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Grey Areas In Family Law Highlighted By Divorce Case

A unique divorce case has been reported in Ontario involving an indigenous woman who says she is being denied a settlement following her divorce from her husband. British Columbia residents may be aware of the case of Tori Cress, who is being asked to vacate the family home she helped to build because it falls on Mohawk territory, and she is not technically a member of that tribe despite being Native Canadian. The case highlights certain inconsistencies in Canadian family law.

Cress says she and her husband built the house in 2007 after meeting on the Wahta Mohawk reserve when she moved there the same year. The plot they used for their home was owned by her husband’s great aunt, who had a certificate of possession. This document works similarly to a deed in off-reserve cases. The family, including Cress’ two children, moved into the home in 2008 and lived there until 2014 when the marriage fell apart.

Shortly thereafter, the husband’s father purchased the certificate of possession, allowing Cress and her children to continue living there despite not having any claim to the land based on band membership. Now, the husband’s father has fallen ill and, in trying to get his affairs in order, has asked that Cress and her children vacate the house. She is contesting on the grounds that she should have marital claim to the house. While this would be true off-reserve, specific laws pertaining to on-reserve cases hold the certificate of possession to infer total ownership by the husband’s father.

This is a unique case, to be sure, and not one that every British Columbia resident is likely to encounter if they choose to divorce. However, it does highlight how complicated family law can be, both on and off a reservation. This is why the support and advice of an experienced divorce attorney for both parties is so vital in separations.

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