiomo (204) 983-0585 [email protected]

QC Marie-Ève Foisy (418) 951-3517 [email protected]

ON Shannon Doyle (416) 973-7451 [email protected]

AT Larry Pardy (902) 661-6368 [email protected]

YK Peter Garrett (867) 667-3887 [email protected]

Sample forms are included later in this manual along with advice on how to

complete them.

BEST PRACTICE

Talk to your AANDC contact early and often about how to handle these forms.









11

6 - A Note on Survivor’s Entitlements

The Family Homes on Reserve and Matrimonial Interests or Rights Act (FHRMIRA) provides new

rights for survivors. A survivor, in relation to a deceased individual, means their surviving spouse or

common-law partner. FHRMIRA provides entitlement to survivors in a manner that is consistent

with most provincial family and succession laws related to matrimonial real property.

With respect to occupancy, the survivor

has an automatic right to occupy the family home for 180 days after the day on which the death

occurred, section 14 of FHRMIRA, and

in addition, may choose to apply for an Exclusive Occupation order beyond the 180 days.

With respect to settling the estate, the survivor has two options:

The survivor may choose to apply to court for an amount equal to half the value of the

deceased’s interests in or right to the family home and other matrimonial interests or rights

under the provisional federal rules in FHRMIRA, or,

The survivor may choose to inherit from the deceased’s will or under the estates provisions of

the Indian Act in respect of the family home and other matrimonial interests.

In both cases, the option is specific to the matrimonial home or other matrimonial interests or rights.

It does not preclude the survivor from inheriting other assets from the deceased, such as personal

items.

12

7 - AANDC MRP Forms AANDC has introduced new forms to capture information related to cases under FHRMIRA. In the

pages that follow, we provide examples and notes to help you understand and complete the forms.

The various forms in this Desk Manual may be changed or modified over time as more case

experience with this new legislation is gained. It is prudent to ensure that you are using the most-

up-to-date forms when dealing with cases of matrimonial real property. You can also contact the

Centre of Excellence for Matrimonial Real Property for assistance in these matters.

There are five forms that deal with aspects of changes in Matrimonial Real Property ownership.

The forms include:

1) The Assessment of Matrimonial Real Property and Statutory Declaration form.

This form is used by a member of a First Nation who owns land on the reserve and wants

to submit a land transaction affecting that land.

2) The Statutory Declaration of Spouse or Common-Law Partner form.

This form must be completed by the spouse of a First Nation member where this member

owns land on which the family home is situated and who wants to submit a land transaction

affecting that land.

3) The Statutory Declaration of Executor of a Will or an Administrator of an Estate form.

This form is used by the Executor of the Will or the Administrator of the Estate of a

deceased member of a First Nation.

4) The Statutory Declaration of Executor of a Will or Administrator of an Estate and

Surviving Spouse or Common-Law Partner form.

This form is used by the surviving spouse who is also the Executor of the Will or the

Administrator of the Estate of a deceased member of a First Nation.

5) The Statutory Declaration of the Surviving Spouse or Common-Law Partner form.

This form is used to obtain the consent of the surviving spouse of a deceased member of a

First Nation.

A sample of each of these forms is provided in the pages that follow. Helpful tips are also provided

on completing each of the forms. As well, an alphabetical list of definitions of all the terms found

in the forms is provided on the next page.

There is another form, the Transfer of a Right to Possession of Reserve Land by Court Order

under FHRMIRA form. It is provided for information only as this form is only completed by

AANDC, with NO role for the First Nation in its completion.

13

Definitions

Administrator of an estate is a person appointed (by the Minister) to administer an estate. If there is

no will or no one is stated in the will, the Minister will appoint someone to handle all the legal and

financial matters of the deceased's estate. It is not possible to have more than one appointed

administrator.

Common-law partner is defined in the Indian Act as a person who is cohabiting with the individual

in a conjugal relationship, having so cohabited for a period of at least one year. For clarity, in some

cases, there may be a spouse (i.e. the couple remain legally married but are separated) and also a

common-law partner. In that case, the form Statutory Declaration of Spouse or Common-law partner

must be completed by both the spouse and the common-law partner.

Descent refers to the transmission of property without a will. This is also known as intestacy.

Devise is a gift under a will. It is also known as a bequest under a will.

Estate includes real and personal property and any interest in land.

Executor of a will is a person named in the will to administer (handle all the legal and financial

matters) the deceased's estate and to ensure that the details of the will are carried out. This is the same

as an administrator or a personal representative. It is possible to have more than one executor named in

a will.

Family Home, as defined by the Family Homes on Reserves and Matrimonial Interests or Rights

Act, means a structure that need not be affixed but that must be situated on reserve land and where

the spouses or common-law partners habitually reside or, if they have ceased to cohabit or one of

them has died, where they habitually resided on the day on which they ceased to cohabit or the

death occurred. If the structure is normally used for a purpose in addition to a residential purpose,

this definition includes only portion of the structure that may reasonably be regarded as necessary

for the residential purpose.

First Nation member means a person whose name appears on the band list of a First Nation or who is

entitled to have their name appear on that list.

Indian Registration Number is the 10-digit registration number found on the Certificate of Indian

Status.

Indian means a person who pursuant to the Indian Act is registered as an Indian or is entitled to be

registered as an Indian.

Interest or right, for the purposes of these forms, means the following interests or rights referred to in

the Indian Act: (i) a right to possession, with or without a Certificate of Possession or a Certificate of

Occupation, allotted in accordance with section 20 of that Act, (ii) a permit referred to in subsection

28(2) of that Act, and (iii) a lease under section 53 or 58 of that Act;

14

Matrimonial interests or rights mean interests or rights, other than interests or rights in or to the

family home, held by at least one of the spouses or common-law partners. (a) that were acquired

during the conjugal relationship; (b) that were acquired before the conjugal relationship but in specific

contemplation of the relationship; or (c) that were acquired before the conjugal relationship but not in

specific contemplation of the relationship and that appreciated during the relationship. It excludes

interests or rights that were received from a person as a gift or legacy or on devise or descent, and

interests or rights that can be traced to those interests or rights.

