Family Breakdown if You Live on Reserve

Law

If you live on-reserve, different laws may apply to you when you are separating or divorcing. See the sections below to learn more about:

  • Aboriginal heritage in determining the “best interests of the child” for custody, access, and parenting time
  • “Grossing up” income for calculating child support payments
  • Enforcing child support orders on-reserve
  • Enforcing partner/spousal support orders on-reserve
  • Dividing on-reserve family property
  • Emergency Protection Orders on-reserve
  • Emergency Occupation Orders on-reserve
  • The new Family Homes on Reserves and Matrimonial Interests or Rights Act

Choose the Process tab above for forms and detailed information about the court process.

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

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Last Reviewed: August 2017
Who is this Information Page for?

This Information Page contains information about relationship breakdown (such as separation and divorce) when one or more members of the family lives on-reserve. This information applies to both couples who were married and those who were not married (but living together in a sexual or “conjugal” relationship for at least one year).

Be Aware

If you are looking for information about on-reserve property after the death of a family member, see the “Aboriginal matters and on-reserve considerations” sections of the Planning for Death Information Page and the Dealing with a Death in the Family Information Page.

Although many of the general family law legal rules and processes still apply, living on-reserve changes some things.

In addition, there are some legal considerations that apply to all Aboriginal families, regardless of whether or not they live on-reserve. For example: Aboriginal heritage is considered by the court when deciding where and with whom a child should live. For these topics, you may be referred to other Information Pages that have more detailed information on those particular issues.

You are currently on the Law tab of this Information Page, which has information on what the law says about family breakdown when one or more family members live on-reserve. For information on the process you may need (or want) to follow, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

This is a complex area: consider consulting a lawyer. For more information, see the Working with a Lawyer Information Page.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

spouse  

A person who is legally married to another person.

Be Aware

Some of the resources linked on this Information Page use the term “spouse” to describe both married partners and unmarried partners.

common-law partner   

In Alberta, the term “common-law” only applies to certain couples and only for certain federal laws (such as the Income Tax Act). Under most federal laws, the term “common-law” refers to a couple who has lived together in a romantic relationship:

  • for at least one year; or
  • for less than one year but they have a child together.

Under Alberta’s provincial laws, there is no such thing as “common-law” partners and “common-law” relationships. In Alberta, similar rights and responsibilities come from being in an “Adult Interdependent Relationship” (see below).

Be Aware

Under the federal Indian Act and the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, the term “common-law” is used only for a couple who has been living together in a romantic relationship for at least one year, whether or not they have had a child together.

conjugal   

A word used to describe a relationship—a “conjugal relationship” means the people involved have sex. This is also called a “romantic relationship.” This is different from a “platonic relationship,” which is a relationship of any kind that does not include having sex.

platonic

A word used to describe a relationship—a “platonic relationship” is a relationship of love or friendship, which may be intimate and affectionate, but is not sexual (conjugal).

Indian Act    

The main law through which the federal government administers Aboriginal issues, including:

  • “Indian” Status;
  • Status Indians’ Wills and estates;
  • First Nations’ governments;
  • band administration; and
  • the management of reserve lands and communal funds.

Indian   

A person who has “Indian status” under Canada’s Indian Act. This term was originally used by Europeans to identify indigenous people of South America, Central America, and North America. Although it is no longer commonly used to refer to Aboriginal people, it is still the “legal” term required by the Indian Act.

Indian band (also called “First Nation”)     

A group of Aboriginal people who:

  • have been declared to be a band for the purposes of the Indian Act (the Act defines certain Aboriginal people as “Indians”);
  • live on reserve lands that have been set apart for their collective use and benefit; and
  • have money held for them by the Government of Canada (also called “the Crown”).

Most bands hold reserve lands, but bands and band members do not legally own the land because the legal title belongs to the Crown and is “held in trust” (see the definition above) for the band by the Crown.

A more modern term used for a band is “First Nation.” The terms “band” and “First Nation” are also used to describe the government of the group and its reserve. Many band governments also represent members who live off-reserve. Bands can also govern non-band members who live on the band reserve and/or work for the band.

Indigenous and Northern Affairs Canada (INAC)

The federal government department that supports Aboriginal people (First Nations, Inuit, and Métis) in Canada. From 2011 to November 2015, this department was called “Aboriginal Affairs and Northern Development Canada” (AANDC). Because the change in name is still quite new, some resources and even the department’s own website may still show the old name. Before 2011, the department was called Indian Affairs and Northern Development (IAND).

to hold property in trust   

A relationship where one person (a “trustee”) legally holds property for the benefit of another person (a “beneficiary”). The trustee manages the property and collects income from the property, and then passes the income on to the beneficiary. This happens often with children, because children are too young to hold and manage property themselves.

reserve   

Land set aside under Canada’s Indian Act and treaty agreements for the exclusive use of an Indian band. Band members have the right to live on reserve lands, and band government and administration is often located there.

Emergency Protection Order (EPO)

Under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA), a married or common-law partner who is living on-reserve can apply for an Emergency Protection Order (EPO) if there is family violence and a need for immediate protection.

The applicant does not have to:

  • be Aboriginal;
  • have registered Indian Status with the Government of Canada; or
  • have status for that particular reserve.

As long as one of the partners is a member of the First Nation, or has Indian Status, the FHRMIRA EPO can apply.

An EPO is a court order that gives the applicant “exclusive occupation” of the family home. An EPO requires that the applicant’s partner leave the home, either right away or within a certain period of time. It can also prohibit him or her from coming back into the home, or even being near the home. If required, the Court can also order that a peace officer help to evict that partner, and/or supervise the removal of his or her belongings from the home. In addition, the Court can order anything necessary for the immediate protection of the person or property at risk. Other people living in the home can also be evicted by the order.

Be Aware

The term “Emergency Protection Order” is also used for a specific kind of court order under Alberta’s Protection Against Family Violence Act (PAFVA). This can get quite confusing. For the purposes of this Information Page, when we refer to an Emergency Protection Order that is granted under the Protection Against Family Violence Act, we will specifically identify it as a “PAFVA EPO.” See the “The on-reserve family home: Emergency Protection Orders” section below for examples of how these 2 laws overlap and work together in situations of family violence on-reserve.

exclusive possession    

The right of one spouse or partner to have sole possession of the home the couple once shared. This means that the other spouse or partner cannot continue living there. This can also include household goods.

Under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA), a married or common-law partner who is living on-reserve can get exclusive possession by applying for either an Emergency Protection Order (for more urgent situations) or an Exclusive Occupation Order (for less urgent situations).

Under the Protection Against Family Violence Act (PAFVA), an applicant can ask for an order of exclusive possession on its own, or in combination with an application for a FHRMIRA EPO or a Queen’s Bench Protection Order. For more information about the various kinds of protective orders under PAFVA, see the Protective Orders Information Page.

exclusive occupation    

The term used under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) to describe the right of one spouse or partner to have sole possession of the home the couple once shared (which means that the other spouse or partner cannot continue living there). This can also include household goods. You will notice that this is similar to “exclusive possession.” However, the term “exclusive occupation” is specifically used in the FHRMIRA to distinguish the particular issues that may arise with property on-reserve.

Under FHRMIRA, exclusive occupation can be asked for as part of an Emergency Protection Order (for more urgent situations), or an Exclusive Occupation Order (for less urgent situations).

