Bill S-2 (Historical)

Family Homes on Reserves and Matrimonial Interests or Rights Act

An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves

This enactment provides for the adoption of First Nation laws and the establishment of provisional rules and procedures that apply during a conjugal relationship, when that relationship breaks down or on the death of a spouse or common-law partner, respecting the use, occupation and possession of family homes on First Nation reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on those reserves.

Indian Affairs and Northern Development—Main Estimates, 2013–14

[Susan Truppe, Conservative, London North Centre, ON]

Mr. Chair, I have the pleasure of being part of the status of women committee that is currently studying Bill S-2. I hope that the bill will be referred back to the House very soon. If passed by Parliament, Bill S-2 will do much to protect some of the most vulnerable people in Canadian society, specifically women and children living in first nation communities.

This bill must be passed into law in order to ensure that women and children on reserve can benefit from the same rights and protections people living off reserves are afforded. They deserve and expect no less.

Our government believes that family violence, wherever it occurs, should not be tolerated, and that the rights of individuals and families to an equal division of the value of the family home must be protected.

It is shameful that the opposition is not supporting these important measures. If they truly want to stand up for aboriginal women and children, they should support our legislation to protect the rights of women and children on reserves.

Can the minister explain to the committee why aboriginal women and children cannot wait any longer for access to these same rights and protections?

[Susan Truppe, Conservative, London North Centre, ON]

[Bill S-2] is addressing the real human issue of an aboriginal person, something taken for granted by all other Canadians...A spouse within an aboriginal relationship should not be denied, or put out on the street alone and without any recourse, because of a family [or marital] breakdown.

Prevention is the cornerstone of the government's overarching plan to stop the violence perpetrated against aboriginal women. This bill is one important means by which first nation women and children would be protected as it will allow access to emergency protection orders.

Bill S-2 would provide protections in situations of family violence and may prevent future incidents. Furthermore, this legislation would empower first nations to develop their own laws in the area of matrimonial real property, laws designed to meet their particular needs and respect their particular customs.

Under Bill S-2, a first nation could formalize its traditional dispute resolution processes and remedies and finally give them the force of law. The legislation would also ensure that until such time as a first nation would be able to create its own laws, federal rules would provide families with the rights and protections they sought and deserved just like all non-aboriginal citizens and aboriginal people living off reserves.

As a result, all men, women and children living on reserve would have rights related to the occupancy transfer or sale of the family home that were not previously available to individuals living on reserves.

More important, in situations of family violence a spouse would be able to apply for an emergency order to stay in the family home with the exclusion of the other spouse for a period of up to 90 days with a possibility of an extension.

Furthermore, we have committed to the creation of an arm's-length centre of excellence for matrimonial real property, which will assist first nations in the development of their own on-reserve matrimonial real property laws or in the application of the federal provisional rules.

I would like to point out that as part of the development of this legislation, our government undertook an extensive consultation process that included over 100 meetings in 76 cities across Canada.

We have had ample opportunity to review, discuss and debate the bill since it was first introduced in 2008. Since then, more than 40 hours have been dedicated to debate and study of the bill in Parliament. More than half of this time occurred during committee study of the bill, with 60 appearances from first nation organizations individuals and federal and provincial representatives, among others.

As a result of these consultations, Bill S-2 incorporates a number of improvements over previous versions. We are proud of this bill and urge all parties to support it.

To further protect vulnerable aboriginal women and children, Aboriginal Affairs and Northern Development Canada also supports access to a network of shelters serving on-reserve residents and work in partnership with provincial and territorial governments, first nation people and other stakeholders to develop effective and appropriate solutions to the issue of the domestic violence.

Family violence is an issue that can affect Canadians from all walks of life and can have tremendous costs, particularly for children, so it is important to ensure that help is near. Families and first nation communities that are remote and isolated make these particular challenges in accessing protection and support services. In order to address these challenges, this government invests in the ongoing operation of the family violence prevention program on reserve.

Economic action plan 2013 commits $24 million over two years for this program. These funds will allow the total funding level of the program to remain at $30.4 million for each of the next two years. This investment contributes to enhanced safety, security for on-reserve residents, particularly women and children.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Chair, I rise on a point of order. I was wondering why Bill S-2 has anything to do with the main estimates.

