Law Times

Law Times • June 20, 2016 Page 11 www.lawtimesnews.com Matrimonial property laws not being used: lawyer BY JUDY VAN RHIJN For Law Times I t's been more than a year since the federal government imposed provisions gov- erning matrimonial property disputes on reserves that did not have their own laws governing the issue. The complexity of the new system has meant that virtually no applications have occurred, but there continues to be a surprisingly positive atti- tude on the part of those trying to implement it. Ottawa lawyer and media- tor Ernie Tannis says the Family Homes on Reserves and Matri- monial Interests or Rights Act is "not being used." "I'm not aware of any cases, and there are no reported cases. The legislation is so complicated with so many variables, tons of landmines, and potential con- f licts of interest. That's why no one's using it," he says. Tannis has heard, anecdot- ally, that lawyers don't want to touch it because they don't know what to do. Nor do the people whom it is designed to protect. "The people fear the secular courts. They say, 'They don't re- solve things the way we do. What am I getting into?'" he says. In December 2014, then-fed- eral minister of Aboriginal Af- fairs and Northern Development Canada Bernard Valcourt an- nounced "the implementation of the second phase of the Act," say- ing it would "provide women and families living on reserve with access to the same matrimonial rights and protections that all other Canadians have." "Pursuant to the Act, judges will be able to issue emergency protection orders, remove vio- lent partners from the family home, and hear cases utilizing First Nations' own matrimonial real property laws that respect their culture and traditions once those laws are enacted within the provisions provided," said a federal news release. "The Act will also continue to provide a mechanism for First Nations to develop their own matrimonial real property laws. First Nations may enact com- munity-specific matrimonial real property laws at anytime pursuant to the Act. As soon as a First Nation enacts its own laws, the provisional federal rules in the Act will no longer apply." Chris Angeconeb, the legisla- tive co-ordinator for the Centre of Excellence for Matrimonial Real Property, confirms that his staff members have not been hearing about specific applica- tions, although they have fielded enquiries from individuals as well as organizations. "We are hearing more about when a spouse member dies, or a woman is having a difficult time making an application to court because the court doesn't know about it," he says. This does not mean that they are disappointed with the legis- lation. "At least now there is a law that covers this," says Angecon- eb, a sentiment echoed by Tan- nis. "Finally, something is on the table filling a 25-year void." Work is underway across the country to raise awareness of the legislation, he says. "In the last year, we have com- pleted 26 MRP Toolkit training with members of communities across the country, from Halifax to Vancouver," reports Angecon- eb. "So far, we have served just over 300 First Nations out of 617." To date, 11 First Nations have passed their own laws and many others are exploring the possibilities, as well as trying to understand their position under the provisional rules. Angecon- eb and his colleagues have now started doing community visits. "We are finding that even though a band council has a representative at the workshop, the information may or may not get to the folks in the commu- nity," he says. The COEMRP is also close to distributing self-help pamphlets to First Nations and courthous- es that clarify how to obtain exclusive occupation orders in each province. Tannis is work- ing with his team to design an online Internet course covering all the legislation at every level that he hopes will be ready in the next three months. The site will act as a portal for anyone trying to use the legislation. "We are approaching this legislation like a Shakespearean play," explains Tannis. "There is a cast of characters — namely, the 25 stakeholders that are mentioned in the legislation." Tannis intends the site to ed- ucate those stakeholders about their roles and obligations under the Family Homes Act. "For the Law Society mem- bers, the biggest risk is missing limitation periods. There are 22 notice sections and this site will provide a way for all stakehold- ers to find all the notice periods," he says. "For example, the band council has a right to make rep- resentations in court so there are notice provisions for that." Even with more education, some problems are currently in- surmountable. "An emergency order can be obtained at the provincial court from a designated judge," ex- plains Tannis. "So far, they only exist on the east coast. Ontario has a two-year window but has not yet designated any. Even if you have a right to an order under the legislation, you can't get it." Another problem lies with the enforcement provisions. "That is a key part of the Act replete with potential problems," says Tannis. "These are close- knit communities, like one ex- tended family. You might have a relative on the council and a rela- tive in native police. Who's going to enforce an order?" Tannis complains that while the legislation endorses tradition- al dispute resolution, the federal government has put no funding into facilitators or facilities. "There is a statutory obliga- tion on lawyers and on courts to ensure that if people want to use traditional processes, they can. As things stand, every band council will have to do it inter- nally," he says. It is also difficult for people to find lawyers to represent them. Tannis says he isn't tak- ing on any cases, but is doing a "rallying cry for all the ADR groups to work together to cre- ate a roster at every provincial courthouse adjacent to a native community." LT FOCUS Essential Tools for Family Law Professionals For more information, visit www.divorcemate.com 1.800.653.0925 x407 | sales@divorcemate.com NOW AVAILABLE! ADD FREEDOM & FLEXIBILITY TO YOUR PRACTICE DM Tools Cloud Work anywhere, anytime, on any device. For child and spousal support calculations. Available for PC, Mac, tablets and smartphones. Untitled-1 1 2015-11-04 9:02 AM New Edition Ontario Family Legislation 2016 Consulting Editor: Elliot S. Birnboim New in this edition • Service of documents – O. Reg. 140/15 amending the Family Law Rules to allow service of documents through an electronic document exchange and service by email • Definition of "child's residence" – 2014, c. 11, Sched. 6, s. 2 amending the Child and Family Services Act to include child care centre • Children in need of protection – 2014, c. 11, Sched. 6, s. 2 amending the Child and Family Services Act, revising the list of persons with a duty to report • Missing or incorrect information – SOR/2015-156 amending the Central Registry of Divorce Proceedings Regulations, requires the central registry to determine whether any information is missing or incorrect, and if it is, to request that the registrar provide the central registry with the missing or correct information • Contempt orders – 2014, c. 7, Sched. 9 amending the Family Law Act to prohibit the Ontario Court of Justice from punishing by fine not exceeding $5,000 and/or imprisonment not exceeding 90 days anyone found in contempt of a restraining order The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version has also been added. 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