Exclusive Occupation Order (EOO)     

Under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA), an Exclusive Occupation Order will allow the applicant to stay in the on-reserve home by himself or herself, and the other partner will have to leave the home.

The applicant does not have to:

  • be Aboriginal;
  • have registered Indian Status with the Government of Canada; or
  • have status for that particular reserve.

As long as one of the partners is a member of the First Nation, or has Indian Status, the FHRMIRA EOO can apply.

Similarly, the applicant does not have to be listed on the Certificate of Title, Certificate of Possession, or other similar “ownership” document issued by the First Nation.

“best interests of the child”   

The factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child.

For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • the child’s opinion (if the child is mature enough to form an opinion).

payor

The person paying financial support to another person.

 recipient

The person getting financial support from another person.

party

Any person involved in a dispute. It can also refer to each of the people who sign a contract.

enforcement

Forcing something to be done or forcing someone to act in a specific way because of a law, rule, or court order.

jurisdiction

The right or ability of a government or a court to make decisions about things. This term describes either:

  • a particular government’s right, power, or authority to make laws; or
  • a particular court’s authority to deal with an issue.

The Government of Canada has “federal jurisdiction”—the laws the Government of Canada makes apply to everyone in Canada. On the other hand, the provinces and territories of Canada have “provincial jurisdiction”—the laws those governments make apply only within that province or territory. Sections 91 and 92 of the Constitution Act, 1867 outlines which level of government has jurisdiction over what areas.

The jurisdiction to make laws about First Nations (called “Indians” under the law) lies with the federal government.

paramountcy

Canada has a “federalist” system of government. This means that some law-making power lies with the federal government, and other law-making power lies with the provincial governments.

Sometimes areas of law-making power can overlap, resulting in both the federal and provincial governments trying to make laws about the same things. In some cases, this has led to laws that conflict with one another. When that occurs, the federal law is considered the “higher” law, so the provincial law doesn’t apply. This concept is called “paramountcy.”

This concept is especially important for legal issues on-reserve, as reserve lands fall under the jurisdiction of the federal government, even though the reserve is located within a province. Therefore, some of the laws that apply to the rest of the province may not apply to people who live on-reserve—the federal laws may apply instead.

The laws that may apply to you

As you work through your separation issues, you may wish to read the laws (also called “statutes” or “acts”) that apply. The laws included on this Information Page are:

Web Indian Act
Government of Canada
English


PDF Family Homes on Reserves and Matrimonial Interests or Rights Act: Provisions in Plain Language
Centre of Excellence for Matrimonial Real Property
English

When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, including what they are and how they work, see the Our Legal System Information Page.

If you plan on representing yourself in court, you will also need to know about “case law.” In general, “case law” refers to the idea that it is up to judges hearing individual cases to decide:

  1. the exact meaning of the words in the laws (called “interpretation”); and
  2. how that meaning applies to the people in those cases (called “application”).  

This means that what happens in other cases can affect what happens in your case. It also means that there are cases decided before that govern how cases are decided now. For more information on case law, see the Our Legal System Information Page and the Educating Yourself: Legal Research Information Page.

Alberta’s two-court system

In some provinces, any “family law” matter goes to a specialized family court: everyone is in the same court. This is not the case in Alberta. In Alberta, you will have to choose one of two courts. Your choice can depend on what law you use and exactly what you are asking for. Some legal options may only be available in one of the two courts. The two courts are the Provincial Court of Alberta and the Alberta Court of Queen’s Bench

On this Information Page, if certain options are only available to you in the Court of Queen’s Bench, we will note it below with this icon:

Queen's Bench

 

If there has been family violence

Has there been any domestic abuse in the family—whether it was toward you, the children, or both? It is very important to recognize and admit this, both to yourself and to any organizations you approach for help. Everyone involved must be kept safe.

Also, family violence is often a critical factor in what happens in family law proceedings.

If you are the victim of domestic violence, there are a few places to start.

  • Be honest and upfront about it. Violence does not go away on its own. See the What is Family Violence? Information Page for more information.
  • Know that it is never your fault, or the fault of the child. The responsibility belongs only to the abuser.
  • If you are planning on leaving a violent situation and deciding which steps to take first, see the Safety Planning Information Page.
  • There is no single right way to proceed—it will depend on the exact details of your case. Sometimes, mediation and other collaborative processes may not be possible. On the other hand, sometimes going to court may not be the best option. Learn about Family Violence and the Legal Process.
  • There are criminal laws and protective laws that might be able to help.
  • Abusive situations are complicated. Consider talking to a lawyer (or another person who is helping you with your legal issues) about the best way to proceed. For more information, see the Family Violence: Resources to Help and Working with a Lawyer Information Pages.
  • Do not just believe an abuser who has told you that “You can’t leave me” or “You’ll get nothing.” It is not up to the abuser; it is a question of law. Keep reading to find out more.

How to use this website

Many of the resources on this Information Page have both general family law information as well as how that information applies in situations of family violence. Where appropriate, resources specific to situations of domestic violence are noted with this icon: 

Family Violence

 

Be sure to read these resources thoroughly, because it is sometimes difficult to understand what to do in situations of violence without understanding the legal picture in general.

More information

For more information about family violence specific to the Aboriginal context, see the following resources.

PDF Aboriginal Journey to Healing Information Sheet
Government of Alberta
English

PDF Creating Healthy Personal Relationships: An Information Booklet for Aboriginal Women
Public Legal Education and Information Service of New Brunswick
English
This resource is from outside Alberta. Learn more here.

PDF Alberta Women's Shelters: A Path to Healing
Alberta Council of Women's Shelters
English

Web Safety Planning
Kanawayhitowin: Taking Care of Each Other's Spirit
English
This resource is from outside Alberta. Learn more here.

Web Warning Signs of Abuse
Kanawayhitowin: Taking Care of Each Other's Spirit
English
This resource is from outside Alberta. Learn more here.

Web Family Violence Resources
The Healing Journey
English

PDF Am I in an abusive relationship?
Native Women's Association of Canada
English
The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?

On this Information Page, you may be directed to other Information Pages on this website that will discuss a specific topic in more detail. Often, you will see that at least two Information Pages appear to deal with the same issue. For example: “Child Support under the Divorce Act” and “Child Support under the Family Law Act.” These are not the same things—they refer to different laws.

As you work through the issues involved in the breakdown of your relationship, you will have to make a choice about which law you must use, or want to use.

  • For support and parenting issues, married couples have a choice which law they use when they separate: they can use Canada’s Divorce Act, or Alberta’s Family Law Act. The choice of which law to use is extremely important. If you are not sure which law you want to use, see the Ending a Married Relationship Information Page, which explains what to consider when choosing.
  • Non-married couples do not have a choice. The law that applies to couples who were not in a married relationship is the Alberta Family Law Act. If you were not married, Canada’s Divorce Act (as well as Alberta’s Matrimonial Property Act) does not apply to you.

If you are not sure if you were married or not, see the Getting Married Information Page.

Why does it matter if a person lives on-reserve?

Canada’s “federalist” system of government

Canada has a “federalist” system of government. Having a federalist system means that the law-making power is divided between the different levels of government.

  • Some powers are given to the federal government.
  • Other powers are given to the provincial and territorial governments.
  • The provincial and territorial governments can then give some of their powers to municipal governments.

