In a recent Superior Court of Justice decision, the court examined what effect the husband’s indigenous status has on the division of property as it relates to the matrimonial home.

What Happened?

The couple was married in September 1994 in Ontario, and separated in May of 2015. They have 2 adult children, neither of whom made claims for child support. After the couple separated, the wife left the matrimonial home.

The husband holds the land title for the matrimonial home, and has continued to live there since the separation in May 2015. He refused to equalize the value of the matrimonial home. The husband self-identifies as an Algonquin and claims that the matrimonial home is on titled land, and that, further claims that due to his indigenous status, the matrimonial home is exempt from the application of provincial laws.

Throughout the proceedings, the wife had legal representation and the husband was self-represented.

At Issue 

There were two issues to determine at trial:

  1. Whether the matrimonial home is exempt from the application of the Family Law Act (FLA) because of the husband self-identifies as an Algonquin.
  2. If the matrimonial home is not exempt, then the issue is how to equalize the net family properties of the separated spouses.

The husband argued that the matrimonial home is exempt from the FLA property division rules regarding the matrimonial home because of his self-identification as an Indigenous person. In support of his position, the husband relied on Daniels v Canada (Minister of Indian Affairs and Northern Development), a Supreme Court of Canada decision from 2016, and also relied on the Royal Proclamation of 1763.

The Royal Proclamation of 1763 

The Royal Proclamation of 1763 was issued by King George III to officially claim British territory in North America following the British victory in the Seven Years War. The Proclamation explicitly stated that Aboriginal title over land existed at that time, and will continue to exist. All land would be considered Aboriginal land until it is ceded by treaty.

This Proclamation also forbade settlers from claiming land from Aboriginal people. The only way they could do so is if the land had been bought by the Crown, and then sold to the settlers. It also stated that only the Crown can buy land from the Aboriginal people, not settlers.

Most legal and Indigenous scholars hold that the Royal Proclamation was the important first step towards the recognition of Aboriginal rights, including the right to self-determination. This Proclamation was also enshrined in the Constitution Act, 1982, in section 35 which deals with the “Rights of Aboriginal Peoples of Canada.”

Daniels v Canada (Minister of Indian Affairs and Northern Development)

In Daniels v Canada (Minister of Indian Affairs and Northern Development), the plaintiffs asked for three judicial declarations:

  1. That Métis and non-status Indians are in s. 91(24) of the Constitution Act,1867;
  2. That the federal Crown owes a fiduciary duty to Métis and non-status Indians; and
  3. That Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice.

The court held that provincial laws pertaining to Métis and non-status Indians are not beyond the scope of the provincial legislatures. The provinces can pass laws in relation to areas of provincial jurisdiction, so long as those laws do not impair the core of s. 91(24). Section 91 of the Constitution Act, 1982 is the section that articulates the powers of the federal government and what areas they govern over. Section 91(24) pertains to “Indians, and Lands reserved by Indians”. What the court is saying is that the provinces can pass laws and legislate on issues that are within their jurisdiction, as long as they do not interfere with the federal government’s power to legislate over Aboriginal affairs.

Including Métis and non-status Indians in s. 91(24) does not have a significant impact in that this section deals with Parliament’s “relationships” with all Aboriginal people. Now, if these groups were included in section 35 of the Constitution Act, then there would be a greater impact. However, that is not what the plaintiffs asked for.

The Decision

The court dismissed the husband’s argument that the FLA was not applicable to him because of his status.

In coming to this decision, the court noted that the Daniels decision did not support the husband’s position, and that he had not provided any alternate authority that would support his position. The Daniels decision said that it is possible for provincial governments to write legislation that deals with Métis and non-status Indians so long as those laws do not interfere with the federal laws pertaining to these individuals.

With respect to the Royal Proclamation, the court found that the FLA is “not beyond the bound of the provincial government.” This means that the FLA is within the powers of the provincial government. It does not go beyond what the provincial government is allowed to legislate on, as dictated by the Constitution Act. The home is also not situated on a reserve, it is in the town of Pembroke and is therefore subject to municipal taxes that the husband has refused to pay.

It was not that the husband did not have legal status as an Indigenous person which prevented him from being successful, it was the lack of concrete evidence that would support the argument that the laws governing equalization and division of property should not apply to him.

The court ultimately determined that the husband owed the wife $107,252.03 in equalization.

What We Learned

The rights of Indigenous people are protected under the Constitution Act. However, if you intend to argue that your property should be excluded or that the provincial laws do not apply to you, it is important to provide conclusive legal authorities that support your argument. In this case, the FLA pertains to matters that are within Ontario’s jurisdiction, and does not impair the core of the “Indian” power under s. 91(24) of the Constitution Act.

Dividing of property after separation or divorce can get complicated, especially if there are Indigenous rights that may be impacted. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients deal with the stressful matter of dividing property between spouses. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.