Court of Appeal for Ontario
Date: October 12, 2018 Docket: C64766
Justices: Lauwers, van Rensburg and Nordheimer JJ.A.
Between
Brittany Beaver Applicant (Respondent)
and
Kenneth Hill Respondent (Appellant)
Counsel
For the appellant: Chris G. Paliare, Bryan R.G. Smith, and Andrew K. Lokan
For the respondent: Harold Niman, Martha McCarthy, Sarah Strathopolous, Joanna Radbord, and Scott Byers
For the Attorney General of Ontario, intervenor: Manizeh Fancy and Estée L. Garfin
Heard
September 11, 2018
On Appeal
On appeal from the order of Justice D.L. Chappel of the Superior Court of Justice, dated December 8, 2017, with reasons reported at 2017 ONSC 7245, 4 R.F.L. (8th) 53, and costs reasons reported at 2018 ONSC 3352, 8 R.F.L. (8th) 288.
Reasons for Decision
Lauwers J.A.:
[1] Background and Parties
[1] Brittany Beaver and Kenneth Hill are Haudenosaunee and are members of the Six Nations of the Grand River. They were in an intimate relationship from 2008 to 2013. Together, they had one child – B., who was born in August 2009.
[2] In the order under appeal, the motion judge struck out Mr. Hill's amended answer and dismissed the constitutional claim he brought under s. 35 of the Constitution Act, 1982, to have the parties' family law dispute decided through "Haudenosaunee governance processes and protocols and according to Haudenosaunee laws." Under the motion judge's order, Ms. Beaver's application for custody, spousal and child support would proceed in the ordinary course under the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA") and Family Law Act, R.S.O. 1990, c. F.3 ("FLA") and associated rules and practices, without regard to Mr. Hill's constitutional claim.
[3] For the reasons set out below, I would allow the appeal in part. I would dismiss Ms. Beaver's motion before this court to dismiss the appeal as an abuse of process.
A. The Proceedings to Date
[4] In December 2015, Ms. Beaver brought an application for B.'s custody under the CLRA and child and spousal support under the FLA. Mr. Hill filed an answer and defence in the usual form in February 2016. However, in March 2016, he filed a notice of constitutional question challenging the jurisdiction of the Superior Court, as well as the applicability of the CLRA and FLA, on the basis that he had an Aboriginal and treaty right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee law. He claimed what might be characterized as a constitutional exemption from the application of Ontario family law and the jurisdiction of the Superior Court to determine the parties' dispute. Mr. Hill also gave notice of his constitutional claim to the Chief of the Six Nations and to the Haudenosaunee Confederacy Council but neither has taken steps to intervene or participate.
[5] In pursuit of the constitutional question, Mr. Hill filed an amended answer consistent with his constitutional claim. He moved for an order dismissing Ms. Beaver'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.
[6] Ms. Beaver moved for interim spousal and child support. She sought additional relief including:
(i) a declaration that the Superior Court has jurisdiction to deal with the family law issues raised by the parties;
(ii) an order striking the amended answer; or
(iii) an order staying Mr. Hill's constitutional challenge.
[7] The motion judge granted Ms. Beaver's motion and dismissed Mr. Hill's stay motion. She held that the Superior Court had jurisdiction to hear the family law dispute. She struck Mr. Hill's amended answer without leave to amend and dismissed his claim under s. 35(1) of the Constitution Act, 1982. The motion judge left Mr. Hill to decide whether to proceed with a conventional answer as he suggested he might do in his amended answer.
[8] Based on the appellant's non-taxable income in 2014 of $2,109,000, by order dated May 28, 2018, Sloan J. required the appellant to pay $33,183 per month interim child support, and 100% of the s. 7 expenses.
B. Overview
[9] It is axiomatic that a person who has a constitutional right has the right to assert it in ordinary legal proceedings subject to the limitations in the jurisprudence to which I will refer later.
[10] The constitutional issue to which Mr. Hill's claim gives rise is whether s. 35 of the Constitution Act, 1982, together with any applicable treaties, completely displace or otherwise modify the application of the FLA, the CLRA and associated rules to this family law dispute between Indigenous parties who live in Ontario. This is a complex legal issue with serious implications for the immediate parties and more broadly.