This is often called the “division of powers.”

Sometimes, different levels of government can share the law-making power. For example, in family law, some of the laws that affect separating couples are federal laws, while others are provincial laws.

  • The Divorce Act is a federal law. It deals with the process of divorce itself, as well as some of the related topics (such as child support and spousal support).
  • However, the law-making power over “property in the province” was given to the provinces. This means that, although the law of divorce is the same throughout Canada, the law around the division of property is not.
  • The power over “civil rights in the province,” including non-married romantic relationships, was also given to the provinces. In Alberta, the law in this area is called the Family Law Act. It deals with family breakdown (but not divorce), including child support and partner support. It does not deal with the division of property.

For more information about how law-making powers are divided, see the Our Legal System Information Page and the following resources.

PDF The Canadian Legal System: Legal Information for Frontline Service Providers
Centre for Public Legal Education Alberta
English
See p. 3-5.

Web Distribution of Powers
The Canadian Encyclopedia
English

Federalism and Aboriginal matters

Under this system, the power to make laws related to First Nations’ issues was given to the federal government. This resulted in the Indian Act in 1867. The Indian Act is the main law through which the federal government administers Aboriginal issues, including: “Indian” status, Wills, First Nations’ governments, band administration, and the management of reserve land and communal funds.

Sometimes areas of law-making power can overlap, resulting in both the federal and provincial governments trying to make laws about the same things. In some cases, this has led to laws that conflict with one another. When that occurs, the federal law is considered the “higher” law, so the provincial law doesn’t apply. This concept is called “paramountcy.”

The concept of paramountcy is important for laws related to First Nations’ issues. Each reserve is located inside a province or territory. In theory, this means that a provincial law can apply on reserve lands. However, if there is also a federal law (such as the Indian Act) that contains something that conflicts with a part of a provincial law, the federal law will “trump” the provincial law. This means that the provincial law won’t apply to that situation on-reserve (or to those who live on-reserve). You will see several examples of this in the sections below.

Be Aware

There are also some legal considerations that apply to all Aboriginal families, regardless of whether or not they live on-reserve. For example: Aboriginal heritage is considered by the court when deciding where and with whom a child should live. For these topics, you may be referred to other Information Pages that have more detailed information and lists of resources on those particular issues.

For more information about how the unique position of Aboriginal people in Canadian law, see the following resources.


If there was a domestic contract (cohabitation, pre-nuptial, or marriage agreement)

In general, when a couple separates and they have a domestic contract, the terms of that contract will govern the legal issues that come up during the separation. However, that is not always the case.

For example, the agreement may be challenged if:

  • One or both ex-partners provides a legal reason that the agreement should be cancelled or “set aside.” For example, if special circumstances existed when the agreement was signed that prove that one of the parties did not understand the contract, or if one of the parties did not provide full financial disclosure to the other.
  • One or more parts of the agreement are not enforceable. For example, parents could not agree that no child support would be paid (because child support is the right of the child).

Also, if the parties agreed to terms that are not enforceable on-reserve (under federal law), it may not be possible to follow the agreement.

For more information about how domestic contracts are treated and the law around setting them aside, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

Aboriginal heritage in determining custody, parenting time, and access

Under federal and Alberta law, the only thing to be considered when deciding where and with whom a child lives, as well as who should have access to that child, is the “best interests” of the child. This “best interests of the child” test is applied under both the federal Divorce Act and the Alberta Family Law Act.

Whether Aboriginal children live on-reserve or off-reserve, heritage and cultural considerations are very important in determining the best interests of the child. This means that Aboriginal children have the right to stay connected to their heritage and culture. Naturally, if the matter goes to court, this can affect the parenting time that court might give. The Court may even decide to give contact to a third party, such as an elder or another family member, because that person will keep the child in touch with his or her heritage and culture.

In addition, when the child lives on-reserve, a band council may restrict a non-band member from coming on-reserve to see the child. If such a restriction exists in your case, you will want to make sure that the parenting plan and/or parenting order takes the restriction into account and plans around it (for example: alternate visitation sites and off-reserve transfers of the child or children).

For more information, see the following resources.

Web The Best Interests of the Aboriginal Child
Centre for Public Legal Education Alberta
English


PDF Aboriginal Parenting After Separation (Handbook)
Justice Education Society
English
This resource is from outside Alberta. Learn more hereStart on p. 40.

For more information and resources on guardianship and parenting time under the Family Law Act in the Aboriginal context, see the “Aboriginal matters and on-reserve considerations” section of the Guardianship & Parenting under the Family Law Act Information Page.

For more information and resources on custody and access under the Divorce Act in the Aboriginal context, see the “Aboriginal matters and on-reserve considerations” section of the Custody & Access under the Divorce Act Information Page.

Child support: “Grossing-up” income for calculating support amounts

Child support is money paid by a parent toward the living expenses of his or her child (also called the “necessaries of life”). Child support is a requirement in both the federal Divorce Act (which deals with divorce issues all across Canada) and the Alberta Family Law Act (which deals with family breakdown in Alberta, and was intended specifically to deal with family breakdown for non-married couples, as the Divorce Act does not apply to them). The concept of “necessaries of life” is also included in the Criminal Code of Canada, where the failure to provide the “necessaries of life” can be a crime. In addition, people other than parents can be required to pay child support, including step-parents.

To calculate child support under the federal Divorce Act, the Federal Child Support Guidelines must be used. To calculate child support under Alberta’s Family Law Act, the Alberta Child Support Guidelines must be used. This is to make sure that reasonable arrangements have been made for the financial support of the children. This is true whether you are making an agreement about child support, or getting a court order for child support. Both sets of Guidelines have a formula for calculating how much child support must be paid.

You can find more general information about child support (including the differences between the Federal Guidelines and the Alberta Guidelines, the exceptions to using the Guidelines, and exactly how child support is calculated) on the following Information Pages:

For people living on-reserve, there can be an additional consideration. Both sets of Guidelines assume that the person who pays the child support (the payor) pays income tax. However, Aboriginal people who are “Status Indians” under the Indian Act and who work on-reserve may not be required to pay income tax. When that occurs, the standard calculations are not correct.

If this is the case, the Guideline income has to be recalculated so that it is comparable to a person’s income who does pay taxes.

For example: an Aboriginal person earns $40,000 per year and pays no taxes. $40,000 is not the correct Guideline income. To calculate the correct Guideline income, you must figure out what a taxpaying payor would have to earn pre-taxes (“gross”) in order to have $40,000 left after taxes (“net”). Let’s assume that a taxpaying payor would have to earn $50,000 gross, in order to have $40,000 net—then the correct Guideline amount would be $50,000.

This is a complicated calculation that must take into account many factors. You may want to ask for help from an accountant or someone who has legal training in this area. See the following resources for more information.

PDF Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC
Atira Women's Resource Society
English
This resource is from outside Alberta. Learn more hereSee p. 56-57.

PDF Parenting: Legal Rights & Responsibilities
Native Counselling Services of Alberta
English
See p. 16-17.

Web Child Support Guidelines
Clicklaw
English
This resource is from outside Alberta. Learn more hereSee “Imputing income.”

