Saskatchewan Court of Appeal confirms per capita distributions may be seized for support arrears

The Saskatchewan Court of Appeal recently confirmed in Peepeekisis Cree Nation v. Whitecalf, 2025 SKCA 89, that per capita distributions paid out of specific claim settlements can be seized in certain circumstances for child support arrears.   

Background 

This case arose following the settlement of Peepeekisis Cree Nation’s agricultural benefits specific claim, relating to Canada’s failure to fulfil its Treaty 4 promise to provide agricultural benefits and instruction. The settlement monies were paid into a trust and eligible members of the First Nation were entitled to receive a per capita distribution, or “PCD,” from the settlement monies. 

One member, Mr. Stonechild, had been previously ordered by the Court to pay child support to Ms. Whitecalf, and he was in arrears. As such, the Maintenance Enforcement Office sought to enforce his Maintenance Order by seizing his PCD on behalf of Ms. Whitecalf. The Maintenance Enforcement Office served a Notice of Seizure of Account on the First Nation. It directed that a portion of his PCD be paid to the Maintenance Enforcement Office for the child support he owed to Ms. Whitecalf, a status Indian. The First Nation disputed the Notice, asserting that the First Nation was not obligated to remit Mr. Stonechild’s PCD to the Maintenance Enforcement Office for the outstanding child support.  

Court of King’s Bench 

The Court of King’s Bench dealt with two issues. The first was whether the First Nation was an “account debtor” of Mr. Stonechid within the meaning of The Enforcement of Maintenance Orders Act, 1997. The First Nation argued that it was not an account debtor because it had no obligation to pay Mr. Stonechild his PCD. The Court disagreed, however, and found that the payment of the PCD to Mr. Stonechild was no longer a discretionary payment once the First Nation’s Chief and Council and the trustees approved the PCD and the PCD payments started being made to other members.  

The second issue was whether Ms. Whitecalf met the definition of an Indian within the meaning of Section 89 of the Indian Act. This issue is important because s. 89 provides that the real and personal property of an Indian or a band situated on a reserve is not subject to seizure in favour of any person other than an Indian or a band. The Court found that Ms. Whitecalf was a status Indian for the purposes of s. 89, and therefore Mr. Stonechild’s PCD could be seized by the Maintenance Enforcement Office on her behalf. 

Saskatchewan Court of Appeal 

The First Nation appealed. The Court of Appeal agreed with the Court of King’s Bench’s determination on both issues. The Court did reiterate that the Maintenance Enforcement Office must include a statement in the Notice of Seizure that the recipient is a status Indian for it to be an effective Notice. It also found that if there is a dispute as to whether an individual is in fact an Indian within the meaning of the Indian Act, the Maintenance Enforcement Office may be required to state the basis for its statement that a person is a status Indian and potentially file evidence, depending on the facts of the case.   

Implications for First Nations 

Section 89 of the Indian Act generally prevents the seizure of the personal property of a status Indian that is situated on a reserve, such as a PCD, unless the seizure is for the benefit of another status Indian or a band. This case confirms that where the recipient of a maintenance order is a status Indian, a PCD may be seized for support arrears using the procedures under the Enforcement of Maintenance Orders Act, 1997. 

Since the Peepeekisis First Nation agricultural benefits settlement in 2023, 27 additional First Nations in Saskatchewan have settled their agricultural benefits specific claims. Since many First Nations choose to pay PCDs from their settlement monies, this case will affect many members who are subject to maintenance orders for child and/or spousal support and who are in arrears.  

If your First Nation is served with a Notice of Seizure in relation to a PCD, the MLT Aikins Indigenous practice group can review the Notice and advise whether it is enforceable and how the First Nation may protect itself from liability. 

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