[11] The Superior Court of Justice has jurisdiction to decide the constitutional issue. It is a court of inherent and plenary jurisdiction, and has authority over disputes between citizens and residents subject to the provisions of legislation and the Constitution, with associated rights of appeal: Canada (A.G.) v. Law Society of British Columbia, [1982] 2 S.C.R. 307 at pp. 326-27. This appears to be trite law and is now common ground on the appeal, although the appellant at first instance mounted a comprehensive challenge to the jurisdiction of the Superior Court, including its ability to make any order in the family law proceedings in the face of his s. 35 claim.
[12] The prospective delay in resolving Mr. Hill's constitutional claim added urgency. Ms. Beaver needed support for herself and B., and Mr. Hill's proposed stay would have exempted him from any obligation to pay support under provincial law while the constitutional claim proceeded. He implicitly recognized how untenable that position was by undertaking to pay support voluntarily at the rate of $10,000 monthly, considerably less than the amount required by the applicable Ontario guidelines.
[13] 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. The appellant 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 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.
[14] In the end result, I would permit Mr. Hill to seek leave before another Superior Court judge to amend his answer to address the motion judge's criticisms of his pleading and the requirements of the jurisprudence. I would refuse to stay the interim support order and would permit Ms. Beaver to pursue any other remedy open to her short of a final order while the constitutional challenge is pending. This would properly balance the contending interests: Ms. Beaver's immediate interest in obtaining interim support for herself and B., and Mr. Hill's interest in having the constitutional claim determined.
C. The Issues
[15] The appeal raises the following issues:
Should conflict of laws concepts be applied to determine whether the Superior Court had jurisdiction over Mr. Hill?
Was it appropriate for the motion judge to strike Mr. Hill's constitutional claim without leave to amend?
Does Mr. Hill have standing to assert the constitutional claim, and is it justiciable?
Was Mr. Hill entitled to a stay of Ms. Beaver's family law claims pending disposition of his constitutional claims?
D. Analysis
[16] I address each issue in turn.
(1) Should conflict of laws concepts be applied to determine whether the Superior Court had jurisdiction over Mr. Hill?
[17] I agree with the appellant and with the Attorney General of Ontario that it was an error of law for the motion judge to take into account general conflict of laws principles in her analysis of the jurisdiction issue raised by the appellant. These principles do not provide an apt framework for reconciling Aboriginal rights with the family law of Ontario. For the purpose of applying s. 35 of the Constitution Act, 1982, Aboriginal rights or Indigenous law do not constitute "foreign law", even conceptually.
[18] I note here, to be fair, that the appellant's approach to the motions at first instance was to deny that the general common law rules respecting jurisdiction apply where the challenge is founded on a s. 35 right. The motion judge described the appellant's assertion, at para. 37, that it was premature for the court to issue a declaration respecting jurisdiction at that stage, in the absence of "a full and fair hearing of [the appellant's] aboriginal rights case on the merits, … [which] can only occur in this case if the court has the benefit of a complete evidentiary record respecting relevant current and pre-European contact practices, customs and traditions of the Haudenosaunee and the people of the Six Nations." This might explain the motion judge's resort to the concept of "attornment". In any event the appellant conceded on appeal the plenary jurisdiction of the court.
(2) Was it appropriate for the motion judge to strike Mr. Hill's constitutional claim without leave to amend?
[19] The motion judge found Mr. Hill's amended answer to be woefully inadequate with respect to his constitutional claim. I generally agree with the motion judge's analysis of the deficiencies in the amended answer, at paras. 76-92 of the reasons.
[20] The motion judge did not give Mr. Hill leave to amend the answer in relation to the constitutional claim, presumably on the basis that she had dismissed it. In the circumstances of this case, this was an error in principle. There is a general right to amend pleadings absent non-compensable prejudice: r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; r. 11 of the Family Law Rules, O. Reg. 114/99. Even where the motion is to strike the pleading for failure to disclose a cause of action, the court should consider whether an amendment could remedy the deficiency: Spar Roofing and Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, 348 O.A.C. 330, at para. 37. Even in this case, where the appellant had already amended his answer, the motion judge ought to have considered whether he should be given the opportunity to further amend the answer in an effort to address the serious deficiencies she identified.