Real Property includes structures that are affixed to the land, as well as the land itself.

Spouse includes either of two persons who have entered in good faith into a marriage that is voidable

or void.

Statutory Declaration is made pursuant to s. 41 of the Canada Evidence Act, R.S. 1985, c. C-5

http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html. A statutory

declaration is of the same force and effect as if made under oath and therefore has value as evidence.

Warning to applicant/ declarant: Under the Criminal Code of Canada, it is an offence to make a

false statutory declaration.

The following people can administer a statutory declaration: Any judge, notary public, justice

of the peace, provincial court judge, recorder, mayor or commissioner authorized to take affidavits

to be used either in the provincial or federal courts, or any other functionary authorized by law to

administer an oath in any matter, may receive the solemn declaration of any person voluntarily

making the declaration before him/her.

Survivor in relation to a deceased individual, means their surviving spouse or common-law partner.

Will means a written document that gives instructions on what is to be done with an estate after death.

16

7.1 - Assessment of Matrimonial Real Property and Statutory Declaration

17

Assessment of Matrimonial Real Property and Statutory Declaration

18


Purpose of this form

The purpose of the Assessment of Matrimonial Real Property Assessment and Statutory Declaration

form is to establish whether the interest in, or to, the family home is encumbered by the proposed

transaction and, if necessary, to determine if the free and informed consent of the other spouse or

common-law partner is required in order to proceed with the land transaction.

It is necessary to obtain this declaration from the applicant who will be made aware that matrimonial

real property legislation (federal or community-specific) may impact the proposed transaction.

Who should complete this form

A Lands Manager must obtain a completed Assessment of Matrimonial Real Property Assessment

form from a person (the applicant) who intends to effect any of the following transactions affecting

real property on a reserve:

Leases and assignments pursuant to s. 53(1)(b) and s. 58 of the Indian Act

Sub-leases that require Ministerial approval

Transfers

Permits s. 28(2) (Locatee)

Notes on completing this form

1) In Section A, the Lands Manager, in consultation with the applicant, fills in the legal description,

or legal land description (the “Property”), which may be found on the Certificate of Possession

or in the Indian Land Registry System: http://services.aadnc-aandc.gc.ca/ilrs_public/.

2) In Section B,

a) the Lands Manager completes the personal information including name, Indian registration

number, city or town, and province; and

b) the applicant checks the applicable boxes in questions 1 through 6.

3) In the Blue Section,

a) the applicant, as the “declarant”, signs the Statutory Declaration.

b) a Commissioner of Oaths, or any person authorized to administer a statutory declaration,

(see list of persons authorized in the definition of statutory declaration on page 14)

completes the Statutory Declaration, witnesses the signature, and affixes the seal.

http://services.aadnc-aandc.gc.ca/ilrs_public/

19


Disposition of the form

1) This form accompanies the following where applicable:

a) The land transaction form.

b) Spousal consent, if required.

c) A Court Order referenced in Questions 5-6.

2) Submit the documents in accordance with the Land Management Manual and/or the Indian Land

Registry Manual procedures.

3) Give a copy of the complete package to the applicant.

4) Keep and file a copy in the First Nation files.

20

7.2 - Statutory Declaration of Spouse or Common-law Partner

21

Statutory Declaration of Spouse or Common-law Partner

22

Statutory Declaration of Spouse or Common-law Partner


This form must be used to obtain the required consent of the spouse or common-law partner of a

person (the applicant) who wants to effect a land transaction on land where the family home is

situated, in order to proceed with the registration of this transaction.

Who should complete this form?

The spouse and/or common-law partner of the person (the applicant) who intends to effect any of the

following transactions affecting real property on a reserve:

Leases and assignments pursuant to s. 53(1)(b) and s. 58 of the Indian Act

Sub-leases that require Ministerial approval

Transfers

Permits s. 28(2) (Locatee)

Note: In some cases, there may be a spouse and also a common-law partner (i.e. when the

couple remain legally married but were separated on or after December 16, 2014). In this case,

the Statutory Declaration of the Spouse or Common-Law Partner form must be completed by

both the spouse and common-law partner.

Notes on completing this form 1) In Section A, the Lands Manager fills in the legal description, or legal land description (the

“Property”), which may be found on the Certificate of Possession or in the Indian Land

Registry System http://services.aadnc-aandc.gc.ca/ilrs_public/.

2) In Section B, the spouse and/or the common-law partner of the applicant must

a) complete the personal information including name, Indian registration number, city or

town, and province; and

b) fill in all the required information in questions 1, 2, 5, and 6.


a) the spouse and/or the common-law partner, as the “declarant”, must sign the Statutory

Declaration, having read and agreed to all Questions 1 through 6 in Section B.





1) This form accompanies the land transaction form and the Assessment of Matrimonial Real

Property Assessment and Statutory Declaration form.

2) Submit the document in accordance with the Land Management Manual and/or the Indian

Land Registry Manual procedures.

3) Give a copy of the complete package to the applicant.

4) Keep and file a copy in the First Nation files.


24

7.3 – Statutory Declaration of Executor of a Will or Administrator of an Estate

25

Statutory Declaration of Executor of a Will or Administrator of an Estate

26



This form is used by the Executor of a Will or the Administrator of an Estate to confirm or

acknowledge that a surviving spouse or common-law partner may have an interest to, or in, the

family home and to determine whether or not spousal consent is required. This form requires the

declaration of the Executor of a will or the Administrator of an estate to observe provisions of the

Indian Act and/or FHRMIRA in carrying out their duties.


The Executor of a Will or the Administrator of an Estate, of the deceased (whose death occurred

on or after December 16, 2014) who held real property on the reserve.

