Debates of May 27th, 2013

Family Homes on Reserves and Matrimonial Interests or Rights Act

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I would ask that the vote be deferred to Tuesday, May 28 at 9:30 p.m.

[The Acting Speaker, Conservative, Barry Devolin]

The acting opposition whip has asked for a deferral. However, according to the Standing Orders of the House, a recorded division on a motion to concur in a bill at report stage, while being a non-debatable motion, can only be deferred on a Friday. As such, it is not possible for it to be deferred at this point.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, I wonder if I could seek unanimous consent to see the calendar as Friday.

[The Acting Speaker, Conservative, Barry Devolin]

Does the hon. member have unanimous consent of the House?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Conservative, Barry Devolin]

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #695

[The Speaker, Conservative, Andrew Scheer]

I declare the motion carried.

When shall the bill be read a third time? By leave, now?

[Some hon. members]

Agreed.

[Peter Van Loan, Conservative, York—Simcoe, ON]

moved that bill be read the third time and passed.

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

Mr. Speaker, I seek unanimous consent to split my time with the member for Miramichi.

[The Speaker, Conservative, Andrew Scheer]

Does the hon. Parliamentary Secretary for Status of Women have the unanimous consent of the House to split her time?

[Some hon. members]

Agreed.

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

Mr. Speaker, I rise today in support of Bill S-2, family homes on reserves and matrimonial interests or rights act. Bill S-2 would remove a factor that contributes in no small way to violence against women living in many first nation communities. The proposed legislation would give these women similar legal protection to that enjoyed by other Canadian women and the same legal tools and mechanisms that other Canadian women use to prevent and combat abuse and violence, particularly from spouses or common-law partners.

For many years, debates in Parliament about this issue have focused on the legislative gap: the fact that no effective law has existed for more than 25 years since a Supreme Court decision ruled that provincial matrimonial real property law cannot be applied in first nations communities. Yet the truth of the matter is that this is much more than a legal issue for countless women. It is about pain and suffering, victimization and injustice. For many women, it is also about survival, courage and resolve.

When I consider the issues surrounding Bill S-2, I look through the prism of these ideas, the individual experiences of Canadians who have fallen victim to a legislative gap. Theirs is typically a harsh reality of impossible choices. An abusive husband threatens to evict his wife and children from their family home in a first nation community. She cannot leave with the children because they have no place else to go. If she stays, they will all suffer physical and emotional trauma. There is no law that would allow her to stay in the family home with her children. It is a miserable and awful truth lived by some Canadians each and every day.

During its review of the legislation now before us, the Standing Committee on the Status of Women heard from a number of witnesses, including Ron Swain. Mr. Swain is the vice-chief of the Congress of Aboriginal Peoples. He is also an ex-police officer who recently retired after more than two decades on the job. During his testimony, he recalled a particular incident that was typical of what was experienced dozens of times during domestic disputes on reserves:

Usually, a big fight takes place, the police are called, the police show up, and whoever is the perpetrator or the offender gets arrested and taken away.

I can give you an example...going back a few years [where that] individual happened to be from that community, and he was with a Métis girl who wasn't from that community and didn't have band membership or wasn't part of the band. Once the person was released from custody, he went to the chief and council. Within a very short time, a band council resolution was passed, and then he had control and custody of that building, the house, the matrimonial home.

They were in a common-law relationship at that time. She had some children but not from that relationship. She was basically forced to leave that community. There was no separation of property. She basically had no rights...she was escorted off that community with just the clothes on her back and with her children.

Ron Swain's testimony cuts to the heart of the issue. Until effective legislation is in place, the vast majority of Canadians who live on reserve will be vulnerable to this type of abuse, and there is not a court in the land that can help them.

The standing committee also heard from Jennifer Courchene, a first nation woman who survived a similar situation: her husband evicted her and their children from their family home. In part of her testimony, she said:

When I went to court, the judge did want to help us. He said he would...if he could, but he couldn't. He said his hands were tied.

She also stated:

There are probably many, many other women who have gone through what I've gone through, and the story is pretty much the same: the woman loses the home...[and] if there had been something to help us, we would have taken it, rather than be homeless, that's for sure.

Bill S-2 would close the legislative gap that continues to cause harm. The proposed legislation would give Jennifer Courchene and the thousands of women like her the legal protection they so rightly deserve, protection similar to what the law affords women who live off reserves, women like me.

As my hon. colleagues should recognize, the proposed legislation would feature a two-part solution. The first part would authorize Canada to recognize laws developed and endorsed by first nations communities. The second part is the provisional federal rules that would apply in those communities that have yet to develop laws related to matrimonial real property rights and interests. The federal rules would not take effect until 12 months after Bill S-2 became law. The end result would be laws to protect the matrimonial rights and interests of all Canadians, regardless of where they live. The provisional federal rules would give victims of abuse or violence access to two tried and true legal tools to defend themselves: emergency protection orders and exclusive occupation orders.

