[Editor’s note: Erratum released April 6, 2018. Original judgment has been corrected, with text of erratum appended.]

CITATION: Beaver v. Hill, 2017 ONSC 7245

COURT FILE NO.: FS-15-963

DATE: 2017/12/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Brittany Beaver

Applicant

– and –

Kenneth Hill

Respondent

Harold Niman, Sarah Strathopolous, Joanna Radbord and Scott Byers for the Applicant

Robert Halpern, Katherine Hensel, for the Respondent

HEARD: April 25, 2017; May 23-26, 2017; June 27-28, 2017; September 7, 2017

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] The Applicant Brittany Beaver (“the Applicant”) and the Respondent Kenneth Hill (“the Respondent”) are the parents of Brody Kenneth Ryan Hill Beaver, born August 24, 2009 (“Brody”). They were in a relationship which began in 2008 and ended in November, 2013. The Respondent is a Haudenosaunee person and a member of the Six Nations of the Grand River (“the Six Nations”). He lives on the Six Nations Reserve. The Applicant and Brody are also Haudenosaunee and members of the Six Nations, but they live off reserve, in the city of Waterloo.

[2] The Applicant commenced an application in this court on December 8, 2015, seeking inter alia custody, child support for Brody and spousal support. The Respondent filed an Answer and Claim in response to the application on February 4, 2016. However, on March 31, 2016, he served and filed a Notice of Constitutional Question in which he gave notice that he intended to challenge the jurisdiction of this court and the applicability of the Family Law Act, R.S.O. 1990, c. F-3, as amended to his Family Law dispute with the Applicant. The grounds for these constitutional challenges, as set out in the Notice of Constitutional Question, were as follows:

1. With respect to the challenge to this court’s jurisdiction to deal with the Family Law claims in this case, the Respondent stated that the Haudenosaunee people (hereinafter referred to as “the Haudenosaunee”) and the people of the Six Nations have an inherent aboriginal right protected by section 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (hereinafter referred to as “s. 35(1)”) to govern themselves with respect to the care and support of children and the resolution of disputes within and between families concerning such care and support.

2. He asserted that this inherent right of the Haudenosaunee and the Six Nations to govern themselves includes the right to have inter and intra-familial disputes decided through Haudenosaunee governance processes and protocols and according to Haudenosaunee laws.

3. He claimed that this inherent right of self-government with respect to disputes between and within families has never been ceded by treaty or extinguished by any valid constitutional or other instrument.

4. The Respondent further claimed that as a Haudenosaunee person and a member of the Six Nations, he has an individual right flowing from the general right of the Haudenosaunee to be governed by Haudenosaunee governance processes and laws with respect to inter and intra-familial disputes. In this regard, he submitted that he has a broad personal right “to have the within 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 and federal law” (at paragraph 5).

5. According to the Respondent, Ontario’s Family Law Act, attendant regulations and related statutes infringe upon his aboriginal rights, including with respect to the jurisdiction that they purport to confer on this court.

6. The Respondent further claimed that this infringement of his aboriginal rights is not justified. As a result, he claimed that this court lacks jurisdiction to hear this case, and that the Family Law Act is of no force and effect with respect to this Family Law dispute.

[3] On June 8, 2016, the Respondent filed a Fresh as Amended Answer and Claim (“the Amended Answer”). In the Amended Answer, he seeks an order dismissing the application in its entirety, or in the alternative, that the application be stayed, based on his constitutional challenges respecting the jurisdiction of this court and the applicable law. The wording of the Amended Answer differs in some respects from that of the Notice of Constitutional Question. However, as in the Notice of Constitutional Question, the Respondent advances the following general claims:

1. He states that the Haudenosaunee and the people of the Six Nations have an aboriginal right to be governed with respect to inter and intra-familial disputes according to their own distinct system of governance and laws.