[21] As noted, the appellant provided this court with a draft "Amended Answer and Claim." It is not our role to decide whether the draft passes pleadings muster. That decision lies with the Superior Court of Justice on a proper motion. But I will make occasional references to it in these reasons because it clarifies somewhat the appellant's constitutional claim.
(3) Does Mr. Hill have standing to assert the constitutional claim, and is it justiciable?
[22] The issues of standing and justiciability are best addressed together because the motion judge's logic for her disposition of both stems from the same root: in her view Mr. Hill impermissibly makes a comprehensive claim to self-government for the particular Aboriginal community, the Haudenosaunee, to which he, Ms. Beaver and B. belong by blood.
[23] As I will explain, the motion judge's decision that Mr. Hill does not have standing to assert the claim he is making and that it is not justiciable cannot be sustained on the record before us. This is a determination that should usually (but not invariably) be made on the basis of evidence, as the Supreme Court jurisprudence urges.
(a) The Motion Judge's Reasons
[24] The motion judge characterized Mr. Hill's constitutional claim under s. 35(1) of the Constitution Act, 1982, at para. 100, as a "broad claim" to have his family law dispute dealt with "through Haudenosaunee processes and laws." She concluded, at para. 99, that Mr. Hill did not have standing to make the claim, and dismissed the constitutional claim. She added a second reason, at para. 122, that the constitutional claim was not justiciable.
[25] On the standing issue, the motion judge noted the uncertainty in the law regarding the right of an individual member of an Aboriginal community to pursue personally a claim based on Aboriginal rights: paras. 96-97. She rejected Mr. Hill's argument that his claim "is essentially individual in nature": para. 98. She noted that:
[H]is claim is in essence that the Haudenosaunee and the people of the Six Nations as a collective group, or as two separate communities, have an inherent right of self-government with respect to the management, adjudication and resolution of inter and intra-familial disputes, and that he as an individual member of these communities is entitled to avail himself of the benefit of that right.
She added, at para. 99:
The Respondent's attempt to describe his claim as being purely individual to him does not in my view make sense given that aboriginal rights derive from practices, customs and traditions that are integral to the distinctive culture of the collective community. Furthermore, if he were to succeed in advancing such a broad right to be governed by Haudenosaunee adjudicative processes and laws, the decision would have precedential value for all other Haudenosaunee peoples, which would in essence render any established right a communal one. …The notion that an individual member of an aboriginal group can on their own initiative and for their sole benefit seek to define the content of broad Haudenosaunee rights of self-government in Family Law matters is simply not tenable.
[26] On justiciability, the motion judge again characterized Mr. Hill's claim as essentially a claim to self-government. She noted, at para. 123, that courts cannot adjudicate "upon claims involving broadly framed rights of self-governance." She referred, at para. 124, to Lamer C.J.'s statement "that aboriginal rights claims to self-government, if they exist, are "not cognizable under s. 35(1)" if they are cast in overly broad terms": Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 170. She also cited this court's decision to the same effect in Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, 2007 ONCA 814, 231 O.A.C. 113 (at paras. 18 and 47), leave to appeal to the S.C.C. denied, [2008] S.C.C.A. No. 35.
[27] The motion judge analyzed and rejected Ms. Beaver's argument that some of the claims Mr. Hill makes in his answer should be struck as incompatible with Crown sovereignty, at paras. 108-121. Although I do not necessarily agree with the text of every paragraph in her reasons on this point, in my view she correctly refused to strike the amended answer on this basis.
(b) Discussion
(i) The Governing Principles
[28] I pick out five relevant principles from the jurisprudence. First, courts have been instructed to keep in mind the basic purpose of s. 35(1) of the Constitution Act, 1982, which is "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown": per Lamer C.J. in R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 31, see also Delgamuukw, at para. 186, and Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 17. Proceedings in this area call for "a measure of flexibility not always present" in ordinary litigation: Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 [2011] 3 S.C.R. 535, at para. 46.
[29] Second, because we are still feeling our way in this delicate area, courts should avoid making definitive pronouncements where a case is in the early stages and where the applicable law is yet in the early stage of development: Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 32 and 35.
