Evaluation of 1.1.2 - Implementation and Enforcement Supports for the Family Homes On Reserves and Matrimonial Interests or Rights Act

Evaluation of the Implementation and Enforcement Supports for the Family Homes on Reserves and Matrimonial Interests or Rights Act

The Evaluation, Performance Measurement and Review Branch (EPMRB), in compliance with the Treasury Board Policy on Results and the Financial Administration Act, conducted an evaluation of the implementation and enforcement supports for the Family Homes on Reserves and Matrimonial Interests or Rights Act. The purpose of the evaluation was to provide a neutral and evidence-based assessment of the relevance and performance of the program. The results will inform decision making in light of the planned March 31, 2018 date in which INAC, the RCMP, and Public Safety's responsibilities in relation to the Act cease.

Implementation and Enforcement Supports for the Family Homes on Reserves and Matrimonial Interests or Rights Act

Key Findings

Evaluation Recommendations

1. Alternative Dispute Resolution
   Work with the Centre of Excellence for Matrimonial Real Property to explore methods of integrating Alternative Dispute Resolution mechanisms into First Nations community practices, particularly for those communities without provincially designated judges.
2. The Centre of Excellence for Matrimonial Real Property
   Consider renewing the mandate of the Centre of Excellence for Matrimonial Real Property in recognition of its central role in informing all stakeholders (i.e., Chief and Council, Band staff, and community members) of the Act.
3. The Voting Threshold
   Consider reviewing voter requirements of the Act including voting thresholds and alignment to First Nation ratification processes, as well as costs associated with the voting process.
4. Police Enforcement Supports
   Continue to assess the uptake of training offered by Public Safety and the RCMP in order to monitor and report on the number of officers on reserves who are aware of the Act.
5. Designated Judges
   Consider adding the Department of Justice as a formal partner to the Matrimonial Real Property Advisory Committee and Implementation Support Team to foster awareness of roles and responsibilities as they relate to the Act and the administration of justice.

1. Management Response

We have reviewed the Implementation and Enforcement Supports for the Family Homes On Reserves and Matrimonial Interests or Rights Act (the Act) and accept the recommendations pertaining to the Matrimonial Real Property Implementation Support Program.

The findings from this report, along with information obtained through the fall 2017 national engagement on the Act, will inform the Minister of Indigenous and Northern Affairs Canada and the Review of Laws Working Group on future options. Finally, the findings of this report are timely, as the funding for the current Matrimonial Real Property Implementation Support Program sunsets in March 2018.

The following was identified as area to consider for the improvement of future evaluations and would align with the Minister of INAC's Mandate Letter and the Truth and Reconciliation Commission Calls to Action.

• Consider mechanisms to provide a cultural competency lens as a component to the methodology. This would assist in ensuring an approach that is more relevant to the target audience and the standardized assessment tools/approaches across all partners to this evaluation.

The findings of this evaluation will serve as a foundation for planned Government of Canada activities over the next two years.

2. Action Plan

I recommend this Management Response and Action Plan for approval by the Evaluation, Performance Measurement and Review Committee

Original signed by:

Shannon Townsend
Acting Senior Director, Evaluation, Performance Measurement and Review Branch

I approve the above Management Response and Action Plan

Original signed by:

Sheilagh Murphy
Assistant Deputy Minister, Lands and Economic Development Sector

I approve the above RCMP Action Plan

Original signed by:

Kevin Brosseau
Deputy Commissioner, Contract and Aboriginal Policing

I approve the above Management Response and Action Plan

Original signed by:

Patrick Tanguy

Assistant Deputy Minister, Emergency Management and Programs

1.1 Overview

This report presents the evaluation of the implementation and enforcement supports for the Family Homes on Reserves and Matrimonial Interests or Rights Act (the Act). Implementation supports were delivered by the Lands and Economic Development Sector of Indigenous and Northern Affairs Canada (INAC) and the Centre of Excellence for Matrimonial Real Property, while enforcement supports were delivered by the Royal Canadian Mounted Police (RCMP) and Public Safety Canada. In addition to providing advice to the federal partners involved, the Department of Justice has contributed to raising awareness of the Act among judges and legal professionals through presentations and communication with national judicial and bar associations as well as provincial law societies.

This evaluation was led by INAC's Evaluation, Performance Measurement and Review Branch (EPMRB) in partnership with the RCMP's National Program Evaluation Services and Public Safety's Internal Audit and Evaluation Directorate. The purpose of the evaluation is to provide a credible, reliable, and timely evidence-based assessment on the relevance and performance of the implementation and enforcement supports of the Act. The evaluation is being used as a supporting document to inform decision making in preparation for the program's sunset date of March 2018.

The evaluation was conducted pursuant to the Treasury Board Secretariat's Policy on Results. Further, given that the program provides grants and contributions to the Centre of Excellence for Matrimonial Real Property, it was conducted in accordance with Section 42.1 of the Financial Administration Act, which requires that an evaluation of the relevance and effectiveness of all ongoing programs of grants and contributions be produced every five years.

1.2 Program Profile

The program profile includes information on: the background and description of the program; its objectives and expected outcomes; program management, key stakeholders and beneficiaries; and program resources.

2.1 Evaluation Scope and Approach

This evaluation measures program performance against the intended results articulated in the logic model (Annex D). Specifically, the evaluation examines the awareness raising, capacity building, and training supports for the enforcement and implementation of the Act, and focuses on funding dedicated from 2013-2014 to 2015-2016.

This evaluation does not evaluate the Family Homes on Reserves and Matrimonial Interests or Rights Act itself. Engagement sessions to discuss the Act and the implementation program are scheduled for the fall of 2017. Rather, the evaluation scope focuses on the relevance and effectiveness of the implementation and enforcement supports associated with the Act. The evaluation provides information covering the period of fiscal year 2013-2014 to April 2017.^{Footnote 10}

As the Act is a new initiative as of December 2013, there have been no previous evaluations conducted. The evaluation was led by INAC's EPMRB and information gathered with the support of evaluation representatives from Public Safety and the RCMP. Evaluators worked with their respective program representatives who, together with the Evaluation Team, formed the Working Group. The consulting firm, Donna Cona,^{Footnote 11} was hired to assist in the development of the methodology and to undertake case study work as part of the collection of information on the effectiveness of Implementation and Enforcement from a community perspective.

