MEMBERTOU FAMILY HOMESLAW,2016
TABLE OF CONTENTS PART 1 CITATION .......... ............................. ............................... ............. .. ...................... 5 PART 2 DEFINITIONS, INTERPRETATION AND APPLICATION ............................. 5 Definitions ....................................................................................................................... 5 Interpretation ................................................................................................................... 9 Application .............................................. ...... ........................ .. ...................................... 10 PART 3 DOMESTIC AGREEMENTS AND MEDIATION ........................................... 11 Domestic Agree1nents ...... ....... ......... .... ........ ..... .......... ...... ............. .. ........... ....... .... ....... 11 Variation of Domestic Agreements .............................. ...................... ..... ..................... 11 Registration of Spousal Interest ...... .... ......... ....................... .......... .. ........................ .. .... 12 Mediation ....................................... ... .. ....................................... ............. ...................... 12 PART4FAMILYHOMES .............................................................................................. l3 Occupation During Relationship ................................................................................... 13 Occupation after Death ................................................................................................. 13 Common-law Partner Consent Not Required for Disposal ofFamily Home ............... 14 Spousal Consent Required for Disposal of Family Home .................................... .. ...... 14 Disposal of Family Home without Consent. ... .. .............................. ...... ........... .. .......... . 14 Application for Damages .............................................................................................. 15 Burden to Prove Consent ......................... ......... ........... ....... ............................ .... .. .. ...... 15 Order Allowing Disposal of Family Home without Consent .. ..................................... 15 PART 5 EMERGENCY PROTECTION ORDERS ......................................................... 15 Application for Emergency Protection Order ............................................................... 15 Emergency Protection Order ......................................................................................... 16 Conditions in Emergency Protection Order .................................................................. 16 Considerations .......................................................... ........ ....................... ....... ............ ... 17 Emergency Protection Order Binding ........................................................................... 18 Notice of Emergency Protection Order ................. ....... ....................... .. ........................ 18 Application to Vary or Revoke Emergency Protection Order ...................... .. .. .. .... ...... 18 Notice of Application .................................................................................................... 18 Confirm, Vary or Revoke Order ....................................... .. .......................................... 19
Mcmbertou Family Homes Law, 2016 Considerations ......................................... ............. .. ......... .. ... ................ ............... .......... 19 Order Binding ................................................................................ ..... .......... ....... ......... 19 Notice of Emergency Protection Order. ........................................................................ 19 Exclusion ofPublic from Emergency Protection Order Hearing ....... .. .. .. ... .. ............... 20 PART 6 EXCLUSIVE OCCUPATION ORDER (AT BREAKDOWN OF RELATIONSHIP) .................... ......................................................................................... 20
Application for Exclusive Occupation Order ............................................................... 20 Copy of an Application ....................................... ......... ... .............................................. 21 Exclusive Occupation Order .......... ................... ............................................................ 21 Content of Exclusive Occupation Order ....................................................................... 21 Considerations .............. ..... ........... ............. ...... .............................................................. 22 Emergency Protection Order Revoked ............................ ............................................. 23 Notice of Exclusive Occupation Order ........................ ... .......................... .................... 23 Application to Vary or Revoke Exclusive Occupation Order ...................................... 24 Notice of Application .................................................................................................... 24 Court Order ................... ..... ............... ............. .... ........................................................... 24 Considerations .................................................................. .. ......... .......... ..... ........... .... .... 24 Notice of Order ............................... ................................................ ....... ..................... .. 25 PART 7 EXCLUSIVE OCCUPATION ORDER (AFTER DEATH OF A SPOUSE OR COMMON-LAW PARTNER) ......................................................................................... 25
Application for an Exclusive Occupation Order after Death of a Spouse or Common-law Partner .................................................................................................................... 25
Notice of Application .... ............. ............... ................ ......... ....... .................................... 25 Court Order ..... ........ ...................... ........... .......... ....... ................ .................................... 26 Content of Order ........................................................................................................... 26 Considerations ...................................... ......................................................................... 26 Notice of Order ....................................................................... .... .. .......... ............... .. ..... 28 Application to Vary or Revoke Exclusive Occupation Order after Death of a Spouse or Cotnmon Law Partner .......... ........................ ... ..................................................... ......... 28
Copy of an Application ................................................................................................. 28 Court Order ....... ........................ ............. ............ ............... .. .......................................... 28 Considerations. .............................................................................................................. 28 Notice of Order ............................................................................................................. 29 PART 8 DIVISION OF THE VALUE OF A FAMILY HOME ...................................... 29 (UPON BREAKDOWN OF MARRIAGE OR DOMESTIC PARTNERSHIP) .............. 29
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Mcmbertou Family Homes Law, 2016 Notice of Applications Made Under This Part ............................. ................................ 29 Application by Spouse .................................................................................................. 29 Court Order ................... .................... ............................................................................ 29 Valuation Date .................................. ................. ........................... ................................ 30 Entitlement on Breakdown ofRelationship .................................................................. 30 Assessing Value .... .............. ............ ................................................................... ...... ..... 30 Interim Order to Protect and Preserve an Interest ........ ... ............ ... .......... ......... ....... ..... 31 Enforcement of Domestic Agreements ......................................................................... 31 PART 9 GENERAL ...... ...................... ............ ............................................................... ... 32 Representations by Council ......................................................................... ................. 32 Notice of Order to Council ...................... ......... .............. .............................................. 32 Liability of Peace Officer Limited ................... ............................................................. 32 Interest or Right Not Affected ................................................. ................. .. ............... ... 32 Effect of Order on Obligations under a Lease .............................................................. 32 Offence ............................... .. ........................... .... ............. ... ............. ............................. 32 PART 10 JURISDICTION OF COURTS ........................................................................ 33 Divorce Proceeding Pending ......................................................................................... 33 Other Family Proceedings Pending ................................................................. ......... .... 33 No Pending Family Proceedings .................. ........... ........... ........... .......... ...................... 33 Proceedings on Death Pending ..................................................................................... 33 No Proceedings on Death Pending ............................................................................... 33 Possibility of Joinder. .................................................................................................... 34 Right of Appeal- Divorce Proceeding ...... ................................................................. 34 Right of Appeal - Other Proceeding ........................................................................... 34 PART 11 RUT .RS OF PRACTICE AND PROCEDURE .............. ........ ............... ... .... ..... 34 Definitions. ......................................... ........ ..... ............. ......... ......................... ........ ....... 34 Rules ............................................................................................... .............................. 34 Exercise of Power to Make Rules ................................................................................. 35 Provincial Laws of Evidence ................................................................ ................. ....... 35 Continuation of Proceedings on Death ofParty ........................................................... 35 Continuation of Application by Survivor after Death of Party ..................................... 35 Continuation of Application by Executor or Administrator after Death of Party ......... 35 Council Power to Make Regulations ............................................................................ 36 Regulations Prevail .. ......... ...... ............... .............................................. ........ ................ . 36
