Derrickson v. Derrickson et al., (1986) 65 N.R. 278 (SCC)

JudgeDickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ.
CourtSupreme Court (Canada)
Case DateMarch 27, 1986
JurisdictionCanada (Federal)
Citations(1986), 65 N.R. 278 (SCC);[1986] 1 SCR 285;[1986] 2 CNLR 45;50 RFL (2d) 337;[1986] 3 WWR 193;1986 CanLII 56 (SCC);1 BCLR (2d) 273;65 NR 278;26 DLR (4th) 175

Derrickson v. Derrickson (1986), 65 N.R. 278 (SCC)

MLB headnote and full text

Derrickson v. Derrickson and Attorney General of Canada, Attorney General of British Columbia and Attorney General of Ontario

No. 18712

Indexed As: Derrickson v. Derrickson et al.

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ.

March 27, 1986.

Summary:

A husband and wife were both Indians belonging to a British Columbia Indian Band. The wife petitioned for divorce under the Divorce Act and for a declaration under the Family Relations Act, R.S.B.C. 1979, c. 121, Part 3, that she was entitled to an undivided one-half interest in reserve property for which her husband held certificates of possession issued under the Indian Act. The husband resisted her claim, arguing that the provisions of the Family Relations Act dealing with the division of family assets did not apply to Indian lands because of s. 88 of the Indian Act.

The Supreme Court of British Columbia held that the Family Relations Act was inapplicable to Indian lands and therefore the court had no power to order a division of reserve lands. The court also held that it could not order compensation in lieu of directing a division of reserve lands "for the purposes of adjusting the division" pursuant to s. 52(2)(c) of the Family Relations Act. The wife appealed.

The British Columbia Court of Appeal, in a decision reported [1984] 2 W.W.R. 754; [1984] 3 C.N.L.R. 58; 9 D.L.R.(4th) 204; 38 R.F.L.(2d) 1; 51 B.C.L. R. 42, allowed the appeal in part. The court affirmed that the Family Relations Act provisions dealing with the division of family assets did not apply to Indian lands but held that compensation in lieu of a division of the Indian reserve lands could be awarded under s. 52(2)(c) and remitted the matter to the trial judge to complete the disposition of family assets accordingly. The wife appealed.

The Supreme Court of Canada dismissed the appeal.

See also Paul v. Paul et al. (1986), 65 N.R. 291.

Constitutional Law - Topic 2507

Determination of validity of statutes - General principles - Reading down - The Supreme Court of Canada applied the doctrine of "reading down" to give the British Columbia Family Relations Act a limited meaning which would confine it within the limits of provincial jurisdiction - See paragraph 41.

Constitutional Law - Topic 6363

Federal jurisdiction - Constitution Act, 1867, s. 91(24) - Indians and lands reserved for Indians - Matrimonial property - The Supreme Court of Canada held that the provisions of the Family Relations Act (B.C.) which dealt with the right of ownership and possession of immoveable property could not apply to lands on an Indian reserve because such matters were within the exclusive jurisdiction of the Federal Parliament pursuant to s. 91(24) of the Constitution Act, 1867 - See paragraphs 19 to 42.

Family Law - Topic 866

Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - Indian lands - The Supreme Court of Canada held that the provisions of the Family Relations Act, R.S.B.C. 1979, c. 121, dealing with the division of family assets were not constitutionally applicable to lands in a reserve held by an Indian, because of the Indian Act, R.S.C. 1970, c. I-6.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - Indian reserve lands - The Supreme Court of Canada held that Indian reserve lands were not subject to distribution under the Family Relations Act (B.C.).

Family Law - Topic 880.21

Husband and wife - Marital property - Distribution orders - Compensation in lieu of property division - When available - The Family Relations Act, s. 52(2)(c), provided that the court on an application for a division of marital property could "order a spouse to pay compensation to the other spouse ... for the purpose of adjusting the division" - The Supreme Court of Canada affirmed that the court could use s. 52(2)(c) to adjust the division of matrimonial property where a spouse held Indian reserve lands which were not subject to division under the Family Relations Act - See paragraphs 81 to 87.