[30] Such caution is consistent with the decision in Lax Kw'alaams Indian Band. Binnie J. noted, at para. 11, that Aboriginal and treaty claims are complex. They are best suited to civil actions for declaratory relief, where there are pleadings, pre-trial discovery and "procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues." He added an important caution:
Such potential advantages are dissipated, however, if the ordinary rules governing civil litigation, including the rules of pleading, are not respected. It would not be in the public interest to permit a civil trial to lapse into a sort of free-ranging general inquiry into the practices and customs of pre-contact Aboriginal peoples from which, at the end of the day, the trial judge would be expected to put together a report on what Aboriginal rights might, if properly raised in the pleadings, have been established.
The pleadings play an important role in defining the issues.
[31] Third, Binnie J. concluded his observations in Lax Kw'alaams Indian Band with a clear direction, at para. 12: "The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders." This direction should give courts some pause before employing summary processes such as pleadings motions to dismiss claims involving Aboriginal and treaty rights.
[32] Fourth, the four-stage structure for analyzing s. 35(1) claims was set out by the Supreme Court in Lax Kw'alaams Indian Band, at para. 46. The decision built on the framework initiated in R. v. Sparrow, [1990] 1 S.C.R. 1075 and developed further in Van der Peet. This structure would apply with necessary modifications to Mr. Hill:
First, at the characterization stage, identify the precise nature of the First Nation's claim to an Aboriginal right based on the pleadings. If necessary, in light of the evidence, refine the characterization of the right claimed on terms that are fair to all parties.
Second, determine whether the First Nation has proved, based on the evidence adduced at trial:
(a) the existence of the pre-contact practice, tradition or custom advanced in the pleadings as supporting the claimed right; and
(b) that this practice was integral to the distinctive pre-contact Aboriginal society.
Third, determine whether the claimed modern right has a reasonable degree of continuity with the "integral" pre-contact practice. In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice? At this step, the court should take a generous though realistic approach to matching pre-contact practices to the claimed modern right. As will be discussed, the pre-contact practices must engage the essential elements of the modern right, though of course the two need not be exactly the same.
[33] The fourth stage is to consider whether any infringement of the right established on the evidence could be justified.
[34] Finally, how the individual and collective aspects of Aboriginal and treaty rights are to be reconciled practically in live litigation like this case is an unresolved issue.
[35] In Behn, the Supreme Court considered when and how an individual might personally claim the shelter of a communal constitutional right under s. 35, which is the issue we face here. While acknowledging, at para. 31, that the duty to consult is "owed to the Aboriginal community" and cannot be asserted by an individual, the court resisted the invitation of intervenors to classify or categorize "Aboriginal or treaty rights" into those that are "exclusively collective", those that are "predominantly individual" and those that are "mixed": paras. 34-35.
[36] The analysis is subtle, and can best be seen by considering together several passages. LeBel J. noted the Crown's argument, at para. 33, "that claims in relation to treaty rights must be brought by, or on behalf of, the Aboriginal community." He rejected this argument: "This general proposition is too narrow." While accepting that "Aboriginal and treaty rights are collective in nature", LeBel J. left the door ajar for individuals to assert or protect such rights:
However, certain rights, despite being held by the Aboriginal community, are nonetheless exercised by individual members or assigned to them. These rights may therefore have both collective and individual aspects. Individual members of a community may have a vested interest in the protection of these rights. It may well be that, in appropriate circumstances, individual members can assert certain Aboriginal or treaty rights, as some of the interveners have proposed.
[37] LeBel J. noted, at para. 35, that despite the "collective aspect of Aboriginal and treaty rights, rights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour." Consequently, he observed: "it could be said that these rights might belong to them or that they have an individual aspect regardless of their collective nature."
[38] The Supreme Court was not required in Behn to make a definitive ruling on how the individual and collective aspects of Aboriginal and treaty rights are to be reconciled practically in live actions because the case, which was about fishing rights, was decided on the ground of abuse of process. But the court's observations are instructive.