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Membertou Family Homes Law, 2016 PART 12 PROOF OF LAW AND ACCESS TO COPIES OF LAW .............................. 36 PART 13 AMENDMENT OR REPEAL. ... ..... ....... .. ..... ....... ... ......... .................. ............. . 36 Major Atnendments .. ............. ................ ... ......................................... .............. ... ... ..... .. 37 Rights of Eligible Voter .................................. ........................................................ ...... 37 Right to Attend Members-At-Large Meeting .. ..... ........... ............................................. 37 More Than One Meeting ..... ...... ........ ............................................. .... ............. .............. 37 Quorum for Members-At-Large Meeting ..... ...... .......................................................... 37 Voting at a Members-At-Large Meeting ................... .. .... ... ........... .... ........ ......... ...... .... 37 Requirements for Approval at Members-At-Large Meeting ............... ..... ...... ........ .. .... 38 Notice of Members-At-Large Meeting ...... ......................................................... ..... ..... 38 Conduct of Members-At-Large Meeting ...... ............ ............. ............................ .... ....... 38 Where Quorum Not Met in First Members-At-Large Meeting ........... ......................... 39 Authority to Make Additional Rules and Procedures for Members-At-Large Meeting39 Minor Arrlendments .. ........................................ ........ .................................................... 39 PART 14 COMI.NG INTO FORCE ........... ................ .............. ........................... .............. 39
WHEREAS A. Membertou is a part of the Mi'kmaw Nation whose ancestors have used and occupied Mi 'kma'ki from time immemorial;
B. Membertou has an unextinguished right to self-determination, as affirmed by the United Nations Declaration on the Rights ofI ndigenous People, which includes a right to govern itself, its members and its lands;
C. Membertou has an unextinguished and inherent right of self-governance which emanates from its people, culture, language, land and aboriginal and treaty rights, which are recognized by section 35 of the Constitution Act, 1982;
D. Membertou, as an aspect of its unextinguished right to self-determ ination and its unextinguished and inherent right of self-governance, has jurisdiction to create rules for the resolution of issues regarding family homes and real property located on Membetiou lands upon the breakdown of a marriage or common-law relationship;
E. Section 7 of the Family Homes on Reserves and Matrimonial interests or Rights Act provides a First Nation with the power to enact a First Nation law that applies during a relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on its reserves and the division of the value of any interests or rights held by spouses or common-Jaw partners in or to family homes on its reserves;
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Membertou Family Homes Law, 201.6 F. Nova Scotia laws respecting family homes and real prope11y do not apply to Membertou lands;
G. Membertou has always resolved issues relating to fami ly homes and real property located on Membertou lands in accordance with its own customs, traditions and practices, which have evolved over time;
H. Membertou does not wish to be bound by the default provisions of the Family Homes on Reserves and Matrimonial Interests or Rights Act;
I. Membertou desires to provide a law appropriate to Membertou culture and traditions that applies during a relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on Membertou lands and the division of the value of any interests or rights held by spouses or common-law partners in or to family homes located on Membertou lands;
J. Upon the breakdown of a marriage or common-law relationship, Membertou intends to provide rights and remedies, without discrimination on the basis of sex, to spouses and common-law partners who have or claim interests or rights to family homes located on Membertou lands;
K. Membertou recognizes that spouses and common-law partners have a right to enter into domestic agreements that set out their respective rights and obligations upon separation, divorce or death with regard to their family home located on Membertou lands and to resolve their disputes regarding such matters amicably; and L. Membertou believes that the best interests and welfare of all children shall be paramount when determining the interests and rights of spouses and common-law partners, and that family homes shall be a place of safety and comfort for children:
NOW THEREFORE the Chief and Council of Membe1iou enacts the Membertou Family Homes Law as follows:
PARTl CITATION
1. This Law may be cited as "Membertou Family Homes Law, 2016". PART2 DEFINITIONS, INTERPRETATION AND APPLICATION
Definitions 2. Unless the context indicates the contrary, in this Law the fo llowing definitions will apply:
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Mcmbertou Family Homes Law, 2016 "child" or "children" means any ch ild or each child of the spouses or common-law partners who is under the age of nineteen (19), whether they are:
(a) born in or out of wedlock; (b) legally adopted by the spouses or common-law partners; or (c) adopted by the spouses or common-law partners in accordance with Mi'kmaw custom;
"common-law partners" means: (a) two (2) persons who are not married to each other or in a domestic partnership and who have lived together for a period of not less than five (5) years in a conjugal relationship; and
(b) two (2) people who are not married to each other or in a domestic partnership and who live together in a conjugal relationship and who have a child or children of the relationship;
"conjugal relationship" means a relationship between spouses or common-law partners; "Council" means the Chief and Councillors of Membertou or any successor elected government ofMembertou;
"court" means a court having jurisdiction in accordance with Part 1 0; "dispose" includes to give, to sell, to exchange and to conduct any other method of disposal or to execute any land instrument, including a will, that has the effect of transferring an interest or right;
"domestic agreement" means a written agreement that is signed by lwo (2) parlit:s in fronl of a w itness in which the parties agree on their respective rights and obligations with regard to their fami ly home:
(a) during their marriage or relationship; (b) on separation; (c) on the annulment or dissolution of their marriage; or (d) on the death of one (I) or both of them; "domestic partnership" means a conjugal relationship between two (2) persons who have Page6
Membertou Family Homes Law, 2016 registered a valid domestic partners declaration in accordance with Part II of the Vital Statistics Act R.S., c. 494, s. 1; "ex parte" means without having to give notice or an opportunity for argument to the
other party;
"family home" means an interest or right in real property located on Membertou lands that: (a) is registered in the name of at least one (1) spouse or common-law partner in the Lands Register;
(b) is not a Membertou-owned or guaranteed home; (c) two (2) spouses or common-law partners habitually reside in or, if they have separated or one (1) of them has died, they habitually resided in on the day on which they separated or the death of one (1) of them occurred; and
(d) was either: (i) acquired during the relationship; or (ii) acquired before the relationship, but in specific contemplation of the marriage or relationship,
however, "family home" does not include any real property in Membertou lands that is received through inheritance or gift, unless it can be shown that the inheritance or gift was intended to be held by the spouses or common-law partners together;
"family violence" means any of the following acts or omissions committed by a spouse or common-law partner against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home, whether or not such act or omission occurs in the family home:
(a) an intentional application of force without lawful authority or consent, excluding any act committed in self-defence;
(b) an intentional or reckless act or omission that causes bodily harm or damage to property;
(c) an intentional, reckless or threatened act or omission that causes a reasonable fear of bodily harm or damage to property;
(d) sexual assault, sexual abuse or the threat of either; (e) forcible confinement without lawful authority; or (f) criminal harassment;
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Membertou Family Homes Law, 2016 "INAC" means the federal department ofTndigenous and Northern Affairs Canada; "Indian ACI'' means the Indian Act, R.S.C., 1985, c. I-5; "interest or right" means: (a) a right to possession, with or without a Certificate of Possession or Certificate of Occupation, allotted in accordance with section 20 of the Indian Act; and
(b) a lease under section 53 or 58 of the Indian Act. "Lands Register" means the lands register established and maintained by INAC as required under section 21 of the Indian Act and section 22(2) of the First Nations Land Management Act;
"Law" means this Membertou Family Homes Law, 2016; "member" means a person whose name appears on Membertou Membership List; "Membertou" means Membertou within the meaning of the Indian Act for whose use and benefit in common Membertou lands have been set apart by Canada;
"Membertou council resolution" means a formal, documented decision made by a majority of Council at a duly convened meeting of Council;
"Membertou lands" means any and all of the following reserve lands: (a) Sydney 28A; (b) Membertou 28B; (c) Caribou Marsh 29; (d) Malagawatch 4; and (e) lands set apart by Canada in the future as lands reserved for the use and benefit of Membertou, within the meaning of subsection 91(24) of the Constitution Act, 1867 and section 2(1) of the Indian Act.
