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We previously blogged about a contentious child support and spousal support dispute, in which an Indigenous father argued that band law should apply in lieu of Ontario family law where disputes involved Indigenous families. The original trial judge disagreed with the father’s position, and the father appealed further. The appeal is scheduled to be heard in a few weeks, but, in the meantime, the Court of Appeal has released an interim decision on a related sub-issue.

What Happened?

The mother at issue brought an application for custody, child support, and spousal support in late 2015. The father in question, opposed her application and sought an order declaring that Ontario courts lack the jurisdiction to determine any support obligations he might have towards the mother and their child. The father’s motion was dismissed, and the father appealed.

The Dismissal

The original motion judge found that Ontario law is applicable in this case.

The judge noted that provincial legislation, including the Family Law Act, the Children’s Law Reform Act, and related regulations, exist to promote the public interest. Here, the father in question, who is Haudenosaunee and a Member of the Six Nations of the Grand River and lives on the Six Nations Reserve, had not adequately demonstrated how exempting him from Ontario’s laws would provide a public benefit, and moreover, how the precedent set by such a decision would serve the broader public interest.

In addition, the father had not provided any evidence about which laws or protocols he wished to rely on instead of provincial legislation. Instead, he made broad assertions on which he sought to rely, including the fact that Haudenosaunee laws and protocols focus on the best interests of the children and the fact that he wanted to maintain his children’s connection with their culture.  The judge found these arguments to be insufficient, especially since the CLRA also makes the best interests of the children, including maintaining their connection with Indigenous heritage, a fundamental consideration.

The father’s Court of Appeal hearing on this issue is scheduled in early June. In the interim, the mother filed a motion seeking an order that the father pay her advance costs for responding to the appeal and requesting $100,000.

The Father’s Position

The father served the mother with a notice of examination, which required her to provide relevant documents including retainer agreements with her lawyers and records of all amounts she had paid to them. The father indicated he would also be asking the mother about efforts she had made to obtain legal funding from other sources and how much she would be willing to contribute to fund her response to the appeal.

The Mother’s Position

The mother argued that the father had previously been provided with her financial disclosure and had never questioned anything. In addition, she argued that her limited financial means “have been, as they should be, non-controversial”, and that “there is no legitimate debate that [the father] is far, far wealthier than [her] and that there is no level playing field between the parties in this case.” According to the mother, her annual income is slightly less than $20,000, whereas the father’s annual net income (as of 2016) was over $2 million.

In addition, the mother argued that the father should not be granted relief while himself in breach of a court order. She argued that the father had never complied with a January 2018 order which had obligated him to provide a full and properly completed Financial Statement and to produce specific documents about his finances, or to provide reasons why he was unable to provide such information.

The mother noted that, to date, the father had not made the ordered disclosure nor had he produced an affidavit explaining why he could not have done so. Instead, he had filed a motion seeking to extend the deadlines of the order and to expand its scope.

The Court of Appeal

The Court of Appeal noted that there were two competing principles at play with respect to the father’s request for an order compelling the mother to submit to cross-examination:

  • The right of a party to cross-examine someone who swore an affidavit (in respect of this, the Court of Appeal was careful to highlight that courts retain an inherent power to control their own processes, and in cases where it appears to be in the interests of justice, a court can refuse to allow a cross-examination to take place, or can restrict its scope);
  • The ability of the court to decline to entertain a party’s request for help where that party is not in compliance with a court order.

The Court of Appeal went on to note that the father in this case had not complied with the January 2018 Disclosure Order. Even though he was seeking to vary the content of that order “that does not change the fact that he has not complied with it and that [a judge] refused to stay its operation”.

The Court went on to say:

Full and prompt financial disclosure is a key element of this province’s family law regime. The failure to comply with court-ordered disclosure is a most serious matter…[i]n such circumstances, I am not prepared to accede to [the father’s] request for an order compelling [the mother] to attend for cross-examination on her affidavit.

The Court concluded that it was not prepared to accede to the father’s request for an order compelling the mother to attend for cross examination and dismissed the request.

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. 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. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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