Partie II - Lois des Premières nations promulguées

KATZIE FIRST NATION

SPOUSAL PROPERTY LAW

Final Draft for Enactment July 8, 2019

KATZIE FIRST NATION Spousal Property Law- Enacted on: 2019-09-09

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KATZIE FIRST NATION Spousal Property Law-July 8, 2019

TABLE OF CONTENTS PREAMBLE ................................................................................................................................1 PART 1 CITATION, APPLICATION, DEFINITIONS AND INTERPRETATION .......................... 2 Citation ................................................................................................................................2 Definitions and Interpretation ............................................................................................... 2

PART 2 -APPLICATION OF LAW .............................................................................................5 Only on Reserve Land ......................................................................................................... 5 Only to Members and Their Spouses ................................................................................... 5 Spousal Homes and Spousal Property ................................................................................. 5 No application Upon Death of Spouse ................................................................................. 5 Application of Other Laws .................................................................................................... 5 Katzie's Rights Preserved .................................................................................................... 6 Section 89( 1) of the Indian Act ............................................................................................. 6

PART 3 - DOMESTIC CONTRACTS .......................................................................................... 6 Domestic Contract Valid and Binding ................................................................................... 6 Entitlements to Non-Members .............................................................................................. 6 Court May Set Aside or Vary Agreements ............................................................................ 6 Registration of Agreements .................................................................................................. 7

PART 4 -ACCESS TO THE COURT ......................................................................................... 8 Cooperative Dispute Resolution Encouraged ....................................................................... 8 Application of Principles and Considerations ........................................................................ 8 Materials Protected .............................................................................................................. 8 General Access to Court ...................................................................................................... 8 Notice to Council .................................................................................................................. 9 Family Law Legal Principles and Precedent.. ....................................................................... 9 Submissions by Council ....................................................................................................... 9 Notice to Council .................................................................................................................. 9 Rules of Court ...................................................................................................................... 9 Certain Orders Prohibited .................................................................................................... 9 Court May Vary Orders ........................................................................................................ 9

PART 5 - SPOUSAL HOME ..................................................................................................... 10 Rights of Relief against Forfeiture ...................................................................................... 10 How to Determine Spousal Home ...................................................................................... 10 Equal Rights to Occupy the Spousal Home ........................................................................ 10 Limits on Sales and Encumbrances ................................................................................... 10

PART 6 - DIVISION OF SPOUSAL PROPERTY OR COMPENSATION IN LIEU .................... 11 Application ......................................................................................................................... 11 Court may make determinations ........................................................................................ 12 Presumption of entitlement to equal share ......................................................................... 12 Considerations for Court orders ......................................................................................... 13

PART 7 - EXCLUSIVE OCCUPATION ORDERS ..................................................................... 14 Exclusive Occupation Order ..................................................................................' . ............ 14 Considerations for Court orders ......................................................................................... 14

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KATZIE FIRST NATION Spousal Property Law -July 8, 2019

Terms of Order .................................................................................................................. 15 Other Parties interested in Application ............................................................................... 16 Application to vary or revoke an order ................................................................................ 16

PART 8 - EMERGENCY PROTECTION ORDER ..................................................................... 16 Emergency Protection Order .............................................................................................. 16 Terms of Order .................................................................................................................. 17 Application to vary or revoke an order ................................................................................ 17 Renewing an Emergency Protection Order ........................................................................ 18

PART 9 - OCCUPATION OF SPOUSAL HOME UPON DEATH OF A SPOUSE ..................... 18 Death of a Spouse ............................................................................................................. 18 PART 10 -AMENDING AND REPEALING PROCEDURES .................................................... 18 Minor Amendments ............................................................................................................ 18 Substantive Amendments .................................................................................................. 19 Coming into force - Amendments ....................................................................................... 19 Repeal ............................................................................................................................... 19

PART 11 - OFFENCES AND PENALTIES ............................................................................... 19 Offence .............................................................................................................................. 19 Penalty ............................................................................................................................... 20

PART 12 - GENERAL PROVISIONS ........................................................................................ 20 Rights of Non-Members Non-Transferable ......................................................................... 20 Headings ........................................................................................................................... 20 Provisions are severable .................................................................................................... 20 Coming Into Force ............................................................................................................. 20

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KATZIE FIRST NATION SPOUSAL PROPERTY LAW

PREAMBLE A Katzie First Nation has an inherent right to self-government which emanates from our people, culture and land and which is recognized and affirmed by section 35 of the Constitution Act, 1982;

B.