[Susan Truppe, Conservative, Parliamentary Secretary for Status of Women]

Mr. Chair, before I begin, I would like to indicate that I will use the first 10 minutes of my time to speak and the last five minutes for questions.

Funding for Aboriginal Affairs and Northern Development programs services and activities allows the department to support aboriginal people and northerners in their efforts to improve social well-being and economic prosperity, develop healthier, more sustainable communities and participate more fully in Canada's political, social and economic development.

One such initiative that aims to improve the rights of families living on reserves is Bill S-2, the family homes on reserves and matrimonial interests or rights act.

Many Canadians are not aware that in the absence of legislation like Bill S-2, if the spouse who holds the interest in an on-reserve family home passes away, the surviving spouse has no legal rights to that home, or that the spouse holds the interest in a family home on-reserve can sell that home without the consent of the other spouse and keep all of the money, or that the spouse who holds the interest in the family home on reserve can bar the other spouse from the residence.

Where do members think they are going to end up?

Constituents in my riding of London North Centre were shocked when I told them that aboriginal women did not have the same matrimonial rights that women off reserves had, or that in the event of domestic violence or abuse a court cannot order the spouse who held the interest in the on-reserve family home to leave their residence, even on a temporary basis.

Domestic violence is a stain on society. To counter it, countries such as ours should continue to maintain effective justice systems and to establish appropriate and specialized legal responses.

For many women living on reserves, however, there is no justice. Aboriginal women are at least three times more likely than non-aboriginal women to experience violence. They are also more likely to experience severe violence that is repeated over time and over and over again.

Aboriginal women who experience this violence and abuse currently have no legal recourse when it comes to the family home. In cases of abuse, women often have to choose between leaving their home or enduring the abuse because there are no emergency protection orders or exclusive occupation orders available to them.

I saw a witness in tears who said that if this bill had been in place, she would still have her home, for which she paid.

Although violence against women that takes place off reserve has similar impacts on individuals and communities, there is at least one fundamental difference off reserve. There are laws that enable women to seek protection and retain access to the family home. Women who live off reserve can go to a judge and secure legal resolutions, such as exclusive occupation orders and emergency protection orders. These tools provide women with the rights to the family home and a way to protect themselves and their children. This has been going on for years all across Canada, but not on reserves.

However, many women living on reserves do not have access to the same protection measures. Aboriginal women on reserves are all too often forced to leave the family home, along with their children, and even leave their reserve community when they experience violence at the hands of their intimate partner.

It is simply unacceptable that in this day and age, people living on reserve are not afforded similar rights and protections as those available to people living off the reserve. Individuals living on reserves should not be penalized simply because of where they live.

Bill S-2, family homes on reserves and matrimonial interests or rights act, if passed, will provide matrimonial real property rights and interests to men and women who live on reserves and will provide protection for spouses in situations of domestic abuse.

Betty Ann Lavallée, national chief of the Congress of Aboriginal People, said before the Standing Senate Committee on Human Rights, that Bill S-2 is addressing the real human issue—

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Mr. Chair, action plan 2013 announced funding of $24 million over two years for the family violence prevention program, allowing my department to continue to offer its programming at a funding level of approximately $30 million in 2013-14. Another thing that could help these women and children would be the adoption of Bill S-2, the bill that would try to fill the gap that has existed in this country for too long.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, this afternoon we will continue the debate on today’s opposition motion from the NDP. Pursuant to the rules of the House, time is allocated and there will be a vote after the two-day debate.

Tomorrow we will resume the third reading debate on Bill S-9, the Nuclear Terrorism Act. As I mentioned on Monday, I am optimistic that we will pass that important bill this week.

Should we have extra time on Friday, we will take up Bill C-48, the Technical Tax Amendments Act, 2012, at report stage and third reading.

When we come back from constituency week, I am keen to see the House make a number of accomplishments for Canadians. Allow me to make it clear to the House what the government's priorities are.

