Paul v. Paul

Chouinard J.‑‑The constitutional question stated in this appeal is as follows:

Are the provisions of s. 77 of the Family Relations Act, R.S.B.C. 1979, c. 121, invalid, inapplicable, inoperative or of no force and effect, when applied to a family residence located on land in an Indian Reserve, by reason of s. 20 of the Indian Act, R.S.C. 1970, c. I‑6?

Section 77 provides:

77. (1) An order under this section is for temporary relief pending determination of the rights to the property of the spouses by agreement or by a court having jurisdiction in those matters.

(2) A court may make an order under this section respecting property that is owned or leased by one or both spouses and is or has been

(a) occupied by the spouses as their family residence; or

(b) personal property used or stored at the family residence.

(3) On application, the court may order that one spouse for a stated period

(a) be given exclusive occupancy of the family residence; or

(b) to the exclusion of the other spouse may use all or part of the personal property at the family residence.

(4) An order under subsection (3) does not authorize the spouse to materially alter the substance of the family residence or personal property. A spouse does not acquire a proprietary interest on the making of an order under this section.

(5) Subject to section 78, a right of a spouse to exclusive occupancy or use ordered under this section shall not continue after the rights of the other spouse, or of both spouses, as owner or lessee are terminated.

(6) Nothing in this section prevents the filing of an entry under the Land (Wife Protection) Act.

The respondent does not take issue with the following statement of facts and procedural history set out in the appellant's factum:

The Appellant and the Respondent are both native Indians and members of the Tsartlip Indian Band, located near Sidney, British Columbia.

The Appellant and the Respondent have been married for 19 years, since May 7, 1966. There are three children of the marriage, two girls and a boy, whose ages range from 8 years to 18 years.

In June, 1968, the Respondent acquired land on the Tsartlip Band Reserve by way of a Certificate of Possession pursuant to Section 20 of the Indian Act, R.S.C. 1970, c. I‑6.

The parties built a home on the land which has been the matrimonial home for the past 16 years.

The parties have separated on two occasions. The first occasion was from July, 1982, to October, 1982, and the second occasion from July, 1983, to the present date.

On both occasions the children remained with the Appellant. The Respondent paid the Appellant some interim support. On both occasions the Appellant sought interim possession of the matrimonial home, for herself and the children.

On the first occasion, interim possession of the matrimonial home was granted to the Appellant by the Order of Mr. Justice McKenzie, of the Supreme Court of British Columbia. The Reasons for Judgment are reported at [1983] 2 W.W.R. 186. The parties reconciled prior to the matter coming to trial.

On the second occasion, the Appellant was again granted interim possession of the matrimonial home by His Honour Judge Cooper, in March, 1984. That Order was overturned by a majority of the British Columbia Court of Appeal in July, 1984. The matter has not yet been set for trial. This Appeal is taken from the decision of the British Columbia Court of Appeal.

The Attorney General of British Columbia and the Attorney General of Quebec intervened in this appeal in support of the appellant, the Attorney General of Canada in support of the respondent.

In Derrickson v. Derrickson, [1986] 1 S.C.R. 285, in which judgment is being delivered today, this Court, affirming the judgment of the Court of Appeal of British Columbia, [1984] 2 W.W.R. 754, has decided that the provisions of the Family Relations Act, R.S.B.C. 1979, c. 121, relating to the division of family assets are not applicable to reserve lands.

The only question remaining is whether this case can be distinguished from Derrickson on the basis that the order sought in this case is for "occupancy" on an interim basis, not for a division of the husband's interest in the Certificate of Possession.

The trial judge (1984), 9 D.L.R. (4th) 220, did distinguish Derrickson. He relied on the following passage, at p. 189, of the judgment of McKenzie J., [1983] 2 W.W.R. 186, who had granted an order for occupancy on the occasion of the first separation of the parties:

. . . while lawful possession of land can only be allotted to an Indian by the band council, with the approval of the minister, there is no provision made by or under the Indian Act which prevents the giving by this Court under s. 77 of the Family Relations Act, for a stated period, exclusive occupancy of the land to the wife and children to the exclusion of the husband. Such an order could not displace the husband's lawful possession of the land, allotted to him under s. 20 of the Indian Act, but it can temporarily displace his right to share occupancy of the land.

The trial judge then went on to say at pp. 223‑24:

The husband, while holding a certificate of possession exclusively in his name, did in fact share the actual occupancy of the home with his wife and children for a number of years. That occupancy in no way affected his right to lawful possession and the court is not being now asked to alter or vary that right as it was asked in the Derrickson case.

Section 28(1) of the Indian Act renders void any attempt to permit a person other than a member of a band to occupy or use reserve land. It by implication lawfully permits such occupancy by another band member. The husband as well as his wife and children are all band members and thus are all lawfully permitted to occupy the lands. The Act thus recognizes the distinction between lawful possession and the right to occupy.

The majority of the Court of Appeal (1984), 12 D.L.R. (4th) 462, was of the contrary view that Derrickson is indistinguishable.

Seaton J.A. wrote at p. 465:

I am unable to distinguish the Derrickson case on the basis that it dealt with possession whereas here we are only dealing with occupation. I think the distinction too fine. Occupation is part of possession.

In concurring reasons, Hutcheon J.A. wrote at p. 467:

. . . legal rights to that land cannot be decided under the Family Relations Act in its present form.

I agree with Seaton and Hutcheon JJ.A. This case is indistinguishable from Derrickson. To hold otherwise would mean that the husband by virtue of his Certificate of Possession would be entitled to possession and consequently to occupation of the family residence while the wife, by an order made under the Family Relations Act would be entitled to interim exclusive occupancy of the same residence. In my view, with respect, even assuming that s. 88 of the Indian Act applies to lands reserved for the Indians, the provisions of s. 77 relating to occupancy of the family residence on the reserve are in "actual conflict" with the provisions of the Indian Act. See Derrickson v. Derrickson.

I would answer the constitutional question as follows:

Question: Are the provisions of s. 77 of the Family Relations Act, R.S.B.C. 1979, c. 121, invalid, inapplicable, inoperative or of no force and effect, when applied to a family residence located on land in an Indian Reserve, by reason of s. 20 of the Indian Act, R.S.C. 1970, c. I‑6?

Answer: The provisions of s. 77 of the Family Relations Act are inapplicable to a family residence located on land in an Indian Reserve.

I would dismiss the appeal. No order as to costs was made by the Supreme Court nor by the Court of Appeal. I would likewise make no order as to costs.