The Terms of Reference prepared by the Evaluation Working Group was approved by all three departments in June 2016. Each department interviewed their program staff and key officials, and reviewed information directed at their department's responsibilities. The RCMP and Public Safety were each responsible for completing a component piece providing neutral and evidence-based information on the agreed upon evaluation questions and methodology. The component pieces were used to inform and support the broader horizontal evaluation.

As per the Terms of Reference, the RCMP evaluated program data collected between the fiscal years 2013-2014 and 2015-2016. Public Safety and INAC reported on data released up until March 2017 in consideration of newly released information that could inform decision making. Public Safety's training was not made available to officers until its trial phase in January 2017, which delayed data on user uptake. Also going beyond the scope, INAC included information from March 2017 on the appointment of a Nova Scotia judge to hear Emergency Protection Orders.

Analysis and report-writing was undertaken between March and June 2017. A first draft of the final report was presented to the Working Group in June 2017. As per the Treasury Board Secretariat's Policy on Results, the evaluation looked at issues related to relevance, efficiency, and effectiveness. Please see Annex B for a list of the specific evaluation issues and questions.

2.2 Evaluation Methodology

To evaluate the implementation and enforcement supports of the Act, the evaluation employed the following lines of evidence: document review, literature and media review, key informant interviews, and case studies. This section also notes the considerations, strengths, and limitations surrounding the evaluation process.

3.1 Awareness-Raising, Training, and Capacity-Building

After the first part of Family Homes on Reserves and Matrimonial Interests or Rights Act came into force in December 2013, INAC, Public Safety, and the RCMP assumed responsibility for providing awareness-raising, training, and capacity building activities to support its implementation and enforcement. INAC undertook the responsibility to support the implementation of the Act and ensure that "First Nation communities and individuals are aware of their rights concerning law-making and protections under the Act".^{Footnote 12}

The INAC program provides awareness-raising of the Family Homes on Reserves and Matrimonial Interests or Rights Act through the delivery of electronic fact sheets and pamphlets in partnership with INAC's Communications Sector. The Program is also a direct line of information for First Nation community members seeking advice or answers in relation to the Act. For First Nations communities wishing to enact their own matrimonial real property laws, INAC provides funding to the National Aboriginal Lands Managers Association to host the Centre of Excellence for Matrimonial Real Property. The Centre provides awareness-raising, training, and capacity supports to First Nations communities looking to enact their own Matrimonial Real Property laws, and provides information on the provisional federal rules to First Nations and First Nations individuals. Their efforts in relation to community-law making are discussed further in Section 4.2.

Interviews with community and INAC regional office key informants confirmed that officials such as Chief and Council are, in most communities, aware of the Act. This is largely attributed to INAC's outreach, communications, and presentation efforts as well as the training services provided by the Centre of Excellence for Matrimonial Real Property.

Importantly, community and INAC interviewees also noted that community members who are not closely involved with Band Administration or governance decisions are not as well informed. For some remote First Nations communities, especially those without internet access, accessing information about the provisional federal rules can be challenging. While INAC has sent information postcards via the Centre of Excellence to over 600 communities, departmental requirements state that mass printouts on this level require director general approval in order to bypass INAC's Go-Green, paperless initiative. Additionally, while the postcards are a solution to the lack of internet access, they do not consider members whose first language is not English or French, nor do they account for members who cannot read.

In several communities, there is also a high level of turnover among Chiefs and Council. Band staff that attended a presentation on the Act may only be in their position for a short time, leaving a fresh gap in awareness among new employees. With high turnover rates among Chiefs and Council, Centre of Excellence staff do not have the capacity to return for frequent repeat presentations.

INAC regional office staff, program staff at Headquarters, and the Centre of Excellence for Matrimonial Real Property received 663 enquiries and referrals between 2013-2016^{Footnote 13} asking for clarification on the Act and how the provisional federal rules affect community members. Key informants referenced the intricate language of the Act and its many nuances, and indicated that First Nations require further communication from INAC in order to become comfortable with the legislation. Beyond that, several regional INAC key informants indicated a personal lack of understanding in relation to the Act and how it affects communities within their jurisdictions, and stated that they are often unable to answer questions when contacted by community members. While the Centre of Excellence for Matrimonial Real Property is highly praised for sharing information with communities, they are not contracted to train federal officials on the intricacies of the Act as well.

As a best practice, one community that has successfully implemented its own matrimonial real property law found that a successful way to disseminate information is through regular family meetings, where a representative from each family attends community sessions and reports back to the family group. This system allocates the responsibility for sharing information to individual members, and in the case of drafting a new community law it ensures that changes during the drafting phase are communicated to all members, not just key officials.

3.2 Communities under the Provisional Federal Rules

As of June 2017, 11 communities (roughly one percent) have enacted a community-specific law in accordance with the Act, leaving just over 600 First Nations^{Footnote 14} under the provisional federal rules. The Act, however, is not the only way in which a First Nation community can pass specific laws to address matrimonial real property interests on reserves. Other than the Act, First Nations communities are able to opt out of land provisions under the Indian Act by enacting community-specific land codes. As part of these land codes, the First Nations Land Management Act, which received Royal Assent in 1999,enables First Nations to enact rules and procedures that respond to the breakdown of marriage as well as the use, occupation, and possession of land in First Nations communities.^{Footnote 15} When the Family Homes on Reserves and Matrimonial Interests or Rights Act came into force, communities that were pursuing the process under the First Nations Lands Management Act were permitted to delay the implementation of the provisional federal rules from December 2014 to June 2016 to allow them more time to enact land codes that would address the matrimonial real property legislative gap. As of June 2017, 35 First Nations communities have enacted matrimonial real property provisions under the First Nations Land Management Act.