(ii) The Principles Applied
[39] Mr. Hill has no authority to pursue a constitutional claim on behalf of the Haudenosaunee or the people of Six Nations. He is not a "representative plaintiff". However, this is not necessarily fatal to Mr. Hill's personal claim to have the parties' family law dispute decided through "Haudenosaunee governance processes and protocols and according to Haudenosaunee laws." Consistent with LeBel J.'s observations in Behn, some Aboriginal and treaty rights might be capable of being asserted by an individual. The claim Mr. Hill makes could fall into that category, depending on how the evidence unfolds.
[40] The Sparrow framework requires the court first to characterize the Aboriginal and treaty claim, and then to refine it if necessary. This can only be done by looking at the pleading, which has changed significantly.
A Moving Target?
[41] Earlier, I made the observation that Mr. Hill's claim had been pursued in a ramshackle way. Counsel for Ms. Beaver argues that Mr. Hill continues to present a moving target, which changes as success eludes him. It could be said that his position is evolving as his lawyers grasp more clearly the full implications of his claim and what he will need to prove in order to be successful. The case we are asked to consider is not the same as the one before the motion judge.
[42] The case has changed in two ways. First, as I have already observed, the thrust of Mr. Hill's argument to the motion judge was that the Superior Court had no jurisdiction over this family law dispute, based on s. 35 of the Constitution Act, 1982. The Superior Court's undoubted jurisdiction is now conceded by Mr. Hill. Second, Mr. Hill insisted before the motion judge that he was asserting an essentially individual claim, although his pleading could arguably be characterized as a claim to "self-government". Mr. Hill's draft amended answer clarifies his claim somewhat.
[43] I proceed by considering first the amended answer before the motion judge and then the draft amended answer filed with this court.
The Amended Answer Assessed by the Motion Judge
[44] In the amended answer Mr. Hill began by describing the dispute as one "concerning quantum of child support" and whether he has "any spousal support obligations" to Ms. Beaver.
[45] In relation to the constitutional claim, Mr. Hill's pleading largely tracked the Sparrow framework. He asserted "an Aboriginal and treaty right to be bound by the laws of the Haudenosaunee and the people of the Six Nations of the Grand River, including with respect to the care and support of children, and obligations from intimate relationships." He claimed the right to have this dispute "resolved through processes, and pursuant to protocols, that are determined and specific to the Haudenosaunee and the people of the Six Nations of the Grand River."
[46] Mr. Hill asserted the historical dimension:
The Haudenosaunee and the people of the Six Nations have, since prior to the arrival of European settlers and colonization, a robust law, a dispute resolution system, which, among other things, determined how disputes within and between families were to be resolved.
[47] He added a reference to continuity:
This system of law and governance has been practiced continuously since the time of contact with European settlers, despite the operation of other, colonial legal systems. It is distinct to the Haudenosaunee and the Iroquois people of the Six Nations of the Grand River. It is comprehensive and exclusive, in its application to the Haudenosaunee and the people of the Six Nations of the Grand River within their lands and territory. The right of the Haudenosaunee and the people of the Six Nations of the Grand River [to] be governed, and to have intra- and inter-familial disputes resolved through and according to this system has never been extinguished nor surrendered.
[48] Finally, Mr. Hill asserted that: "the application and imposition of the Family Law Act of Ontario, and associated laws, regulations, and legal processes to this dispute" infringe his right, and the infringement is not justified.
[49] I agree with the motion judge's trenchant and accurate criticisms of the version of Mr. Hill's pleading before her. I make no substantive comments on the adequacy of the draft amended pleading; that is the task of a Superior Court judge. But it factors into the analysis.
The Draft Amended Answer and Claim
[50] The pleading considered by the motion judge was sparse and consisted of 20 paragraphs. The draft pleading now consists of 176 paragraphs. The first 119 paragraphs respond in conventional terms to the application. The thrust of these paragraphs is to address what Mr. Hill continues to call a dispute "concerning quantum of child support" and whether he has "any spousal support obligations" to Ms. Beaver.
[51] There is a lengthy new section on constitutional issues that is 56 paragraphs long and elaborates considerably on the earlier pleading. The appellant's constitutional claim has been clarified somewhat. In self-government terms, the draft pleading describes an organization known as the "Haudenosaunee Confederacy Council", which is said to be the "peak body that acts as a forum for resolution of disputes, and coordinates discussions and deliberations leading to decisions of the Haudenosaunee". It adds that "the Confederacy Council does function as the highest forum for resolving disputes", including family disputes.
