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Does Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

 

Image result for indigenous lawDoes Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

The next chapter in the ongoing legal saga in the case of Beaver v. Hill has arrived – in the form of an Court of Appeal decision which potentially allows an important constitutional question on Indigenous self-governance to get a full hearing before an Ontario court in the future.

We have reviewed in the past about this case, which involves Ken Hill, who is a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve. He is resisting the claims by his former romantic partner, Brittany Beaver, for almost $86,000 a month in spousal support, and $33,000 a month in child support for a child they had together. Hill earns about $2.1 million per year, tax-free.

One of the key issues is whether this Indigenous former couple’s family dispute should be decided under the regular Ontario family laws, or else under the laws that govern their particular clan, which is the Haudenosaunee.  Essentially, Hill claimed that he had an Aboriginal and treaty-based right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee laws. He essentially claimed a constitutional exemption from having the Ontario court and family law processes to determine the dispute between him and Beaver.

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In a prior ruling on a motion, spanning more than 150 paragraphs, the judge dismissed Hill’s constitutional argument that Haudenosaunee laws should be applied to decide Beaver’s support claims.  She ordered those arguments be stricken from his pleadings, and directed that the matter proceed in the usual fashion, under the customary provincial family laws. The judge also addressed several procedural objections as to the adequacy of Hill’s pleadings on the constitutional issue, but refused to give him permission to amend them.

As we reviewed  back in April of this year, Hill had filed an appeal which asserted that the motion judge had been hasty in permanently closing the door to his constitutional challenge at such an early stage in the proceedings.

That appeal has now been heard and – from amidst numerous complex issues – Hill has at least been vindicated in his argument that the motion judge had been premature. The Appeal Court ruled that he should have been given permission to amend what were called his “woefully inadequate” pleadings, especially in light of the seriousness of the constitutional issue raised.   The court said:

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. … 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.

In short:  Even in light of Hill’s shoddy pleadings, a summary motion to have them struck was not the proper way to deal with and dismiss his claims involving Aboriginal and treaty rights.

Instead, the court struck out Hill’s pleading on the constitutional issues, but granted an order allowing him to amend it with permission of another court. It also refused to have Beaver’s support claims halted until Hill’s constitutional challenge was fully resolved; instead, Beaver was allowed to obtain interim support for herself and the child.  This was the best way to balance her immediate financial needs while balancing Hill’s interest in having his constitutional claim determined.

For the full text of the latest decision, see:

Beaver v. Hill

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com