"Membertou-owned or guaranteed home" means either: (a) a home occupied by spouses or common-law partners registered in the name of Membertou; or
(b) a home occupied by spouses or common-law partners which is subject to an
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Membertou Family Homes Law, 2016 undischarged housing loan that names Membertou as a guarantor; "real property" means immovable property such as land or a bui lding or an object that, though at one time a chattel, has become permanently affixed to land or a building;
"spouse" means a person who: (a) is married to another person, whether by a traditional, religious or civil ceremony; (b) is in a domestic partnership; or (c) has entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right under this Law.
For greater certainty, the definitions of spouse and references to marriage in this Law include:
(a) spouses ofthe same gender; (b) relationships entered into before this Law takes effect; and (c) former spouses: (i) for the purposes of enforcing rights or obligations under a court order or domestic agreement as defined in this Law, or
(ii) for asserting rights or obligations under this Law, so long as an application by a former spouse is commenced within one ( 1) year of divorce of the spouses;
"survivor" means the person who is still alive after the death of their spouse or common-law partner; and
"Vital Statistics Act" means the Vital Statistics Act, R.S., c. 494, s. 1. Intet·pt·etation 3. This Law shall be interpreted in a fair, large and liberal manner. 4. The principles set out in the preamble to this Law may be used to interpret this Law.
5. In this Law: (a) the use of the word "shall" denotes an obligation that, unless this Law provides to the contrary, shall be carried out as soon as practicable after this Law comes into effect or the event that gives rise to the obligation occurs;
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Membertou Family Homes Law, 2016 (b) unless it is otherwise clear from the context, the use of the word "including" means "including, but not limited to", and the use of the word "includes" means "includes, but is not limited to,.;
(c) headings and subheadings are for convenience only, do not form a part of this Law and in no way define, limit, alter or enlarge the scope or meaning of any provision of this Law;
(d) a reference to a statute includ!es every amendment to it, every regulation made under it and any Jaw enacted in substitution for it or in replacement of it;
(e) unless it is otherwise clear from the context, the use of the singular includes the plural, and the use of the plural includes the singular; and
(f) unless it is otherwise clear from the context, the use of the masculine includes the feminine, and the use of the feminine includes t he masculine.
6. Where any Jaw or regulation of Canada or the Province of Nova Scotia or any other Membertou law applies to any matter covered by th is Law, compliance with this Law does not relieve any person from also complying with the provisions of the other applicable Jaws or regulations.
7. This Jaw does not limit or preclude any right or remedy otherwise available to persons who are or may be affected by it pursuant to any other law applicable on the breakdown of a marriage or relationship with respect to property other than the family home and real property located on Membertou lands, or other entitlements or obligations of spouses.
8. This law does not limit or preclude the use of any method of alternative dispute resolution by spouses or common-Jaw partners.
9. The structures, organizations and procedures established by or under this Law shall be interpreted in accordance with the culture, traditions and customs of the Mi' kmaw, unless otherwise pruviued.
10. The Mi'kmaw language may be used to clarify the meaning of any provision in this Law, .if the meaning of that provision is not otherwise clear in English.
11. This Law does not abrogate or derogate from any Aboriginal or Treaty rights or freedoms that pertain to Membertou or its members.
Application 12. This Law applies in respect of:
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Membertou Family Homes Law, 2016 (a) the use, enjoyment. occupation and possession of family homes located on Membertou lands; and
(b) the interests and rights of spouses and common-law partners in or to family homes located on Membertou lands.
13. This Law only applies to spouses and common-Jaw partners if at least one (1) of them is a member.
14. This Law applies in respect of interests and rights acquired both before and after this Law takes effect.
15. This Law does not apply to bank accounts, household goods or other personal property. It only applies to a family home that is located on Membertou lands.
16. For greater certainty, this Law does not apply to an interest or right in or to a family home that is held by either spouse or common-law partner, or both spouses or common-law partners, where neither spouse or common-law partner is a member.
17. For greater certainty, this law does not apply to Membertou-owned or guaranteed homes, except for the purposes of emergency protection orders.
18. If any provision of this Law is held invalid by a court of competent jurisdiction, the invalid provision shall be severed from and shall not affect the remaining provisions of this Law.
PART3 DOMESTIC AGREEMENTS AND MEDIATION
Domestic Agt·eements 19. Spouses and common-law partners may make a domestic agreement that sets out the division of the value of their interests and rights in or to a family home in a manner that is different than the manner provided for under this Law.
Variation ofDomestic Agreements 20. The court shall have authority, on application by a spouse or common-law partner who is a party to a domestic agreement, to vary the terms of that domestic agreement where the court is satisfied that the division of the value of interests and rights in or to a family home under that domestic agreement would be unfair or unconscionable because:
(a) a party to that agreement fa iled to disclose to the other party a ll of that party's interests and rights in or to a family home or other real property located on or off Membertou lands;
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Membertou Family Homes Law, 2016 (b) a party to that agreement failed to disclose to the other party any material information in respect of that party's interests and rights in or to a fami ly home or real property located on or offMembe1tou lands;
(c) a party to that agreement did not understand the nature or consequences of the provision in that agreement.
21. A domestic agreement is only enforceable if: (a) it is made in writing; (b) it is signed and dated by the parties; (c) the parties had legal capacity at the time of execution; and (d) the signatures of the parties are witnessed. 22. Notwithstanding section 19, a provision in a domestic agreement that gives, awards or acknowledges lawful possession in a family home to a person who is not a member is void.
23. In applying section 19, a provision in a domestic agreement that grants exclusive occupation of a family home to a person for their lifetime will be measured by the life of the person intended to enjoy it.
24. This part applies whether the parties entered into a domestic agreement on, before or after the date that this Law comes into force and effect.
Regist.-ation of Spousal Interest 25. A spouse or common-law partner who is a party to a domestic agreement may sign and register in the Lands Register, in a fonn prescribed by Council, a notice that sets out:
(a) the full name and last known .address of each spouse or common- law partner who is a party to the domestic agreement;
(b) a description of the family home to which the domestic agreement relates; and (c) the provisions of the domestic agreement that relate to the family home.
Mediation 26. Spouses and common-law partners who have a dispute about matters under this Law shall make a reasonable attempt to resolve that dispute through the use of a mutually
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Membertou Family Homes Law, 2016 agreed upon mediator in a process that accords with the traditions, customs and practices of the Mi'kmaw.
27. Mediation does not prevent a party from seeking a remedy from the court, especially in urgent circumstances.
PART4 FAMILY HOMES
Occupation During Relationship 28. Subject to any Membertou laws regulating the use and occupation of Membertou lands, each spouse and common-law partner has a right to occupy the family home during the relationship, whether or not that person is a member.
Occupation after Death 29. (1) When a spouse or common-law partner dies, a survivor who does not hold an interest or right in or to the family home has a right to occupy the family home for a period oft hree hundred and sixty-five (365) days after the day on which the death occurs, whether or not the survivor is a member.