[52] The draft pleading states in paras. 150 and 151:
In or about 2016, the Respondent gave notice of the Dispute to the Confederacy Council.
The Confederacy Council has not yet determined the Dispute, in part because the Applicant has brought these proceedings in the Ontario Superior Court of Justice. It is the stated position of the Confederacy Council that no Haudenosaunee person should compromise their sovereignty by appearing before courts of another jurisdiction. (Emphasis added.)
[53] This would appear to be a sweeping claim by the Haudenosaunee Confederacy Council to a form of sovereign immunity from the laws of Ontario and of Canada. In oral argument, counsel advanced the claim that Haudenosaunee laws in relation to this family dispute are "exclusive and compulsory" for Haudenosaunee people including the appellant, the respondent, and B. This is the upshot of the draft pleading, which states at paras. 163 and 164:
The Respondent pleads that, as a Haudenosaunee person and as a member of the Six Nations of the Grand River, he has a right to be governed by Haudenosaunee law and governance systems, and to have the dispute resolved within and pursuant to the jurisdiction and authority of his own government, rather than by or pursuant to the Province of Ontario, a provincially or federally mandated adjudicative body, and provincial or federal law. He pleads that these rights are recognized and affirmed under s. 35(1) of Canada's Constitution Act, 1982.
Further, the Applicant, as a Haudenosaunee person and a member of the Six Nations, cannot avoid her responsibilities to her community by opting out of Haudenosaunee laws, processes, and protocols. Under Haudenosaunee law, once the Respondent has invoked the laws, processes, and protocols of the Haudenosaunee by notifying the Confederacy Council of the dispute, as he did in 2016, he has the right to have the dispute determined according to these laws, processes, and protocols, and the Confederacy Council has the responsibility to determine the dispute under Haudenosaunee laws, processes, and protocols by the means set out above. Both parties have the responsibility to comply with the results. (Emphasis added.)
[54] Mr. Hill asserts that neither the FLA nor the CLRA apply to him or to Ms. Beaver and B., and, in fact, any effort to apply Ontario law would infringe his s. 35 rights as a Haudenosaunee person. In oral argument counsel sharpened the claim by referring to several American authorities, which rest on a theory of complete Aboriginal sovereignty in some spheres: Fisher v. District Court, 424 U.S. 382 (1976), Davis v. Means, Indian Law Reporter 6125 (Navajo Nation Supreme Court 1994). This is evidently the claim Mr. Hill wants to pursue.
[55] Counsel pointed out that some limited recognition has been given to this feature of American law in Canada. In S.R.L. v. K.J.T., 2014 BCSC 1562, with respect to a First Nations couple and their two children who resided in British Columbia, Fenlon J. recognized the jurisdiction of the Shakopee Mdewakanton Sioux (Dakota) Community Tribal Court in Minnesota respecting divorce, property division and spousal support, but took jurisdiction over parenting and child support; this outcome was accepted by the judge of the Tribal Court whose analysis of American law led to the same result.
[56] This is quite different from the constitutional basis of reconciliation heretofore understood to be the Canadian vision under s. 35 as expressed in Van der Peet, Delgamuukw, and Haida Nation.
[57] In oral argument, the appellant's counsel agreed that characterizing Haudenosaunee laws as "exclusive and compulsory" in relation to this family dispute was the strongest form of Aboriginal right Mr. Hill could claim, but he allowed that the case might not pan out for Mr. Hill that way based on the evidence and the development of the law.
Do the Clarifications Affect the Analysis?
[58] I agree with the motion judge that Mr. Hill's constitutional claim does draw on an aspect of self-government, because in order to succeed, he must establish the existence, in reality, of a functioning family dispute resolution system, personal access to which qualifies as an Aboriginal right under s. 35 of the Constitution Act, 1982.