PDF Aboriginal persons in family law proceedings
Continuing Legal Education Society of British Columbia
English
This resource is from outside Alberta and can be a challenge to read. Learn more here. See p. 4-5.
Enforcing child support orders on-reserve

“Enforcing” a court order means making sure that what a court ordered is actually done. To make sure that children are properly cared for, Alberta has come up with a system to make sure that child support orders are followed: the Maintenance Enforcement Program (MEP). MEP collects court-ordered child support, and can take action to enforce those court orders.

All court orders for child support are automatically filed with MEP. However, they are only enforced when one of the parties applies.

For example:

  • You have a court order for child support.
  • Your ex-spouse must pay you $300 per month.
  • If you do not register your order with MEP, you will have to make your own arrangements for payment (perhaps you will get a cheque mailed to you every month).
  • However, if you register your order with MEP, they will make arrangements for payment (such as getting the money taken directly from the payor’s bank account).
  • Also, if you register your order with MEP and payments are not made, MEP has the power to do something about it right away.

In order to carry out collection and enforcement, MEP has very broad powers, including:

  • deducting the support payments directly from the payor’s wages (this is called a “garnishee”);
  • taking support amounts owing directly from bank accounts, mutual funds, rent, or contract fees;
  • taking support amounts owing directly from income tax refunds, GST rebates, Canada Pension Plan income, and Employment Insurance payments; and
  • preventing the payor from selling any property.

You can find more general information about the enforceability of child support (including MEP’s many other enforcement powers) on the following Information Pages:

If you live on-reserve, you are subject to various on-reserve rules contained in the federal Indian Act. The Indian Act can affect the enforcement of child support orders when the payor is a Status Indian who lives on-reserve. The reason for this is explained in the “Why does it matter if a person lives on-reserve?” section above.

Specifically: section 89 of the Indian Act states that the property (for example: the money earned from work on-reserve) of an Indian located on-reserve is not allowed to be garnisheed, unless the person doing the garnisheeing (the “garnishor”) is an Indian or a band member. As a result:

  • If the recipient (for child support, the recipient is the child) is not a Status Indian, then the Indian Act limits the ability to enforce a support award, and the property or income on reserve cannot be used to pay the support.
  • On the other hand, if both the payor and the recipient (the child) are Status Indians, then the Indian Act does not limit the ability to enforce a support order, and on-reserve property or income can be used to pay the support.
Enforceability of partner/spousal support orders on-reserve

Partner support is money paid by one former partner to the other former partner, to help with living expenses.

The law recognizes several reasons for providing partner support, and these reasons form the basis of “entitlement” to partner support. You can find more general information about partner/spousal support (including the issues of eligibility, entitlement, and calculation) on the following Information Pages:

To make sure that people who are entitled to partner/spousal support actually receive the money to which they are entitled (and therefore do not have to rely on government income assistance programs), Alberta has come up with a system to make sure that partner/spousal support court orders are followed: the Maintenance Enforcement Program (MEP). MEP collects court-ordered partner/spousal support, and can take action to enforce those court orders. “Enforcing” a court order means making sure that what the court ordered is actually done.

All court orders for partner/spousal support are automatically filed with MEP. However, they are only enforced when one of the parties applies.

For example:

  • You have a court order for spousal support.
  • Your ex-spouse must pay you $300 per month.
  • If you do not register your order with MEP, you will have to make your own arrangements for payment (perhaps you will get a cheque mailed to you every month).
  • However, if you register your order with MEP, they will make arrangements for payment (such as getting the money taken directly from the payor’s bank account).
  • Also, if you register your order with MEP and payments are not made, MEP has the power to do something about it right away.

In order to carry out collection and enforcement, MEP has very broad powers, including:

  • deducting the support payments directly from the payor’s wages (this is called a “garnishee”);
  • taking support amounts owing directly from bank accounts, mutual funds, rent, or contract fees;
  • taking support amounts owing directly from income tax refunds, GST rebates, Canada Pension Plan income, and Employment Insurance payments; and
  • preventing the payor from selling any property.

You can find more general information about the enforceability of partner/spousal support orders (including MEP’s many other enforcement powers) on the following Information Pages:

If you live on-reserve, you are subject to various on-reserve rules contained in the federal Indian Act. The Indian Act can affect the enforcement of partner/spousal support orders when the payor is a Status Indian who lives on-reserve. The reason for this is explained in the “Why does it matter if a person lives on-reserve?” section above.

Specifically: section 89 of the Indian Act states that the property (for example: the money earned from work on-reserve) of an Indian located on-reserve is not allowed to be garnisheed, unless the person doing the garnisheeing (the garnishor) is an Indian or a band member. As a result:

  • If the recipient is not a Status Indian, then the Indian Act limits the ability to enforce a support award, and the property or income on-reserve cannot be used to pay the support.
  • On the other hand, if both the payor and the recipient are Status Indians, then the Indian Act does not limit the ability to enforce a support order, and on-reserve property or income can be used to pay the support.
Relationship breakdown and on-reserve property: The basics

It is important to understand that, for people who are Aboriginal and living off-reserve, general Alberta law dealing with relationship breakdown still applies: it applies to everyone in the province, regardless of cultural identity or ethnicity. This includes laws such as the Family Law Act, the Matrimonial Property Act, the Alberta Rules of Court, and the Protection Against Family Violence Act. These laws apply to all off-reserve property.

For more information on the law related to off-reserve property (which applies to the property of all Albertans, including Aboriginal people), see the following Information Pages:

Historically, however, a problem arose when the property affected was on-reserve. Princial laws, such as those that can apply when married spouses divide the value of the family home, conflicted with federal law. In this case, the Indian Act said that the property rights belong to the person who held the Certificate of Possession, or other similar “ownership” document issued by the First Nation.

Due to the rules of paramountcy (described in the “Why does it matter if a person lives on-reserve?” section above), the federal law trumped, and the provincial law could not be applied to that particular on-reserve property. The result was often devastating and unfair. For example: a spouse who had lived in the house for decades could suddenly find himself or herself being kicked out of the house, and off of the reserve, with no ability to use the home, or share the value of the home that he or she had helped establish.

For more information on the historical problems around on-reserve property, see the following resources.

Video Division of Family Property on Reserve When a Relationship Ends (part 1)
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more hereWatch up to 7:20. Note: this video was made before the new on-reserve property law was in force. The new law now applies.


Web Backgrounder - Family Homes on Reserves and Matrimonial Interests or Rights Act
Government of Canada
English
This resource can be a challenge to read. Learn more here.

This law about the use and division of on-reserve family property has recently changed. Specifically, in December 2013 the federal government introduced a law—the Family Homes on Reserves and Matrimonial Interests or Rights Act—that gives new on-reserve property rights where none existed before.

Under this new Act, as of December 16, 2014, the law states that:

  • A First Nation government can make rules about division of family property on its own reserve.
  • If a particular First Nation chooses to make such rules, those rules must be made public and it is those rules that will apply on that particular reserve.
  • If a particular First Nation chooses not to make such rules, the Family Homes on Reserves and Matrimonial Interests or Rights Act will apply on that particular reserve (until the First Nation creates its own community-specific law about the division of on-reserve property upon relationship breakdown).

A list of First Nations that have made their own rules about family property division can be found in the following resource.