When should this form be completed?

An Executor of a Will or an Administrator of an Estate must not proceed with the distribution of the

estate until one of the following occurs:

a) the survivor consents in writing to the proposed distribution;

b) an application made under subsection 36(1) is disposed of; or

c) the period of 10 months referred to in subsection 36(1) and any extended period the court may

have granted under subsection 36(2) have expired and no application has been made under

subsection 36(1) within those periods.


1) In Section A, the Executor of the Will or the Administrator of the Estate fills in the legal

description, or legal land description (the “Property”), which may be found on the Certificate

of Possession or in the Indian Land Registry System:


2) In Section B, the Executor of the Will or the Administrator of the Estate

a) completes the personal information including name, city or town, and province; and

b) fills in all the required information in questions 1 and 2.

c) checks the applicable boxes in Questions 4 and 5.


a) the Executor of the Will or the Administrator of the Estate, as the “declarant”, must sign

the Statutory Declaration, having read and answered all Questions 1 through 5 in

Section B.




27



1) The Executor of a Will or the Administrator of an Estate must provide this form and any other

related documents to the Regional Estates Officer at AANDC.

2) If the box in Question 4A or 4B(ii) has been checked, or if Question 5 has been answered “yes”,

then the court order must accompany this form.

3) The Executor of a Will or the Administrator of an Estate keeps a copy of this form and any other

related documents.

28

7.4 – Statutory Declaration of Executor of a Will or Administrator of an Estate

who is also the Surviving Spouse or Common-Law Partner

29

Statutory Declaration of Executor of a Will or Administrator of an Estate who

is also the Surviving Spouse or Common-Law Partner

30

Statutory Declaration of Executor of a Will or Administrator of an Estate who

is also the Surviving Spouse or Common-Law Partner


This form is used in the specific case where the surviving spouse or common-law partner is the

Executor of Will or Administrator of Estate, wanting to distribute the estate of a deceased First

Nation member or Indian who died on or after December 16, 2014 in order to demonstrate

compliance with s. 38(1) of the FHRMIRA. This consent form requires the declaration of the

Executor of Will or Administrator of Estate to observe provisions of the Indian Act and/or the

FHRMIRA in carrying out their duties.


This form must be completed by the Executor of the Will or the Administrator of the Estate who is

also the surviving spouse or common-law partner of the deceased.

When should this form be completed?

An Executor of a Will or an Administrator of an Estate must not proceed with the distribution of the

estate until one of the following occurs:

a) the survivor consents in writing to the proposed distribution;

b) an application made under subsection 36(1) is disposed of; or

c) the period of 10 months referred to in subsection 36(1) and any extended period the court may

have granted under subsection 36(2) have expired and no application has been made under

subsection 36(1) within those periods.


1) In Section A, the Executor of the Will or the Administrator of the Estate, who is also the

surviving spouse or common-law partner, fills in the legal description, or legal land

description (the “Property”), which may be found on the Certificate of Possession or in the

Indian Land Registry System:


2) In Section B, the Executor of the Will or the Administrator of the Estate, who is also the

surviving spouse or common-law partner

a) completes the personal information including name, city or town, and province; and

b) fills in all the required information in questions 1, 2, 4, and 5.

c) Checks the applicable boxes in questions 6 through 8.

31


who is also the Surviving Spouse or Common-Law Partner


a) the Executor of the Will or the Administrator of the Estate, who is also the surviving

spouse or common-law partner, must sign the Statutory Declaration, having read and

answered all Questions 1 through 8 in Section B.





1) The Executor of the Will or the Administrator of the Estate must provide this form and any other

related documents to the Regional Estates Officer at AANDC.

2) If you answered “yes” to Question 8, then the court order must accompany this form.

3) The Executor of the Will or the Administrator of the Estate who is also the surviving spouse or

common-law partner keeps a copy of this form and any other related documents.

32

7.5 – Statutory Declaration of Surviving Spouse or Common-Law Partner

33

Statutory Declaration of Surviving Spouse or Common-Law Partner

34

Statutory Declaration of Surviving Spouse or Common-Law Partner


This form is used in instances where a spouse or common-law partner may have an interest to, or

in, the family home and whose partner died on or after December 16, 2014, and is giving consent

to the land transaction under section 38(1) of FHRMIRA.


This form must be completed by the surviving spouse or common-law partner of a deceased First

Nation member or Indian who died on or after December 16, 2014.


1) In Section A, the Executor of the Will or the Administrator of the Estate fills in the legal

description, or legal land description (the “Property”), which may be found on the Certificate

of Possession or in the Indian Land Registry System:


2) In Section B,

a) the Executor of the Will or the Administrator of the Estate, in consultation with the

surviving spouse or common-law partner, completes the personal information including

name, Indian Registration number (if applicable), city or town, and province;

b) the surviving spouse or common-law partner fills in all the required information in

questions 1, 2, and 5; and

c) the surviving spouse or common-law partner checks the appropriate box in question 4.


a) the surviving spouse or common-law partner, as the “declarant”, must sign the Statutory

Declaration, having read and answered all Questions 1 through 5 in Section B.





1) This form accompanies the transaction form.

2) If you answered “yes” to Question 4, then a copy of that order must accompany this application.

3) Give a copy of the signed form to the applicant.

4) Keep and file a copy in the First Nation file.

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7.6 – Transfer of a Right to Possession of Reserve Land by Court Order under

FHRMIRA

37

Transfer of a Right to Possession of Reserve Land by Court Order under FHRMIRA


The Transfer of a Right to Possession of Reserve Land by Court Order under FHRMIRA form is to

be filled out by an AANDC Lands Officer in the Region if a court order is issued pursuant to the

Family Homes on Reserves and Matrimonial Interest or Rights Act.


There is no role for the First Nation in handling this form.

