Question Of Whether Indigenous Law Can Govern Family Law Disputes Continues To Work Its way Through The Courts

Written on behalf of Arbesman Hamilton LLP

The Ontario Court of Appeal has recently issued the latest decision in a family law case that has become focused on whether family law disputes can be settled by First Nations laws.

The background

The mother and father involved in the dispute are members are Haudenosaunee and members of the Six Nations of the Grand River, the largest First Nations community in Canada, located in Ontario. They were in an intimate relationship from August 2008 to 2013. The relationship produced on child, born in 2009.

The dispute revolves largely around child support and spousal support payable by the father to the mother. The father is the co-owner of a large cigarette company on the reserve, making about $2.1 million annually. The mother was seeking $86,000 per month in spousal support and $33,000 per month in child support.

A constitutional claim

At an earlier trial, the father claimed he had a constitutional right under s.25 of the Constitution Act, 1982, entitling him to have the matter resolved under Haudenosaunee law rather than the courts of Ontario. The mother asked the motion judge to declare the Superior Court of Ontario as having jurisdiction to deal with the issues, an order striking the amended answer, and an order staying the father’s constitutional challenge. The motion judge, having seemingly decided the constitutional issue, did not allow the father to amend an answer in relation to claim, which was dismissed. The father appealed both the refusal of the motion judge to allow the amendment as well as the denial of the claim.

The court quickly decided to allow the amendment before moving on to the meatier questions around whether the father should have the opportunity to pursue his constitutional claim.

On appeal

The motion judge’s decision not to allow the constitutional question was ruled an error. While the court stopped short of allowing the father’s constitutional claim, it did determine that he should be entitled with the opportunity, writing

“The version of (the father’s) amended answer considered by the motion judge was poorly pleaded and lacking in detail. Neither (the father’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 (father) 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 (the father’s) claim under s. 35 of the Constitution Act, 1982at this early stage of the proceeding. It would be unwise to dismiss the claim summarily on such a scanty record.”

While the court did decide to allow the father the pursue his constitutional claim, it also ordered him to pay interim support in the meantime.

We will be sure to update you as this case works its way through the courts.

The ending of a relationship is a difficult time, fraught with emotions. The outstanding lawyers at Arbesman Hamilton LLP approach matters of separation, divorce, support, and child custody with compassion and experience. We understand how difficult a time this can be, and look to resolve matters in a quick, cost-effective manner that is free of any unnecessary litigation. Please call us at 416-481-5604 or reach us online to see how we can help you today.