Currently the law does not provide people who live in the majority of first nation communities with access to these orders, yet these orders are widely credited with saving the lives of thousands of people, typically women facing violent, abusive spouses or common-law partners.

These orders, the provisional federal rules and the rest of Bill S-2 are designed to ensure that Canadians who live on reserve have similar matrimonial real property rights and protections to those of Canadians who live off reserve.

The proposed legislation would promote the safety of children and caregivers who experience family violence. It would enable children to remain in their home and benefit from the stability that this provides: the connection with the community and extended family and access to services, schools and special programs. In the event of separation or divorce, Bill S-2 would also ensure that matrimonial assets are divided in an equitable manner.

The importance of these points cannot be overemphasized. Children who witness violence between their parents are more likely to end up in violent relationships when they grow up. The proposed legislation would help break this cycle.

Most first nations women do not have access to the legal protections and tools available to other Canadian women. Women who live off the reserve can secure legal remedies, such as court orders. For women in abusive relationships, these orders are vital tools they can use to protect themselves and their children. The orders also serve as powerful deterrents to would-be abusers.

Bill S-2 would help prevent violence against women. I urge my hon. colleagues to consider the matter from the perspective of a woman who lives on a reserve with a physically abusive spouse. If they do, I fully expect they will be joining me in voting in favour of the proposed legislation.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Speaker, as a member of the aboriginal affairs committee, I certainly know how important this legislation would be for women living on reserve.

I want to ask a specific question about where the protection is for children involved in these situations. Having access to the extended matrimonial home is so important.

I know that Bill S-2, in addition to providing access to emergency protection orders, would also allow the court to consider these factors to provide extended exclusive occupation and access to the family or matrimonial home, which is something that ordinarily happens for women who live off reserve.

Could the member please comment on that and how important this is?

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

Mr. Speaker, emergency protection orders are often the initial procedure in a relationship breakup, which would be followed by application for exclusive occupation and valuation.

During the time period of the emergency protection order, the spouse or common-law partner could apply for exclusive occupation of the family home.

The federal provisional rules in Bill S-2 would enable the court to provide short- to long-term occupancy of the family home to the exclusion of one of the spouses or common-law partners. The duration of this order could range from a determined number of days to a longer period, such as until dependent children reach the age of majority. This provision would help ensure that spouses or common-law partners who are primarily caregivers would have access to housing for their children and or dependent adults.

The period of time that may be identified in an exclusive occupation order granted to a non-first nation individual by a judge under Bill S-2 would be defined, not open-ended. Judges may be asked to determine, as they do in similar proceedings off reserve, the appropriate duration of an exclusive occupation order.

Bill S-2 would require that the judge, in considering an application for an exclusive occupation order, take into account certain factors.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I know the member opposite is aware that we heard testimony around other issues, in particular the fact that there is a crisis in housing, a severe housing shortage on reserves, that there is no access to legal aid, that there is no funding to develop alternative dispute resolution mechanisms and that there does not appear—and this is part of what I would like the member to address—to be money attached to provide the kinds of supports that would be required to the provincial court systems because they do not have the intimate knowledge about the complex land codes that are on reserves.

I wonder if the member opposite could tell us exactly how much money would be made available to first nations communities to, first of all, implement this piece of legislation and, second, to develop their own matrimonial real property codes.

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

Mr. Speaker, some of the funding would be put in place through the centre of excellence. It is approximately $4.8 million, which we discussed at committee when the member opposite was there.

This is about helping women and children. Matrimonial real property, or the family home, is the most valuable piece of property a couple on a reserve owns. Upon the breakdown of a marriage, the division of the property affects all involved: both spouses, their children, their families and, by extension, the broader community.

Bill S-2 proposes to eliminate a longstanding legislative gap that creates inequality and leaves aboriginal women vulnerable. Women, children and families living on reserve have been waiting more than 25 years for this legislation. There has been extensive consultation and a clear demand for it. If passed by Parliament, Bill S-2 would do much to protect some of the most vulnerable people in Canadian society, specifically women and children living in first nation communities.

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 property value of the home must be protected. We know that aboriginal women and children cannot wait any longer for access to the same rights and protections that we have on this side of the House and they have on their side of the House.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Mr. Speaker, thank you for the opportunity to show my support for Bill S-2, the family homes on reserves and matrimonial interests or rights act. I stand in favour of the bill and urge all members in the House to stand with me.

First, however, I want to say that I am appalled by the fact that the need for this legislation still exists in 2013. Everywhere else in Canada there is legal protection when a marriage or common-law relationship breaks down or a spouse or common-law partner dies except on reserves. Provincial legislation ensures that matrimonial real property assets are distributed equitably, for instance, and that children and spouses are protected. But there are no similar family laws to speak of in first nations communities.