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8 – Sample Situations

Scenario 1 - Simple Scenario

Two members live on-reserve and the property on which the family home is situated is only

held in one of the partner’s name. The partner holding the CP wants to transfer the land from

himself to himself and his partner. In this instance, the First Nation has not enacted its own MRP law.

Analysis and Considerations

Clause 15 (1) applies here.

1. Is there a transfer of matrimonial real property? Yes

2. Is a spouse signing away all or part of the matrimonial real property? Yes

3. Are there other interests involved? No

Role of First Nation staff:

1. Prepare the transfer and supporting documents, in accordance with the Indian Lands Registration

Manual.

2. Have the applicant complete the Assessment of Matrimonial Real Property and Statutory Declaration

form.

3. Have the spouse complete the Statutory Declaration of Spouse or Common-Law Partner form, since

in this instance the parcel of land does include the family home.

4. Have all documents signed, witnessed, and commissioned, as appropriate.

5. Prepare Application for Registration.

6. Send forms and other required documents to AANDC in accordance with the Land Management

Manual and/or the Indian Lands Registry Manual procedures.

Responsibilities of applicant:

Complete forms accurately as described in sections 7.1 and 7.2 of this Desk Manual.

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Scenario 2 - Joint Tenancy

A couple, both members of the First Nation living in a conjugal relationship, holds the land as joint

tenants. One of the members passes away. (Note: Joint Tenancy is not applicable in the province of

Quebec.)


Since the property is held in joint tenancy, upon the death of one joint owner, the property is

transferred to the surviving owner and does not form part of the estate, i.e., the survivor gets 100%

of the title automatically. However, a transfer from both names to the one name of the surviving

spouse must be registered.


The Lands Manager assists the surviving spouse to complete the Transfer of Joint Tenancy by Survivorship form in accordance with the Land Management Manual and/or the Indian Lands



With the assistance of the Land Manager, submit the following documents to AANDC:

a) a copy of the Death Certificate, and

b) the completed Transfer of Joint Tenancy by Survivorship form.

40

Scenario 3 - Estates

George holds a CP for the land on which the family home is located. His common-law partner

(Harold) of 25 years is a member of a neighbouring First Nation. George dies, leaving a will in

which he bequeaths this property to his only child (an adult) who is a member of George’s First

Nation. George’s First Nation has not yet enacted an MRP law. Harold wishes to remain in the

family home.


Clauses 14, 34 (1) (3) (4) (6), 36 (5) (6), 38 (1) (2) apply here.

1. As a common-law partner, Harold has rights. (Sexual orientation is not a factor.)

2. AANDC must, on receipt of the notification of death, notify Harold that he has rights and

protections under the Provisional Federal Rules of FHRMIRA with respect to the estate.

3. AANDC will inform Harold regarding the appointment of an estate trustee or an administrator.

4. Harold’s options beyond the automatic 180 of occupancy: he may apply for an Exclusive

Occupation order and/or for division of the value of the assets.


1. Assist with the notification of death, if requested by the family.

2. Assist Harold and/or the child with contacting the Regional Estates Officer, if requested.

3. Assist the Executor in understanding the forms included in the Estates package, if requested.

4. Encourage the Executor to seek the advice from the AANDC Region and/or legal counsel.


1. Harold must apprise himself of his rights.

2. If Harold is making an application for Exclusive Occupation, he must also provide a copy of that

application to the First Nation. If he is successful, a copy of the order must be provided to the

Minister of AANDC and the First Nation.

Responsibilities of Executor:

The Executor may transfer the land to George’s child once Harold has exercised his rights or has

consented to the transfer.

Note This scenario deals only with the matrimonial real property. A parallel process may also be

occurring for the distribution of other property and assets.

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Scenario 4 –Transfer to a Third Party

Pat holds a CP for land on which the family home is located. Pat has decided to sell to another member

of the First Nation. Pat has been in a common-law relationship for 2 years with Tina.


Clause 15 (1) applies here.



3. Are there other interests involved? No


1. Have Pat complete the Assessment of Matrimonial Real Property and Statutory Declaration

form.

2. Have Tina complete the Statutory Declaration of Spouse or Common-law Partner form.

3. Send forms and other required documents to AANDC in accordance with the Land Management

Manual and/or the Indian Lands Registry Manual procedures.


Complete forms accurately as described in sections 7.1 and 7.2 of this Desk Manual.

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Scenario 5 – Assignment of Lease

A husband and his wife (where neither are members of the First Nation nor Indians) have built a home

on reserve land that he leased from a locatee. He has now sold the house and he wishes to assign the

remainder of the lease to the purchaser of the house.




3. Has the locatee consented to the assignment? Yes


1. Ensure that the documents provided by the lawyer are complete, including the Assessment of

Matrimonial Real Property and Statutory Declaration form, are complete.

2. Submit the Assessment of Matrimonial Real Property and Statutory Declaration form and

other required documents to AANDC in accordance with the Land Management Manual

and/or the Indian Lands Registry Manual procedures.


Research responsibilities under the FHRMIRA.

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Scenario 6 – Assignment of Lease

Allan (who is neither a member of the First Nation nor an Indian) and his wife Sarah (she is a member

of a First Nation) have built a home on reserve land that he leased from a locatee. He has now sold the

house and he wishes to assign the remainder of the lease to the purchaser of the house.




3. Has the locatee consented to the assignment? Yes

4. One of the spouses is a member of a First Nation.


1. Ensure that the documents provided by the lawyer are complete, including the Assessment of

Matrimonial Real Property and Statutory Declaration form, are complete.

2. Ensure Sarah has completed the Statutory Declaration of Spouse or Common-Law Partner

form, since she is an Indian and the parcel of land does include the family home.

3. Submit the Assessment of Matrimonial Real Property and Statutory Declaration form, the

Statutory Declaration of Spouse or Common-Law Partner form, and other required documents

to AANDC in accordance with the Land Management Manual and/or the Indian Lands



Research responsibilities under the FHRMIRA.

