(Tori Cress is facing eviction from her home on the Wahta First Nation)

Editor’s Note: After this story was published, Lawrence Schell’s lawyer Trish Cowie sent APTN National News an email.

“My client has offered to extend the eviction date to November 24, 2016. Further, he has offered to contribute financially toward her rental costs at a new apartment/home.” the email said.

“Tori Cress’ ex-husband, Neil Schell, never held the Certificate of Possession for the property.” she wrote in part. “There is no matrimonial property claim as it pertains to this property.”

“The question we are ultimately asking here is: Is a non-member allowed to come into a First Nation community and dictate what happens with that First Nation’s land? To suggest ‘yes’ is not in line with current laws and I don’t believe there would be much support for such a proposition among First Nations, particularly since there is no matrimonial property claim.”

Holly Moore
APTN Investigates
A single mother living on the Wahta First Nation will be kicked out of her home in two days.

Tori Cress has lived for the last eight years in a house she said she built in the Mohawk community north of Toronto with her ex-husband, Neil Schell, a Wahta member. Cress is a member of the nearby Beausoleil First Nation.

Prior to their divorce in 2013, she said he transferred the house to his father, Lawrence Schell, which left her with no legal claim.

“Three years ago, he had the property surveyed and had it transferred into his father’s name,” she said.

In a letter obtained by APTN investigates, Schell’s lawyer Trish Cowie threatened the family with police action and stated Cress is risking “being charged with offences such as trespass and being unlawfully in a dwelling house,” if she doesn’t leave by Thursday.

“This letter says that I have to be out,” she said. “It says they will be there at 5 pm to change the locks. You can’t just throw somebody out of their home.”

Lawyer extends eviction period after story published.

“My client has offered to extend the eviction date to November 24, 2016.” Schell’s lawyer Trisha Cowie wrote in an email to APTN.

“Further, he has offered to contribute financially toward her rental costs at a new apartment/home.”

Cowie said the case highlights “the many complexities related to native land.”

“Tori Cress’ ex-husband, Neil Schell, never held the Certificate of Possession for the property.” she wrote. “There is no matrimonial property claim as it pertains to this property.”

“The question we are ultimately asking here is: Is a non-member allowed to come into a First Nation community and dictate what happens with that First Nation’s land?” she wrote. “To suggest ‘yes’ is not in line with current laws and I don’t believe there would be much support for such a proposition among First Nations, particularly since there is no matrimonial property claim.”

She admitted that Schell’s son would be entitled to hold a Certificate of Possession because he is a member of the Wahta First Nation but added that he does not hold the certificate to this particular property.

Calls to Cowie have not been returned.

Cress’ case highlights the risks faced by Indigenous women, non-band members, and non-Indigenous people living on First Nations with regard to their matrimonial property rights. Prior to a new law passed in December 2014, the federal Indian Act did not address the division of property when a couple separated — a gap in the law that critics say left many women unprotected and homeless.

The Matrimonial Real Property Act mandates — in part– that both partners have the right to occupy the home and share its value.

Cress said she believes the Wahta chief and council may be retaliating against her because she protested the council, but Chief Philip Franks told APTN in an email that he had “limited knowledge of the situation.”

“It seems she and her former husband were divorced prior to the Matrimonial Real Property act coming into effect.” he said. “Wahta Council is not involved in this situation.”

The chief also pointed out that because the house is on reserve land, Ontario’s Landlord and Tenant Act does not apply.

“If she has been evicted from her residence it is really a civil matter,” he said. “A matter for the landlord to act on at his discretion.”

Cress said she is not leaving and others in the community are planning to support her.  She said she is prepared to blockade the end of her driveway and said community members have promised to help. She said she is currently reaching out to lawyers to try to stay the eviction.

“I’m not going anywhere,” she said adding that her youngest son has special needs. “Routine is key and vital to having a happy home.”

With files from Melissa Ridgen.

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Holly Moore

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