(2) A survivor or common-law partner who exercises their right under subsection (1) to occupy the family home fo llowing the death of their spouse or common-law partner shall, until the date they vacate the family home:
(a) maintain reasonable health, cleanliness, and sanitary standards throughout the family home;
(b) maintain the family home in substantially the same cond ition as it is in at the time that person begins to exercise their right under subsection (1 );
(c) make minor repairs not identified in subsection 29(3); (d) repair damage to the family home that is caused by the actions, omtsstons, recklessness or neglect of the survivor or a person permitted in the family home by the survivor; and
(e) if relevant, pay all property taxes and mortgage payments owed on the family home. (3) For certainty, where a survivor exercises their right under subsection (1) to occupy the family home following the death of their spouse or common-law partner, the person who acquires lawful possession of the family home as a beneficiary either under a will, by order of a court or by intestacy shall make any repairs that:
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Membertou Family Homes Law, 2016 (a) are urgent; (b) are necessary for the health or safety of anyone or for the preservation or use of the family home as a residential property;
(c) are made for the purpose of repairing: (i) maj or leaks in pipes or the roof, (ii) damaged or blocked water or sewer pipes or plumbing fixtures, (iii) the primary heating system, (iv) damaged or defective locks that give access to the family home, or (v) the electrical systems of the family home. Common-law Partner Consent Not Requil·ed for Disposal of Family Home 30. Unless otherwise provided for in a domestic agreement, a common-law partner who holds an interest or right in or to a family home may dispose of or encumber their interest during the relationship without the free and informed written consent of their common-law partner, whether or not that person is a member.
Spousal Consent Required for Disposal of Family Home 31. Unless otherwise provided for in a domestic agreement, a spouse who holds an interest or right in or to a family home shall not dispose of or encumber their interest during the relationship without the free and infonned written consent of their spouse whether or not that person is a member.
Disposal of Family Home without Consent 32. (1) If a spouse or common-law partner disposes of or encumbers their interest or right in or to a family home without the free and infonned written consent of their spouse or common-law partner as required under either a domestic agreement or section31, a court may, on application by the spouse or common-law partner who did not provide consent, grant an order:
(a) setting aside the transacti on; and (b) setting conditions on any future disposition or encumbrance of that interest by the spouse or common-law partner to whom the interest reverts.
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Membe•·tou Family Homes Law, 2016 (2) Despite subsection (1), the court may not set aside a disposition or encumbrance if the other contracting party to that disposition or encumbrance acquired it for value and acted in good faith.
Application for Damages 33. A spouse or common-law partner who has not provided free and informed written consent to a transaction for which such consent is required either by this Law or by a domestic agreement may, without prejudice to any other right, claim damages from the other spouse or common-law partner.
Burden to Prove Consent 34. A spouse or common-law partner who disposes of or encumbers their interest or right in or to a family home has the burden of proving that the other spouse or common-law partner provided free and informed written consent to the disposition or encumbrance in accordance with either a domestic agreement or section 31.
Order Allowing Disposal of Family Home without Consent 35. (1) A court may, on application by a spouse or common-law partner who holds an interest or right in or to a family home, grant an order authorizing that person to dispose of or encumber the family home without the required consent of their spouse or common-law partner subject to any conditions the court considers appropriate.
(2) A court may only make an order under subsection (1) in favour of a spouse or common-law partner if it is satisfied that the other spouse or common-law partner:
(a) cannot be found; (b) is not capable of consenting; or (c) is unreasonably withholding consent. PARTS EMERGENCY PROTECTION ORDERS
Application for Emergency Protection Order 36. A spouse or common-law partner may make an ex parte application for an emergency protection order and may do so even if that person has been forced to vacate the family home or Membertou-owned or guaranteed home as a result of family violence.
37. A peace officer or other person may apply for an emergency protection order on behalf of a spouse or common-law partner either:
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Membertou Family Homes Law, 2016 (a) with that spouse or common-law partner's consent; or (b) if that spouse or common-law pa11ner does not consent, with leave of the coutt. Emergency Protection Order 38. A court may make an emergency protection order for a period of up to ninety (90) days if the court is satis fied that:
(a) family violence has occurred; and (b) the order must be made without delay because of the seriousness or urgency of the situation to ensure the immediate protection of the person who is at risk of harm or property that is at risk of damage.
Conditions in Emergency Protection Order 39. An emergency protection order made under section 38 may include any of the following conditions:
(a) a provision granting the applicant exclusive occupation of the family home or Membertou-owned or guaranteed home and reasonable access to that home;
(b) a provision requiring the applicant's spouse or common-law partner and any specified person who habitually resides in the family home or Membertou-owned or guaranteed home- whether or not they are members- to vacate the family home or Membertou-owned or guaranteed home, immediately or within a specified period, and prohibiting them from re-entering the home;
(c) a provision directing a peace officer, immediately or within a specified period, to remove the app licant's spouse or common-law partner and any speci fied person who habitually resides in the fami ly home or Membertou-owned or guaranteed home whether or not they are members - from the family home or Membertou-owned or guaranteed home;
(d) a provision prohibiting any person who is required to vacate the fam ily home or Membertou-owned or guaranteed home under a provision referred to in paragraph (b) from attending within a specified distance from the fami ly home or Membertou-owned or guaranteed home;
(e) a provision directing a peace officer, within a specified period, to accompany the applicant's spouse or common-law partner or any specified person to the family home or Membertou-owned or guaranteed home or other location in order to supervise the removal of personal belongings; and
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Membertou Family Homes Law, 2016 (f) any other provision that the court considers necessary for the immediate protection of the person who is at risk of harm or property that is at risk of damage.
Considerations 40. (1) In making an order under section 38, the best interests of any child or children who may be aftected by the order shall be the paramount consideration.
(2) To determine what is in the best interests of a child, all of the child's rights, needs and circumstances shall be considered, including the following:
(a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care; (e) the chi ld's right to stabi lity, given the child's age and stage of development; (t) the child's right to reside on Membertou lands and not to be removed or relocated from Membertou lands without their free, prior and informed consent;
(g) the impact of any family violence on the child's right to safety, security or well-being, whether the family violence is directed toward the child or another fami ly member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; and
(i) the child 's right to recover, use, enjoy, preserve and pass on to future generations Membertou histories and language, oral traditions and culture.
(2) In making an order under section 38, the court shall also consider: (a) the history and nature of the family violence; (b) the existence of immediate danger to the person who is at risk of harm or property that is at risk of damage;
(c) the interests of any elderly person or person with a disability who habitually resides in the family home or Membertou-owned or guaranteed home and for whom either spouse or common-law partner is the caregiver;
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Membertou Family Homes Law, 2016 (d) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home;
(e) the period during which the applicant has habitually resided on Membertou lands; and
(f) the existence of exceptional circumstances that necessitate the removal of a person other than the applicant's spouse or common-law partner from the family home or Membertou-owned or guaranteed home in order to give effect to the granting to the applicant of exclusive occupation of that home, including the fact that the person has committed family violence against the applicant, any child in the charge of either spouse or common-law partner, or any other person who habitually resides in the family home or Membertou-owned or guaranteed home.
Emergency Protection Order Binding 41. Any person against whom an order is made under section 38 and any person specified in an order made under section 38 are bound by it on receiving notice of it.
Notice of Emergency Protection Order 42. (1) A peace officer shall serve a copy of an order made under section 38 on the person against whom the order is made and any other person named in the order.
(2) Service under subsection (1) shall be by personal service unless the court authorizes service in another manner.
(3) The peace officer who serves a notice under subsection (1) shall, without delay, after such service is effected inform the person in whose favour the emergency protection order is made that the person against whom the order is made, and any other person named in the order, has been served.