Our government will continue to focus on jobs, growth and long-term prosperity. In doing that, we will be working on reforming the temporary foreign worker program to put the interests of Canadians first; implementing tax credits for Canadians who donate to charity and parents who adopt; extending tax credits for Canadians who take care of loved ones in their homes; supporting veterans and their families by improving the balance for determining veterans' benefits; moving closer to equality for Canadians living on reserves through better standards for drinking water, which my friend apparently objects to; giving women on reserves the rights and protections that other Canadian women have had for decades, something to which he also objects; and keeping our streets and communities safer by making real improvements to the witness protection program. We will of course do more.

Before we rise for the summer, we will tackle the bills currently listed on the order paper, as well as any new bills which might get introduced. After Victoria Day, we will give priority consideration to bills which have already been considered by House committees.

For instance, we will look at Bill C-48, which I just mentioned, Bill C-51, the Safer Witnesses Act, Bill C-52, the Fair Rail Freight Service Act, and Bill S-2, the Family Homes on Reserves and Matrimonial Interests or Rights Act, which I understand could be reported back soon.

I look forward also to getting back from committee and passing Bill C-60, , the economic action plan 2013 act, no. 1; Bill S-8, the safe drinking water for first nations act; and Bill C-21, the political loans accountability act.

We have, of course, recently passed Bill C-15, the strengthening military justice in the defence of Canada act and Bill S-7, the combating terrorism act. Hopefully, tomorrow we will pass Bill S-9, the nuclear terrorism act.

Finally, we will also work toward second reading of several bills including: Bill C-12, the safeguarding Canadians' personal information act; Bill C-49, the Canadian museum of history act; Bill C-54, the not criminally responsible reform act; Bill C-56, the combating counterfeit products act; Bill C-57, the safeguarding Canada's seas and skies act; Bill C-61, the offshore health and safety act; Bill S-6, the first nations elections act; Bill S-10, the prohibiting cluster munitions act; Bill S-12, the incorporation by reference in regulations act; Bill S-13, the port state measures agreement implementation act; Bill S-14, the fighting foreign corruption act; Bill S-15, the expansion and conservation of Canada’s national parks act, which establishes Sable Island National Park; and Bill S-17, the tax conventions implementation act, 2013.

I believe and I think most Canadians who send us here expect us to do work and they want to see us vote on these things and get things done. These are constructive measures to help all Canadians and they certainly expect us to do our job and actually get to votes on these matters.

I hope we will be able to make up enough time to take up all of these important bills when we come back, so Canadians can benefit from many parliamentary accomplishments by the members of Parliament they have sent here this spring.

Before taking my seat, let me formally designate, pursuant to Standing Order 81(4)(a), Tuesday, May 21, as the day appointed for the consideration in a committee of the whole of all votes under Natural Resources in the main estimates for the final year ending March 31, 2014. This would be the second of two such evenings following on tonight's proceedings.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madam Sgro.

Is there anyone else who wants to speak on this clause?

(Clause 41 agreed to)

That ends our meeting. We will resume the clause-by-clause study of Bill S-2 at our next meeting.

My thanks to the committee for the work it has done today.

On behalf of our committee, I would once more like to thank the witnesses for appearing today. We will certainly send them an invitation to come to our next meeting as well.

The meeting is adjourned.

[Niki Ashton, NDP, Churchill, MB]

Thank you, Chair.

I would like to speak to clause 40. I believe it once again misses the point entirely, and it speaks to the deficiency of this bill when clauses like this exist without the commitment to non-legislative measures, which we know are absolutely critical in addressing the decisions that happen after a marital breakup.

I want to read into the record the message from Ms. Ellen Gabriel, who indicated that:

High unemployment rates, lack of sufficient housing, a growing population, dispossession of our lands and resources, the imposition of paternalistic values and processes, outdated funding formulas, poverty, and social ills rooted in colonialism have for generations affected indigenous women's ability to enjoy their fundamental human rights.

The government is indicating this is for the well-being of aboriginal women, a statement that is paternalistic to the maximum, in part, because it misses entirely all of these points that Ms. Gabriel raises, which indicate the socio-economic conditions in which first nations live, the crushing poverty, a poverty that first nations refer to on a regular basis as being third world.