[59] On their face, the clarifications of Mr. Hill's position in the draft pleading appear to support Ms. Beaver's argument that he is really making a strong claim to self-government, one that is no longer veiled or unclear. Accordingly, her counsel argued, the motion judge got it right on the self-government issue and on standing. She added that Mr. Hill's assertions do not seek reconciliation of two systems, which the Supreme Court envisaged as the essential spirit of s. 35 of the Constitution Act, 1982 in its decisions on reconciliation. He is not seeking the accommodation of Aboriginal perspectives in Ontario family law, but the exclusion of Ontario law. This is not reconciliation but repudiation, and on that basis alone is constitutionally unsound.
[60] I do not see it that way, for four reasons. First, Mr. Hill is not personally or by proxy representing the Haudenosaunee Confederacy Conference. The Conference is not a party to these proceedings, nor at this stage has the Confederacy chosen to intervene. How the Confederacy actually sees its s. 35 rights is not known.
[61] Second, Mr. Hill's personal rights depend on the proven existence of a functioning Indigenous family dispute resolution system, access to which qualifies as an Aboriginal right under s. 35 of the Constitution Act, 1982. How the constitutional claim fares on the evidence is not the issue before us. That is for another forum. Mr. Hill's focus now is not so much on self-government at large, but on having whatever support obligations he might owe determined through the Indigenous family dispute resolution system. Consequently, despite his own earlier characterization of the claim, Mr. Hill's claim is not exclusively a claim to self-government.
[62] Third, although it is true that the determination of Mr. Hill's claim might affect other Haudenosaunee people, this does not make this constitutional dispute different from any other. This feature is common to much constitutional litigation. Consider the example of minority language education rights.
[63] Fourth, I would note that the recognition of separate spheres of jurisdiction is a form of reconciliation, albeit not the one that Ms. Beaver seeks.
[64] It is not clear to me at this early stage of the litigation that Mr. Hill lacks standing to make the constitutional claim, or that it is not justiciable. I noted above that it is axiomatic that a person who has a constitutional right has the right to assert it in ordinary legal proceedings, as Mr. Hill has done, subject to the limitations in the jurisprudence.
[65] If Mr. Hill's factual assertions about the existence of Haudenosaunee laws and protocols are true, and if he can prove they do qualify as Aboriginal rights under s. 35 of the Constitution Act, 1982, then I see no way for him to obtain access to the alleged Aboriginal family dispute resolution system to which he claims entitlement other than by the means he has pursued in this case.
[66] However, Mr. Hill's claim faces some serious, perhaps insuperable obstacles raised by the jurisprudence, including the following. First, the underlying facts are disputed. Ms. Beaver's evidence is that there is no such "robust law" that Aboriginal persons from Six Nations have used and are using to resolve their family law issues, as the motion judge pointed out at para. 24. She noted Mr. Hill's failure to adduce "any evidence as to the Haudenosaunee laws and protocols that he relies on", at para. 151. This might turn out to be fatal to Mr. Hill's claim under the Sparrow framework.
[67] Second, it is not yet clear whether the Aboriginal law to which Mr. Hill refers, if it exists, would entirely displace Ontario family law or only modify it, a possibility to which the motion judge alluded at para. 89. Indeed, many of the assertions he makes in the draft pleading could easily inform the process under Ontario law, leading to the form of reconciliation to which Ms. Beaver's counsel alluded.
[68] Third, it is not clear whether the Aboriginal law would bind Ms. Beaver and B., who do not live on the reserve, if they do not consent to its application to them.
[69] In short, neither the constitutional claim, nor the standing issue, is ripe for disposition on this record. I would set aside the motion judge's dismissal of the claim and her determination of the standing issue. It would be open to Ms. Beaver to pursue a motion for summary judgment after the pleadings have been improved and the evidence has been adequately developed.
(4) Is Mr. Hill entitled to a stay of Ms. Beaver's family law claims pending disposition of his constitutional claims?
[70] The motion judge based her analysis of Mr. Hill's entitlement to a stay on the Supreme Court's decisions in Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832, [1987] 1 S.C.R. 110 and R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[71] The motion judge said, at para. 140: "I would have declined to grant him a stay of the Family Law proceedings even if I had not struck out his Amended Answer." I largely agree with her analysis.