Application to Vary or Revol<e Emergency Protection Order 43. Any person in whose favour, or against whom, an order is made under section 38, or any person specified in an order under section 38, may apply to the court to have the order varied or revoked:
(a) within twenty one (21) days after the day on which notice under section 42 is served or with leave of the court; and
(b) only if there has been a material change in circumstances. Notice of Application
44. (1) An applicant under section 43 shall, without delay, serve a copy of the
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Membcrtou Family Homes Law, 2016 application: (a) if the applicant is a person in whose favor the order under section 38 is made, to the person against whom the order is made and to any other person named in the order; and
(b) if the applicant is a person against whom the order under section 38 is made, to the person in whose favor the order is made and to any other person named in the order.
(2) Any person who is entitled to be served a copy of an application under subsection (I) has a right to appear before the court and make submissions with regard to their interests or rights in or to the family home or Membertou-owned or guaranteed home.
Confirm, Vary or Revoke Order 45. The court may confirm, vary or revoke an emergency protection order made under section 38 and may extend the duration of the emergency protection order beyond the period of ninety (90) days.
Considerations 46. In confirming, varying or revoking an order made under section 38, the court shall consider:
(a) all evidence that was relied on at the hearing in which the order was made under section 38;
(b) all evidence regarding a change in material circumstances; and (c) the considerations set out in section 40. Order Binding 47. Any person against whom an order under section 45 is made, and any person named in an order under section 45, is bound by it on receiving notice of it.
Notice of Emergency Protection Order 48. (1) If a person against whom an emergency protection order under section 45 is made, or another person named in an emergency protection order under section 45, is not present at the hearing, a peace officer shall serve a copy of the emergency protection order made under section 45 on that person.
(2) Service under subsection (1) shall be by personal service unless the court authorizes service in another manner.
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Membertou Family Homes Law, 2016 (3) The peace officer who serves a notice under subsection (1) shall, without delay, after such service is effected inform the person in whose favour the emergency protection order is made that the person against whom the emergency protection order is made, and any person who is affected by the emergency protection order, has been served.
Exclusion of Public fr·om Emergency Protection Order Hearing 49. (1) Subject to subsection (2), on application by either of the parties or on its own motion, a court may make one (J) or more oft he following orders, subject to any conditions that the court specifies:
(a) an order excluding members of the public, other than the parties, from all or part of a hearing to grant an emergency protection order under sections 38 or 45;
(b) an order prohibiting the publication or broadcasting of any information from a hearing to grant an emergency protection order under sections 38 or 45, including the name of a party, w itness or child in the charge of either party or any informat ion likely to identify any of those persons; or
(c) an order prohibiting disclosure to the public of any information in a court document or record related to a hearing to grant an emergency protection order under sections 38 or45.
(2) The court may only make an order under subsection (1) if it is satisfied that the order is necessary for:
(a) the safety of a party or witness; (b) safety, physical or emotional well-being of a child; or (c) protecting a party, witness or child from an undue hardship or adverse effect that could be caused by making the information publ ic, and the need for such protection outweighs the public's right to the information.
PART6 EXCLUSIVE OCCUPATION ORDER (AT BREAKDOWN OF RELATIONSHIP)
Application for Exclusive Occupation Order 50. (1) A spouse may apply to the court for an order granting that person exclusive occupation of a family home that is not Membertou-owned or guaranteed upon breakdown of the relationship, whether or not that person is a member.
(2) A common-law partner may only apply to the court for an order granting that person exclusive occupation of a family home that is not Membertou-owned or guaranteed
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Membertou Family Homes Law, 2016 upon breakdown of the relationship where there are dependent children of the relationship. Copy of an Application 51. (1) An applicant under section 50 shall, without delay, serve a copy of the application on:
(a) Council; (b) any person who is nineteen ( 19) years of age or older, whom the applicant is seeking to have vacated from the family home; and
(c) any person who holds an interest or right in or to the fami ly home. (2) Any person who has been served a copy of an application under subsection (1) has a right to appear before the court and make submissions with regard to their interests or rights in or to the family home.
Exclusive Occupation Order 52. (1) A court may make an order that grants the applicant exclusive occupation of a fami ly home that is not Membertou-owned or guaranteed, and reasonable access to that home, subject to any conditions set out in section 53, and for any period of time that the court determines is reasonable in the circumstances.
(2) Pending the determination of an application made under section 50, the court may make an interim order to the same effect as an order under subsection ( I). ·
Content of Exclusive Occupation Order 53. An order under section 52 may contain a provision requiring any or all of the following:
(a) the applicant's spouse or common-law partner and any specified person- whether or not they are members - to vacate the family home, immediately or within a specified period of time, and prohibiting them from re-entering the home;
(b) the applicant's spouse or common-law partner to preserve the condition of the family home until that person vacates it;
(c) the applicant to make payments to their spouse or common-law partner toward the cost of other accommodation; or
(d) either spouse or common-law partner to pay for all or part of the repair and maintenance of the family home and for other liabilities arising in respect of the family
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Membertou Family Homes Law, 2016 home, or to make payments to the other spouse or common-law partner for those purposes.
Considerations 54. ( 1) In making an exclusive occupation order under section 52, the best interests of any chi ld who may be affected by the order shall be the paramount consideration.
(2) To determine what is in the best interests of a child, all of the child's rights, needs and circumstances shall be considered, including the following:
(a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the ch ild's life;
(d) the history ofthe child's care; (e) the child's right to stability, given the child's age and stage of development; (f) the child's right to reside on Membertou lands and not to be removed or relocated from Membertou lands without their free, prior and informed consent;
(g) the impact of any family violence on the child's right to safety, security or well-being, whether the fami ly violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; and
(i) the child's right to recover, use, enjoy, preserve and pass on to future generations Membertou histories and language, oral traditions and culture.
(2) In making an exclusive occupation order, the court shall also consider: (a) the terms of any domestic agreement; (b) the collective interests of members in their Membertou lands; (c) any representations made by Council with respect to the cultural, social and legal context that pertains to the application;
(d) the period during which the applicant has habitually resided on Membertou lands;
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Membertou Family Homes Law, 2016 (e) the financial situations and the medical conditions of the spouses or common-law partners;
(f) the availability of other suitable accommodation that is situated on Membertou lands;
(g) any existing order made on a matter related to the consequences of the breakdown of the relationship;
(h) any family violence; (i) any acts or omissions by one of the spouses or common-law partners that reasonably constitute psychological abuse against the other spouse or common-law partner, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the family home;
G) the existence of exceptional circumstances that necessitate the removal of a person other than the applicant's spouse or common-law partner from the family home in order to give effect to the granting to the applicant of exclusive occupation of that home, including the fact that the person has committed acts or omissions that constitute fam ily violence, or reasonably constitute psychological abuse, against the applicant, any child in the charge of either spouse or common-law partner, or any other family member who habitually resides in the fami ly home;
(k) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom either spouse or common-law partner is the caregiver;
(1) the fact that a person, other than the spouses or common-law partners, holds an interest or right in or to the family home; and
(m)the views of any person who received a copy of the application, presented to the court in any form that the court allows.
Emergency Protection Order Revoked 55. An existing emergency protection order in favour of or against one of the spouses or common-law partners is revoked when the court makes an order under section 52, except to the extent specified by the court in either order.
Notice of Exclusive Occupation Order 56. (l) Subject to subsection (2), a person who is granted an order under section 52 shall, without delay serve a copy of the order on those persons who are entitled to receive a copy of the application.
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Membertou Family Homes Law, 2016 (2) If directed by the court, a peace officer shall serve a copy of an order made under section 52 on those persons who are entitled to receive a copy of the application.