2. He alleges that this broad right includes the right of the Haudenosaunee and the people of the Six Nations to have inter and intra-familial disputes dealt with through their own governance and dispute resolution processes and protocols, as well as the right to have such disputes resolved according to Haudenosaunee laws.

3. The Respondent asserts that as a Haudenosaunee person and a member of the Six Nations, he has an individual right to have the Family Law disputes with the Applicant resolved according to the governance system and laws of the Haudenosaunee and the people of the Six Nations.

4. In describing the aboriginal right that he is relying on, the Respondent claims that the Haudenosaunee and the people of the Six Nations have had, 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.” He states that 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.” In addition, he indicates that this system of governance and law is “distinct to the Haudenosaunee and the Iroquois people of the Six Nations of the Grand River” and that 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.”

5. The Respondent repeats his assertion as set out in the Notice of Constitutional Question that the imposition of the Family Law Act and associated laws, regulations and legal processes to this dispute infringes his right “to be governed, and to have this dispute resolved, according to the laws and governance of the Haudenosaunee and the people of the Six Nations of the Grand River” (at paragraph 17). He states that this infringement is not justified.

6. Having regard for the foregoing, the Respondent alleges that this court has no jurisdiction to deal with the Family Law disputes between him and the Applicant, and that the issues should be resolved according to the dispute resolution processes of the Haudesonaunee. Furthermore, he states that the disputes should be governed by the laws that bind the Haudenosaunee and the people of the Six Nations.

[4] The filing of the Amended Answer prompted two motions which are the subject of this decision. The first motion was filed by the Respondent and was originally returnable on November 10, 2016. In this motion, the Respondent seeks the following relief:

1. An order that the Family Law application be stayed pending the hearing and outcome of the constitutional questions raised in the Notice of Constitutional Question;

2. An order setting timelines relating to the hearing of the Respondent’s constitutional case; and

3. An order granting leave to amend the Notice of Constitutional Question to include the application of the Children’s Law Reform Act, R.S.O. 1990 c. C-12, as amended in relation to its infringement on the Respondent’s aboriginal rights as a Haudenosaunee person and a member of the Six Nations.

[5] The second motion was brought by the Applicant and was originally returnable on November 30, 2016. However, it is apparent from the evidence before me that counsel for the Applicant had been attempting from May 2016 onward to schedule a mutually agreeable Long Motion date for the hearing of the Applicant’s motion. The Respondent served and filed his motion materials in the midst of those discussions. In her motion, the Applicant requests the following relief:

1. A temporary order requiring the Respondent to pay her child support in the amount of $33,183.00 per month and 100% of Brody’s section 7 expenses, retroactive to the date of separation;

2. A temporary order requiring the Respondent to pay her spousal support in the amount of $85,701.00 per month, retroactive to the date of separation;

3. A temporary order requiring the Respondent to designate her as the beneficiary of his life insurance policy or policies to secure child and spousal support, in the amount of $4,300,000.00;

4. An order directing that the Respondent’s liability to pay child and spousal support be binding on his estate;

5. A temporary order requiring the Respondent to maintain and/or obtain medical, dental and extended health care benefits for Brody;

6. Orders respecting financial disclosure;

7. An order requiring the Respondent to retain a chartered business valuator and to produce an income determination report;

8. An order requiring the Respondent to attend for questioning;

9. An order requiring the Respondent to pay the Applicant interim disbursements and interim costs in connection with the application in the amount of $125,000.00 for legal fees and $75,000.00 for accounting fees;

10. An order striking the Amended Answer;

11. A order striking the affidavit of Michael Chalupovitsch, sworn October 26, 2016, which the Respondent had filed in support of his motion;

12. A declaration that the Ontario Superior Court of Justice court has jurisdiction to deal with the Family Law issues raised by the parties;

13. An order staying the Respondent’s constitutional case as against the Applicant and reconstituting it as a proceeding between the Haudenosaunee Confederacy Chiefs’ Council, the Attorney General of Ontario and the Ontario General of Canada; and

14. If the Respondent’s constitutional case is not stayed, an order for advance costs of $150,000.00 payable forthwith and such further and other funds as may be required to fund the Applicant’s involvement in the constitutional case.