First Nations communities are also able to enact their own matrimonial real property laws if they have a comprehensive self-government agreement.^{Footnote 16} For all other First Nation communities not under either of these agreements, the Family Homes on Reserves and Matrimonial Interests or Rights Act applies.

Five of the 11 communities that drafted their community-specific laws in accordance with the Act chose to do so during the one-year window between December 2013 and December 2014, before the provisional federal rules came into force. For the First Nations that remain under the provisional federal rules, varying factors, including a lack of awareness, competing priorities, and unique land administration practices have deterred them from the community law-making process.

INAC interviewees suggested that in some cases, communities operate based on custom allotment rather than registering formal land transactions through the Indian Land Registry. As these communities tend to not use the formal documentation required for land administration, they have not experienced the frustrations that others have articulated regarding completing the forms needed to fulfil the requirements of the Act, and therefore may not feel much incentive to transition out of the federal provisional rules.

Additionally, community and Centre of Excellence key informants added that communities have not made enacting a community-specific matrimonial real property law a priority because they perceive provincial judges to be unfamiliar with the legislative gap and the lack of legal protections concerning matrimonial real property on reserves.

The Centre of Excellence for Matrimonial Real Property began offering English training sessions in July 2014 and French sessions in September 2014. Still, many communities are unmotivated to expend the time, cost, and resources needed to draft a community-specific law. If a community is struggling with clean drinking water or an on-reserve housing shortage, drafting a Matrimonial Real Property law may not be a top priority. Additionally, accessing the First Nation law-making mechanism requires that legal aid be easily accessible and that support services are familiar with its intricacies, which, at the time of this evaluation, was not the case.^{Footnote 17}

Similarly, INAC key informants and representatives from the Centre of Excellence for Matrimonial Real Property indicated that communities are strongly encouraged to seek legal advice during the drafting phase. However, hiring the services of a legal expert is not only expensive but also difficult for remote communities who may not have easy access to such advice, or whose nearest legal expert is unfamiliar with the Act. This issue is further discussed in Section 5.2.1. While the Centre of Excellence for Matrimonial Real Property can provide funding to First Nations communities to hire legal aid, there is no similar support for First Nations land managers who lead the law-making initiative.

3.3 Alternative Dispute Resolution

Key informants suggested that some First Nations may not wish to enact their own matrimonial real property laws because of the attention the process brings to marriage problems within a community. This is a sensitive subject that not all communities wish to discuss openly at band council meetings and consultation sessions.

Typically, community key informants indicated that they prefer to pursue alternative dispute resolution mechanisms rather than bring such personal matters to a provincial court. The Centre of Excellence for Matrimonial Real Property researched alternative dispute resolution mechanisms, including mediation, negotiation, arbitration, and collaborative law.^{Footnote 18} As each community follows unique rules and traditions, key informants indicated that internal supports are better situated to try and resolve a case of marital breakdown than a superior court that is far removed from the community.

The Centre of Excellence for Matrimonial Real Property provides three examples^{Footnote 19} of tribunals that have successfully adopted alternative dispute resolution mechanisms. For the Anishina-bek Nation Tribunal and Commission, alternative mechanisms are used for issues of governance, administration, citizenship, and matrimonial real property. It can be access by both First Nations citizens and non-members of the Anishina-bek Nation.

Another method of alternative dispute resolution, according to the Centre of Excellence’s toolkit,^{Footnote 20} is the circle process. In this practice, participants agree to take part in the process led by a trained facilitator. While they can invite family, community members, or professionals to participate if they chose, there are high expectations of confidentiality concerning what happens during the process itself. The circle process can include a First Nation community’s own legal, cultural, and spiritual principles and practices, and can lead to a written agreement or plan. This is particularly the case for sentencing circles connected to the criminal justice system, which often conclude with advice to a judge on the appropriate sentencing plan for an individual offender.

Alternative dispute resolution mechanisms can facilitate the process of protecting a family member’s interest in the matrimonial home on reserve. They can also produce sentencings that recommend certain actions to a provincial judge, which will protect family members from situations of family violence. Circle processes may not be as efficient as Emergency Protection Orders, in theory,^{Footnote 21} however, they offer a community-specific response to a difficult, private situation. This is especially pertinent to First Nations living in provinces where an Emergency Protection Order is not an option due to the absence of a designated judge.

The Centre of Excellence for Matrimonial Real Property encourages communities drafting matrimonial real property laws to consult with their provincial justice system and plan how their law and provisions, including Emergency Protection and Exclusive Occupation Orders, will be received. This is especially the case for communities that use the provincial court system as their preferred dispute resolution mechanism. In the absence of a designated judge (as of June 2017, three provinces have designated judges), the community’s law must find an alternate way to have these Orders officially heard, passed, and enforced on-reserve.

3.4 Common-law Couples

The Act defines a couple to be in a common-law relationship after at least one year of co-habitation. Should a couple that have been living together for one year or more decide to separate, the provisional federal rules of the Act state under Section 28 that each is entitled to half the value of the home,^{Footnote 22} among other rights such as Exclusive Occupation Orders, and Emergency Protection Orders, and spousal consent to sell the home. However, each province's definition of a common-law relationship does not necessarily align with the Act's definition of one year or more. For example, British Columbia defines a common-law relationship as a couple who have lived in a marriage-like relationship for at least two years,^{Footnote 23} while in Ontario, under certain circumstances, the couple are considered spouses if they have "cohabited continuously for a period of not less than three years.^{Footnote 24} Under Quebec's Civil law, de facto spouses receive benefits (under certain conditions) similar to those of common-law couples in other provinces.

