Until 2013, there has been a gap in the various legislations dealing with family homes on reserves. The Indian Act, which governs Indians and Lands Reserved for Indians, was silent on matrimonial real property issues and division of family property on a break-down of the relationship. The most notable case dealing with this complex issue was Derrickson v. Derrickson,  1 S.C.R. 285 (Derrickson). In Derrickson, the wife brought an application for a division of the interest for the Certificates of Possession her husband held, or for compensation in lieu of division. The application regarding the division of the Certificate of Possession was brought under the Provincial legislation. The application was dismissed by the Supreme Court of British Columbia. On appeal, the British Columbia Court of Appeal held that the wife was not entitled to an interest in land, but she was entitled to compensation. The Supreme Court of Canada held that the Family Relations Act, R.S.B.C. 1979, c. 121, did not apply to lands in a reserve held by an Indian, and there was no provision under the Indian Act for compensation.
In 2013 the Federal government enacted the Family Homes on Reserves and Matrimonial Interests of Rights Act (the “FHRMIRA”). The FHRMIRA applies to reserves that have not enacted their own matrimonial real property laws. Do you fall under the FHRMIRA? If you are a spouse or common-law partner, and either you or your partner is a First Nation member or a status Indian residing on a reserve that does not have legislation dealing with matrimonial real property, then the FHRMIRA is applicable. You also have to determine if your community enacted its own matrimonial real property laws.
What if there is personal property to be divided? Does the FHRMIRA deal with the division of personal property? The short answer at this time would be no. Applications for division of personal property would have to be made under the applicable provincial legislation.