[6] In the Factum which the Respondent filed in relation to his motion, he again describes the aboriginal rights that he is relying on to challenge the jurisdiction of this court and the application of Ontario Family Law legislation to him in this case. At paragraph 29 of the Factum, he indicates that the issues raised in the Notice of Constitutional Question concern the general “Haudenosaunee right to be subject, sole [stet] and exclusively, to the family law and child support and parenting processes under Haudenosaunee law.” He adds that this right is “characterized as the exercise of an inherent right to self-government, which is recognized and affirmed as an Aboriginal and Treaty right by section 35 of the Constitution Act, 1982.” He further states at paragraph 38 of his Factum that the Haudenosaunee, including himself, “have not accepted the imposition of Canadian laws that touch on matters central to their society, namely governance and the application of provincial and federal statutory regimes that infringe on their core identity as a people.”

[7] The two motions were adjourned several times on consent and eventually came before me for a hearing on April 25, 2017. The motions had been scheduled for only one day. However, protracted discussions occurred at the outset of the hearing regarding the appropriate order for dealing with the various heads of relief requested in the two motions, and rights of response and reply. These discussions included submissions on whether the substantive issues raised in the Applicant’s motion should be addressed prior to the court deciding the jurisdiction and stay issues. At the appearance on April 25, 2017, counsel for the Applicant advised that the Applicant was abandoning her request in paragraph 15 of her Notice of Motion for an order reconstituting the case as a proceeding between the Haudenosaunee Confederacy Chiefs’ Council, the Attorney General of Ontario and the Attorney General of Canada.

[8] At the conclusion of the appearance on April 25, 2017, I decided that the Applicant’s substantive child and spousal support claims could not proceed until the issue of this court’s jurisdiction to hear the application was resolved. I concluded that it was necessary to proceed first with the Applicant’s claims to strike the Amended Answer, for a declaration that this court has jurisdiction to hear the case and for an order staying the Respondent’s constitutional case, as well as the Respondent’s request for a stay of the application pending the determination of the constitutional issues. Although the parties’ respective claims for stays involved inter-related issues and arguments, I noted that fairness to both parties required that both be given appropriate rights of reply. Having regard for these considerations, I ordered that the hearing of the motions would proceed as follows:

1. I would first deal with the Applicant’s claims to strike the Amended Answer, for a declaration that this court has jurisdiction to hear the case, for an order staying the Respondent’s constitutional case, and for advance costs in the event that the constitutional case is allowed to proceed. On this motion, I would hear Submissions from the Applicant, Response from the Respondent and Reply Submissions from the Applicant on these issues.

2. I would then deal with the Respondent’s motion. I indicated that I would first address the Applicant’s preliminary objection in that motion to the admissibility of the affidavit of Michael Chalupovitsch sworn October 26, 2016. I would then proceed to hear Submissions from the Respondent on the merits of the motion, Response from the Applicant and Reply Submissions from the Respondent.

3. I indicated that the substantive claims set out in paragraphs 3 to 11, 17 and 18 of the Applicant’s Notice of Motion would be adjourned, and that I would give further directions regarding the scheduling of a hearing on those issues once I released my Reasons for Judgment on the preliminary issues.

[9] Based on the roadmap that I set out on April 25, 2017 for handling the claims in the parties’ respective motions, and the arguments advanced by the parties, the issues to be determined at this point are as follows:

1. What is the appropriate analytical framework for determining the question of jurisdiction in this case? In this regard:

a) Do the standard rules respecting jurisdiction apply, subject to necessary modifications required to account for the constitutional issues raised in this situation, or should jurisdiction be decided exclusively according to the s. 35(1) jurisprudence for determining the existence of aboriginal rights and whether breaches are justified?

b) If the standard rules apply, should they be adapted to take into consideration the special constitutional aspects of this case, and if so, what is the appropriate analytical framework for addressing the jurisdiction issue in this case? In this regard,

i. Are consent or attornment to the court’s jurisdiction grounds for establishing jurisdiction simpliciter in this case;

ii. If so, does the court nonetheless have the discretion to decline jurisdiction in the face of consent or attornment? and

iii. If there is a discretion to decline jurisdiction in the face of consent or attornment, what are the factors that the court should consider in exercising its discretion?

