When one person in a marriage dies, it’s natural to assume that their surviving partner will be able to remain in the matrimonial home. Of course, if there’s one thing the law teaches us, it’s that there are often unique complications with the situations people may find themselves in. In a recent decision issued by the Supreme Court of Nova Scotia, the court looked at what happens when the house is located on a First Nation community’s lands and the surviving spouse is not First Nations.

The marriage and the home

The couple began living together in the home in 1986. The husband was a former chief of the Annapolis Valley First Nation (“AVFN”). They lived together in the home for over 30 years, and during that time invested over $140,000 in improvements in the home. The wife, though not a member of the AVFN, was actively involved in the community. However, a diagnosis of Multiple Sclerosis eventually limited her ability to continue to do so.

The husband passed away on July 9, 2016. His only substantial asset was his Certificate of Possession for the land on which the matrimonial home was on. His will stipulated that he intended to leave his estate to his wife, naming his sons as the beneficiaries of the estate in the alternative.

At the time of the husband’s death, the wife’s income consisted entirely of disability and CPP payments, which amounted to $775 per month. Her stats as a non-band member also meant that she was not eligible to inherit the Certificate of Possession as called for in her husband’s will. The wife applied to the courts to receive indefinite and exclusive possession of the home despite her not being a member of the AVFN.

The court’s analysis

The law pertaining to homes on First Nations land is the Family Homes on Reserves and Matrimonial Interests or Rights Act (the “FHR”). The court turned to the FHR for its analysis, stating that the law allows the court to consider a broad range of considerations when determining whether to allow the wife to occupy the home. The court looked at the wife’s older age, her disability, as well as her limited income. The court also considered that she had lived there for over 30 years, making considerable improvements to it from money they shared. Finally, the court noted that the home was the only real asset in the estate.

After considering the above, the court found granted the wife occupation of the home and the property it was on, but added that the ruling was subject to any material changes in the wife’s life, including getting re-married, moving to an assisted-living facility, or failing to maintain the property.

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