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9 - Notes on Various Clauses of the Act

A complete copy of the Family Homes on Reserves and Matrimonial Interests or Rights Act is

available online at:

http://www.coemrp.ca/resources/legislation

Here we provide some quick notes on various clauses of the Act related to Matrimonial Real

Property matters.

Clause 2.1 Definitions

“family home” means a structure, which need not be affixed but that must be situated on reserve

land, where the spouses or common-law partners habitually reside or, if they have ceased to

cohabit or one of them has died, where they habitually resided on the day on which they ceased to

cohabit or the death occurred. If the structure is normally used for a purpose in addition to a

residential purpose, this definition includes only the portion of the structure that may reasonably be

regarded as necessary for the residential purpose.

The family home is the structure habitually occupied during the conjugal relationship until the

breakdown of that relationship or the death of one of the partners. Only the portion of the structure

that is used for residential purposes is covered by the definition.

“matrimonial interests or rights” means interests or rights, other than interests or rights in or to

the family home, held by at least one of the spouses or common-law partners

that were acquired during the conjugal relationship;

that were acquired before the conjugal relationship but in specific contemplation of the

relationship; or

that were acquired before the conjugal relationship but not in specific contemplation of the

relationship and that appreciated during the relationship.

It excludes interests or rights that were received from a person as a gift or legacy or on devise or

descent, and interests or rights that can be traced to those interests or rights.

Clause 14 – After Death

When a spouse or common-law partner dies, a survivor who does not hold an interest or right in or

to the family home may occupy that home for a period of 180 days after the day on which the

death occurs, whether or not the survivor is a First Nation member or an Indian.

This clause provides for an automatic right of occupation of the family home to a survivor where

the family home was established on reserve. This provision is not generally found in provincial

45

and territorial family law legislation because of the different context due to different notions of

land ownership off reserve. It was specifically added to meet the unique needs identified for the

reserve context during the consultations prior to the passing of the Act.

Clause 15(1) – Consent of Spouse or Common-Law Partner

Subject to the Indian Act, a spouse or common-law partner who holds an interest or right in or to

the family home must not dispose of or encumber that interest or right during the conjugal

relationship without the free and informed consent in writing of the other spouse or common-law

partner, whether or not that person is a First Nation member or an Indian.

This clause provides that the family home cannot be sold, or otherwise disposed of, or encumbered

(e.g., through a mortgage) during the conjugal relationship without the free and informed written

consent of the spouse or common-law partner, regardless of whether or not that spouse or

common-law partner is a First Nation member. The provisions of the Indian Act regarding transfer

of the right or interest will continue to apply even where the spouse or common-law partner

consents to the transaction.

Clause 16(6) – Notice of Order

Any person against whom the order is made and any person specified in the order are bound by the

order on receiving notice of it.

Since Section 16 is an ex parte proceeding (i.e., a proceeding where one of the parties has not

received notice of it and, therefore, is neither present nor represented), the order takes effect upon

its being made, but the person against whom the order is made is bound by the order only on

receiving notice of it. This provision ensures the right of an individual to receive notice of a

judicial order that concerns them.

Clause 20 – Court Order for Exclusive Occupation

A court may, on application by a spouse or common-law partner whether or not that person is a First

Nation member or an Indian, order that the applicant be granted exclusive occupation of the family

home and reasonable access to that home, subject to any conditions and for the period that the court

specifies.

This clause allows the court to order that one spouse or common-law partner may have exclusive

occupation of the family home for a specified period of time, regardless of whether that person is a

First Nation member or an Indian.

Clause 21 – Court Order for Exclusive Occupation for Survivor

A court may, on application by a survivor whether or not that person is a First Nation member or an

Indian, order that the survivor be granted exclusive occupation of the family home and reasonable

access to that home, subject to any conditions and for the period that the court specifies.

46

This clause allows the court to order that a survivor may have exclusive occupation of the family

home for a specified period of time, regardless of whether or not that person is a First Nation

member or an Indian.

Clause 23 – Interest or Right not Affected

For greater certainty, an order made under any of sections 16 to 18, 20 or 21 does not change who

holds an interest or right in or to the family home nor does it prevent an executor of a will or an

administrator of an estate from transferring such an interest or right to a named beneficiary under the

will or to a beneficiary on intestacy, or a court from ordering the transfer of such an interest or right

under section 31 or 36.

This clause specifies that a grant of exclusive occupation or other similar order does not affect the

underlying interest in or right to the family home. Orders for exclusive occupation focus only on

who may or may not inhabit the family home and do not act as transfers of interests or rights. This is

particularly important in the reserve context where only a member of the First Nation on whose

reserve the family home is located can hold a right to the family home

Clause 34(1) – Entitlement of Survivor

On the death of a spouse or common-law partner, the survivor is entitled, on application made

under section 36, to an amount equal to one half of the value, on the valuation date, of the interest

or right that was held by the deceased individual in or to the family home and to the amounts

referred to in subsections (2) and (3).

This clause provides a presumptive entitlement to a survivor of a half share in the family home,

where the deceased had an interest in or right to that home. The entitlement is intended to ensure

that a survivor is no worse off after the death that they would have been had they divorced the day

before the death.