Application to Vary or Revoke Exclusive Occupation Ot·der 57. If there has been a material change in circumstances, any of the following persons may apply to a court to have an order made under section 52 or 59 varied or revoked:
(a) any person in whose favour or against whom an order made under section 52 or 59 is made;
(b) any person specified in order made under section 52 or 59; or (c) the holder of an interest or right in or to the family home to which an order made under section 52 or 59 relates.
Notice of Application 58. (l) An applicant under section 57 shal l, without delay, send a copy of the application to:
(a) Council; (b) if the applicant is a person in whose favour an order was made under section 52 or 59, to the person against whom the order was made;
(c) if the applicant is a person against whom an order was made under section 52 or 59, to the person in whose favour the order was made;
(d) any person who is named in the order made under section 52 or 59; and (e) any person who holds an interest or right in or to the family home to which the order made under section 52 or 59 relates.
(2) Any person who is entitled to be served a copy of an application under subsection ( 1) has a right to appear before the court and make submissions with regard to their interests or rights in or to the fami ly home.
Court Order 59. The court may, by order, confirm, vary or revoke an order made under section 52 or this section.
Considerations
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Membertou Family Homes Law, 2016 60.ln confirming, varying or revoking an order under section 59, the court shall consider:
(a) all evidence that was relied on at the hearing in which the order was made under section 52 or 59;
(b) all evidence regarding a change in material circumstances; and (c) the considerations set out in section 54. Notice of Ot·der 61. (1) Su~ject to subsection (2), a person who is granted an order under section 59 shall, without delay serve a copy of the order on those persons who are entitled to receive a copy of the application.
(2) If directed by the court, a peace officer shall serve a copy of an order made under section 59 on those persons who are entitled to receive a copy of the application.
PART 7 EXCLUSIVE OCCUPATION ORDER (AFTER DEATH OF A SPOUSE OR COMMON-LAW PARTNER)
Application for an Exclusive Occupation Order after Death of a Spouse or Common-law Partner
62. A survivor may apply to the court for an order granting the survivor exclusive occupation of a family home that is not Membertou-owned or guaranteed, whether or not that person is a member.
Notice of Application 63. ( I) An applicant under section 62 shall, without delay serve a copy of the application on:
(a) Council; (b) the executor of the will or the administrator of the estate, if the applicant knows who those persons are;
(c) the Minister; (d) any person who is of the age of majority or over, whom the applicant is seeking to have the court order to vacate the family home; and
(e) any person who holds an interest or right in or to the family home.
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Member tou Family Homes Law, 2016 (2) Any person who has a right to be served a copy of the application has a right to appear before the court and make submissions with regard to their interests or rights in or to the fami ly home.
Court Order 64. (1) A court may make an order granting a survivor exclusive occupation of a family home that is not Membertou-owned or guaranteed, and reasonable access to that horne, subject to any conditions set out in section 65, and for any period that the court detennines is reasonable in the circumstances.
(2) Pending the determination of an application made under section 62, the court may make an interim order to the same effect as an order under subsection (1 ).
Content of Order 65. An order under section 64 may contain provisions requiring any or all of the following:
(a) the survivor to preserve the condition of the family home; (b) any specified person, whether or not that person holds an interest or right in or to the family home to vacate it immediately, or within a specified period, and prohibiting them from re-entering the home;
(c) the survivor, executor of the will, the administrator of the estate, or the holder of an interest or right in or to the family home to pay for all or part of the repair and maintenance of the family home and of other liabilities arising in respect of it; or
(d) any other condition the court considers is just and appropriate in the circumstances. Considerations 66. (1) In making an order under section 64, the best interests of any child who may be affected by the order shall be the paramount consideration.
(2) To determine what is in the best interests of a child, all of the child's rights, needs and circumstances shall be considered, including the following:
(a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life;
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Membertou Family Homes Law, 2016 (d) the history of the child's care; (e) the child's right to stabi lity, given the child's age and stage of development; (t) the child's right to reside on Membertou lands and not to be removed or relocated from Membertou lands without their free, prior and informed consent;
(g) the impact of any family violence on the child's right to safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; and
(i) the chi ld's right to recover, use, enjoy, preserve and pass on to future generations Membertou histories and language, oral traditions and culture;
(3) In making an exclusive occupation order, the court shall also consider: (a) the terms of the deceased spouse or common-law partner's will; (b) the terms of any domestic agreement; (c) the collective interests of members in Membertou lands; (d) any representations made by Council with respect to the cultural, social and legal context that pertains to the application;
(e) the financial and medical condition of the survivor; (f) the period during which the survivor has habitually resided on Membertou lands; (g) the fact that the family home is the only property of significant value in the estate; (h) the interests of any person who holds or may have a right to an interest or right in or to the family home;
(i) the interests of any elderly person or person with a disability who habitually resides in the family home and for whom the survivor is the caregiver;
(j) the existence of exceptional circumstances that necessitate the removal of a person from the family home in order to give effect to the granting to the survivor of exclusive occupation of that home, including the fact that the person has committed acts or omissions that constitute family violence, or reasonably constitute psychological abuse,
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Membet·tou Family Homes Law, 2016 against the survivor, any child in the charge ofthe survivor, or any other family member who habitually resides in the family home; and
(k) the views of any person who received a copy of the application, that were presented to the court in any form that the court allows.
Notice of Order 67. (1) Subject to subsection (2), a survivor who is granted an order under section 64 shall, without delay, serve notice of the order on those persons who are entitled to receive a copy of the application.
(2) If directed by the court, a peace officer shall serve a copy of an order under section 64 on those persons who received a copy of the application.
Application to Vary or Revoke Exclusive Occupation Ot·der after Death of a Spouse or Common Law Partner
68. If there has been a material change in circumstances, the following persons may apply to the couti to have an order granted under section 64 or 70 varied or revoked:
(a) the survivor to whom the order under section 64 or 70 is granted; (b) the executor of the will or administrator of the deceased spouse or common-law partner's estate;
(c) any person specified in an order made under section 64 or 70; or (d) the holder of an interest or right in or to the fami ly home. Copy of an Application 69. (1) An applicant under section 68 shall, without delay send a copy of the application to every person who is entitled to receive an application under section 63.
(2) Any person who is entitled to be served a copy of the application has a right to appear before the court and make submissions with regard to their interests or rights in or to the family home.
Court Ordet· 70. The court may make an order that confirms, varies or revokes an order made under section 64 or this section and may include in such order any provisions set out in section 65. Considerations
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Membertou Family Homes Law, 2016 71. In confirming, varying or revoking an order under section 70 the court shaH consider:
(a) all evidence that was relied on at the hearing in which the order was made under section 64 or 70;
(b) all evidence regarding a change in material circumstances; and (c) the considerations set out in section 66. Notice of Order 72. (l) Subject to subsection (2), a person who is granted an order under section 70 shall, without delay serve a copy of the order on those who are entitled to receive a copy ofthe application.
(2) If directed by the court, a peace officer shall serve a copy of an order made under section 70 on those persons who are entitled to receive a copy of the application.
PARTS DIVISION OF THE VALUE OF A FAMILY HOME (UPON BREAKDOWN OF MARRIAGE OR DOMESTIC PARTNERSHIP)
Notice of Applications Made Under This Part 73. An applicant under this Part shall, without delay, serve a copy of the application they are making on their spouse.
Application by Spouse 74. A spouse may apply to the court for a determination of each spouse's entitlement under section 78.
