The Protection Against Family Violence Act’s provisions to prohibit contact between family members may apply on First Nation reserves. However, in order for the Act to be applicable, the Band Council must pass a resolution to amend its bylaws to adopt the provisions included in the Act.
Exclusive Home Possession Order
A court order requiring that one spouse leave the family home and prohibiting that spouse from entering the home or being near the home. The order is granted under Alberta’s Matrimonial Property Act, and can be obtained for a home (house, suite, apartment, condominium) that is owned, leased or rented.
An exclusive home possession order can:
- Direct the abusive family member to vacate the home for a specified time
- Restrain the abusive person from entering or visiting the home if the victim requests it
- Order an abusive person to pay the rent, lease or mortgage
- Under some circumstances, grant a victim possession of the furniture in the home and the family vehicle
- Suspend the right of ownership of either or both the victim and the abusive person (suspending right of ownership means a person cannot sell the home, even if the person is the legal owner. An exclusive home possession order gives the right of possession, not right to ownership)
Application for an Exclusive Home Possession Order
A spouse must apply for an exclusive home possession order. It is recommended that the services of a lawyer should be obtained when making a request for an exclusive home possession order, as the legal procedures can be complicated.
After the application for an exclusive home possession order has been made, the abusive person will be notified that a court hearing will take place and he or she will be given an opportunity to oppose the order.
In deciding whether or not to grant an exclusive home possession order the court will consider the availability of other accommodations for both spouses, the needs of the children, the financial circumstances of the spouses, and the conduct of the two spouses if the court determines that is relevant.
If granted, the exclusive home possession order will remain in effect until the term of the order has lapsed, or until a second order is granted by a Justice terminating the first order.
Limitations of an Exclusive Home Possession Order
It is unlikely that a victim will be able to obtain an exclusive home possession order if children will not be remaining with him or her and if there has not been any violence. The court will always try to take into consideration the interests of the children and will try to place them in a situation that is as close to normal as possible.
If a person is living on a First Nation reserve, she or he will not be eligible for an exclusive home possession order. Under the Indian Act, the federal government regulates reserves, so the provisions in the provincial Matrimonial Property Act
regarding property do not apply.
Under the Indian Act, the Band Council controls how property and housing on the reserve are divided among members of the band. Provincial family laws giving a person a right to claim exclusive possession of a home do not apply.
Things to Remember
The victim should keep a copy of any court order with herlhim if the victim wants police to enforce the order. The police must see the order to know if it has been violated.
If the abused person invites hislher spouse onto the premises, that is a breach or violation of the exclusive home possession order and the police will be hesitant to enforce it.
If spouses begin to live together again, the exclusive home possession order is no longer in effect.