Clause 34(2) – First Nation Members

A survivor who is a member of the First Nation on whose reserve are situated any structures and

lands that are the object of interests or rights that were held by the deceased individual is also

entitled to an amount equal to the total of :

(a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in

paragraphs (a) and (b) of the definition "matrimonial interests or rights" in subsection 2(1) that

were held by the deceased individual in or to structures and lands situated on a reserve of that

First Nation,

(b) the greater of:

(i) one half of the appreciation in value, between the day on which the conjugal relationship

began and the valuation date inclusive, of matrimonial interests or rights referred to in

paragraph (c) of that definition that were held by the deceased individual in or to structures

and lands situated on a reserve of that First Nation, and

(ii) the difference between the payments that the survivor made towards improvements made,

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between the day on which the conjugal relationship began and the valuation date inclusive,

to structures and lands situated on a reserve of that First Nation that are the object of

matrimonial interests or rights referred to in that paragraph (c) that were held by the

deceased individual, and the amount of debts or other liabilities outstanding on the valuation

date that were assumed to make the payments, and

(c) the difference between the payments that the survivor made towards improvements made

between the day on which the conjugal relationship began and the valuation date inclusive, to

structures and lands situated on a reserve of that First Nation that are the object of interests or

rights that were held by the deceased individual that would have been matrimonial interests or

rights referred to in that paragraph (c) if they had appreciated during the conjugal relationship,

and the amount of debts or other liabilities outstanding on the valuation date that were assumed

to make the payments.

This clause provides a formula to determine the amount to which a survivor (who is a member of

the First Nation on whose reserve are situated any structures and lands that are the object of

interests or rights held by the other) will be entitled on the death of their First Nation member

spouse or common-law partner.

A survivor who is a member of the First Nation on whose reserve are situated any structures and

lands that are the object of interests or rights held by the deceased spouse or common-law partner

(who was also a member of that First Nation) has the same entitlement they would have had under

clause 28(2) had they divorced the day prior to the death:

one-half of the value of the structures or lands that are situated on the reserve that were

acquired by the deceased spouse or common-law partner either during the conjugal relationship,

or before the conjugal relationship but in specific contemplation of the relationship;

the greater of either one-half of the appreciation in the value of certain other structures or lands

held by the deceased that are situated on the reserve or, the amount of any monetary

contributions made by them to improvements to those structures or lands less any remaining

outstanding debt incurred for those contributions; and

where certain other structures or lands held by the deceased that are situated on the reserve did

not appreciate in value, the amount of any monetary contributions less any remaining

outstanding debt incurred for those contributions.

As in the case of relationship breakdown, interests or rights that were received by the deceased as a

gift or legacy or on devise or descent, and interests or rights that can be traced to those interests or

rights are excluded.

Clause 34(3) – Non-Members

A survivor who is not a member of the First Nation on whose reserve are situated any structures

and lands that are the object of interests or rights that were held by the deceased individual is also

entitled to an amount equal to the total of:

(a) one half of the value, on the valuation date, of matrimonial interests or rights referred to in

paragraphs (a) and (b) of the definition "matrimonial interests or rights" in subsection 2(1) that

were held by the deceased individual in or to structures situated on a reserve of that First Nation,

48

(b) the greater of:

(i) one half of the appreciation in value, between the day on which the conjugal relationship

began and the valuation date inclusive, of matrimonial interests or rights referred to in

paragraph (c) of that definition that were held by the deceased individual in or to structures

situated on a reserve of that First Nation, and

(ii) the difference between the payments that the survivor made towards improvements made,

between the day on which the conjugal relationship began and the valuation date inclusive, to

structures situated on a reserve of that First Nation that are the object of matrimonial interests

or rights referred to in that paragraph (c) that were held by the deceased individual, and the

amount of debts or other liabilities outstanding on the valuation date that were assumed to

make the payments, and

(c) the difference between the payments that the survivor made towards improvements made

between the day on which the conjugal relationship began and the valuation date inclusive, to the

following lands and structures situated on a reserve of that First Nation, and the amount of debts or

other liabilities outstanding on the valuation date that were assumed to make the payments:

(i) lands that are the object of matrimonial interests or rights that were held by the deceased

individual, and

(ii) structures that are the object of interests or rights that were held by the deceased individual

that would have been matrimonial interests or rights referred to in that paragraph (c) if they

had appreciated during the conjugal relationship.

A survivor who is not a member of the First Nation on whose reserve are situated any structures

and lands that are the object of interests or rights held by the deceased (who was a member of that

First Nation) is entitled to:

one-half of the value of the structures that are situated on the reserve that were acquired by the

deceased either during the conjugal relationship, or before the conjugal relationship but in

specific contemplation of the relationship;

the greater of either one-half of the appreciation in the value of certain other structures held by

the deceased that are situated on the reserve or, the amount of any monetary contributions

made by them to improvements to those structures less any remaining outstanding debt

incurred for those contributions; and

the difference between the amount of any monetary contributions to certain lands or structures

held by the deceased and any remaining outstanding debt incurred for those contributions.

Non-member survivors do not benefit from the value or appreciation of land situated on reserve, as

that land was set aside for the use and benefit of Indians. The exception is to the extent that they

have directly contributed to improvements to that land.

Interests or rights that were received by the deceased from a person as a gift or legacy or on devise

or descent, and interests or rights that can be traced to those interests or rights are excluded.

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Clause 34(4) – Determination of Value

For the purposes of subsections (1) to (3), the value of the interests or rights is the difference

between:

(a) the amount that a buyer would reasonably be expected to pay for interests or rights that are

comparable to the interests or rights in question, and

(b) the amount of any outstanding debts or other liabilities assumed for acquiring the interests or

rights or for improving or maintaining the structures and lands that are the object of the

interests or rights.

The entitlement of the survivor, rather than being based on the replacement cost of comparable

accommodation (on the same reserve if it were available) would be the difference between what a

buyer would be reasonably expected to pay for similar interests and any debts related to the

interest or rights.

Clause 34(5) – Agreement of Parties

Despite subsection (4), on agreement by the survivor and the executor of the will or the

administrator of the estate, the value of the interests or rights may be determined on any other

basis.

This clause allows the survivor and the executor or administrator to choose another method of

valuation to which they can agree. Again, the Provisional Federal Rules are intended to encourage

settlement of these questions by agreement wherever possible.