To find out about the current state of property law on your reserve, please contact the band associated with that reserve. A list of bands in Alberta is in the following resource.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French

The new rights given under the Family Homes on Reserves and Matrimonial Interests or Rights Act apply to both married and common-law couples (as defined in the Indian Act: living together for 1 year or more). This is different from the law that applies off-reserve in Alberta, where the property division rights of married and non-married couples are very different from one another. In fact, as a result of the new Act, the property rights of non-married couples are better on-reserve than they are off-reserve. In addition, the new rights apply to all people living on-reserve: whether or not they are living on their own reserve (for example, if they live on their partner’s reserve), and even if they are not Aboriginal (or have Indian status).

Be Aware

There are still many resources on the internet and in libraries that refer to the state of the law before the introduction of the Family Homes on Reserves and Matrimonial Interests or Rights Act. Always be certain that the information you find deals with the current law about on-reserve property.

For a summary of the problems that existed before December 2014, and more information about the new Act, see the following resource.

The on-reserve family home: Emergency Protection Orders (EPOs)

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed several years ago. Under this law, a married or common-law partner who is living on-reserve will be able to apply for an Emergency Protection Order (EPO) if there is family violence, and if there is a need for immediate protection.

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened.

As a result, in Alberta it is currently not possible to apply for Emergency Protection Orders under this law.

For the most recent information about the status of this new law, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

For information about your other options for protection, see the Protective Orders Information Page.

More information about EPOs

For more information about EPOs under the Family Homes on Reserves and Matrimonial Interests or Rights Act, see the following resources.


PDF Matrimonial Real Property Rights on Your Reserve
Centre of Excellence for Matrimonial Real Property
English

Web Understanding family property rights on reserves
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

Web Your home on reserve: Who can stay in the family home on reserve?
Legal Services Society
English
This resource is from outside Alberta. Learn more here.





Web Frequently Asked Questions
Centre of Excellence for Matrimonial Real Property
English

Video Division of Family Property on Reserve When a Relationship Ends (part 2)
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

Presentation The Family Homes on Reserves and Matrimonial Interests or Rights Act
Courthouse Libraries BC
English
This resource is from outside Alberta. Learn more here.

PDF Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC
Atira Women's Resource Society
English
This resource is from outside Alberta. Learn more hereSee Chapter 11.
The on-reserve family home: Exclusive Occupation Orders (EOOs)

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed several years ago. Under this law, a married or common-law partner who is living on-reserve will be able to apply for an Exclusive Occupation Order (EOO). This is for situations when the relationship breaks down, and the parties can’t resolve the issue of which partner will stay in the home.

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened.

As a result, in Alberta it is currently not possible to apply for Exclusive Occupation Orders under this law.

For the most recent information about the status of this new law, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

For information about your other options for protection, see the Protective Orders Information Page.

For information about your other options for getting exclusive possession of the home, see the Information Page that applies to your situation:

More information

For more information about EOOs under the Family Homes on Reserves and Matrimonial Interests or Rights Act, see the following resources.


PDF Matrimonial Real Property Rights on Your Reserve
Centre of Excellence for Matrimonial Real Property
English

Web Understanding family property rights on reserves
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

Web Your home on reserve: Who can stay in the family home on reserve?
Legal Services Society
English
This resource is from outside Alberta. Learn more here.





Web Frequently Asked Questions
Centre of Excellence for Matrimonial Real Property
English

Video Division of Family Property on Reserve When a Relationship Ends (part 2)
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

Presentation The Family Homes on Reserves and Matrimonial Interests or Rights Act
Courthouse Libraries BC
English
This resource is from outside Alberta. Learn more here.

PDF Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC
Atira Women's Resource Society
English
This resource is from outside Alberta. Learn more hereSee p. 50.
Dividing the value of on-reserve family property

Under the new rules of the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA), there has also been a change in how the value of on-reserve property is to be divided between the partners.

The starting point under FHRMIRA is that both partners have an interest in the value of the home, regardless of whose name appears on the Certificate of Possession (or other similar “ownership” documents related to the property). This is true even if one of the partners:

  • is not Aboriginal;
  • does not have registered Indian Status with the Government of Canada; or
  • does not have status for that particular reserve.

As long as one of the partners is a member of the First Nation, or has Indian Status, the FHRMIRA rules apply.

This starting point has led to several new rights:

  • If the family home is to be sold, both partners must consent to the sale in writing: one partner cannot simply sell the home on his or her own.
  • Each partner is entitled to half of the value of the family home. Sometimes, because of First Nation communal ownership, selling the home may not be possible. In such a case, if one partner stays in the home and continues to get the full value, that partner may have to pay some amount to the other partner in order for that other partner to get the value of his or her share.
  • Each partner is entitled to half of the value of all of the other on-reserve property that they owned during their relationship.

Dividing the property in this manner requires a very complicated calculation, which takes into account several factors, including:

  • the value of the property during the relationship,
  • the costs of improvements, and
  • the accumulation of debts.
Queen's Bench

In completing the calculation, the Court of Queen’s Bench may also look at who paid to care for the children during the relationship (if there were any).

If the partners cannot decide on the division of family property, either partner can apply to have the issue decided in court. In general, such an application can be made up to 3 years after the partners stop living together. However, there can be an exception to this time limit if the applying partner can show that he or she did not know about these rights, or could not apply for reasons that were outside of his or her control.

In general, when making an application, applicants must notify the First Nation council about the application (but no notice is required if the applicant is also applying for a “confidentiality order”—this is when the applicant is asking that the court process not be made public and the details not be provided to anyone else). Also, once the order is given, the First Nation council must be given a copy.

In addition, the Court must allow any request from the First Nation council to provide the Court with information about:

  • the cultural, social, and legal context that affects the application; and
  • the council’s views about whether or not the order should be made.
Remember

These new rules about the division of on-reserve property may not apply if the parties signed a domestic contract saying that property was to be divided in a different way. For more information, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

For more information about the division of on-reserve family property under the Family Homes on Reserves and Matrimonial Interests or Rights Act, see the following resources.

Web Understanding family property rights on reserves
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

PDF Matrimonial Real Property Rights on Your Reserve
Centre of Excellence for Matrimonial Real Property
English

Web Understanding family property rights on reserves
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

Web Your home on reserve: Who can stay in the family home on reserve?
Legal Services Society
English
This resource is from outside Alberta. Learn more here.





Web Frequently Asked Questions
Centre of Excellence for Matrimonial Real Property
English

Video Division of Family Property on Reserve When a Relationship Ends (part 3)
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta. Learn more here.

Presentation The Family Homes on Reserves and Matrimonial Interests or Rights Act
Courthouse Libraries BC
English
This resource is from outside Alberta. Learn more here.

PDF Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC
Atira Women's Resource Society
English
This resource is from outside Alberta. Learn more hereSee p. 48-50.
Blended family considerations

The law around family breakdown on-reserve is no different for blended families than it is for any other families. Your separation will be guided by the same laws and approaches described above.

LGBTQ considerations

The law around family breakdown on-reserve is no different for LGBTQ families than it is for any other families. Your separation will be guided by the same laws and approaches described above.

Polyamorous considerations

Under the Family Homes on Reserves and Matrimonial Interests or Rights Act, it is impossible for a person to have more than one spouse—it is illegal to be married to more than one person at a time. Similarly, it is impossible for a person to have more than one common-law partner. Therefore, the rights and obligations described above would only apply in the relationship between the two people who qualify as spouses or common-law partners.

