Case Involving Wealthy Indigenous Businessman is Testing Appeal Court’s Patience
For those of you following the continuing saga in the Beaver v. Hill case, it looks like the courts’ collective patience for the seemingly-endless volley of litigation tactics is growing thin.
We have provided coverage of only some of the prior court rulings in this case’s protracted history here and here, and here.
The litigants are Ken Hill, a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve, and his former romantic partner, Brittany Beaver. At the outset of the litigation, she asked the court to order Hill to pay 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. The matter has since become bogged down in various procedural and tactical legal wrangling between the parties, requiring numerous court appearances.
In the most recent one before the Court of Appeal, the three-member panel was asked to rule on several esoteric arguments – all of which were dismissed outright. In doing so, Justice Brown on behalf of a unanimous Appeal Court wrote:
The history of this litigation has been described in decisions of this court and the Superior Court of Justice: 2018 ONCA 816 (CanLII), 428 D.L.R. (4th) 288; 2017 ONSC 7245 (CanLII); 2018 ONSC 7138 (CanLII), 144 O.R. (3d) 46. It need not be repeated.
In its October 12, 2018 reasons, this court, at para. 78, described the procedural history of this matter and issued the following caution and direction:
This case has developed into a procedural morass, to which both sides have contributed. A phalanx of lawyers appeared before us. The parties have made no effort to save expense or time as required by [the Family Law Act (“FLA”)]. Their tactics have led to a proliferation of materials, skirmishes and arguments that the Rules seek to avoid. This must not be permitted to continue.
[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]
Last August, Pazaratz J. was designated as the case management judge for the FLA Proceeding. In his November 27, 2018 Settlement Conference endorsement, he made two comments, neither of which disclosed the content of the settlement discussions, but both of which described the conduct of the parties in this litigation. He wrote:
I am led to conclude that cumulatively there is little indication of good faith efforts being made by anyone.
I have no control over what happens with respect to appeals, but I would ask that any judges hearing any pending appeals be mindful of the absolute frustration being experienced at this level. These parties just want to litigate, and as a judicial system we need to be delivering a consistent message that we’re not going to tolerate or facilitate such a wasteful and destructive approach to important and sensitive family law issues.
On January 16, 2019, at the conclusion of a third full day of conferencing, Pazaratz J. wrote:
At the end of three long days in October, November and now today, I have advised counsel that I am of the view that there is no demonstrated desire or intention to resolve any issues or even narrow the issues.
Given those comments by the case management judge, it is evident that the parties have not listened to this court’s caution nor followed its direction. That is the background to the three matters argued before this court on June 6, 2019.
After a detailed ruling on several points of appeal, Justice Brown dismissed them all and added the following:
- FINAL COMMENT
I conclude with a comment about the process that has brought these two appeals before us. As mentioned, in its October reasons this court stated that this case has “developed into a procedural morass.” Both appeals are examples of that morass. In both appeals, Mr. Hill has attempted to challenge orders made below by resorting to indirect, convoluted procedural tactics, instead of taking the direct routes of review open to him under the Family Law Rules and Rules of Civil Procedure. Such tactical indirectness not only drives up the parties’ legal fees, it also delays bringing certainty to the life of a 9-year old boy whose best interests seem to have been completely lost in the high conflict litigation battle between his father and mother.
I repeat what this court directed eight months ago: “This must not be permitted to continue.”
It is a fundamental principle of our Canadian justice system that everyone is entitled to his or her “day in court”. The parties in Beaver v. Hill have now had dozens and dozens of days. The courts tasked with presiding over those hearing days seem to be collectively saying: “enough’s enough”.
For the full text of the latest decision, see:
Beaver v. Hill, 2019 ONCA 520 (CanLII)
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