Clause 34(6) – Definition of "Valuation Date"

For the purposes of this section, "valuation date" means

(a) in the case of spouses, the earliest of the following days:

(i) the day before the day on which the death occurred,

(ii) the day on which the spouses ceased to cohabit as a result of the breakdown of the

marriage, and

(iii) the day on which the spouse who is now the survivor made an application to restrain

improvident depletion of the interest or right in or to the family home and of the

matrimonial interests or rights that is subsequently granted;

(b) in the case of common-law partners, the earlier of the following days:

(i) the day before the day on which the death occurred, and

(ii) the day on which the common-law partner who is now the survivor made an application

to restrain improvident depletion of the interest or right in or to the family home and of

the matrimonial interests or rights that is subsequently granted.

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The valuation date is the point in time at which the value of matrimonial interests or rights is fixed

for the purposes of the Act. The valuation date is the earliest of a number of possible dates, set out

in this section. Courts will refer to the facts of each particular case in determining which of the

possible valuation dates will apply.

Clause 35 – Variation of Amount

On application by an executor of a will or an administrator of an estate, a court may, by order, vary

the amount owed to the survivor under section 34 if the spouses or common-law partners had

previously resolved the consequences of the breakdown of the conjugal relationship by agreement

or judicial decision, or if that amount would be unconscionable, having regard to, among other

things, the fact that any children of the deceased individual would not be adequately provided for.

The court is directed to consider a number of factors in determining whether or not the result

would be unconscionable, but can also consider factors that are not listed but are raised by the

executor or administrator in the specific circumstances.

Clause 36(1) – Determination by Court

On application by a survivor made within 10 months after the day on which the death of their

spouse or common-law partner occurs, a court may, by order, determine any matter in respect of

the survivor's entitlement under sections 34 and 35 including:

(a) determining the amount payable to the survivor; and

(b) providing that the amount payable to the survivor be settled by

(i) payment of the amount in a lump sum,

(ii) payment of the amount by installments,

(iii) if the survivor is a First Nation member, by the transfer of an interest or right, referred to

in subparagraph (a)(i) or paragraph (b) or (c) of the definition "interest or right" in

subsection 2(1), in or to any structure or land situated on a reserve of that First Nation, or

(iv) any combination of the methods referred to in subparagraphs (i) to (iii).

This clause grants the court the authority to determine the amount payable to the survivor and how

that amount should be paid. This provision sets a cut-off of ten months after the death for the

survivor to apply for a division. The court can determine how much the survivor is owed, and how

that amount should be paid. The ten-month period would balance the desire to allow the survivor

time to take the necessary steps with the need to settle the estate to the benefit of any children or

other beneficiaries.

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Clause 36(2) – Extension of Time

On application by the survivor, a court may, by order, extend the period of 10 months by any

amount of time that it considers appropriate, if the court is satisfied that the survivor failed to make

an application within that period for any of the following reasons:

(a) the survivor did not know of the death of their spouse or common-law partner until after the

period expired;

(b) circumstances existed that were beyond the control of the survivor; or

(c) only after the period expired did the applicant become aware of any interests or rights

referred to in subsections 34(1) to (3).

This section allows the court to extend the ten-month limitation period for an application for

division where the survivor can establish that the particular situation fits within paragraph (a), (b)

or (c).

Clause 36(3) – Clarification

A transfer may be ordered under subsection (1)

(a) in the case of a First Nation that is not referred to in any of paragraphs (b) to (d), despite

sections 24 and 49 of the Indian Act;

(b) in the case of a First Nation as defined in subsection 2(1) of the First Nations Land

Management Act, subject to any land code or First Nation law as defined in that subsection to

which the First Nation is subject;

(c) in the case of a First Nation that has entered into a self-government agreement to which Her

Majesty in right of Canada is a party, subject to any First Nation law enacted under the

agreement; or

(d) in the case of the Mohawks of Kanesatake, subject to any land governance code adopted, or

any Kanesatake Mohawk law enacted, under the Kanesatake Interim Land Base Governance

Act.

In the case of a First Nation with its own land code or law, whether under the First Nations Land

Management Act, a self-government agreement, or the Kanesatake Interim Land Base Governance

Act, the transfer can only be ordered where it is consistent with that land code or law. In the case of

any other First Nation, a transfer may occur despite section 24 of the Indian Act(which requires the

consent of the Minister).

Variation of Trust

Clause 36(4) – Variation of Trust

On application by a survivor, an executor of a will or an administrator of an estate, the court may, by

order, vary the terms of a trust that is established under the terms of the deceased individual's will so

that the amount that is payable to the survivor may be paid. This clause allows the court to vary the

terms of any trust set up under the deceased's will, if necessary to allow for payment to the survivor.

52

Clause 36(5) – Notice to Affected Persons

An applicant for an order under this section must, without delay, send a copy of the application to

the following persons:

(a) to the Minister, and

(b) to any other person specified in the rules regulating the practice and procedure in the court:

(i) in the case where the applicant is the survivor, to the executor of the will or the

administrator of the estate, if the applicant knows who those persons are; or

(ii) in the case where the applicant is the executor of a will or an administrator of an estate, to

the survivor.

This clause directs the applicant to send copies of the application to certain individuals who could

be directly affected if the court grants the order.

It is intended to ensure that certain individuals who could be directly affected by the court order

are made aware of the application and to decide whether or not to ask the court to hear their views

before the order is made. The Minister is included because of his or her responsibilities for estate

administration under the Indian Act.

Clause 36(6) – Notice to Beneficiaries

On receipt of the copy of the application, the executor of the will or the administrator of the estate

or, if neither has been appointed, the Minister must, without delay, send a copy of the application

to the named beneficiaries under the will and the beneficiaries on intestacy.

This clause provides that the executor of the will or administrator of the estate who receives notice

of the application must notify the beneficiaries of the will or estate. If neither an executor nor an

administrator has been appointed the Minister must make the notification.