Process

Learn more about going to court about family breakdown when you live on-reserve, including:

  • How to apply for an Emergency Protection Order, Exclusive Occupation Order, or Order to Divide Property under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA)
  • The paperwork you need to file with the Court
  • The basics about the court process and what to expect

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: August 2017
Who is this Information Page for?

This Information Page contains information about legal processes related to the relationship breakdown when one or more members of the family lives on-reserve. This information applies both to couples who were married and those who were not married.

Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand better what to ask for and how to get it. Once you have the basics down, you will be in a better position to learn about the process you need to follow to resolve your legal issues.

Although many of the general family law legal processes still apply, living on-reserve does change some of the usual approaches and rules.

You are currently on the Process tab of this Information Page, which has information on what processes need to be followed. For information about what the law says, click on the Law tab above. There is also important information in the Common Questions and Myths tabs above.

This is a complex area: consider consulting a lawyer. For more information, see the Working with a Lawyer Information Page.

Does your First Nation have its own rules about on-reserve family property?

This law about the use and division of on-reserve family property has recently changed. Specifically, in December 2013 the federal government introduced a law called the Family Homes on Reserves and Matrimonial Interests or Rights Act. This law gives new on-reserve property rights where none existed before.

Under this new Act, as of December 16, 2014, the law states that:

  • A First Nation government can make rules about division of family property on its own reserve.
  • If a particular First Nation does chooses to make such rules, those rules must be made public and it is those rules that will apply on that particular reserve.
  • If a particular First Nation chooses not to make such rules, the Family Homes on Reserves and Matrimonial Interests or Rights Act will apply on that particular reserve (until the First Nation creates its own community-specific law about the division of on-reserve property upon relationship breakdown).

A list of First Nations that have made their own rules about family property division can be found in the following resource.


To find out about the current state of property law on your reserve, please contact the band associated with that reserve. A list of bands in Alberta is in the following resource.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French
Would you like to ask your First Nation to make its own rules about on-reserve family property?

Creating rules about the use and the division of on-reserve family property is a complex task. To find out about the current state of property law on your reserve, please contact the band associated with that reserve.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French

There are organizations and publications that can help with the process of making these rules. For more information, see the following resources.

PDF Key Topics in Matrimonial Real Property Laws
Centre of Excellence for Matrimonial Real Property
English

PDF Policy Questions for Development of Matrimonial Real Property Law
Centre of Excellence for Matrimonial Real Property
English

PDF Steps Involved in Preparing a Matrimonial Real Property Law
Centre of Excellence for Matrimonial Real Property
English

PDF Family Homes on Reserves and Matrimonial Interests or Rights Act: Clause-by-Clause Analysis
Centre of Excellence for Matrimonial Real Property
English


Applying for, or responding to, a FHRMIRA Emergency Protection Order

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed several years ago. Under this law, a married or common-law partner who is living on-reserve will be able to apply for an Emergency Protection Order (EPO) if there is family violence, and if there is a need for immediate protection.

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened.

As a result, in Alberta it is currently not possible to apply for Emergency Protection Orders under this law.

For the most recent information about the status of this new law, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

For information about your other options for protection, see the Protective Orders Information Page.

Applying for, or responding to, a FHRMIRA Exclusive Occupation Order

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed several years ago. Under this law, a married or common-law partner who is living on-reserve will be able to apply for an Exclusive Occupation Order (EOO). This is for situations when the relationship breaks down, and the parties can’t resolve the issue of which partner will stay in the home.

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened.

As a result, in Alberta it is currently not possible to apply for Exclusive Occupation Orders under this law.

For the most recent information about the status of this new law, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

For information about your other options for getting exclusive possession of the home, see the Information Page that applies to your situation:

Applying for a FHRMIRA Order to Divide Property: Why it matters if you are married or not

Because the FHRMIRA is still quite new, no specific paperwork to apply for on-reserve property division has been created yet. As a result, for now, you can use the paperwork for property division under other laws. You will just need to indicate that you are asking for a FHRMIRA division of property also (or instead).

If you are married

If you are married, see the following sections of the Process tab of the Property Division for Married Spouses Information Page:

  • “Filing the paperwork for an Application (other than for exclusive possession)” and
  • “Responding to a matrimonial property Application (other than exclusive possession).”

Although this paperwork is for the Matrimonial Property Act, you can use it to apply under FHRMIRA. You can also make a combined application under both the Matrimonial Property Act and FHRMIRA if you are asking for the division of both on-reserve and off-reserve property.

If you decide to go to court to ask for a FHRMIRA order to divide property, there is some other information you may need about the process. Again, you can see the Property Division for Married Spouses Information Page, which also explains the law around dividing property that is not on-reserve. You may wish to see these sections in particular:

  • Alberta’s two-court system
  • Valuing the property
  • Disclosure
  • Out of court resolution options
  • Hiring a lawyer or representing yourself?
  • Before you go to court: Is this the right court to file in?
  • Before you go to court: Get to know the court system
  • Consent orders
  • Going to and being in chambers
  • Asking for “costs” in chambers
  • Going to trial
  • Appeals

If you are not married

If you are not married, the situation is a bit more complicated. This is because there is no “usual” paperwork for the division of property for unmarried couples. For more information, see the next two sections:

  • “Applying for a FHRMIRA Order to Divide Property if you are not married,” or
  • “Responding to an Application for a FHRMIRA Order to Divide Property if you are not married.”

If you decide to go to court to ask for a FHRMIRA order to divide property, there is some other information you may need about the process. You will find this information on the Process tab of the Property Division for Unmarried Couples Information Page. That Information Page also explains the law around dividing property that is not on-reserve. You may wish to see these sections in particular:

  • Alberta’s two-court system
  • Valuing the property
  • Disclosure
  • Out of court resolution options
  • Hiring a lawyer or representing yourself?
  • Before you go to court: Is this the right court to file in?
  • Before you go to court: Get to know the court system
  • Consent orders
  • Going to and being in chambers
  • Asking for “costs” in chambers
  • Going to trial
  • Appeals
Applying for a FHRMIRA Order to Divide Property if you are not married

Completing the Application forms

If you are not married, you will need to file the application in the Alberta Court of Queen’s Bench, using a form called an “Originating Application.” This is the form you use to tell the Court what it is that you are asking for.  

You will also need to complete an Affidavit. An Affidavit is a document where you include the facts that the Court will need to see. The form has clear instructions to let you know what information the Court will want to see. All of the documents that you want the judge to see must be written about in the Affidavit.

For more in-depth information about how to complete an Affidavit (including what you should not put in it), see the Understanding the Court Process Information Page.

To help you decide what to ask for, you may want to learn about how property is normally divided between unmarried couples when they live off-reserve: see the Property Division for Unmarried Couples Information Page. Unmarried couples can also choose to divide their property in the same way that married partners do: see the Property Division for Married Spouses Information Page for more information about that.

Be Aware

There are very detailed and strict rules about the length of affidavits and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need to ask permission of the court. There is a very specific procedure for doing that. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Applying for other things at the same time

If you are combining your request to divide on-reserve property with another kind of Application you will need other forms as well. The required forms can be found on the Information Pages for each topic.