2. In dealing with the preliminary issue of jurisdiction, is the court entitled to entertain motions to dispose of the constitutional challenge to the court’s jurisdiction on a summary basis, such as a motion to strike, suspend or dismiss the claim? If the answer is yes, then the following issues arise:

a) Should the Amended Answer be struck on the basis that it fails to set out the material facts in support of the aboriginal rights claims that the Respondent is advancing and fails to identify the specifics of the laws that the Respondent alleges should apply in this case?

b) Should the Respondent’s constitutional case be dismissed on the basis that the Respondent lacks standing to advance the aboriginal rights claims outlined in the pleading?

c) Should the Amended Answer be struck and the Respondent’s constitutional case dismissed on the ground that the pleading fails to set out a reasonable claim or defence in law?

3. If the Respondent’s constitutional case is not disposed of on a summary basis on one of the grounds set out above, the following questions arise:

a) Can the court nonetheless take jurisdiction at this stage, or is it necessary to proceed to a full hearing of the Respondent’s constitutional challenge to the court’s jurisdiction? In this regard, did the Respondent consent or attorn to this court’s jurisdiction so as to establish jurisdiction simpliciter?

b) If the Respondent consented or attorned to the court’s jurisdiction, does the fact that the Applicant consented to the Respondent filing the Amended Answer disputing jurisdiction on constitutional grounds negate the effect of the attornment for the purposes of the jurisdiction analysis?

c) If jurisdiction simpliciter has been established by the Respondent attorning to the jurisdiction of this court, should the court nonetheless exercise its discretion to decline to take jurisdiction?

4. If the court determines that it should take jurisdiction in this case, does it have the authority to grant declaratory relief respecting the jurisdiction issue?

5. Has the Respondent satisfied the test for obtaining a stay of the Family Law proceeding pending a full hearing of his constitutional case?

6. Should the Respondent be granted leave to amend his Notice of Constitutional Question to include the application of the Children’s Law Reform Act in relation to its infringement on the Respondent’s aboriginal rights as a Haudenosaunee person and a member of the Six Nations?

7. Finally, in the event that the Amended Answer is not struck, and the application is stayed so that the Respondent can advance his constitutional case, should an order issue requiring the Respondent to pay the Applicant advance costs and disbursements to fund the Applicant’s defence in the Respondent’s constitutional case?

[10] For the reasons that follow, I have concluded as follows:

1. The general conflict of laws principles respecting jurisdiction apply as a starting point to the jurisdiction analysis in this case, but they must be modified to take into account the important constitutional issues that the Respondent has raised in this proceeding.

2. Attornment or consent to the court’s jurisdiction is a basis upon which jurisdiction simpliciter may be established in this case. The analytical approach to the determination of the jurisdiction issue differs depending on whether or not the Respondent consented/attorned to the jurisdiction of the court.

3. Even if attornment or consent to the court’s jurisdiction is established, the court has the discretion to decline to take jurisdiction.

4. In addressing the jurisdiction issue, the court is entitled to entertain preliminary motions to strike out the Amended Answer either in part or in its entirety and to dismiss the Respondent’s aboriginal rights claims on a summary basis. I have decided that the Amended Answer should be struck in its entirety, and that the constitutional claims set out in the pleading should be dismissed, based on my conclusions that the Amended Answer fails to satisfy the basic rules of pleading, that the Respondent lacks standing to advance the aboriginal rights claims set out in the Amended Answer, and that the pleading fails to set out a reasonable claim or defence in law. My decision on these issues disposes of the Respondent’s constitutional challenge to both the jurisdiction of this court to hear and decide the Family Law issues between the parties and to the application of the Family Law Act and the Children’s Law Reform Act in this proceeding.