I've been to houses in northern Manitoba where there's black mould on the walls, but people have nowhere to go. I've been to houses where there is no sink in the kitchen because there is no running water. People have to go out in -35 degree weather with a pail to get water from a well. I've been to houses where is no bathroom inside the house. I remember an elder in St. Theresa Point who had diabetes, who had to trudge through the snow to go to the bathroom outside. I've been to communities where they received slop pails from the federal government because after H1N1 it was clearly indicated that water and sewer conditions in the community were unacceptable. To add insult to injury, this federal government sent slop pails into the community.

Madam Chair, what members across, and certainly their government, are steadfastly ignoring are these living conditions, which first nations put up with because they are first nations people. The paternalistic, colonialist approach up to now clearly hasn't worked if you look at the quality of life these people lead.

Unfortunately, instead of changing course, this government has chosen, through clause 40 and through the entirety of Bill S-2, to impose legislation that completely discounts these living conditions—third world living conditions, as many first nations indicate—and seems to profess that this somehow is going to end violence, and is going to end the problematic situations that women face on reserve.

I would point them back to what Ms. Gabriel has indicated and how, through Bill S-2, this government is ignoring the very indicators that lead to the turmoil, that lead to social tension and violence, and to the fact that this government is continuing a paternalistic and colonial approach when it comes to first nations people.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Madam Chair, this is the same problem as the one we had with clauses 15, 4 and 29. There is a lack of legal clarity between Bill S-2 and the Civil Code of Québec. This is how clause 35 reads:

On application by an executor of a will or an administrator of an estate, a court may, by order, vary the amount owed to the survivor under section 34 if the spouses or common-law partners had previously resolved the consequences of the breakdown of the conjugal relationship by agreement or judicial decision, or if that amount would be unconscionable, having regard to, among other things, the fact that any children of the deceased individual would not be adequately provided for.

As several witnesses have indicated, in Quebec specifically, common-law spouses do not have the same rights as married ones. What about those 40% of Quebec women who are in a common-law relationship?

Given the way in which the Civil Code of Québec is applied, there is a striking difference between the status of a married woman and one living in a common-law relationship. Rights and obligations are often different, especially in terms of household expenses, the consolidation of debts, the family home, family assets, the rights of children, and so on. As one of the witnesses mentioned, an Aboriginal woman in a common-law relationship could find herself with her access to the family home blocked.

There must be better harmonization between Bill S-2 and the Civil Code of Québec.

Thank you.

[Niki Ashton, NDP, Churchill, MB]

Thank you, Chair.

I would like to speak to clause 23, which leaves many questions unanswered. Obviously, we're once again talking about the decisions that the justice system will have to make, and it again involves the imposition of this bill, this legislation, on first nations. Given that the justice system, or the body that will enforce this clause in particular, is here, it begs the question: does the provincial system have the ability to handle this bill in general but also the question around occupation of the home?

I just want to read into the record the answers to our questions, in writing, from the Justice and Aboriginal Affairs officials. We asked, “Has there been an analysis of the cost that will be incurred by provincial governments?”

The answer was that “An analysis of the implementation costs for provinces and territories is not available.” It said, “Bill S-2 provides for provincial courts to hear issues relating to matrimonial real property at the same time as other court proceedings such as divorce or child custody.”

The issue here is fundamentally one of capacity, because the courts will have to deal with complex land codes. As we know, various first nations across the country have various land code arrangements. We heard it from former chief Baird. We heard it from Councillor Joan Jack. You have first nations that have just signed treaties in recent years. You have others that have treaties from the late 1800s.

We need to be clear here. The justice systems of our various provinces and territories need the ability to handle not just this bill, but to have an understanding of these land codes. We're very concerned that an analysis of the implementation costs is not available when it comes to the provinces and their ability to administer justice regarding this bill. We find it extremely problematic.

