Occupation of the Family Home

Both partners have the right to live in the family home during the relationship whether they are a member of the First Nation or defined as an Indian under the Indian Act or not. When one partner dies, the surviving partner can stay in the family home for at least 180 days after their death.

A partner cannot sell the family home or take out a loan against it without the consent of the other partner. The rules in the Indian Act that limit who reserve land can be transferred to and who can collect on a loan secured by something on a reserve still apply.

The other partner must consent freely and understand what they are agreeing to. This applies whether the partner is a First Nation Member or defined as an Indian under the Indian Act or not.

If the family home is sold or used for a loan without the consent of the other partner, the person who bought it can only keep it if they paid what it was worth and they either:

• did not know that it belonged to a couple OR
• did not know that the other partner had not consented

Otherwise, the sale or loan can be cancelled. If it cannot be cancelled, a partner can sue the other partner for what they lost.

Even though both partners have the right to live in the family home, a court can give one partner the right to live there without the other partner. This is called an exclusive occupation order. This order can be made whether the partner asking for it is a First Nation Member or defined as an Indian under the Indian Act or not. The order can be for any length of time the court decides. This order does not change who has a right or interest in the family home.

A court can order:

• the other partner or named person to leave at once or within a set time and not come back
• the other partner to leave the family home as it was
• the partner with exclusive occupation to make payments to the other partner towards their housing costs
• either partner to pay the other partner for repair and maintenance costs

What Will the Court Consider When Deciding If I Can Stay in the Home?

In deciding about an exclusive occupation order, the court considers things such as:

• what is best for any children
• if the children are members of the First Nation, keeping them connected with that First Nation
• the collective interests of the First Nation in the reserve
• how long the partner applying has lived on the reserve
• the finances of both partners
• any health condition of either partner
• if there are other places on the reserve for either partner to live
• if an elderly person or a disabled person lives in the home and is being cared for by one of the partners
• any family violence
• if either partner has been psychologically abusive to the other partner, the children or anyone else who lives in the home

If one partner dies, the surviving partner can automatically stay in the home for 180 days but you can also apply to continue to live in the family home for longer. The court can make an order giving you the right to live in the home for any length of time.

An order made after the death of one partner can require that:

• the surviving partner keep the home in the same condition it is in
• any named person leave at once or within a set time and not come back
• the person in charge of the Estate or someone else with a right or interest in the home pay for all or part of maintenance and repair costs

What Does the Court Consider When Deciding if I Can Stay After My Partner Dies?

In deciding whether to make an order after the death of one partner, the court considers things such as:

• the best interests of any children who live in the home, including the interest of any child who is a First Nation Member to keep a connection with that First Nation
• any agreement between the partners
• the terms of any Will
• the collective interests of First Nation Members in their reserve land
• the medical condition of the surviving partner
• how long the surviving partner has lived on the reserve
• if the family home is the only asset with significant value in the Estate
• the interests of any elderly person or person with a disability, who lives in the home and who is cared for by the surviving partner