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The Ontario Court of Appeal recently added a chapter to the ongoing legal dispute between two Indigenous parents involved in a highly contentious battle over child support and spousal support.

With this latest decision, the Court has potentially opened the door for a full hearing on the fundamental question of Indigenous self-governance, Treaty rights and constitutional issues to take place, something which has the potential to impact a large number of family disputes involving Indigenous parties going forward.

The Parties

As we’ve previously blogged about, the parties in question had been involved in a five-year relationship which ended in 2013, and which produced one child (a son, now approximately 9 years old). Both parties are Haudenosaunee and members of the Six Nations of the Grand River. The father lives on the Six Nations Reserve, while the mother and son live in Waterloo.

The father is the owner of Grand River Enterprises, a massive corporation which distributes cigarettes globally. He earns in excess of $2 million CAD annually (tax-free, due to his Indigenous status). The mother relies on him for support.

Previous Proceedings

In the wake of the parties’ separation, the mother sought more than $33,000 monthly in child support and more than $85,000 in monthly spousal support, based on child support and spousal support guidelines, and the father’s annual income.

In response to this, the father had filed a Notice of Constitutional Question indicating his intention to challenge the jurisdiction of an Ontario court over this dispute and arguing that Haudenosaunee clan law should apply instead of Ontario’s family laws to this dispute, and all other disputes involving Indigenous families.

A judge disagreed with the father and ruled against him finding that Ontario law is applicable in this case.

The father subsequently appealed, arguing that the judge had too soon eliminated his option to file a constitutional challenge as it was such an early stage of proceedings between the parties.

The Court of Appeal

In this latest decision, the Court of Appeal analyzed a number of complex and inter-related issues, finding, among other things, that it had been premature for the motion judge to close off the option of a constitutional challenge at this juncture.

The Court of Appeal found that the motion judge had noted that the father’s position with respect to his constitutional claim had been “woefully inadequate” and had contained a number of deficiencies. The Court of Appeal agreed with the motion judge’s assessment of the father’s position, but noted that the motion judge’s refusal to allow the father to amend his position was an error in principle, finding:

The version of Mr. Hill’s amended answer considered by the motion judge was poorly pleaded and lacking in detail. Neither Mr. Hill’s pleading, nor the ramshackle way in which the constitutional claim was asserted and is being developed, does justice to the seriousness of the claim. The appellant provided this court with a draft “Amended Answer and Claim,” which would amend extensively the version considered by the motion judge. Nonetheless, as I will explain, it was premature to dispose of the constitutional claim at this early stage. It is difficult to evaluate Mr. Hill’s claim under s. 35 of the Constitution Act, 1982 at this early stage of the proceeding. It would be unwise to dismiss the claim summarily on such a scanty record.

The Court of Appeal ultimately permitted the father to seek leave before another Superior Court justice to amend his position and address the deficiencies identified by the motion judge.  This essentially opened the door for the father to again pursue his constitutional challenge, and for the ultimate decision in this matter to potentially be governed by Indigenous laws in an alternative, out of court setting, instead of by an Ontario court applying Ontario laws. Depending on how this matter proceeds going forward, this may have a

The Court of Appeal further noted that the mother would also be permitted to pursue any other remedy open to her while the father’s constitutional challenge was pending, noting that:

This would properly balance the contending interests: Ms. Beaver’s immediate interest in obtaining interim support for herself and B., and Mr. Hill’s interest in having the constitutional claim determined.

We will continue to follow developments in this matter as the case proceeds. In the meantime, if you have questions about child support or spousal support, or other matters related to separation or divorce contact Gelman & Associates. Our Toronto family lawyers seek to empower each of our clients to make informed decisions following the breakdown of their common law relationship or marriage. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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