I would also add, again, that there is the issue of accurately assessing the value of homes on reserve. Obviously, there is an indication here of naming beneficiaries and the property being transferred to others. We feel that's a gap here. Unfortunately, although it's something that we've heard referenced by witnesses, due to this government's steadfast interest in limiting debate and not hearing from witnesses who are most impacted, we haven't had a chance to delve into the real gaps regarding accurately assessing values of homes on reserve and understanding the challenges that exist with regard to that.

I would also once again reiterate our concern about the provincial ability to handle what clause 23 is referring to—and Bill S-2 overall—without the kind of time allocation and without the capacity that are necessary to apply this legislation properly and in a way that could actually serve justice.

[Niki Ashton, NDP, Churchill, MB]

I want to add that there are repeated references, as we know from our witnesses, regarding the availability of other suitable accommodations situated on reserve, regarding the lack of housing.

It was noted in the testimony that in Sagkeeng First Nation in Manitoba, for example, there's a shortage of around 500 houses—not people on a waiting list but actual houses that are needed for families. We heard from Deputy Grand Chief Fiddler regarding the lack of housing in the NAN territories, which is in the thousands overall.

If these occupation orders are imposed, where will people go?

My colleague referenced the multiple generations that are often in houses—sometimes by choice, sometimes because people simply have nowhere else to go with such housing shortages.

I'd also like to add that there have been repeated references to the lack of access to courts and legal services, which are obviously involved in applying occupation orders. That's something that is not addressed by clause 20, this bill, or anything that this government has said on Bill S-2.

[Judy Sgro, Liberal, York West, ON]

To Mr. Jean's comments, all of us would like to see this passed. We'd like to see the changes go forward for people who are on reserve. But I think it might have been helpful if the committee had gone and visited a few of the reserves, and talked to some of the people on the reserves, and looked at really where some of them are situated.

I think Ms. Ashton's comments are very valid. As I read this, it would be fine in the city of Toronto. It would be fine in our cities, because there are lots of resources. But some of these reserves are very remote, and they don't have any of this help. I don't want to mislead women into thinking that they have enforcement mechanisms out there, and giving them a false sense of security, when there isn't anybody out there to help them.

Bill S-2 is going to help, but it's only going to help a bit. It needed to go the rest of the way. That is exactly what Wendy Grant-John said, that you can't cherry-pick. That's the problem. Otherwise, you know what? We'd all support this gladly and get it through. But it needs the other things. It needs the access to shelters. It needs the resources. That's what's missing in the bill.

In her report, Wendy Grant-John said that they needed the financial resources to be made available for implementation of non-legislative measures such as programs to address land registry issues, mediation and other court related programs, and so on and so forth. You all know what it says.

What you've done, as the government, is you've chosen to just cherry-pick certain parts that sound really good but aren't doing the job that needs to be done. There are no resources being put here. You are, I believe, misleading people to have a false sense of security.

I'm going to support clause 16, all right? We're going to support this. But again, you're fixing half of a problem and misleading people. I'd like to have gone further—I think we all would have—and seen that there were the resources to back up Bill S-2.

Put the money into it, have it happen within 36 months, and give the kind of support that those women are looking for us to deliver.

Thank you.

[Niki Ashton, NDP, Churchill, MB]

I'd like to speak to clause 16 on emergency protection orders. This is obviously a very important issue but unfortunately one that the government side has used to mislead the public, certainly, when it comes to this bill.

Many witnesses, and certainly those who have spoken out outside of this committee, have raised real concern regarding general enforcement of this bill, but even more specifically on emergency protection orders. We've heard repeated references to the lack of police and policing capacity that exists on first nations, and policing capacity that is able to cover first nations as well if they're not based on them.

We also know that emergency shelters are involved in emergency protection orders and certainly link women and men who are fleeing abuse to access these orders. However, as we do know, only 40 first nations out of 663 have a shelter on reserve that could help access this service. I want to indicate that subclauses 16(3), 16(5), 16(7) and 16(8) in clause 16 refer to a peace officer and the work that a peace officer would do.

As we do know, in many first nations there is not only a lack of police officers, but the band constable programs have been cut by this federal government. Certainly partnering with first nations in the provinces around policing capacity on reserve has been reduced by this federal government, meaning that access to peace officers who could actually implement all of these sections is not just tenuous but often impossible.

