Want to boost consumer spending in the economy? Get divorced. A family that needs one house suddenly finds itself needing two — not to mention more gas (and maybe even another car) for shuttling the kids from dad to Weekend dad. The unemployed spouse (if there is one) typically has to get a new job, which means paying for daycare, while his or her ex digs deep for alimony and child support. And don’t forget the lawyers’ bills (not that any divorced spouse would).
Emotionally, divorce can be a devastating, life-crushing experience. But its effect on a family’s finances also can be cataclysmic. Indeed, it is one of the three leading causes of bankruptcy in Canada — along with job loss and medical tragedy.
This is something worth keeping in mind when considering Canada’s brand-new Family homes on reserves and Matrimonial Interests or rights Act. In theory, the law will serve a laudable goal: creating fair rules for the divvying up of property when marriages (or lives) come to an end in aboriginal communities. In practice, it will be almost impossible to enforce.
That’s because the vast majority of these communities aren’t rich enough to sustain the resource load that the new law will trigger — especially when it comes to housing. Overcrowding already is common on many reserves, with three or four generations living under the same tiny roof. And even if the money for new homes could somehow be found, the reserves’ Soviet-style collective property ownership structure does not allow for the implementation of normal Canadian family-law principles.
Our divorce laws rely on the existence of a free market: The act of pegging a husband and wife’s respective interests in a family home is based on the presumption that the house could be sold at some baseline fair market value. But on reserves, homes don’t have a fair market value — because there typically is no market. reserve land, which is owned by the Canadian government and held in trust for the band as a whole, can’t be bought or sold. The result is that when marriages dissolve on reserve, the per-
son who gets booted from the home gets nothing, or next to nothing. She simply moves in with a mother, or an aunt, or a grandmother, children in tow.
In a normal Canadian community — the 99% of Canada where we are allowed to buy and sell our homes — the free market accommodates divorce by boosting the housing stock. But on reserves, new homes are built by band council, which then delivers them for free to (in theory) those in need. (In practice, it helps to have a relative on council, or its housing committee.)
There are rarely enough habitable homes to go around. In northwestern Ontario native communities, for instance, conditions are so crowded that some families actually live in the bush during summer months. The highest priority for those few new homes that are available typically is assigned to young families — not to divorced single parents. The new law won’t change this reality.
In recent years, I have written a lot on these pages about the lack of onreserve private property rights. Without private property, I’ve argued, it’s difficult for people to save money for retirement, create mortgage capital for business startups, or to feel motivated to care for their band-provided homes (which is the main reason that residential structures fall apart so quickly on reserves). But the issue of Canada’s Family homes on reserves and Matrimonial Interests or rights Act highlights another advantage of a private-property system: It protects women by giving them a quantifiable, legally identifiable economic interest in a dissolved household.
defenders of the Soviet-style, collectivist land-management system prescribed under the Indian Act say that land privatization would inevitably lead to some reserve land being bought up by white people. And they’re right. But at least in that case, the homes would change hands voluntarily, as a result of freely made transactions between individuals. Isn’t that a lot better than a system that permits women to be thrown out of their homes involuntarily — with nothing?
Like any law that mandates more equitable treatment between natives and non-natives, the Family homes on reserves and Matrimonial Interests or rights Act is a step in the right direction. But ultimately, aboriginals from broken homes won’t have real matrimonial rights until they get another right that the rest of us take for granted: the right to own, buy and sell the land under their feet.