With the enactment of the Act's provisional federal rules, unmarried couples (of at least one year) sharing a family home on First Nations reserves across Canada became entitled to half the value of any interest or rights held by one or both of them in or to the family home (as defined by the Act) upon relationship breakdown. Community key informants in Quebec indicated that this provision came as a surprise. They added that some First Nations couples were uncomfortable being categorized as common-law under the Act's definition, and preferred the provincial arrangement that a breakdown in relationship would not necessarily result in being responsible for half the value of the family home. With the enactment of the provisional federal rules under the Family Homes on Reserves and Matrimonial Interests or Rights Act, these couples became entitled to a division of the value of the home on application by one or both of the partners after relationship breakdown.

However, the evaluation found that First Nations have not been prompted to enact community-specific laws in order to counter this definition of common-law relationships. Community key informants indicated that, for the most part, interest in pursuing the drafting process is low compared to other more urgent priorities. Additionally, there were further doubts that drafting a law would largely impact the final court ruling, since the case would be taken to a provincial judge who has more experience ruling according to the province's legal code and its unique interpretation of common-law relationships.^{Footnote 25}

3.5 Impact on Land Administration

The Family Homes on Reserves and Matrimonial Interests or Rights Act has an impact on the administration of reserve lands. Specifically, permits and licenses, transfers of property, mortgages, assignments, leases, and sub-leases are transactions that require an attestation form by the spouses or common-law partners to confirm that matrimonial interests are not being encumbered.^{Footnote 26} The form is a requirement for the above land transactions on-reserve, regardless of whether the title holder has a spouse or not. INAC lands and estates officers describe the form as complicated and extensive. Document review from a previous evaluation of land administration^{Footnote 27} indicates that regional offices and communities noted that the new paperwork that accompanies the legislation causes delays. The initial form caused confusion, however, even with the development of a new version, in some instances, earlier applications for registration had to be revised. British Columbia region in particular noted that in 2016-2017, these changes were the source of some registration backlogs.

Key informants noted that changes to matrimonial real property forms have created added work for administrative staff. Forms are frequently updated to include additional information related to the Act. As a result, those in band offices and INAC lands and estates offices may not know which forms are the most current, how they should be completed, or if the office can accept old versions.

Additionally, forms require a statutory declaration in order to ensure the accuracy of information; however, key informants expressed concerns that the verification process is not strong enough. They add that community members may submit false information, particularly where it concerns a spouse or common-law partner who may share interest or have rights in the property since there is no requirement for the spouse or partner to sign the form as well.

INAC key informants shared the frustrations of some of their clients who have been involved in the land transaction process for a number of years. In one specific example, a community member attempted to gather the divided portions of a Certificate of Possession on which they were the principle shareholder. However, when the provisional federal rules of the Act came into force on December 16, 2014, the Act required the member to contact everyone who had already transferred their shares for a new signature on the matrimonial real property form. In cases such as this, the member had several dozen partial certificate holders to track down, which took years to collect. Gathering signatures becomes even more complicated when a holder, who transferred their certificate of possession before December 2014, is recently deceased. This leaves the member who requires new signatures with few options, and INAC key informants state they do not know how to advise in such cases. Internal interviewees argued that the requirement to sign these forms in order to process land transfers is not an explicit requirement of the Act, but is a policy choice designed to protect INAC from liability. They suggested that this level of administration is unnecessary and presents a barrier to communities' and INAC's land administration work, leaving a number of files that predate the Act in the lands department that cannot be actioned.

4.1 Gender Considerations

The Act is designed to protect men, women, and children on reserves from situations of family violence through the enforcement of Emergency Protection and Exclusive Occupation Orders. It also prevents one spouse or common-law partner from having to forfeit the family home in the event of separation, divorce, or death. Documents reviewed show that INAC consulted with women's groups, including the Native Women's Association of Canada, before the drafting of the Act in order to understand how men and women may be negatively impacted by the legislative gap.^{Footnote 28} INAC key informants stated that women's rights were at the forefront of the drafting process and led to the creation of Emergency Protection Orders and Exclusive Occupation Orders. However, in order for the Act and these Orders to be culturally specific, the Act creates a mechanism for communities to draft their own matrimonial real property law.

While the Centre of Excellence for Matrimonial Real Property provides advice and guidance on the method of drafting a law, the content comes entirely from the community. This includes the option to provide Emergency Protection or Exclusive Occupation Orders for family members on-reserve experiencing situations of family violence. Considering that as of June 2017, only three provinces have designated judges to hear these Orders, there is a lack of protection for families on-reserve who face situations of family violence. As discussed in Section 3.3, the Centre of Excellence promotes communication between communities and their provincial judicial systems well in advance of drafting the community matrimonial law. This allows for time to discuss ways in which these Orders can be heard and enforced to ensure that families are able to benefit from the protection they offer against family violence. Key informants from community case studies indicated that, during the drafting of their community-specific law, the main focus turned to protecting the best interests of the family at large. Specifically, legal protections focused on any children who, without the law, would have to leave the home or the community with their principle guardian. For instance, in cases of marital breakdown, a non-member spouse or common-law partner whose right to the family home on-reserve had no legal protection before the existence of the Act could have been required to leave the community with any dependent children. Overall, community interviewees felt that the most important motivation for creating their law had less in common with issues of gender, and more with the best solution to keep children close to the community with which they identify. The flexibility in content that is afforded by the community's control in the drafting of a community-specific law enables a First Nation to choose which issues will be at the forefront of their matrimonial real property legislation.

4.2 The Centre of Excellence for Matrimonial Real Property

The National Aboriginal Lands Managers Association received a contribution from INAC to create the Centre of Excellence for Matrimonial Real Property to assist with implementation and outreach of information related to the Act as of December 2013. As they are hosted by the National Aboriginal Lands Managers Association, the Centre of Excellence operates at arm's length from INAC. Providing outreach connects directly to the immediate outcome, "First Nation communities and individuals are aware of their rights concerning law-making and protections under the Act," as found in the Performance Measurement Strategy^{Footnote 29} The Centre of Excellence for Matrimonial Real Property assists communities with understanding the provisional federal rules as well as with a detailed process on how to draft a community-specific law. They provide training sessions to all levels of community, are available for questions by phone and email, update their training materials regularly, and offer a pilot project that financially assists communities with the cost of enacting a matrimonial real property law (these support services will be examined further in Section 4.3.2). The Centre of Excellence has six full time equivalents and receives approximately $1 million per year from INAC.