C.

D.

Katzie First Nation has taken over control and management of Katzie Land and resources pursuant to the Framework Agreement on First Nation Land Management and has enacted the Katzie First Nation Land Code to take effect March 29, 2017;

In accordance with section 30.1 of the Land Code, the Katzie First Nation Council must enact a spousal property law providing rules and procedures applicable on the breakdown of a marriage to

(a) the use, occupancy and possession of Katzie Land, and (b) the division of Interests in Katzie Land. The Katzie First Nation wishes to see spousal property disputes resolved in a way that is in keeping with the best interests of our children and does not jeopardize the ability of our Members to reside on our reserves and to hold real property on reserve, and is fair to both Spouses.

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PART 1 CITATION, APPLICATION, DEFINITIONS AND INTERPRETATION Citation 2. This Law may be cited as the Katzie First Nation Spousal Property Law. Definitions and Interpretation 3. (1) In this Law: "Child" means a person who is under the age of 19 and who has not withdrawn from parental control, or who is over the age of 19 but unable, by reason of illness, disability or other cause, to withdraw from parental control or to obtain the necessities of life, and who is:

(a) (b)

(c)

the biological Child of at least one Spouse, adopted, under Canadian law or Aboriginal custom, by at least one Spouse,

the step-Child of at least one Spouse where that Spouse is the primary caregiver of the Child, or

(d) any Child for whom either or both Spouses stand in the place of parents, (e) and "Children" has a corresponding meaning; "Common Law Spouse" means a person who is living or has lived with another person in a marriage-like relationship for a continuous period of at least two years;

"Court" means any federal or provincial Court of competent jurisdiction; "Domestic Contract" means an agreement made between two persons who are Spouses or who intend to become Spouses, in which they agree on their respective rights and obligations under the relationship or on separation, on the annulment or dissolution of the relationship, or on death, including:

(a) ownership in or division of Spousal Property, (f) support obligations, (g) the right to direct the education and moral training of their Children, (h) the right to custody of or access to their Children, and (i) any other matter in the settlement of their affairs, and, for certainty includes an agreement between the Spouses to amend or rescind a Domestic Contract.

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"Domestic Violence" includes: (a) physical abuse of a Family Member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm;

U) (k)

sexual abuse of a Family Member; psychological or emotional abuse of a Family Member by any means whether directly or indirectly, including, without limitation, through social media, technological devices or other communication technologies, where such abuse includes without limitation:

(i)

(ii)

intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

unreasonable restrictions on, or prevention of, a Family Member's financial or personal autonomy,

(iii) stalking or following of the Family Member, and (iv) intentional damage to property; and (I) in the case of a Child, direct or indirect exposure to Domestic Violence; "Emergency Protection Order" means an order referenced at section O of this Law; "Exclusive Occupation Order" means an order referenced at section 34(2) of this Law; "Family Member", with respect to a person, means: (a) the person's Spouse or former Spouse, (m) a person with whom the person is living, or has lived, in a marriage-like relationship for a period of at least one year,

(n) a parent or guardian of the person's Child, (o) a person who lives with, and is related to: (i) the person, or (ii) a person referred to in any of paragraphs (a) to (c), or (iii) the person's Child, and includes a Child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (a) to (d);

"Interest in Katzie Land" means any Certificate of Possession, allotment, lease, permit or any other equivalent instrument granted by Katzie First Nation, but does not include rental

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agreements for homes owned by Katzie First Nation or other Katzie First Nation property. For greater certainty, where there is a Spousal Home affixed to Katzie Land that is the subject of an Interest in Katzie Land, the interest includes both the land and the Spousal Home;