Provincial and territorial real property law cannot be applied on reserves. This ruling was made by the Supreme Court of Canada in 1986 in two landmark cases, Paul v. Paul and Derrickson v. Derrickson.

At the same time, the Indian Act is silent on this issue. It does not address on-reserve matrimonial interests or rights at all. This unacceptable and long-standing legislative gap means that people who live on reserves have no recourse of any kind when disputes over property or other issues arise following the breakdown of a relationship. This means that a spouse who holds the interest in an on-reserve family home can sell the home without the consent of the other spouse and keep all the money. A spouse who holds the interests in a family home can bar the other spouse from an on-reserve family home.

In cases of domestic violence and physical abuse, a court cannot order the spouse who holds the interests in the on-reserve family home to leave the home, even on a temporary basis. This situation has led to insecurity, financial hardship and homelessness for many aboriginal women and children in Canada.

I would like to bring the attention of my hon. colleagues back to Bill S-2 because at the heart of the proposed legislation is access to basic human rights and protections. Bill S-2 is about ensuring that married or common-law couples living on a reserve have access to the same rights and protections afforded to all other Canadians in case of death of a spouse or a breakup of a relationship.

The proposed legislation has been informed by many years of study, analyses, reports and significant collaborations. The groups that have contributed include the Native Women's Association of Canada, the Assembly of First Nations, provinces and territories, and multiple parliamentary standing committees among others. Thanks to these contributions, the legislation now before us proposes a balanced and effective solution. Bill S-2 consists of two parts. Part 1 is an opportunity for first nations to establish their own communities' specific laws on matrimonial rights and interests, which may be based on their culture and traditions and which respect the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act as applicable.

Twelve months after Bill S-2 comes into force, part 2 would come into effect. This part provides provisional federal rules on matrimonial rights and interests. These rules would apply only to communities that have not enacted their own laws in this area under Bill S-2 or other legislation. The key word here is “provisional”. The federal rules would cease to apply once a first nation enacts its own laws as provided for in Bill S-2, the first nations land management act, or pursuant to a self-government agreement enacted through legislation. Bill S-2 provides matrimonial real property rights and protections after relationship breakdown including opportunities to access protection for children and their caregivers in situations of family violence. It would provide for continued access to the family home for women and their children in cases where a spouse is being violent.

The bill would also make it possible for those living on reserve to access important legal instruments, such as emergency protection orders and exclusive occupation orders.

To support implementation of this legislation, the government has pledged a public awareness campaign, training and education for front-line policing and justice personnel, and the establishment of a centre of excellence to assist first nations in developing their own laws that meet the needs of their communities.

I expect that everyone in the House can see that the goal of Bill S-2 is to provide men, women, children and families who live on reserves with similar rights and protections that the law affords other Canadians. The legislation now before us offers a long overdue resolution to an urgent bill. Bill S-2 is informed by the work of parliamentary standing committees and the research of independent groups, all of whom recommended legislation similar to what is now before us.

The fact remains that there are individuals and families who have no recourse when a marriage breaks down. They have no legal protection. We cannot continue to condone and accept that the rights of on-reserve residents, especially those of innocent children, are not protected, simply because of where they live. Quite simply, this bill is about ensuring that all Canadians, whether they live on or off reserve, have access to similar protections and rights when it comes to family homes, matrimonial interests, security and safety.

Shamefully, for 13 long years, the Liberals did nothing to address this issue. I am proud to say that our government is standing up for women, children and aboriginal people across Canada. We know that aboriginal women and children cannot wait any longer to access these same rights and protections. Aboriginal women, international organizations and even the Manitoba NDP have all called for this change.

Bill S-2, first and foremost, is about protecting women, men and children who live on reserve. Providing them with basic protections for matrimonial real property interests and rights is something that needs to be done and it needs to be done now. It is shameful that the members of the opposition would vote against rights to protect women and children in situations of family violence. Why do the members opposite think that aboriginal women should have less protection than they themselves have? It is time to do the honourable thing and support the proposed legislation that would do just that.

I urge my hon. colleagues to stand up for the rights for on-reserve residents and endorse Bill S-2.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, I can tell the House what is shameful is the fact that the Conservative government refuses to recognize first nations jurisdiction. First nations communities actually have jurisdiction over their own communities.

She mentions the fact that--

[Leona Aglukkaq, Conservative, Nunavut, NU]

That is shameful. That is not right.

[Bev Shipley, Conservative, Lambton—Kent—Middlesex, ON]

Unbelievable.

[Leona Aglukkaq, Conservative, Nunavut, NU]

The women have the same rights as you. Aboriginal women should have the same rights as you.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, she can wait for her turn to make her speech.

The colleague across the way did mention that there are first nations communities that actually have a matrimonial real property act--

[Leona Aglukkaq, Conservative, Nunavut, NU]

Laws are not restricted to the reserves.