4.3 Lessons Learned

The following section contains a list of lessons learned from the Centre of Excellence for Matrimonial Real Property and communities that have succeeded or attempted to enact a community-specific matrimonial real property law.

5.1 Royal Canadian Mounted Police

The RCMP Regular Members are responsible for law enforcement on reserves in all provinces except Ontario and Quebec, with the exception of communities that have their own police forces.

Two parts of the Act have key provisions for law enforcement: Emergency Protection Orders and Exclusive Occupation Orders. Officers are to "assist the applicant in acquiring an Emergency Protection Order where available (i.e., the province or territory has designated a judge to hear applications); Serve and enforce all Emergency Protection Orders to protect the vulnerable people and to assist them to properly apply for an Emergency Protection Order (with regard to reserve land and family homes located on-reserve land); serve and enforce Exclusive Occupation Orders; and/or, investigate any violations."^{Footnote 36}

5.1.1 RCMP Training

Finding: The RCMP fulfilled its commitment to develop and deliver training to increase its Members’ awareness of matrimonial real property law and social issues on reserve, and RCMP data indicates that a number of Regular Members have accessed the online training.

INAC, Public Safety, and the RCMP agreed that due to the diverse geographic locations of Regular Members and the content to be delivered, online learning is the most effective means of delivering Matrimonial Real Property training for the RCMP.^{Footnote 37} As a result, an online matrimonial real property guide was developed and the course training standards were approved by the RCMP's Learning and Development Unit. The guide was then made available on the internal training website, Agora, to all RCMP Regular Members starting in June 2014.

The guide provides Members with links to relevant sections of the legislation and is intended to be a job aid that allows Members to recognize the situations in which to serve and enforce matrimonial real property orders, as well as an understanding of their duties and responsibilities under the Act, including operational policies and procedures. Image 1 is an excerpt from the online RCMP resource guide that illustrates when the Act is to be applied and what actions should be taken.

EPO = Emergency Protection Order

Text alternative for Image 1: RCMP Guide to Facilitate Decision Making

Image 1 is an excerpt from the online RCMP resource guide that illustrates when the Act is to be applied and what actions should be taken.

The diagram titled "Matrimonial Real Property" holds two boxes. Box one is titled "Does the Act Apply?" and box two is titled "What Action should be Taken?".

Box one (Does the Act Apply?) contains three main questions: 1) Is the property in question on reserve?; 2) Does the reserve have its own MRP Laws?; and 3) Has the province designated judges under ss. 16(1), 2(1) of the Act?.

Box two (What Action should be Taken?) contains the succeeding questions: 4) Does the client already have an EPO from a designated judge of the province in which the family home is situated?; 5)Is there another order in place under the Criminal Code?; 6) Is there family violence (S 16(1)(a))?; and 7) Does the EPO need to be made without delay because of seriousness or urgency of the situation to ensure the immediate protection of the person who is at risk of harm or property that is at risk of damage?

The first question: Is the property in question on reserve? If the answer is no, the Act does not apply.

The first question: Is the property in question on reserve? If the answer is yes, it will be followed by question two: Does the reserve have its own MRP Laws? If the answer is yes, the Act does apply.

The first question: Is the property in question on reserve? If the answer is yes, it will be followed by question two: Does the reserve have its own MRP Laws? If the answer is no, question three follows: Has the province designated judges under ss. 16(1), 2(1) of the Act? If the answer is no, the Act does not apply.

The first question: Is the property in question on reserve? If the answer is yes, it will be followed by question two: Does the reserve have its own MRP Laws? If the answer is no, question three follows: Has the province designated judges under ss. 16(1), 2(1) of the Act? If the answer is yes, this will bring you to the second section of the diagram (Box two- "What Action should be taken?"), thus to question four: Does the client already have an EPO from a designated judge of the province in which the family home is situated?

If the answer to the fourth question is yes, the Act does apply. The fourth question connects to the first action to be taken by the RCMP member(s): to follow the terms of EPO.

The first question: Is the property in question on reserve? If the answer is yes, it will be followed by question two: Does the reserve have its own MRP Laws? If the answer is no, question three will follow: Has the province designated judges under ss. 16(1), 2(1) of the Act? If the answer is yes, this will bring you to the fourth question: Does the client already have an EPO from a designated judge of the province in which the family home is situated? If the answer is no, then question five is connected: Is there another order in place under the Criminal Code? If the answer is yes, the Act does apply. The fifth question connects with the second action to be taken by the RCMP member(s): to execute order if there is a police enforcement section.

The first question: Is the property in question on reserve? If the answer is yes, it will be followed by question two: Does the reserve have its own MRP Laws? If the answer is no, it will be followed by question three: Has the province designated judges under ss. 16(1), 2(1) of the Act? If the answer is yes, the fourth question follows: Does the client already have an EPO from a designated judge of the province in which the family home is situated? If the answer is no, question five: Is there another order in place under the Criminal Code? will follow. If the answer is no, question six: Is there family violence (S 16(1) (a))? will be linked.

If the answer to the sixth question is no, the Act does not apply. The sixth question is linked with the third action to be taken by the RCMP member(s): to refer client to local resources such as victim services for support since the EPO is not required.

The first question: Is the property in question on reserve? If the answer is yes, it will be followed by question two: Does the reserve have its own MRP Laws? If the answer is no, it will be followed by question three: Has the province designated judges under ss. 16(1), 2(1) of the Act? If the answer is yes, the fourth question follows: Does the client already have an EPO from a designated judge of the province in which the family home is situated? If the answer is no, question five: Is there another order in place under the Criminal Code? will follow. If the answer is no, question six: Is there family violence (S 16(1) (a))? will be linked.

If the answer to the sixth question is yes, the seventh question follows: Does the EPO need to be made without delay because of seriousness or urgency of the situation to ensure the immediate protection of the person who is at risk of harm or property that is at risk of damage?

