In the recent case of Toney v. Toney Estate, 2018 NSSC 179, the Supreme Court of Nova Scotia considered an application by the spouse of a deceased former band Chief seeking exclusive occupation of property located on reserve lands held by the federal Crown in trust for the exclusive benefit of a First Nation band. The applicant was not a band member and not an Indian.
The applicant was married to her spouse, who was an Indian band member at the time of his death. The couple had lived together for 32 years at the property in question. The applicant’s deceased spouse had held a Certificate of Possession for the property, which he left to the applicant in his will. On her spouse’s death, the applicant was not eligible, due to her non-Indian and non-band member status, to inherit the assignment of the Certificate of Possession. She applied to the Court under the Family Homes on Reserves and Matrimonial Interests or Rights Act for an order for indefinite exclusive occupation of the property.
The Court granted the application for indefinite exclusive occupation, considering the following factors relevant:
- the applicant’s age, medical condition (she had MS), financial situation, and years spent living at the property;
- that the deceased had left his entire estate to the applicant, with the property being the only property of significant value in the estate; and
- that the deceased and the applicant had put significant effort and money into improving the property in a permanent way over a period of 30 years.
The Court stipulated as a condition of the applicant’s occupation of the property, that there not be a material change in circumstances, such as the applicant re-partnering, relocating to a care facility, or failing to maintain the property.
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