5. I have concluded that even if I had not struck the Amended Answer and dismissed the Respondent’s constitutional case, I would have determined based on the appropriate framework for addressing jurisdiction in this case that the court should take jurisdiction at this point, having regard for all of the circumstances in the case. Accordingly, I have dismissed the Respondent’s request that the Family Law proceeding be stayed on the ground that the court lacks jurisdiction.

6. Furthermore, even if I had not struck the Respondent’s Amended Answer, I would have dismissed his request that the Family Law proceeding be stayed pending a hearing of his constitutional challenge to the applicability of the Family Law Act, the Children’s Law Reform Act and their associated regulations to his Family Law dispute.

7. Having regard for all of the conclusions set out above, I have dismissed the Respondent’s request for an order amending his Notice of Constitutional Question to include a constitutional challenge to the applicability of the Children’s Law Reform Act to him.

PART II: BACKGROUND

[11] As I have already noted, the parties were in a relationship from October 2008 until November 2013. They disagree as to whether they ever cohabited as spouses. The Applicant acknowledges that she has not cohabited with the Respondent since July 2009. However, she states that she and the Respondent continued to have a relationship until November 2013. Both parties confirm that in September 2009, the Respondent purchased a home located at 6 Sandwell Court, Kitchener, Ontario for the Applicant and Brody to live in. The parties are joint owners of this home, and the Applicant and Brody lived there from September 2009 until July 2014. The Respondent has paid the property taxes associated with this home, some utilities expenses and some repair expenses for the property since September 2009. In July 2014, the Respondent purchased the Applicant a new home located at 517 Lee Avenue, Waterloo Ontario for $895,000.00. Title to the property was put in the Applicant’s name alone. The Applicant, her new partner, Brody and the Applicant’s child from her new partner continue to reside in this home. The parties have both indicated that the Applicant holds this property in trust for Brody. The child Brody has been in the primary care of the Applicant since birth. The Respondent has had minimal contact with him.

[12] The Respondent is a co-founder and owner of a company called Grand River Enterprises (“GRE”), which manufactures cigarettes. GRE is located on the Six Nations Reserve in the Grand River Territory, Ontario. The Respondent is an extremely successful and wealthy businessman. He has indicated in these proceedings that he earns an income of $2,109,504.00 per year, which is not subject to income tax. He has also acknowledged that he holds various business interests on the Six Nations Reserve, but states that those interests cannot be freely transferred and have a nominal value.

[13] The Applicant has not worked outside of the home since December 2008. She alleges that the Respondent has at times since the parties’ separation been inconsistent in supporting her and Brody, and especially since she began her new relationship in mid-2014. However, she acknowledges that since 2012, the Respondent has made cash payments of approximately $10,000.00 per month. She states that until April 2016, she had to contact the Respondent on a monthly basis to request and obtain any financial support from him. However, she indicates that since April 2016, the Respondent has been consistently paying monthly child support in the amount of $10,000.00. The Respondent denies that he has been inconsistent in paying child support for Brody. He states that he has been paying the Applicant approximately $10,000.00 per month since approximately 2012, prior to the parties’ separation, and that he paid her smaller but nonetheless significant monthly amounts from 2010 until 2012. The Respondent also asserts that he has been paying additional expenses for Brody totalling on average $4,058.00 per month.

[14] The Applicant retained counsel in January 2014, within a few weeks after the parties’ separation. She and her counsel attempted to negotiate a Separation Agreement with the Respondent to address the Family Law issues between the parties. The Applicant’s counsel sent correspondence to the Respondent on January 29, 2014, seeking to begin the negotiation process. The Respondent did not retain his counsel until late March 2014. The parties then attempted to resolve the issues directly with each other from April 2014 until April 2015. Those efforts were unsuccessful, and this prompted the Applicant to involve her lawyer once again. Further settlement negotiations between counsel were unsuccessful in resolving the issues, and therefore the Applicant finally issued her application on December 8, 2015. As of that date, the Respondent had still not provided supporting documentation relating to his income and overall financial situation.