If the answer to the seventh question is no, the Act does not apply. The seventh question is linked with the third action to be taken by the RCMP member(s): to refer client to local resources such as victim services for support since the EPO is not required.

If the answer to the seventh question is yes, the Act does apply. The seventh question is linked with the fourth action to be taken by the RCMP member(s): to provide assistance in obtaining EPO and any pertinent material/client will obtain their own EPO.

 

A review of data indicated that from June 2014 to September 2016, the matrimonial real property resource guide was downloaded by 281 Regular Members. The majority (77 percent) of downloads came from "K" Division in Alberta, "F" Division in Saskatchewan, "E" Division in British Columbia, and National Division in Ottawa. Although evaluators attempted to assess the extent to which Members were satisfied with the matrimonial real property resource guide, none of the individuals that downloaded the guide completed the optional online satisfaction survey.

In addition to providing the resource guide to its own Regular Members, the RCMP made it available, free of charge, to other police service providers throughout Canada through the Canada Police Knowledge Network. A summary report on course enrollment and outcomes from the Network indicated that as of September 2016, 129 non-RCMP police officers had completed the course, and 236 were enrolled.^{Footnote 39}

The RCMP also engaged in additional awareness raising initiatives, such as presentations on the new matrimonial real property laws with various key partners. This included a two day workshop with RCMP Divisions, the First Nations Chiefs of Police Association, and the Ontario Provincial Police.

The RCMP committed to internally reallocating $2.7 million of existing operating funds, over five years, to cover operating expenditures for the training. From 2013-2041 to 2015-2016, the RCMP spent $245,400 representing nine percent of the estimated total dedicated to the initiative. Delivering the training online presented efficiencies for the RCMP.

5.2 Public Safety

Public Safety administers the First Nations Policing Program, which is a contribution program that provides financial contributions in support of professional, dedicated, and responsive policing services to Indigenous communities. The Program is delivered through tripartite policing agreements between the federal government, provinces and territories, and Indigenous communities. Financial contributions are shared by the federal government (52 percent of eligible costs), and the provinces and territories (48 percent of eligible costs). Public Safety was responsible for entering into contribution agreements to fund a recipient^{Footnote 40} to develop training for police officers working for police services funded by the First Nations Policing Program in First Nations communities.

5.3 Relevance and Continued Need

INAC, Public Safety, the RCMP, and consulted communities agree that there is an ongoing need for training and awareness of the Act for enforcement officers in First Nations communities.

Community representatives, INAC staff, and third-party representatives emphasized that it is important for police to be informed of their duties under the Act in case they respond to a situation in which the Act applies. Training can help ensure that an officer is able to inform community members of their rights under the Act. Community key informants added that victims will look to police during a crisis situation as supports in navigating their rights under the Act and protections against violence.

It was the perception of INAC case study interviewees that training police officers on reserves is necessary in order to ensure that Emergency Protection Orders and Exclusive Occupation Orders can be enforced. A police officer responding to a situation on-reserve can rely on these Orders, however if such an order is not in place, a police officer can rely on an undertaking to protect victims of family violence. Under the Criminal Code, Section 499, an undertaking will release a person from custody if they agree to certain conditions, including, "to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking".^{Footnote 43}

The Act's Orders, however, are not the same as an undertaking. While an undertaking (such as a restraining order) may prevent a person from returning to the home and from communicating with the victim, an Exclusive Occupation Order does not prohibit communication between the two parties away from the family residence. Exclusive Occupation and Emergency Protection Orders are key elements of the Act, which allow victims to stay in the family home for a period of time specified by the court, whether or not the house is in their name or if they are the holder of the Certificate of Possession^{Footnote 44} Applications for Exclusive Occupation Orders can be heard by any judge, unlike Emergency Protection Orders, which require the approval of a provincially designated judge.

RCMP interviewees indicated that Members are able to protect a person and their home regardless of whether or not the Act is in place. Had an officer not accessed the specific matrimonial real property resource guide, the RCMP determined that there was no risk to community safety. In the potential absence of matrimonial real property awareness training or in the absence of a community member possessing a matrimonial real property-related court order, the RCMP has and will continue to rely on existing procedures when a respondent calls for service.

RCMP Members continue to be trained in response procedures, as well as in the legal and cultural reality of communities and, therefore, the need for specific matrimonial real property training was determined to be an additional tool in support of officers who serve and enforce matrimonial real property-related orders on reserves.

Public Safety interviewees felt that a lack of training among officers under the First Nations Policing Program could result in a limited awareness of the relevant issues and how to deal with them if and when they arise. As a result, in the contribution agreement with Public Safety, the First Nations Chiefs of Police Association committed to strive for 100 percent participation and completion, as explained in section 5.2.1.

6.1 Judicial Awareness

The design and delivery of the implementation and enforcement supports for the Act involves the participation of all four parties: INAC and the Centre of Excellence for Matrimonial Real Property inform community administration and band members of the Act and its implications, the Centre of Excellence supports communities in implementing their own laws, and the RCMP and Public Safety train RCMP Regular Members and other police officers in the implications and enforcement requirements of the Act. However, in order for rules governing the breakdown of a marriage to be enforced, they must also be applied in the Canadian judicial system.

As such, program efforts were also directed to inform judges of the coming into force of the Family ;Homes on Reserves and Matrimonial Interests or Rights Act. A contribution agreement was developed by an independent legal organization to educate the judiciary on the Act and the social context surrounding matrimonial real property rights and issues on reserves.

In November 2014, the National Judicial Institute released information on the Act in its newsletter and sent a copy to 659 judges across Canada.^{Footnote 45} As of April 1, 2015, 180 individual judges had visited the Aboriginal Law Resource Page on the National Judicial Institute's website since its creation in May 2014.^{Footnote 46} INAC and the Department of Justice created a comprehensive overview of the legislation, as well as a presentation and a section of the Aboriginal Law Bench Book to address the Act. As a result, the National Judicial Institute decided to draft a detailed guide of the legislation to provide judges with the information and tools needed to understand the application of the Act.