[72] The Superior Court of Justice clearly has jurisdiction to grant interim relief incidental to its plenary inherent jurisdiction to decide questions of law in private and constitutional matters while the s. 35 claim is being determined.
[73] If Mr. Hill wishes to pursue his constitutional claim, he will have to do so while at all times abiding fully with the terms of any and all interim orders. Ms. Beaver and B. are entitled to enforceable support pending the determination of the constitutional claim.
E. The Motion to Dismiss the Appeal as an Abuse of Process
[74] Ms. Beaver brought a motion to dismiss the appeal as an abuse of process on the basis that Mr. Hill had not paid arrears of support and had not complied with disclosure orders. This court has held that it would not grant a right of audience to an appellant in such a position. Aware of the possibility that this would deny him an audience, Mr. Hill paid up the arrears and largely complied with the disclosure orders before the hearing of this appeal.
[75] Ms. Beaver nonetheless persisted in the motion on two grounds. First, she pointed to the primary objective of family law proceedings as set out in Rule 2 of the Family Law Rules, which is "to deal with cases justly". This includes "ensuring that the procedure is fair to all parties"; "saving expense and time"; "dealing with the case in ways that are appropriate to its importance and complexity"; and "giving appropriate court resources to the case while taking account of the need to give resources to other cases." Her counsel argued that the protracted proceedings in a full bore constitutional case on s. 35 of the Constitution Act, 1982 would defeat the primary objective. Ms. Beaver and B. need their support issues to be finally determined.
[76] The second ground advanced by counsel for dismissing on the basis of abuse of process is that, quite apart from the constitutional claim, Mr. Hill has taken a scorched earth approach to every step of this case, including seven motions in this court alone. The "moving target" characterization applies to Mr. Hill's changing positions on paternity and custody, for example. He initially denied paternity, but in the draft pleading says he "is not certain he is [B.]'s biological father." Before Roberts J.A. on March 14, 2018, she noted that he "no longer disputes paternity." He seeks access in the draft pleading, but before Sloan J. in May he sought leave to amend the answer to include a claim for custody of B. The judge refused on the basis that the new custody claim "was meant to intimidate [Ms. Beaver] and for [Mr. Hill] to get more leverage than he already has over the financial issues."
[77] Nonetheless, I would dismiss the abuse of process motion. The appellant has the right to advance his constitutional claim, as inconvenient to the respondent, time-consuming and expensive as that might be, even in view of the primary objective of family law proceedings. However, that does not relieve the judiciary or the parties from making every effort to adhere to the primary objective where possible. As for controlling abuse of process, that is a matter of case management as well as the ordinary application of the Family Law Rules, including costs consequences.
F. Going Forward
[78] 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 ss. 2(3) of the Family Law Rules: Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215, at para. 54. 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.
[79] The case going forward requires active and determined case management, with a view, in particular, to avoiding the sort of free-ranging general inquiry Binnie J. deplored in Lax Kw'alaams Indian Band. We were told that this matter is now being case-managed. It will fall to the case management judge, in the first instance, to ensure that this objective is met.
[80] Mr. Hill can easily afford constitutional litigation, it would appear. Not so Ms. Beaver. She is simply seeking support under provincial legislation for herself and B. in her family dispute; she should not be left to defend the constitutionality of provincial legislation as important as the FLA and the CLRA on her own.
[81] The Attorney General of Ontario has intervened, thus far only on the conflicts of laws issue, which has now been resolved. If the Attorney General chooses not to become involved in the substantive constitutional issues, in my view it may well be an appropriate case for amicus to be considered to assist the court regarding the constitutionality of the impugned provincial legislation.
[82] I would also observe that this might well be an appropriate case to consider the trial of an issue regarding the appellant's constitutional claim, which could proceed independently of the support and custody issues.
G. Disposition
[83] In light of these reasons, I would allow the appeal in part by setting aside paragraph 4 of the order, which dismissed the constitutional claim, and substituting the following: "The Respondent's Amended Answer and Claim dated June 8, 2016 is struck, with leave to amend."
[84] I would otherwise dismiss the appeal.
Released: October 12, 2018
"P. Lauwers J.A."
"I agree. K. van Rensburg J.A."
"I agree. I.V.B. Nordheimer J.A."