"Life Estate" means the grant of an Interest in Katzie Land that is limited to or measured by the life of the person holding it;

"Mediation Process" means a dispute resolution process administered [facilitated] by

(a)

(p)

a family law mediator qualified in accordance with the Family Law Act Regulation B.C. Reg 347/2012, as amended from time to time, who assists the parties to a dispute to negotiate a resolution to their dispute, or

a forum or body established or appointed by Council to assist the parties to a dispute to negotiate a resolution of their dispute;

"Spouse" means:

(a)

a person who is married to another person, whether by a customary indigenous, religious, civil or other ceremony, or

(q) a Common Law Spouse, or (r) is a former Spouse; "Spousal Home" means a dwelling that is ordinarily used for a family purpose and is

(a) owned exclusively by one or both Spouses; and (s) situated on Katzie Land; "Spousal Property" means:

(a)

(t)

an Interest in Katzie Land that is held exclusively by one or both Spouses, was acquired during the spousal relationship, and that was not received by way of gift or inheritance to only one Spouse; or

where the Interest in Katzie Land is held by one or both Spouses and was acquired prior to the spousal relationship or was received during the relationship by way of gift or inheritance to only one Spouse, the share of the Interest that is proportionate to any increased value in the Interest during the course of the relationship;

(2) For the purposes of this Law, terms have the same definitions as in the Land Code. (3) A relationship between Spouses begins on the earlier of the following: (a) the date on which they began to live together in a marriage-like relationship; or

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(b)

the date of their marriage.

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(4) For the purposes of this Law, (a) Spouses may be separated despite continuing to live in the same residence; and

(b)

the Court may consider, as evidence of separation: (i) communication, by one Spouse to the other Spouse, of an intention to separate permanently, and

(ii)

an action, taken by a Spouse, that demonstrates the Spouse's intention to separate permanently.

PART 2 - APPLICATION OF LAW Only on Reserve Land 4. This Law applies to all Katzie Land. Only to Members and Their Spouses 5. This Law applies to the breakdown of a marriage or common law relationship if at least one Spouse is a Member.

Spousal Homes and Spousal Property 6. This Law applies only to Spousal Homes and Spousal Property except where explicitly provided.

No application Upon Death of Spouse 7. (1) With the exception of enforcing rights under section 43, a Spouse cannot commence legal proceedings after the death of the other Spouse under this Law, and his or her rights in relation to an Interest in Katzie Land or a Spousal Home will instead be determined by the applicable law governing the estate of the deceased Spouse.

(2) Despite subsection (1 ), if a Spouse dies, the other Spouse may continue any legal proceedings under this Law that were started before the death of that Spouse.

Application of Other Laws 8. (1) This Law applies in conjunction with federal, provincial and any Laws concerning the division of personal property, real property off-reserve, spousal support, child support, and divorce.

(2) The rights and remedies provided in this Law are subject to any Laws passed by Council in relation to:

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(a)

the removal and punishment of persons trespassing on Katzie Lands or frequenting Lands for prohibited purposes;

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(b) the prevention of nuisance; or (c) protection of the Katzie First Nation community. Katzie's Rights Preserved 9. Nothing in this Law affects the rights or priority of the Katzie First Nation if Katzie has guaranteed a mortgage or holds a mortgage or legal or financial interest in a Spousal Home.

Section 89(1) of the Indian Act 10. This Law applies despite section 89(1) of the Indian Act.

PART 3 - DOMESTIC CONTRACTS Domestic Contract Valid and Binding 11. (1) Subject to this Law and all applicable laws, a provision in a Domestic Contract that reflects the agreement of the Spouses with respect to a Spousal Home or Spousal Property, is valid, binding and enforceable only if the Domestic Contract

(a) (b) (c)

is written; is signed by the parties; and was witnessed by one or more persons who are at least 19 years of age and evidenced by the witnesses' signatures.