[15] The Respondent requested an extension of the time for him to serve and file his Answer and Claim, and the Applicant consented to an extension until the end of January 2016. However, the Respondent then requested another extension until February 6, 2016. The Applicant agreed to this further extension on the condition that the case conference be scheduled for April 1, 2016.

[16] As stated above, the Respondent issued his Answer and Claim on February 4, 2016. He also filed a Financial Statement sworn February 4, 2016. Upon being served with the Answer and Claim, the Applicant scheduled a case conference for April 1, 2016 as had been agreed upon between counsel. Notwithstanding this agreement, counsel for the Respondent subsequently advised on February 22, 2016 that the April 1, 2016 date was no longer available to him. Counsel for the Applicant proceeded to make several attempts through correspondence and telephone to arrange another case conference date. On March 11, 2016, counsel for the Respondent finally advised that the case conference could not proceed until sometime in June 2016. The reason for the delay became apparent on March 24, 2016. On that date, counsel for the Respondent indicated for the first time that the Respondent intended to file a Notice of Constitutional Question and Amended Answer, as well as a motion, challenging the jurisdiction of this court and the applicability of Ontario Family Law legislation based on his alleged aboriginal rights. As I have noted, the Respondent did in fact serve and file his Notice of Constitutional Question on March 31, 2016. The Notice of Constitutional Question was served and filed without the Respondent having advanced his constitutional aboriginal rights claims in his original pleading.

[17] The Attorney Generals of Ontario and Canada confirmed on April 22, 2016 that they would not be taking a position on the constitutional issues. Furthermore, the Respondent gave notice of his constitutional claims in this proceeding to the Chief of the Six Nations, and the band has not taken steps to intervene or otherwise participate in the hearing of the constitutional issues. In addition, the Respondent has confirmed that a copy of the Notice of Constitutional Question was delivered to Chief Jock Hill, Secretary to the Haudenosaunee Confederacy Council, on or about April 7, 2016. The Confederacy has likewise not taken any steps to intervene or otherwise participate in this proceeding. However, in a Memorandum from the Respondent’s counsel, Ms. Hensel, to Six Nations Chief Ava Hill and the Six Nations Council dated April 5, 2016, Ms. Hensel noted that the Confederacy has objected to an Ontario court making a determination as to whether the Confederacy has jurisdiction over the dispute, and whether it has authority granted under the Great Law which governs the Haudenosaunee people.

[18] The Applicant insisted that the case conference scheduled for April 1, 2016 proceed, and the parties appeared before Sloan J. on that date. Sloan J. declined a request by the Respondent to adjourn the conference, but simply endorsed “case conference held,” so that the parties could bring their respective motions. The Applicant filed her Reply to the Respondent’s original Answer and Claim on April 18, 2016, since the Respondent had not prepared an Amended Answer by that time. In fact, although the Respondent filed his Notice of Constitutional Question on March 31, 2016, he did not sign his Amended Answer until over two months later, on June 8, 2016. This is so despite the fact that his counsel, Ms. Hensel, had advised in correspondence dated March 31, 2016 to which she had attached the Notice of Constitutional Question that the Respondent would be serving an Amended Answer shortly.

[19] On June 20, 2016, counsel for the Applicant, Ms. Strathopolous, confirmed in correspondence to the Respondent’s counsel, Mr. Halpern, that the Applicant consented to the filing of the Respondent’s Amended Answer, and to Mr. Halpern executing the consent on her behalf. On June 21, 2016, further to this correspondence, Mr. Halpern executed a Consent on behalf of the Applicant’s counsel to extend the time for the Respondent to file his Amended Answer until June 24, 2016. On the same date, he executed a Consent as agent for Ms. Strathopolous to the amendments contained in the Amended Answer. The Respondent finally filed his Amended Answer on June 23, 2016.