INAC and the Department of Justice's efforts to educate the judiciary were also expanded to include private practitioners through presentations to Canadian Bar Association members. Their efforts also included work with Provincial Law Societies with the objective of producing material and/or courses on the Act to provide to their members. The Centre of Excellence for Matrimonial Real Property recognized the importance of an informed legal community for the proper enforcement of the Act, and took advantage of opportunities to give presentations to provincial Bar associations and law societies.

Despite these efforts, key informants and case study interviewees expressed concerns that much of the legal community is not informed about the Act. Judges, lawyers, and other legal experts have a professional responsibility to inform themselves of the Act, particularly if their work involves family law matters and property on-reserve territory. Department of Justice key informants speculated that lawyers and legal experts are more likely to research the Act if their clientele includes residents of a reserve. Information for document review^{Footnote 47} indicates that provincial Superior Courts with significant reserve populations offer presentations on the Act and the National Judicial Institute has included speakers on the subject during their conferences. However, the number of judges in attendance at each presentation is not known.

While there is no quantitative evidence to demonstrate a lack of awareness, there is no reason to assume court staff are aware of the Act. While key informants indicate that some law schools are attempting to raise awareness of the Act through additional courses, it remains a specialized topic. INAC key informants have signaled that this has real implications for community members who may not be aware of the rights concerning matrimonial real property and protections against family violence that exist and are available to them under the Act.

As of June 2017, INAC key informants identified two specific cases regarding matrimonial real property that have come before the courts and which have dealt substantively with provisions of the Act. The first of these cases, as referenced in Section 1.4.2, invoked the federal provisional rules. While the judge presiding over the case made use of the Act, key informants were divided on whether or not the ruling took into account the community's home ownership customs and interests in the house.^{Footnote 48} The second of these cases involved a community-specific law, and despite clear jurisdiction of the community's law in the case under dispute, the judge avoided adjudicating on the division of the value of the house, arguing instead that this decision rested with the community. Interviewees from the community's Governance Committee expressed frustration that the judge would not rule using their law despite the fact that it is designed to be upheld in a court. Both of these instances corroborate key informants' concerns that the legal community is not sufficiently aware of the Act to enforce it. Key informants indicated that as more cases arise in the courts there will be more case law for judges and lawyers to draw from.

6.2 Designation of Judges

Section 16 of the Family Homes on Reserves and Matrimonial Interests or Rights Act gives individuals the option to apply for an Emergency Protection Order if they have experienced family violence or are at serious risk of injury or damage to property. This Order is immediate in nature and can allow the victim to stay in the family home, even if the Certificate of Possession is not in their name. The designated judge has the power to issue a 90 day order, with an option of extension, to bar a partner from the home, from approaching the spouse or common-law partner, or "any other provision that the designated judge considers necessary for the immediate protection of the person who is at risk of harm or property that is at risk of damage."^{Footnote 49} Where necessary, peace officers are authorized to ensure the Order is enforced.

This section of the Act requires provinces to designate judges to hear emergency cases to ensure that immediate protection from family violence can take place. To date, only three provinces have designated such judges, namely New Brunswick, Nova Scotia, and Prince Edward Island. For the remainder of the country, individuals living on-reserve are unable to access their right to an Emergency Protection Order under Section 16 of the Act, representing an unequal application of federal law across all provinces. While appointing provincial judges to hear Emergency Protection Orders allows for the harmonization of the regime with the provincial system, it remains that the absence of an appointed judge leaves a resident on-reserve without access to the Emergency Protection Order component of the Act.

The ability of RCMP Regular Members and Public Safety's officers under the First Nations Policing Program to apply what they have learned from the training guide is partially dependent on whether community members have a designated judge to secure Emergency Protection Orders. As of June 2017, neither police force has been called to enforce an Order.

There is no clear rationale for why provinces have not designated judges to rule on Section 16 of the Act. Interviews with INAC program staff indicated that, for provinces such as Alberta, Saskatchewan, and Newfoundland, provincial authorities simply have not taken this step and that for the governments of Ontario and British Columbia, the likely view is that because their provincial legislation does not distinguish between on- and off-reserve matrimonial real property, couples are protected under provincial law and have no need for the Emergency Protection Order component of the Act. In Quebec, as discussed in Section 3.4, the issue is more deeply rooted in a dispute over the pre-eminence of the Quebec Civil Code versus federal legislation. INAC staff, the Centre of Excellence for Matrimonial Real Property, and Quebec case study and key informant interviewees all confirm these issues are more pronounced in Quebec.

As such, provinces without designated judges present serious barriers to the enforcement of some of the provisions in the Act designed to enhance community safety. In many cases, there are also barriers to obtaining Exclusive Occupation Orders given the lack of awareness amongst court staff.

As key informants and research by the Conference Board of Canada have indicated, the federal provisional rules under the Act are meant to give community members rights and protection from family violence through access to Emergency Protection and Exclusive Occupation Orders.^{Footnote 50} Moreover, as discussed above, INAC and the Centre of Excellence for Matrimonial Real Property have provided information to community members about these options.

6.3 Access to Justice

Beyond the readiness of the courts to apply the Act, there is an additional question of whether community members have affordable access to lawyers, legal aid, and nearby court houses. Key informants and document review indicate that in many cases this is a challenge. As several key informants and case study interviewees noted, legal fees are often unaffordable for community members with low incomes. This can be compounded in remote areas, where the Conference Board of Canada estimates it takes an average of almost an hour and a half and over $650 in travel costs to reach a court house.^{Footnote 51}

Moreover, if a community member decides to pursue legal action with respect to the Act, finding legal experts can be a difficult process regardless of the cost. Key informants indicated that legal experts who are familiar with the Act are relatively uncommon and on average reside close to larger city centres. The Centre of Excellence for Matrimonial Real Property commonly receives calls from lawyers asking how the Act should be interpreted, despite the fact that the Centre of Excellence for Matrimonial Real Property is not meant to be a legal advisory body. As key informants suggested, finding a lawyer informed on the Act is a challenge given that there are few economic incentives for lawyers to practice in this area. Simply put, there are often limited assets to divide between community members in the breakdown of a marriage and therefore little financial incentive for lawyers to take cases. Finding a culturally relevant, informed, and inexpensive source of legal aid close to an individual's home community presents a challenge likely to limit uptake of the Act.

