Court Cases & Orders

Should Family Law Claims Involving Indigenous Couples Be Governed by Indigenous Law?

Written by Russell Alexander / (905) 655-6335

In an uncommon recent Ontario family decision, the issue was whether a former couple of Indigenous heritage should have their family dispute governed by the laws that govern their particular clan, rather than by the family laws of Ontario.

The man was a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve, earning over $2.1 million per year tax-free.  He faced claims for child and spousal support from a woman with whom he had an 8-year-old son. She was claiming almost $86,000 per month in spousal support and $33,000 per month in child support.

In a court hearing, the man argued that since he was part of the Haudenosaunee people, his family law dispute should be governed by Haudenosaunee laws, not by the usual Ontario family law.  He asserted that the Indigenous people had an inherent right to self-government, including the resolution of family law issues, and that for the Ontario court to apply a different law to them was a violation of the constitutional rights of the Indigenous.

(Incidentally, the woman disagreed with the man’s position, pointing out that she and her son are Tuscarora, but were not culturally Haudenosaunee.   They had neither a clan, an Indigenous name from a Clan Mother, nor a Long House that they attended on a regular basis. She was content to have the usual Ontario family laws govern their dispute).

After hearing and examining the man’s argument in detail, the court rejected his position.  The court was entitled to assume that the Ontario Family Law Act and the Children’s Law Reform Act, along with their associated Regulations, were all designed to promote a public interest; this meant that the man had to demonstrate how exempting him from the legislation’s operation would benefit the public (among other things).  The court found that he had completely failed to do so, adding:

 In the absence of even basic specifics regarding the Haudenosaunee laws and protocols that he is relying on, these assertions are akin to an empty shell.  This is particularly so given that the Children’s Law Reform Act likewise focusses on the best interests of children, and requires the court to give significant weight to a child’s aboriginal heritage and the importance of maintaining connections with that heritage. 

What are your thoughts? Should Indigenous people be governed only by Indigenous law?

For the full text of the decision, see:

Beaver v. Hill




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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.