75. An application under section 74 shall be made within three (3) years after the day on which the relationship ended.
Court Order 76. A court may make an order to determine any matter in respect of each spouse's entitlements under section 78, including:
(a) the amount payable by one spouse or common-law partner to the other; and (b) that the amount payable be settled by
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Membertou Family Homes Law, 2016 (i) payment of the amount in a lump sum, (ii) payment of the amount by installments, (iii) the set-off or compensation of any amounts owed by one spouse or common-law partner to the other, or
(iv) any combination of the methods referred to in subparagraphs (i) to (iii). Valuation Date 77. For the purposes of section 78, "valuation date" means the earliest of the following days:
(a) the day on which they separated with no reasonable prospect of reconciliation; (b) the day on which a judgment granting they divorce is rendered; (c) the day on which their marriage is declared a nullity; (d) the day on which one of the spouses made an application related to the consequences of the breakdown of the marriage; and
(e) the day on which one of the spouses is granted an order under section 80. E ntitlement on Breakdown of Relationship 78. (1) When a relationship breaks down (a) each spouse is entitled to an amount equal to one half ( I /2) of the appreciation of the fami ly home from the date that the spouses became spouses to the valuation date.
(b) a common-law partner is only entitled to a division of the value of a family home granted through a domestic agreement on the terms set out in the domestic agreement.
Assessing Value 79. (1) Subject to subsection (2), an assessment of the value of a family home is the amount that a buyer would reasonably be expected to pay for a family home on Membertou lands that is comparable to the family home in question on the valuation date, less the amount:
(a) of any outstanding debts or other liabilities assumed for acquiring the family home or for improving or maintaining the family home; and
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Membertou Family Homes Law, 2016 (b) that a buyer would have reasonably have been expected to pay for a family home on Membetiou lands that is comparable to the fami ly home in question on the date the spouses became spouses.
(2) Despite subsection (1 ), spouses may enter a domestic agreement determining the value of a family home on any basis they desire to make such determination.
(3) A party to a domestic agreement made under subsection (2) has a right to register that domestic agreement in the Lands Register.
Interim Order to Protect and Preserve an Interest 80. On application by a spouse who has initiated an application under this Part, a court may make any order it considers necessary to protect and preserve an interest or right in or to the family home until a final determination is made under this Part.
Enforcement of Domestic Agr·eements 81. (1) If spouses or common-law partners enter into a domestic agreement that: (a) sets out the amount to which each is entitled with respect to the family home and how to settle the amount payable by one of the methods referred to in subparagraphs 76(b) (i), (ii) or (iiii) or any combination of those methods; or
(b) sets out that one of the spouses or common-law partners will have a right to exclusive occupation of the family home for a specified period of time following the separation of the spouses or common-law partners or the death of a spouse or common-law partner,
a court may, on application by one of them, make an order to enforce that domestic agreement if the court is satisfied that the consent of both parties to the domestic agreement is free and informed, and that the domestic agreement is not unconscionable, having regard to the factors listed in section 20.
(2) A court may on application by a party to a domestic agreement, set aside a provision in a domestic agreement with respect to a family home:
(a) if a party to that contract failed to disclose to the other party all of their interests in Membertou land, or any material information in respect of those interests;
(b) if a party did not understand the nature or consequences of the provision; or (c) otherwise in accordance with the Jaw of contract. (3) A party to a domestic agreement made under subsection (1) has a right to register that domestic agreement in the Reserve Lands Register.
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Membertou Family Homes Law, 2016 PART9 GENERAL
Representations by Council 82. (I) On the request of Council, the court that is seized of any application shall allow Council to make representations with respect to the cultural, social and legal context that pertains to the application and to present its views about whether or not the order shall be made.
(2) Where Council makes representations under subsection ( l ), the Court shall consider such r,epresentations in making an order under this Law.
Notice of Order to Council 83. Unless otherwise required by this Law, when the court makes an order under this Law that is not an order under section 49, the person in whose favour the order is made shall send, without delay, a copy of the order to the Council.
Liability of Peace Officer Limited 84. An action or other proceeding shall not be instituted against a peace officer for any act or omission done in good faith in the execution or intended execution of the peace officer 's duties under this Law.
Interest or Right Not Affected 85. An order made under any of Parts 5 to 7 will not: (a) change who holds an interest or right in or to the family home; or (b) prevent an executor of a will or an administrator of an estate from transferring an interest or right in or to the family home to a named beneficiary under the will or to a beneficiary on intestacy.
Effect of Order on Obligations under a Lease 86. When an order made under any of Parts 5 to 7 grants exclusive occupation of the family home to a spouse, common-law partner or survivor who is not a lessee under the lease for the family home, the spouse, common-Jaw partner or survivor is bound by the lease during the period of the order and is responsible to the lessor for the obligations under the lease of the Ie ssee. Offence
87. Any person who contravenes one of the following orders is guilty of an offence:
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Membertou Family Homes Law, 2016 (a) an emergency protection order made section 38 or 45; (b) a provision referred to in paragraph 53(a) contained in an exclusive occupation order made under section 52 or 59; or
(c) a provision referred to in paragraph 65(b) contained in an order made under section 64 or 70.
88. ( 1) A person who is found guilty of an offence under section 87 is punishable on summary conviction and liable to a fine not exceeding two thousand dollars ($2,000) or to imprisonment for a term not exceeding three (3) months, or to both.
(2) A fine imposed under subsection (1) is payable directly to Membertou. PART 10 JURISDICTION OF COURTS
Divorce Proceeding Pending 89. When a divorce proceeding- as defined in subsection 2(1) of the Divorce Act between spouses is pending, the court that has jurisdiction to hear and determine the matter has jurisdiction to hear and determine an application by one of the spouses under this Law.
Other Family Proceedings Pending 90. When a proceeding, other than a divorce proceeding, related to the consequences of the breakdown of a relationship is pending, the court that is seized of the matter has jurisdiction to hear and determine an application by the spouse or common-law partner.
No Pending Family Proceedings 91. If no divorce proceeding is pending and no court is seized of a matter related to the consequences of the breakdown of a relationship, the court that has jurisdiction to hear and determine an application by a spouse or common-law partner under this Law is the Supreme Court of Nova Scotia.
Proceedings on Death Pending 92. A court that is seized of a matter related to the distribution of property on the death of a spouse has jurisdiction to hear and determine an application made under this Law by the survivor, the executor of the will or the administrator of the estate. No Proceedings on Death Pending
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Membertou Family Homes Law, 2016 93. If no court is seized of a matter referred to in section 92, the courts that have jurisdiction to hear and determine an application made under this Law by the survivor, the executor of the will or the administrator of the estate are:
(a) the Supreme Court of Nova Scotia; and (b) the Probate Court ofNova Scotia. Possibility of Joinder 94. An application made under this Law, except under Part 5, may be heard in the same proceeding as another application related to the consequences of the breakdown of the relationship or the death of one of the spouses or common-law partners.
Right of Appeal- Divorce Proceeding 95. An order made under this Law in a divorce proceeding as defined in subsection 2(1) of the Divorce Act is deemed, for the purposes of section 21 of that Act, to be an order made under that Act.
Right of Appeal- Other Proceeding 96. Any other order made under this Law, except under Parts 4 and 5, may be appealed to the court exercising appellate jurisdiction over the court that made the order.
