Appeal Court Allows Father to Pursue Claim that a Family Law Dispute Should be Resolved Under Indigenous Law, Not Ontario Law


By Written on behalf of Campbell Bader LLP

As part of an ongoing family law dispute, the Ontario Court of Appeal has recently opened the door to a potentially novel constitutional claim regarding Indigenous self-governance that could impact future family law disputes in Ontario and beyond.

The Facts

The parents at the centre of this case were in a relationship from 2008 to 2013 and have one child, born in 2009. The father is co-owner of a large cigarette company with an income of over $2 million per year, which is non-taxable due to his Indigenous status. Both parents are Haudenosaunee and are members of Six Nations of the Grand River.

After their separation, the mother sought spousal support in the amount of $33,000 per month and close to $85,000 in monthly spousal support based on child support and spousal support guidelines. Her applications for custody, spousal support and child support were made under the Ontario Children’s Law Reform Act (“CLRA”), Family Law Act (“FLA”), and associated rules and practices.

The father responded by filing a notice of constitutional question challenging the jurisdiction of the Superior Court and the applicability of the CLRA and FLA. He claimed that he had an Aboriginal and treaty right to have the family law dispute resolved pursuant to Haudenosaunee law, which is protected by s. 35 of the Constitution Act, 1982. In essence, he claimed that he was subject to a constitutional exemption from the application of Ontario family law and the jurisdiction of the Superior Court to determine the parties’ dispute. He moved for an order dismissing the mother’s family law application, or, in the alternative, for an order staying her application for interim relief in order to allow his constitutional challenge to proceed first.

The motion judge granted the mother’s motion and dismissed the father’s constitutional claim, without giving him leave to amend his argument. She held that the Superior Court had jurisdiction to hear the case and that Ontario laws applied.

The father appealed.

The Decision

The Court of Appeal addressed several issues raised in this case, including whether it was appropriate for the motion judge to strike the father’s constitutional claim without leave to amend and whether the mother’s family law claims should be stayed pending the disposition of the constitutional claims.

Regarding the father’s constitutional argument, the appeal court generally agreed with the motion judge that the father’s pleadings were “woefully inadequate” and contained several deficiencies. However, the appeal court disagreed with the motion judge’s decision to not give the father leave to amend the answer in relation to the constitutional claim. It found this to be an error in principle considering the circumstances of the case, and stated that there is a general right to amend pleadings as long as there is no prejudice. A court should consider whether an amendment can correct a deficiency in the pleadings. The appeal court stated “the motion judge ought to have considered whether [the father] should be given the opportunity to further amend the answer in an effort to address the serious deficiencies.”

As a result, the Court of Appeal granted an order to allow the father to amend his pleadings on the constitutional claim, to be heard by a Superior Court at a later date.

With regard to the mother’s support claims, the appeal court decided that the mother’s family law claims should not be stayed pending the disposition of the father’s constitutional claims. Therefore, the father is obliged to continue interim payments until his other claims are heard.

Further Implications

This case allowed the father to return to the Superior Court and make his constitutional claim regarding the applicability of Ontario law to a family dispute. His argument regarding his constitutional right to have the dispute resolved pursuant to Haudenosaunee law could have far-reaching implications if he is successful.

Get Advice

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you contact us online or at 905-828-2247.


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