[20] Counsel for both parties advised during the hearing of these motions that the consents given by the Applicant referred to above were given on the condition that they would be “without prejudice to either party’s position on the constitutional issues.” However, the parties disagree regarding the content and general meaning of this condition. Counsel for the Applicant alleged that the intention was that the consents were given without prejudice to the Applicant’s right to raise any issues and defences in relation to the constitutional issues raised in the Amended Answer, including defences regarding the sufficiency of the pleadings on the constitutional issues and attornment as a bar to advancing the constitutional challenges to this court’s jurisdiction. The Respondent’s understanding was that the Applicant’s consent to the amendments was subject only to the right of both parties to argue the constitutional issues on their actual merits in the context of a full hearing.

[21] As I have already noted, the Amended Answer simply contested the jurisdiction of this court to deal with the Family Law issues between the parties and the applicability of the Family Law Act and associated laws, regulations and legal processes to the Respondent, on the basis of his aboriginal rights claims as described above. In the Amended Answer, the Respondent undertook “on a without prejudice basis, and subject to 60 days’ written notice of any intention to the contrary,” to continue paying the Applicant $10,000.00 per month in child support, and to permit the Applicant and Brody to remain in the home at 516 Lee Avenue, Waterloo. Subsequently, on September 16, 2016, counsel for the Respondent confirmed in writing that the Respondent would also continue to pay for Brody’s extra expenses for tuition, bus fees, lunch fees, school trips, school uniforms, extracurricular activities, summer camp and tutoring, totalling approximately $48,700.00 per year, on condition that the expenses are paid directly to the institution or person to whom they are owed.

[22] The Respondent has retained two experts, Joanne Holmes and Estelle Simard, to address the existence of Haudenosaunee and Six Nations laws and legal processes governing family relations and child welfare, practiced continuously prior to and since European contact and distinct to the Haudenosaunee. He has hired these experts in order to satisfy the test that the Supreme Court of Canada has established for proving the existence of an aboriginal right that is recognized and affirmed pursuant to section 35(1) of the Constitution Act, 1982. As of the commencement of the hearing of these motions, the expert reports of Ms. Holmes and Ms. Simard had not been completed.

[23] In an affidavit sworn January 17, 2017, the Respondent states that it has been transmitted to him by the oral tradition of his people that he is obligated to abide by Haudenosaunee law to the exclusion of Ontario and Canadian Family Law, that the operation of Ontario and Canadian Family Law is inconsistent with his culture and that of his community, and that extending Ontario and Canadian Family Law is not in the best interests of Brody, his family or Haudenosaunee children generally. He states that he has been advised through his oral tradition that “Ontario and Canadian legal processes have harmed and continue to harm Haudenosaunee children, families and communities.” With respect to the content of the Haudenosaunee law that he relies on, he stated in that affidavit that Haudenosaunee culture and law “prioritize the interests of children and consider the collective community to be responsible for the care, protection and well-being of children.” The Respondent acknowledged in this affidavit that the Applicant and Brody do not live on the Six Nations Reserve. However, he emphasized that they reside within the Haldimand Tract, which he describes as “lands originally granted to the people of the Six Nations of the Grand River and never legally surrendered by said people.” He asserted that he has been advised through the oral tradition of his people that Haudenosaunee law and legal processes are binding upon Haudenosaunee people living within the Haldimand Tract, and not only to those who live on the reserve.