PART 11 RULES OF PRACTICE AND PROCEDURE
Definitions 97. The following definitions apply in this Part: "appellate court", in respect of an appeal from a coUI1, means the court exercising appellate jurisdiction with respect to that appeal; and
"competent authority" means the body, person or group of persons ordinarily competent under the laws of Nova Scotia to make rules regulating the practice and procedure in the court that is hearing a proceeding under this Law.
Rules 98. Subject to sections 99 to 105, a competent authority may make rules applicable to any proceedings under this Law, including rules:
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings;
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Membertou Family Hr>mes Law, 2016 (b) respecting the conduct and disposition of any proceedings under this Law without an oral hearing;
(c) regulating the sittings of the court; (d) respecting the fixing and awarding of costs; (e) prescribing and regulating the duties of officers of the court; (f) respecting the transfer of proceedings under this Law to or from the court; and (g) prescribing and regulating any other matter considered expedient to attain the ends ofj ustice and carry into effect the purposes and provisions of this Law.
Exercise of Power to Make Rules 99. The power to make rules conferred by section 98 on a competent authority shall be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules conferred on that authority by the laws of Nova Scotia.
Provincial Laws of Evidence 100. The laws of evidence of Nova Scotia, including the laws of proof of service of any document, apply to proceedings under this Law.
Continuation of Proceedings on Death of Par·ty 101. When a spouse or common-law partner makes an application under Part 6 or 8, and both spouses or common-law partners or one of them dies before the application is disposed of, the application may be continued by or against the executor of the will or the administrator of the estate of the spouse or common-law partner who dies.
Continuation of Application by Smvivo•· after Death of Party 102. When a survivor makes an application under Part 8 and the survivor dies before the application is disposed of, the application may be continued by the executor of the will or the administrator of the estate of the survivor.
Continuation of Application by Executor or Administrator after Death of Party 103. When an executor of a will or an administrator of an estate makes an application under Part 8 and the survivor dies before the application is disposed of, the application may be continued against the executor of the will or the administrator of the estate of the survivor.
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Membertou Family Homes Law, 2016 Council Power to Make Regulations 104. The Council may make regulations that the Council considers necessary for carrying out the purposes and provisions of this Law, includ ing regulations making rules that are applicable to any proceedings under this Law and prescribing anything that by this Law is to be prescribed.
Regulations Prevail 105. Any regulations that may be made under section 104 to provide for uniformity in the rules made under section 98 prevail over those rules.
PART12 PROOF OF LAW AND ACCESS TO COPIES OF LAW
106.A copy of this Law appearing to be certified as a true copy by an officer of Membertou is proof of the original without proof of the officer's signature or official character.
107. The Council shall ensure that a copy of this Law, as amended from time to time, is on the Membertou website and is available for public inspection at locations designated by the Council and may make it public by any other means of communication that the Council considers appropriate.
PART 13 AMENDMENT OR REPEAL
108. For the purposes of this Part, the following definitions apply: "eligible voter" means, for the purpose of voting in relation to a major amendment to this Law, a member who has attained the age of eighteen (18) years on or before the last day of the vote;
"major amendment" means an amendment that is not a minor amendment, and includes a repeal of this Law;
"members-at-large meeting'' means a meeting convened by Council for the purpose of approving major amendments to this Law;
"minor amendment" means an amendment that: (a) corrects typographical errors; (b) is required to reference any relevant new or amended Membertou or other applicable laws;
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Membertou Family Homes Law, 2016 (c) is ordered by any Court; or (d) serves to clarify the Law, where there is no reasonable dispute about the intention underlying the original provision.
Major Amendments 109.(1) A major amendment to this Law must be approved by eligible voters at a members-at-large meeting that is convened by Council for the purpose of amending this Law.
Rights of Eligible Voter 110. Each eligible voter has a right to vote in a members-at-large meeting. Right to Attend Members-At-Large Meeting 111. Any member may attend a members-at-large meeting. 112. A person other than a member may attend a members-at-large meeting with the permission of Counci I.
More Than One Meeting 113. Council may schedule and hold more than one members-at-large meeting to discuss and decide on a major amendment to this Law.
Quorum for Members-At-Large Meeting 114. The quorum for a members-at-large meeting is ten percent {10 %) of all e ligible voters.
Voting at a Membea·s-At-Large Meeting 115. Voting at a members-at-large meeting may be conducted by various methods, as determined by Council, including any of the following methods or combinations thereof, one of which shall provide an opportunity for persons residing off Membertou lands to vote:
(a) ballots cast in person by secret ballot at the members-at-large meeting; (b) a show of hands at the members-at-large meeting; (c) mail-in-ballots; or (d) electronic ballots. Page 37
Membertou Family Homes Law, 2016 Requirements for Approval at Member·s-At-Large Meeting 116. A matter shall be considered to be approved at a members-at-large meeting if: (a) at least ten percent (10%) of eligible voters cast a vote on the matter; and (b) a majority of those eligible voters who cast a vote are in favor of the matter. Notice of Members-At-Large Meeting 117.(1) Council shall provide eligible voters with written notice of a members-at-large meeting by:
(a) at least twenty-one (21 ) days' before the members-at-large meeting, posting a written notice in a public area of each public building on Membertou lands;
(b) at least twenty-one (21) days' before the members-at-large meeting, either: (i) delivering a written notice to each eligible voter at their last known mailing address, or
(ii) publicizing a written notice in a newsletter that is delivered or mailed to each eligible voter at their last known mailing address; and
(c) at least ten (10) business days' before the members-at-large meeting and at the direction of Council, publishing a written notice on any website or other social media tools used by Membertou to communicate with members.
(2) A written notice regarding a members-at-large meeting shall set out: (a) the date, time and location of the members-at-large meeting; (b) a summary of the major amendments to be considered; (c) information on how members may obtain further information on the maj or amendments to be considered; and
(d) information on how members may vote at the members-at-large meeting. Conduct of Members-At-Large Meeting 118. At a members-at-large meeting, Council shall ensure: (a) copies of any major amendments to this Law that are to be considered are made available to members;
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Membertou Family Homes Law, 2016 (b) the purpose and provisions of any major amendments to this Law are explained to members; and
(c) that a vote is conducted on the major amendments to this Law that are to be considered.
Where Quorum Not Met in Fir-st Membet·s-At-Large Meeting 119. If a quorum is not obtained for a vote at a members-at-large meeting, Council may schedu le and hold a second vote to obtain members approval at a second members-at-large meeting.
120. The quorum for a second vote to obtain community approval at a second members-at-large meeting shall be eight percent (8%) of all eligible voters.
Authority to Make Additional Rules and Procedures for Members-At-Large Meeting
121. Council may make rules and procedures for a members-at-large meeting that are consistent with this Law.
Minor Amendments 122.Council may approve minor amendments to the Law by band council resolution . [This part of page is left intentionally blank)
PART 14 COMING INTO FORCE
123. This Law will come into force and have the force of law on the date that it is both:
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Membertou Family Homes Law, 2016 (a) approved by Membertou members in accordance with sections 8 to I 0 of the Family Homes on Reserves and Mah·imonial Interests or Rights Act; and
(b) approved by Council. THIS LAW IS HEREBY DULY APPROVED by the Council on~ day of Q.L, 2016, at Membertou, Nova Scotia.
Councillor Dean Christmas Councillor Lee Gould f~l). ~~ ,~~-4-b Councillor Paul MacDonald Councillor 6avid Marshall Councillor Al li ster Matthews X:~0. Councillor Lawrence Paul Jr.
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