My spouse owns the home we have been living in, which is on her First Nation reserve. Do I have any rights to it now that we have separated?
You may have rights to a share of the home's value or to live in it, but it depends on:
- which First Nation reserve your spouse lives on
- the date that you separated, since there is a new federal law that may apply
- if you, your spouse, and your children are registered (status) Indians
The Indian Act does not say how a matrimonial, or family, home on a First Nation reserve should be divided when a couple separates. And the Ontario Family Law Act does not apply to a family home that is on a First Nation reserve.
To deal with this gap in the law, the federal government passed a new law in 2013: the Family Homes on Reserves and Matrimonial Interests or Rights Act. The new law allows First Nations to pass their own laws on matrimonial property rights to meet their particular needs and respect their customs.
If a First Nation does not pass its own laws, then in most cases the new federal law creates rules to divide the value of a family home on a reserve between both married spouses or between common-law partners who have lived together for at least one year. It also creates rules about who can live in the home. Most of the rules begin to apply on December 16, 2014.
So the rules that apply to your situation depend on when you and your spouse separated.
This is a complicated area of law. You should get legal advice from a family law lawyer. Ideally, your lawyer should also have experience dealing with First Nation issues.