I want to read some analysis from the Ontario Women's Justice Network, which has done some excellent work on emergency protection orders. They indicate that: The short-term orders are emergency orders that can be obtained 24 hours a day, by telephone or by appointment, from a trained Justice of the Peace. In most cases, the police or Victim Services workers are the ones who seek these orders on behalf of the victim.

As well, in first nations communities:The First Nations' community case workers, for example, can apply for protection orders by calling the police on behalf of a survivor.

Madam Chair, we have heard very clearly from a number of witnesses that there is no trained justice of the peace on reserve in many cases, that there are no victim services workers on reserve in many cases, that there are no police on reserve in many cases, and this idea of a first nations case worker begs the question of who exactly that is, when we know that community after community after community has no person who could handle the capacity that already exists in the community, let alone deal with the aftermath of Bill S-2 in this case.

This is not to say that emergency protection orders are not important. They clearly are. But why is the government skirting the issue of enforcement? It's fine on paper, but as we've heard, if there is no enforcement of emergency protection orders, and there is no police officer, justice of the peace, victim services worker or a first nations community case worker, as exists in the rest of the country—excluding the community case worker, off reserve—then these are just words on a paper that will stay words on a paper.

I also want to indicate that the Ontario Women's Justice Network indicates, in the context of speaking to the provinces: It is also crucial that new legislation be followed by extensive training of enforcement bodies, lawyers and judges, and increased resources and access to legal representation and social services.

Madam Chair, I want to be clear. This is not in reference to Bill S-2, but what we've heard from many witnesses is that Bill S-2 involves no inclusion of non-legislative measures. It certainly provides no resources to provincial bodies, to legal aid, and certainly something could be given to the provinces to be then given to legal aid or to first nations to be able to implement this.

Protection orders that are not adequately enforced have the effect of providing a false sense of security instead of much-needed prevention and protection against violence. More women would likely seek protection orders if they could do so through community-based services such as women's shelters and not just through the police.

Again, Madam Chair, this is in reference to provincial legislation, but it is very clear that if we apply this to Bill S-2 without enforcement and without the resources, emergency protection orders remain three words on a paper and a lot of misleading rhetoric from this government that this will actually protect women from violence.

Thank you.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Thank you for giving me the floor, Madam Chair.

We know that Quebec's unique characteristics are not taken into consideration in this bill. A lawyer from Dionne Schulze said that, under the Civil Code, common-law partners do not have a right to property in Quebec; that is well known.

I have some serious concerns about this clause. When we heard from the witnesses, I specifically asked the representatives from Quebec Native Women to tell us more about the potential lack of legal clarity and the gaps that would result from implementing Bill S-2 in Quebec. We know that Quebec uses civil law, not common law. Their testimony is clear and should be reflected in this bill. Among other things, Viviane Michel said:

A number of Aboriginal women are also in common-law relationships with non-Aboriginal partners. If this law is enforced and a verdict is reached, given all the problems facing our communities, including high rates of alcohol and drug abuse, and if a woman experiences those problems and her partner is a Quebecker, he will have the right to live in the house.

So the Quebec man would get the house and the children. The woman would lose her children and live in a community. Do you see how that could be a threat to Aboriginal communities? Those are the facts.

And I am not just talking about Quebeckers. It could involve people of other origins. In fact, women are more and more frequently in common-law relationships with partners of different origins.

So that can lead to gaps in our communities. Women can lose as much as their homes and even their children. The differences between the Civil Code and common law are particularly worrisome for Aboriginal women in Quebec, since Quebec's Civil Code does not give common-law partners the same rights as it gives people who are legally married.

It is said that the bill will not be consistent with Quebec's Civil Code for spouses in terms of the division of matrimonial property in the case of separation or death. Since 40% of women are in common-law relationships in Quebec, implementing this bill could create a lot of problems.

[Judy Sgro, Liberal, York West, ON]

This is an attempt to clarify that, once a first nation adopts its own matrimonial property laws through the process set out in S-2, they will have the option, but not the requirement, to use the provincial court system as an enforcement mechanism for those laws.