In a recent child support and spousal support dispute, an Ontario judge ruled against an Indigenous businessman who argued that Haudenosaunee laws should apply in lieu of Ontario family laws in disputes involving Indigenous families.
The parents in question had been in a five-year relationship, beginning in 2008 and ending in November 2013. They had a son in 2009. The father is Haudenosaunee and a member of the Six Nations of the Grand River. He lives on the Six Nations Reserve. The mother and son are also Haudenosaunee and members of the Six Nations but live in the city of Waterloo.
The father is a co-founder and owner of Grand River Enterprises, which manufacturers cigarettes on the Six Nations Reserve, and earns more than $2,100,000 annually, tax-free. The mother has not worked outside of the home since December 2008 and relied on monthly spousal and child support payments from the father.
The mother filed an application for custody, child support, and spousal support, seeking $33,183 per month in child support, and $85,701 per month in spousal support. To secure those payments, the mother also sought to be named the beneficiary of the father’s life insurance policy.
In response to the mother’s application, the father filed a Notice of Constitutional Question indicating his intention to challenge the jurisdiction of the court and the applicability of the Family Law Act to the dispute.
Applicability of Ontario Family Law
In support of his position, the father relied on the “Haudenosaunee right to be subject, [solely] and exclusively, to the family law and child support and parenting processes under Haudenosaunee law”, which relates to the inherent right to self-government recognized and affirmed by the Constitution, and that the Haudenosaunee “have not accepted the imposition of Canadian laws that touch on matters central to their society, namely governance and the application of provincial and federal statutory regimes that infringe on their core identity as a people”.
The father argued that:
- the oral tradition of his people obligated him to abide by Haudenosaunee law and not Ontario and federal family law;
- the operation of both Ontario and federal family law is inconsistent with his culture and the culture of his community;
- extending Ontario and federal family law would not be in the best interests of his child, his family, or Haudenosaunee children generally.
He also advised the court that he had been informed, through oral tradition, that “Ontario and Canadian legal processes have harmed and continue to harm Haudenosaunee children, families and communities”.
The father argued that Haudenosaunee culture and law “prioritize the interests of children and consider the collective community to be responsible for the care, protection and well-being of children”. He acknowledged that the child did not live on the Six Nations Reserve, but emphasized that the child and the mother live within the Haldimand Tract, which is part of the lands originally granted to the people of the Six Nations of the Grand River and never surrendered, and that Haudenosaunee law and legal processes were, therefore, binding on them since they are Haudenosaunee people living within the Haldimand Tract.
The judge found that the Family Law Act, the Children’s Law Reform Act and their related regulations work to promote the public interest. The father failed to demonstrate how exempting him from this legislation (and the precedent that this would set for others in a similar situation) would provide a public benefit. In making this decision, the judge had considered the interests of the Haudenosaunee and the people of the Six Nations as part of her public interest analysis.
The judge further noted that the father had not provided any evidence as to what Haudenosaunee laws or protocols he wanted to rely on in lieu of family law legislation, and did not show how such laws or protocols would benefit the Haudenosaunee people or those of the Six Nations. Instead, the father made broad, sweeping assertions on which he then sought to rely on, including the fact that Haudenosaunee laws and protocols focus on the best interests of the children and that that emphasize the importance of maintaining the children’s connections with their culture.
The judge found that such general assertions were not sufficient, and that, “in the absence of even basic specifics regarding the Haudenosaunee laws and protocols, these assertions are akin to an empty shell”, particularly because the Children’s Law Reform Act also focuses on the best interests of children and requires the court to place significant weight on a child’s Indigenous heritage and the importance of maintaining their connection with that heritage.
This ruling addressed only the father’s constitutional argument and the applicability of Ontario family law. It did not make any orders with respect to the mother’s requests for support. We will continue to follow developments in this case and will provide updates as they become available.
In the meantime, if you have questions about child support or spousal support, or anything else pertaining to separation or divorce contact Gelman & Associates. Our knowledgeable, results-oriented lawyers seek to empower clients to make informed decisions following the breakdown of a relationship. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process. In order to be accessible to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.