(2) Subsection (1) also applies to a Domestic Contract that was entered into before the date this Law comes into force.

Entitlements to Non-Members 12. (1) A Domestic Contract may grant an interest or rights in a Spousal Home or Spousal Property, including exclusive occupancy of a Spousal Home, to a Spouse or Child who is not a Member, but such interest and such rights must not be greater than a Life Estate measured by the life of the individual intended to enjoy it.

(2) A provision in a Domestic Contract is void if it purports to give, transfer, award, acknowledge or create an allotment, Certificate of Possession, or any Interest in Katzie Land equivalent to an allotment or Certificate of Possession, that is greater than a Life Estate for a person who is not a Member.

Court May Set Aside or Vary Agreements 13. (1) Subject to this Law, a Court may, on application, set aside or vary a Domestic Contract or any provision of the contract concerning an Interest in Katzie Land or a Spousal Home based on the following:

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(a)

{b)

(c)

a Spouse failed to disclose to the other Spouse all of that Spouse's Interests in Katzie Land or a Spousal Home, or any material information in respect of those interests;

a Spouse did not understand the nature or consequences of the Domestic Contract or provision;

there is evidence of abuse, coercion, undue influence or fraud, or that a Spouse did not voluntarily enter into the Domestic Contract or provision; or

(d) in accordance with the common law or the law of equity of contract. (2) Subject to subsection (3), subsection (1) only applies to: (a) married Spouses; (b) Common Law Spouses; (c) formerly married Spouses who have been divorced for less than two years; and

(d)

former Common Law Spouses who have been living separate and apart for less than two years.

(3) Where the time limit described in subsection (2) has expired: (a) a formerly married Spouse or former Common Law Spouse may apply to the Court for permission to bring a late claim under subsection ( 1) on the basis of compelling circumstances;

(b)

(c)

the Court will determine whether the evidence establishes sufficiently compelling reasons for the delay to allow it to proceed, taking into account any prejudice that the other Spouse will suffer from the delay in the application; but

in no case may the Court allow late claims to proceed where the formerly married Spouses have been divorced for over 5 years or where the former Common Law Spouses have been living separate and apart for over 5 years.

Registration of Agreements 14. The Lands Director must register any Domestic Contract provided on application by a Spouse in the First Nations Land Registry if the following conditions are met:

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(a)

(b)

the applicant provides an original agreement or a certified true copy of the Domestic Contract;

the Domestic Contract is signed and dated by both Spouses with their signatures notarized;

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(c)

(d)

the applicant provides proof of membership in the Katzie First Nation for at least one Spouse named in the application;

for any Spousal Property referred to in the Domestic Contract (i) the Domestic Contract includes the applicable legal description; (ii) the applicant provides proof that they or their Spouse is the sole owner of the interest, or

(iii)

(iv)

if the interest is shared with other parties, a signed and notarized statement from each additional interest-holder stating that they do not object to the inclusion of the interest in the Domestic Contract; and

the applicant pays the applicable fee.

PART 4 -ACCESS TO THE COURT Cooperative Dispute Resolution Encouraged 15. ( 1) A Spouse may contact the Lands Director for information and resources relating to alternative dispute resolution, including participating in a Mediation Process.

(2) Despite subsection (1), (a) a Spouse who participates in any Mediation Process or other alternative dispute resolution processes is solely responsible for any costs incurred in doing so;

(b)

the Katzie First Nation is not responsible for providing alternative dispute resolution services to a Spouse.

Application of Principles and Considerations 16. To the extent possible, the person or body responsible for administering an alternative dispute resolution process or Mediation Process under this Law must apply any applicable principles and considerations identified in this Law.

Materials Protected 17. Any materials submitted by Spouses to the Mediation Process for the purpose of resolving a dispute under this Law will not be released to any person or agency, except where such disclosure is required under a Court order or the express wording of a statute.

General Access to Court 18. If Spouses are unable to resolve their differences regarding any matter addressed in this Law, they may apply to the Court for a resolution of their dispute.

