Family Property Division

FHRMIRA only applies to dividing buildings or land on a reserve. Anything else like a bank account or a car is divided using the rules that apply off reserve.

Property covered by FHRMIRA includes:

• the family home on a reserve
• any interests the couple or one of them have in other reserve land
• any interests the couple or one of them have in a building (that is not the family home) on reserve land

An interest in reserve land, other than the family home, is only covered by FHRMIRA if it is recognized under the Indian Act or a Land Code. The right to a building on a reserve must also be recognized in one of these ways or be recognized by the First Nation.

Except for the family home, family property does not include property that either partner inherited or was gifted. It also does not include anything that was bought with money from selling family property that was a gift or inheritance.

The Act applies when a couple divorce or separate or when one of them dies. Under this Act either partner can apply to court to have their family property divided. Applications need to be made within 3 years of when a couple stopped living together. If one partner has died, it needs to be made within 10 months of when they died. Instead of applying to court a couple can agree on how to divide their property.

Because the value is determined when the relationship ends there are rules about when a relationship is considered to have ended.

For married couples, the relationship ends when they split up and are not getting back together. For couples that lived together but are not married, it is when one of them shows they are ending the relationship. This could be when the person moves out or tells their partner they are ending the relationship. If a couple divorces or applies for a family order before the relationship ends, the value at that time is used.

The value of the family home is divided equally between the partners.

For building and lands that are not the family home, the division is different if one of the partners is not a member of the First Nation.

First Nation Members receive:

• half the value of buildings or land on the reserve that their partner bought during the relationship or because the relationship was starting

For property their partner brought into the relationship, First Nation members receive:

• half the increase in the value of buildings or land during the relationship or what they paid towards improvements less debts still owing—whichever is more OR
• if the value of the building or land did not increase, money they put into improvements less any debts still owing

Non-Members receive:

• half the value of buildings or land on the reserve that their partner bought during the relationship or because the relationship was starting

For property their partner brought into the relationship, Non-Members receive:

• half the increase in the value of buildings (not land) during the relationship or what they paid towards improvements less debts still owing—whichever is more OR
• if the value of the buildings did not increase, money they put into improvements less any debts still owing

The court can order the partner who owes to the other partner for family property to:

• pay a lump sum
• pay in installments
• transfer their interest to the other partner if they are a First Nation Member

If one partner is giving away or selling family property in a way that means it would no longer be able to be divided, the court can order them to stop.

Courts can order a different division of family property than what is described above. They can do this if it is unfair, including if it is unfair because:

• one partner has a financial responsibility to care for children
• of the amount of debt or other liabilities
• there has been a significant change in value between when the couple separated and when the order is made
• one partner has exclusive occupation of the family home by agreement or court order
• of the availability of a comparable home on the reserve
• of how long the couple has been together
• one partner wasted family property or took loans against family property without the other partner’s agreement

If one partner dies, the other partner can still apply to court to have their family property divided. Applications must be made within 10 months of the partner dying. If the survivor applies to divide the family property, they cannot also inherit any of their partner’s family property.

Family property is divided the same way as it would have been if the couple split up before the partner died. It is the value of the property on the day before the partner died. For married couples, it is when they stopped living together if that happened before the partner died. The surviving partner can agree on a different value with the person in charge of the Estate.