Remember

Under the Family Law Act, certain applications can be heard in either the Court of Queen’s Bench or the Provincial Court of Alberta. However, property applications can only be heard in the Court of Queen’s Bench. Therefore, if you are dealing with other separation-related issues in the Provincial Court, you will not be able to combine those applications with an application to divide on-reserve property.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents. This can be particularly important if the violence is the reason you are making certain requests.

For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For more information, see the Family Violence and the Legal Process Information Page

If you want to apply for a protective order to help keep you safe, see the Protective Orders Information Page. The choices you make about protective orders may affect the process you need to follow with your other family law matters.

Is this an “interim” application? If yes, say so

Sometimes, when you go to court in a family matter, you start by asking for a short-term (or “temporary”) solution. You plan to go back to court later to get a more permanent arrangement. In some of the resources on this Information Page, these temporary orders are also called “interim” or “interlocutory” orders.

The purpose of these orders is to put things in place while the court action continues. It can take quite a lot of time for the Court to fully consider all of the issues and make more long-term decisions.

In situations where the order is intended to be short term, it is important that your paperwork:

  • says that you are asking for a temporary order;
  • explains what you want; and
  • tells why you want it.

This is especially important if the request is for something unusual, or something that the Court might normally reject.

For more information on interim orders, see the Understanding the Court Process Information Page.

If you get a temporary order, you can expect to go back to court in the future about this. In fact, the first Order will often include the next hearing date. This next hearing date is when the matter will be heard to see if changes are required and a more permanent order can be made.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English
 

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork and choosing a court date

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. This includes Child Protective Services if they are involved in the case. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

At the courthouse, and with the help of a court clerk, you will be able to pick a court date. When choosing a date, you will need to factor in the time that you will need to “serve” the other party with the paperwork (next step). You will also need to give the other party enough time to respond to your application.

Your matter will be scheduled in “chambers.” This is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people. Yours is just one case on the list.

Depending on your location and the amount of time your matter is expected to take, you may have to appear in regular chambers (also called “morning” chambers) or in special chambers (also called “afternoon” chambers).

  • Regular chambers is for matters where each party can present their side in 10 minutes or less (for a total of 20 minutes).
  • Special chambers is for matters that require more than 20 minutes in total.

The court clerk will help you figure out what time you are to appear.

After you have been given a court date, write down the court date on the first page of all of the copies of your application. The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed and filed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is to notify the other party that a hearing is taking place. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter. For more information on how to serve documents, see the Understanding the Court Process Information Page.

However, there are certain very limited situations in which the other party does not need to be notified of the hearing. This is called an “ex parte” hearing. For more information on these situations, see the Understanding the Court Process Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Get ready for the response

Before the court date, your former partner will be serving you with his or her response. You will need to read his or her paperwork to make sure that you are ready for your court date.

There are 2 ways your former partner can respond:

  1. They can file an Affidavit in response to your Application. In their Affidavit, your former partner can state whether he or she agrees or disagrees with what you asked for. However, in an Affidavit, they are not allowed to ask for anything of their own.
  2. They can file an Affidavit in response to your application, and they can file an “Application” to “ask for” something of their own. This is called a “cross-application.” This starts another Application, and an entirely new round of responses.

Do you need to respond to your spouse’s Response?

If your former partner responded with only an Affidavit

If your former partner only filed an Affidavit in Response, you may be able to file a Supplemental Affidavit. You can only use a Supplemental Affidavit to change some factual information. This could be either something that has changed since you filed your first Affidavit, or to respond to some updated factual information provided by your former partner. In your Supplemental Affidavit, you should explain how the information is new and why it was not available when you first completed your forms. You cannot use Supplemental Affidavits to repeat the same facts or to make arguments. For more information about the rules around Affidavits, see the Understanding the Court Process Information Page

If you were given a court hearing in regular chambers (sometimes called “morning chambers”), there may not be enough time to file a Supplemental Affidavit. For that reason, Supplemental Affidavits are less common in morning chambers. Supplemental Affidavits are more common in special chambers (sometimes called “afternoon chambers”). No matter which kind of chambers hearing you have, if you really need to file a Supplemental Affidavit, you may need to ask for an “adjournment” (delaying the hearing until a later date). For information about how to do that, see the Property Division for Unmarried Couples Information Page.

Be Aware

There are very detailed and strict rules about the number and length of affidavits you are allowed in chambers. You will likely have to ask for the Court’s permission before filing a Supplemental Affidavit. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The form for a Supplemental Affidavit is below.

PDF Affidavit - Supplemental
Government of Alberta
English
Remember

You will need to file and serve this Supplemental Affidavit as well, so give yourself enough time. Be aware of the general rule that all documents must be filed with the Court within a “reasonable time” before the date of the court hearing. Exact timelines can vary by judicial centre. Although a judge may allow an exception to this rule, he or she is not required to do so. Also, you risk that your matter will be adjourned (delayed until a later date) because you did not give your spouse enough time to review your documents.

If your former partner responded with an Affidavit and a Cross-Application

If your former partner responded with both an Affidavit and an Application of his or her own, you now become:

  • the Applicant in your own Application; and
  • the Respondent in your former partner’s Application.

When there are cross-applications, it gets very confusing as to which documents go with which Applications, and whose turn it is to do what. You can do the following things to make it easier:

  • keep all of the paperwork together;
  • keep things well organized (for example: in a binder);
  • mark deadlines and court hearings on a calendar; and
  • maybe even draw a little chart for yourself.

As a result, it is now your turn to file a “response” to the new application (see the “Responding to a FHRMIRA application to divide property section below). Your former partner will then be able to file the Supplemental Affidavit to your response, if he or she wants to (as described above).

Be Aware

There are very detailed and strict rules about cross-applications. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the resource below and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If you are combining your FHRMIRA application to divide property with another kind of application under the Family Law Act, you will have to follow the processes related to those topics. See the Information Pages for each topic.

Questioning on Affidavit

Before a chambers hearing, it is possible for either party to formally “question” the other party about some of the facts set out in that party’s paperwork. This is called “Questioning on Affidavit.” It is not that common in general, but it is more common for special chambers than for regular chambers. For more information about Questioning on Affidavit, including why either you or your former partner would do it and what exactly is involved, see the Understanding the Court Process Information Page.

Written interrogatories

The term “written interrogatories” refers to written questions that one party sends to the other. The purpose is to get facts and answers that will be required in the hearing, and that can help to settle issues in general. One party sends the questions, and the other party must respond in an Affidavit so that the answers are properly sworn and can be included as evidence at the hearing.

Written interrogatories are not that common for chambers applications. Most parties already provide the necessary facts and information required in their Affidavits. In addition, when going to chambers, there is often not enough time to complete this process. Written interrogatories are more common when the parties are going to trial. However, written interrogatories are useful when the other party may be trying to hold back information. For more information on written interrogatories and the processes to follow if you want to try to use them, see the Understanding the Court Process Information Page.

Responding to an Application for a FHRMIRA Order to Divide Property if you are not married

You have been served with forms telling you that your former partner has made a court application under the Family Homes on Reserves and Matrimonial Interests or Rights Act. In these forms, you have been notified of the date of the court hearing. If you agree with everything that is in those documents, you do not have to do anything. If you disagree with anything that is in those documents, you will need to complete a response.