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Notice to Council 19. Any Spouse who seeks a Court order based on any provision in this Law, other than an Emergency Protection Order must promptly serve the Council with a copy of the documents filed with the Court.

Family Law Legal Principles and Precedent 20. The Court must adjudicate a dispute under this Law with regard to any decisions and orders rendered by a Canadian Court concerning related family law matters for the Spouses, such as divorce, child custody, spousal support, child support, division of personal property or division of real property off-reserve.

Submissions by Council 21. At the request of Council, the Court must, before making its decision, 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 sought should be made.

Notice to Council 22. When the Court makes any decision or order under this Law, the Spouse in whose favour the decision is made must promptly provide a copy of the decision or order to the Council.

Rules of Court 23. Parties must observe the rules and procedures of the Court, except where they are inconsistent with this Law, in which case this Law prevails.

Certain Orders Prohibited 24. A Court order must not be made under this Law: (a) providing a Certificate of Possession or allotment in favour of a Spouse who is not a Member; or

(b)

subject to section 31 (1 )(d), that results in a sale, partition or transfer of a Certificate of Possession or allotment.

Court May Vary Orders 25. A Court may, on application, vary any declaration or order granted under this Part if: (a) there is a material change in circumstance; (b) there is evidence of fraud, abuse or coercion; or

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PART 5 -SPOUSAL HOME Rights of Relief against Forfeiture 26. (1) Spouses have equal rights of redemption or relief against forfeiture during the relationship.

(2) Where a Person or entity proceeds to realize upon an encumbrance or execution against a Spousal Home or an Interest in Katzie Land that affects the Spousal Home, both Spouses have a right of redemption or relief against forfeiture for the Spousal Home and both are entitled to notice respecting the claim and its enforcement or realization.

How to Determine Spousal Home 27. (1) The determination of whether a structure or interest is a Spousal Home is a question of fact.

(2) Where part of a Spousal Home is normally used for a purpose other than residential purposes, including cultural uses, storage, rental, or commercial purposes, the Spousal Home includes only that part of the structure or structures that may reasonably be regarded as necessary for use and enjoyment as a family residence.

Equal Rights to Occupy the Spousal Home 28. Subject to the limitations inherent in the nature of Katzie Land, sections Part 312 and Part 424, and to other factors set out in this Law, both Spouses have an equal right to occupy the Spousal Home.

Limits on Sales and Encumbrances 29. (1) A Spouse must not dispose of or encumber a Spousal Home unless: (a) the other Spouse consents; (b) the other Spouse joins in the instrument of disposal or encumbrance; (c) the other Spouse has released all rights in respect of the disposition or encumbrance by Domestic Contract;

(d) (e)

a Court order has authorized the transaction; or a Court has released the Spousal Home from the application of this section.

(2) If a Spouse disposes of or encumbers a Spousal Home in contravention of subsection (1 ), the Court may, on application:

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(a) (b)

set aside the disposal or encumbrance, or order the Spouse to pay compensation to the other Spouse.

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(3) Subsection (2)(2)(a) does not apply where the person holding the disposition or encumbrance at the time of the application to the Court acquired the disposition or encumbrance for value, in good faith and without notice at the time of acquiring, or making an agreement to acquire the disposition or encumbrance, that the property was a Spousal Home.

(4) A Court may, on the application of a Spouse, authorize a disposition or encumbrance of a Spousal Home without the consent of the other Spouse if

(a)

the disposition or encumbrance is otherwise authorized under this Law; and

(b) the Spouse whose consent is required (i) cannot be found, (ii) is not available, (iii) is not capable of giving or withholding consent, or (iv) is unreasonably withholding consent. (5) A Court's order authorizing a disposition or encumbrance of a Spousal Home under subsection (4) may include conditions that the Court deems appropriate.

PART 6 - DIVISION OF SPOUSAL PROPERTY OR COMPENSATION IN LIEU Application 30. (1) Subject to subsection (2), this Part only applies to: (a) married Spouses who are living separate and apart; (b) formerly married Spouses who have been divorced for less than two years as of the application date; and