The executor or administrator act on behalf of the beneficiaries, and if those beneficiaries are made

aware of the application, they may decide to ask the executor or administrator to in turn ask the

court to hear their views before the order is made. In the absence of an executor or administrator,

the Minister has the responsibility of notifying the beneficiaries of the application.

Clause 37 – Survivor's Choice

If a court decides, after the death of a spouse or common-law partner, that an amount is payable to

the survivor under section 30 or 36, the survivor may not, in respect of the interest or right in or to

the family home and of the matrimonial interests or rights, benefit from the deceased individual's

will or sections 48 to 50.1 of the Indian Act.

This clause provides that once a court has made a determination on an application for the division

of the value of the family home and other matrimonial interests or rights, the survivor who made

the application cannot also benefit from the deceased's will or under the intestacy provisions of the

Indian Act in respect of the same interests or rights.

53

The Provisional Federal Rules seek to ensure that the survivor is not disadvantaged by providing

access to the same recourse that would have been available had the couple divorced instead the day

before the death. However, where the survivor chooses to apply for a division instead of taking

their portion under a will or intestacy, that survivor should not also be allowed to effectively

"double-dip" or it would be unfair to other beneficiaries. The survivor would still be able to

receive any specific personal bequests or movables.

Clause 38(1) – Distribution of Estate

Subject to subsection (2), an executor of a will or an administrator of an estate must not proceed

with the distribution of the estate until one of the following occurs:

(a) the survivor consents in writing to the proposed distribution;

(b) the period of 10 months referred to in subsection 36(1) and any extended period the court

may have granted under subsection 36(2) have expired and no application has been made

under subsection 36(1) within those periods; or

(c) an application made under subsection 36(1) is disposed of.

This prevents the executor or administrator from distributing the estate until either the survivor

consents in writing to the distribution, the time period during which the survivor must apply to the

court for a determination of entitlement has expired, or any application by the survivor has been

disposed of by the court.

This provision protects the assets of the deceased's estate until after the survivor has had the

opportunity to consider whether to choose to inherit from the estate or to apply to the court under

FHRMIRA for a share of the value of the family home and any matrimonial interests or rights.

Clause 38(2) – Advances to Dependents

Subsection (1) does not prohibit reasonable advances to survivors or other dependents of the

deceased spouse or common-law partner for their support. The executor or administrator, although

prohibited from distributing the estate, may nevertheless make reasonable advances from the

estate's assets to support dependents of the deceased.

Clause 38(3) – Two Survivors

When there are two survivors, a common-law partner and a spouse with whom the deceased

individual was no longer cohabiting, and an amount is payable to both under an order referred to in

section 36, the executor of the will or the administrator of the estate must pay the survivor who

was the common-law partner before paying the survivor who was the spouse.

This clause sets out the order of payment in the rare event that an individual dies leaving a

married, separated spouse, and a subsequent common-law partner with whom the deceased was

living with at the time of death. This provision requires the deceased's executor or administrator to

pay the common-law partner before paying the separated, married spouse. This provision is in

place is because the common-law partner was living with the deceased at the time of death and is

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presumed to be more dependent than the separated, married spouse who is presumed to have had

time to resolve some or all of the consequences of the breakdown of their relationship with the

deceased.

This provision addresses the only possible circumstance where in law there could be two survivors,

that is, on the day of death, the deceased was separated but not divorced from a married spouse,

and in a common-law relationship that had begun after the separation.

Clause 39 – Improvident Depletion

On application by a survivor, a court may make any order that it considers necessary to restrain the

improvident depletion of the interest or right in or to the family home and of the matrimonial

interests or rights for the purpose of protecting

(a) the right that might be granted to the survivor in an order made under section 21 or any

interest or right that might be transferred to the applicant in an order made under section 36;

or

(b) the value of the interests or rights that will be used to determine the amount that might be

payable to the survivor in an order made under section 36.

This provision allows a court to intervene to protect the interest of the survivor if there is an

intention to deliberately lessen the value of the family home or matrimonial interests or rights.

Clause 40 – Enforcement of Agreements

If a survivor and the executor of the will or the administrator of the estate enter into a written

agreement that sets out the amount to which the survivor is entitled and how to settle the amount

payable by one or both of the methods referred to in subparagraph 36(1)(b)(i) or (ii), a court may,

on application by one of them, make an order to enforce that agreement if the court is satisfied that

the consent of the survivor to the agreement was free and informed and that the agreement is not

unconscionable.

Written agreements are enforceable by application to a court, except where the court finds that the

agreement is unconscionable or that consent was not freely given.

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10 - Additional Reference Material

Role of Chief and Council, a booklet published by COEMRP

Outlines and defines the responsibilities of Chief and Council under the PFRs as

contained in FNRMIRA

On-Reserve Matrimonial Real Property Rights, a booklet published by COEMRP

Outlines the rights and protections available under the PFRs as contained in

FNRMIRA

Understanding Estates Management on Reserve, a booklet published by COEMRP

Outlines the survivorship rights under the PFRs as contained in FNRMIRA

MRP Toolkit, published by COEMRP

A comprehensive toolkit that guides First Nations professionals in MRP matters

and in the development of their own MRP law.

MRP Training Courses provided by COEMRP

The Centre provides training courses across the country. First nations are

encouraged to take advantage of these offerings by contacting the Centre, at


c/o National Aboriginal Land Managers Association

1024 Mississauga St, Curve Lake, Ontario K0L 1R0

Email: [email protected]

Phone: 1-855-657-9992 or 1-705-657-9992

COEMRP Website http://www.coemrp.ca

NALMA Website http://www.nalma.ca

AANDC Website https://www.aadnc-aandc.gc.ca/


http://www.coemrp.ca/

MRP Desk Manual€¦ · 1024 Mississauga Street Curve Lake, ON K0L 1R0 Canada Phone: (705) 657-9992...

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