Remember

Just because a court process has been started does not mean that you will now have to resolve everything through court. At any time, you can still come to an agreement and turn that agreement into a Consent Order. For more information about how to do this, see the Property Division for Unmarried Couples Information Page.

Time limits

Once you have been served with the documents for an Application, you have to complete your response within a “reasonable time” before the Application is scheduled to be heard. What is considered “reasonable” is different depending on your judicial centre. To find out what “reasonable” means in the judicial centre where you have to file your response, contact the court in that area.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If for any reason you cannot file within the time limits, you may still be able to file the documents late and appear at the court hearing. However, you risk that your former partner will ask for, and that the judge will grant, an “adjournment” (a delay of your court date) as he or she did not have enough time to prepare for the hearing. Or the judge may give your former partner what he or she has asked for without considering your documents because they were not filed in time.

Be Aware

For matters in special chambers, there are additional rules about response times and deadlines. These rules are very specific and strict, and they are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents. This can be particularly important if the violence is the reason you are making certain requests.

For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For more information, see the Family Violence and the Legal Process Information Page.

If you want to apply for a protective order to help keep you safe, see the Protective Orders Information Page. The choices you make about protective orders may affect the process you need to follow with your other family law matters.

Completing a response to the Application

When responding to an Application, you have 3 choices:

  1. Do not file any forms. If you agree with what the Applicant is asking for, you do not have to fill out any documents.
  2. File only an Affidavit. You do this if you disagree with what your former partner wants, but you are not asking for anything specific of your own, or if it is not clear what your former partner is asking for.
  3. File an Affidavit and Application of your own. This is called a “Cross-application.” You do this if you disagree with what your former partner wants, and you are asking for something of your own.

To help you decide how to respond and what to include in your response, you may want to learn about how property is normally divided between unmarried couples when they live off-reserve: see the Property Division for Unmarried Couples Information Page. Unmarried couples can also choose to divide their property in the same way that married partners do: see the Property Division for Married Spouses Information Page for more information about that. Remember, however, that you are making an application to divide property under the FHRMIRA. The contents will be different that what might usually appear in an application to divide property between off-reserve couples (whether married or unmarried).

Filing only an Affidavit

If you choose to respond to your former partner’s property Application with only an Affidavit, you will need the following form.

Be Aware

There are very detailed and strict rules about the length of affidavits and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need to ask permission of the court. There is a very specific procedure for doing that. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Filing an Affidavit and a Cross-Application

If you are responding to your former partner’s Application by filing a cross-application of your own, you will need to review the “Applying for a FHRMIRA Order to Divide Property” section above.

A few things you should know:

  • In your Affidavit, you can include facts that respond to the documents completed by your former partner and the requests you are making in your own Application.
  • Usually it makes sense to choose the same hearing date as the date listed on your former partner’s Application (if that is possible), so that both Applications can be heard at the same time.
  • Because there are now two applications with various time requirements, you may need to ask for an “adjournment” (delay) of your hearing to give both of you enough time to review and file all of the paperwork.
Be Aware

There are very detailed and strict rules the number and length of affidavits you are allowed in chambers, and about scheduling cross-applications. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If your former partner has also asked for other things

If your former partner combined his or her FHRMIRA property application with another kind of application under the Family Law Act, you will have to follow the response processes related to those topics. The information about how to respond to those forms can be found on the Process tabs of the Information Pages for each topic.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. This includes Child Protective Services if they are involved in the case. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is the same as you were served with their paperwork to begin with. You have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter.

For more information on how to serve documents, see the Understanding the Court Process Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Watch for your former partner’s response

If you responded to the application with only an Affidavit

If you filed only an Affidavit in Response, your former partner may file a “Supplemental Affidavit.” Be sure to read that when you get it.

You are usually not allowed to file a Supplemental Affidavit in response to the other party’s Supplemental Affidavit. However, in rare cases, you may be able to apply for permission to do so. This is called applying for a “fiat.” This is a complicated process. Contact Resolution and Court Administration Services for more information.

Web Resolution and Court Administration Services
Government of Alberta
English

If you responded with an Affidavit and a Cross-Application

If you responded with both an Affidavit and an Application of your own, your former partner is now the Applicant in his or her Application, and the Respondent in your Application.

As the Respondent to your Application, your former partner can file a “response” to your application. Watch for that response, and be sure to read it when you are served with it.

When you are served with your former partner’s response to your Application, you may be able to file a “Supplemental Affidavit.” You can only use a Supplemental Affidavit to change some factual information. This could be either something that has changed since you filed your Application, or to respond to some updated factual information provided by your former partner. In your Supplemental Affidavit, you should explain how the information is new and why it was not available when you first completed your forms. You cannot use Supplemental Affidavits to repeat the same facts or to make another argument. For more information about the rules around Affidavits, see the Understanding the Court Process Information Page.

If you were given a court hearing in regular chambers (sometimes called “morning chambers”), there may not be enough time to file a Supplemental Affidavit. For that reason, Supplemental Affidavits are less common in morning chambers. Supplemental Affidavits are more common in special chambers (sometimes called “afternoon chambers”). No matter which kind of chambers hearing you have, if you really need to file a Supplemental Affidavit, you may need to ask for an “adjournment” (delaying the hearing until a later date). For information about how to do that, see the Property Division for Unmarried Couples Information Page.

Be Aware

There are very detailed and strict rules about the number and length of affidavits you are allowed in chambers. You will likely have to ask for the Court’s permission before filing a Supplemental Affidavit. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The form for a Supplemental Affidavit is below.

PDF Affidavit - Supplemental
Government of Alberta
English
Remember

You will need to file and serve this Supplemental Affidavit as well, so give yourself enough time. Be aware of the general rule that all documents must be filed with the Court within a “reasonable time” before the date of the court hearing. Exact timelines can vary by judicial centre. Although a judge may allow an exception to this rule, he or she is not required to do so. Also, you risk that your matter will be adjourned (delayed until a later date) because you did not give your spouse enough time to review your documents.

If your former partner combined his or her property application with another kind of application under the Family Law Act, you will have to follow the response processes related to those topics. See the Process tabs of the Information Pages for each topic.

Plan to go to the chambers hearing

The Application tells you when and where court will be held. Go to that hearing. If you do not go to court on that day, the court may make an order without you there.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Questioning on Affidavit

Before a chambers hearing, it is possible for either party to formally “question” the other party about some of the facts set out in that party’s paperwork. This is called “Questioning on Affidavit.” It is not that common in general, but it is more common for special chambers than for regular chambers. For more information about Questioning on Affidavit, including why either you or your former partner would do it and what exactly is involved, see the Understanding the Court Process Information Page.

Written interrogatories

The term “written interrogatories” refers to written questions that one party sends to the other. The purpose is to get facts and answers that will be required in the hearing, and that can help to settle issues in general. One party sends the questions, and the other party must respond in an Affidavit so that the answers are properly sworn and can be included as evidence at the hearing.

Written interrogatories are not that common for chambers applications. Most parties already provide the necessary facts and information required in their Affidavits. In addition, when going to chambers, there is often not enough time to complete this process. Written interrogatories are more common when the parties are going to trial. However, written interrogatories are useful when the other party may be trying to hold back information. For more information on written interrogatories and the processes to follow if you want to try to use them, see the Understanding the Court Process Information Page.

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