Matrimonial home on reserve lands when the surviving spouse is not a Band Member

One of the most important assets in most estates is the family home. Each province has its own rules about the rights of a spouse to own their home when their spouse or partner passes away. Something I haven't discussed on this blog so far is what happens to the marital rights to the house when it's located on First Nations land.

This topic was discussed in a recent case in Nova Scotia. A former band Chief passed away, leaving his entire estate to his wife of 32 years. The band Chief had a certificate of possession for their home, which was located on reserve lands held by the federal Crown in trust for the exclusive benefit of a First Nation band. The wife applied in the usual way for what is known as indefinite occupation of the home. However, this became a problem because the wife was not a member of the band and was not an Indian (as defined by law).

The matter ended up in court. As a result, the judge granted indefinite occupation of the home to the wife despite her not being a member of the band for whom the land was reserved.

The court said that when considering the decision, it considered the wife's age and the fact that she had a medical condition. They looked at her financial situation, and saw that it would be a serious financial hardship for her to lose the house, which was the only asset of value in the Chief's estate.
Also, the court noted that the couple had put significant effort and money into improving the property over 30 years.

Cases are always fact-specific, meaning that the result obtained by one person might not be the same result obtained by another person whose situation is not identical. However, this decision does give some clarity on the fact that exclusive possession of a home CAN be given to someone who is not a band member under certain circumstances.

Anyone wanting to know more about this case can click here to read it: Toney v. Toney Estate, 2018 NSSC 179.