In summary, community members face barriers to enforcement in the courts due to limited availability of legal supports, a lack of awareness among court staff and judges, and a lack of designated judges for hearing Emergency Protection Orders. As such the program's immediate outcome that "key officials are aware of and understand matrimonial real property law and social issues on-reserve" has not yet been achieved.

7.1 Conclusions

Findings from the evaluation indicate that there is a continued need to support the implementation and enforcement of the Family Homes on Reserves and Matrimonial Interests or Rights Act. INAC and the Centre of Excellence's outreach to community members has improved awareness of the Act since its implementation, however, further work is needed to ensure that all members are aware of their rights. The Centre of Excellence's toolkit and their workshops have assisted 11 communities with the successful implementation of a community-specific law, and provide lessons learned for future community law-making initiatives. However, the evaluation found that even with full awareness of the Act, many communities do not have the capacity to develop a community-specific law, or find it difficult to pass the voting threshold. These factors contribute to the majority of First Nations, which remain under the provisional federal rules. For these communities, many have researched alternative dispute resolution mechanisms in order to keep marital disputes, for privacy reasons, within the community. Further implementation efforts have been complicated by the frequent updates to matrimonial real property forms as well as the Act's definition of common-law couples misaligning with provincial definitions.

The evaluation also found that the RCMP and Public Safety have successfully launched their training components; however delays in the launch of Public Safety's training mean it is too early to properly assess the training's impacts. The RCMP, Public Safety, and INAC agree that ongoing training and awareness of the Act is necessary.

Finally, the evaluation found that members of the judicial system are still relatively unaware of the Act. The majority of provinces have not designated a judge to hear Emergency Protection Orders, which creates a barrier to enforcing this component of the Act. From the perspective of community members, accessing legal services is also a challenge given that few are aware of the Act and there is a high cost to access services for those in remote communities.

7.2 Recommendations

There is a need to continue the implementation and enforcement supports for the Family Homes on Reserves and Matrimonial Interests or Rights Act, with a focus towards the following:

1. Work with the Centre of Excellence for Matrimonial Real Property to explore methods of integrating Alternative Dispute Resolution mechanisms into First Nations community practices, particularly for those communities without provincially designated judges.
2. Consider renewing the mandate of the Centre of Excellence for Matrimonial Real Property in recognition of its central role in informing all stakeholders (i.e., Chief and Council, Band staff, and community members) of the Act.
3. Consider reviewing voter requirements of the Act including voting thresholds and alignment to First Nation ratification processes, as well as costs associated with the voting process.
4. Continue to assess the uptake of training offered by Public Safety and the RCMP in order to monitor and report on the number of officers on reserves who are aware of the Act.
5. Consider adding the Department of Justice as a formal partner to the Matrimonial Real Property Advisory Committee and Implementation Support Team to foster awareness of roles and responsibilities as they relate to the Act and the administration of justice.

Relevance

1. Is there a continued need for INAC, Public Safety Canada, and the RCMP to provide awareness raising, training, and capacity building activities to support the implementation and enforcement of the Family Homes on Reserves and Matrimonial Interests or Rights Act?

1. What are the risks to communities of not continuing to provide awareness raising, training, and capacity building activities beyond fiscal year 2017-2018?
2. What are the risks to on-reserve communities if some deficiencies are found in general awareness of the Family Homes on Reserves and Matrimonial Interests or Rights Act?

2. Do the awareness raising, training, and capacity building activities to support the implementation of the Family Homes on Reserves and Matrimonial Interests or Rights Act align with the roles, responsibilities, priorities, and strategic outcomes of:

1. The Government of Canada
2. INAC
3. Public Safety Canada
4. RCMP
5. First Nations on-reserve communities

Performance

3. To what extent have awareness raising, training, and capacity building activities to support the implementation of the Family Homes on Reserves and Matrimonial Interests or Rights Act met their intended outcomes as outlined in the 2014 Performance Measurement Strategy?

1. Immediate Outcome 1: First Nation communities and individuals are aware of their rights concerning law-making and protections under the Family Homes on Reserves and Matrimonial Interests or Rights Act
2. Immediate Outcome 2: Key officials are aware of and understand matrimonial real property law and social issues on-reserve
3. Intermediate Outcome: Governance institutions, organizations, and key officials have the capacity to support First Nations in making informed decision-making on matrimonial real property on-reserve issues
4. Ultimate Outcome: Transparent and accountable First Nation governments and institutions

4. Have there been any factors (external or internal) that have impacted on the achievement of expected outcomes (positively or negatively)?

5. To what extent have awareness raising, training, and capacity building activities to support the implementation of the Family Homes on Reserves and Matrimonial Interests or Rights Act been conducted in an efficient and economical manner?

6. To what extent have the provinces/territories, through the administration of the courts, supported the implementation of the Family Homes on Reserves and Matrimonial Interests or Rights Act?

1. Have personnel who routinely assist individuals to access the courts been provided with information on Family Homes on Reserves and Matrimonial Interests or Rights Act (i.e., courthouse staff, provincial legal aid bodies, courthouse duty counsel, and First Nations court workers)?
2. Have Court Rules of Procedure been amended to accommodate Family Homes on Reserves and Matrimonial Interests or Rights Act?
3. Have court forms been amended to accommodate applications pursuant to Family Homes on Reserves and Matrimonial Interests or Rights Act?

7. What are the costs to on-reserve communities associated with developing and implementing their own community-specific matrimonial real property laws?

8. What challenges have occurred and were there any lessons learned or best practices that could inform future legislative implementation initiatives and future support to Indigenous communities for code and policy development?