Indians, Inuit and Métis - Topic 5508

Lands - Reserves - Application of provincial matrimonial property legislation - The Supreme Court of Canada held that the provisions of the Family Relations Act, R.S.B.C. 1979, c. 121, dealing with the division of family assets were not constitutionally applicable to lands in a reserve held by an Indian, because of the Indian Act, R.S.C. 1970, c. I-6.

Indians, Inuit and Métis - Topic 6260

Government of Indians - What laws govern - General - The Indian Act, s. 88, provided that all laws of general application in a province applied to Indians except laws inconsistent with the Indian Act - The Supreme Court of Canada referred to the question of whether s. 88 applied to "lands reserved for Indians" or just to "Indians" but because of the court's disposition of the case it did not resolve this issue - See paragraphs 50 to 58.

Indians, Inuit and Métis - Topic 6266

Government of Indians - What laws govern - Provincial laws of general application - The Indian Act, s. 88, provided that all laws of general application in a province applied to Indians except where the laws were inconsistent with the Indian Act - The Supreme Court of Canada stated that "it is now settled that the provincial laws of general application to which s. 88 refers are those laws which cannot apply to Indians without regulating them qua Indians. It is also settled that those laws that are made applicable to Indians by the operation of s. 88 are not applicable to them ex proprio vigore but are so made applicable by referential incorporation in the Indian Act" - See paragraph 45.

Indians, Inuit and Métis - Topic 6266

Government of - What laws govern - Provincial laws of general application - Family Relations Act (B.C.) - The Indian Act, s. 88, provided that all laws of general application in a province apply to Indians except for laws inconsistent with the Indian Act - The Supreme Court of Canada held that the provisions of the Family Relations Act relating to possession and ownership of immoveable property were not referentially incorporated into the Indian Act under s. 88 because the provisions were inconsistent with the Indian Act - See paragraphs 43 to 80.

Cases Noticed:

Surrey (Corpn.) v. Peace Arch Enterprises Ltd. and Surfside Recreations Ltd. (1970), 74 W.W.R.(N.S.) 380, refd to. [para. 12].

Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695, refd to. [para. 12].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 45].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 60].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24).

Family Relations Act, R.S.B.C. 1979, c. 121, sect. 43 [para. 5]; sect. 45 [para. 26]; sect. 48, sect. 49 [para. 27]; sect. 50 [para. 28]; sect. 51 [para. 6]; sect. 52 [para. 7]; sect. 52(2)(c) [para. 11]; sect. 53 [para. 31].

Indian Act, R.S.C. 1970, c. I-6, sect. 18(1) [paras. 20, 64]; sect. 20 [paras. 8, 65]; sect. 24 [para. 9]; sect. 25 [para. 67]; sect. 28 [para. 68]; sect. 29 [para. 69]; sect. 37 [para. 70]; sect. 42, sect. 43, sect. 44, sect. 45, sect. 46, sect. 47 [para. 71]; sect. 48, sect. 49, sect. 50 [para. 72]; sect. 53 [para. 73]; sect. 81 [para. 74]; sect. 89 [para. 75].

Authors and Works Noticed:

Hogg, P.W., Constitutional Law of Canada (2nd Ed., 1985), pp. 554 [para. 80]; 561, 562 [para. 59].

Lysyk, K.M., "Constitutional Developments Relating to Indians and Indian Lands: an Overview", [1978] Special Lectures of the Law Society of Upper Canada, p. 227 [para. 35].

Counsel:

R. Sugden and A. Roos, for the appellant;

G.S. Snarch and G. Kopelow, for the respondent;

W.B. Scarth, Q.C., and T.D. Marsh, for the Attorney General of Canada;

Howard R. Eddy, for the Attorney General of British Columbia;

J.T.S. McCabe, Q.C., for the Attorney General of Ontario.

This appeal was heard on November 6 and 7, 1985, before Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain, and La Forest, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court of Canada was delivered by Chouinard, J., on March 27, 1986:

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