[24] In response to the Respondent’s affidavit sworn January 16, 2017, the Applicant noted that although she and Brody are Tuscarora and therefore ethnically Haudenosaunee, they are not “culturally Haudenosaunee.” She asserted that in order to be considered culturally Haudenosaunee or “traditional Haudenosaunee,” one must have a clan, a ceremony in which they are given a Native name by a Clan Mother through the Long House, attend Long House regularly, live a peaceful, respectful and humble way of life and take care of their family physically, emotionally and financially. She stated that neither she nor Brody have a Clan Mother or a Native name, and that she does not attend at Long House. Furthermore, she noted that she has never observed the traditional native practices of the Haudenosaunee culture or the “Great Law,” and that the Respondent did not do so either during their 5 year relationship. With respect to the Haudenosaunee processes, protocols and laws that the Respondent relies on as the basis for his constitutional challenge to this court’s jurisdiction and the application of Ontario Family Law, she notes that she is personally unaware of anyone obtaining an adjudication of their Family Law dispute under such processes. She indicates that all of the aboriginal people who she knows from the Six Nations have resolved their Family Law issues through the Ontario courts and according to Ontario Law.

PART III: THE PARTIES’ POSITIONS

I. THE APPLICANT’S POSITION

A. The Request for a Declaration that the Ontario Superior Court of Justice has Jurisdiction to Hear This Case

[25] The Applicant seeks four general remedies: a declaration that this court has jurisdiction to hear her application, an order striking the Respondent’s Answer and Claim, a dismissal of the Respondent’s constitutional claims and a stay of the Respondent’s constitutional case set out in his Answer and Claim.

[26] In regard to the issue of jurisdiction, the Applicant submits that the starting point for the analysis should be the general statutory and common law rules respecting jurisdiction. Counsel for the Applicant submitted that even though the Respondent’s jurisdiction challenge is based on claims involving constitutionally protected aboriginal rights, this does not dictate that the general principles respecting jurisdiction should be abandoned altogether. Counsel rejected the proposition which counsel for the Respondent advanced that the analysis of the jurisdiction question must occur solely within the framework that the Supreme Court of Canada has established for the determination of aboriginal rights pursuant to section 35(1) of the Constitution Act, 1982, and whether any infringement of those rights is justified. In support of their position that the traditional jurisdiction rules should be the starting point for the jurisdiction analysis, counsel for the Applicant relied on case-law respecting the principle of constitutional restraint, which has established that cases should generally be decided on non-constitutional grounds if possible. They also relied on the Supreme Court of Canada cases that have emphasized that reconciliation between Canada’s indigenous and non-indigenous peoples must take into consideration the aboriginal perspective while at the same time taking into account the perspective of the common law.

[27] The Applicant relied primarily on the traditional ground of attornment as the basis for the assumption of jurisdiction in this case. Her position is that the Respondent clearly attorned to the jurisdiction of this court by serving and filing an Answer and Claim in which he responded to the Applicant’s claims on the merits and advanced his own Family Law claims in reliance on Ontario legislation. She states that the Respondent’s attornment is a complete answer to the jurisdiction question, and that the Respondent should not in the face of this attornment be permitted to launch a complex and protracted constitutional jurisdictional challenge based on alleged aboriginal rights. In the alternative, the Applicant argues that the Respondent’s filing of his Answer and Claim in which he responded to the Applicant’s claims on the merits and advanced his own separate claims pursuant to Ontario law amounted to an admission of jurisdiction, which can only be withdrawn pursuant to Rule 22(5) of the Family Law Rules, O. Reg. 114/99, as amended with the Applicant’s consent or with the court’s permission. She states that neither of these conditions precedent have been satisfied, and that the test for allowing the Respondent to withdraw this admission cannot be satisfied on the facts of this case.

[28] Counsel for the Applicant acknowledged that the Applicant consented to the Respondent’s amendments to his Answer and Claim, but noted that this consent was given without prejudice to the Applicant’s position on the constitutional issues. They submitted that this proviso preserved the Applicant’s right to pursue remedies aimed at disposing of the constitutional challenges on a summary basis, including a declaration that this court has jurisdiction and a motion to strike the Answer and Claim in its entirety. Counsel argued that consenting to amendments to a pleading does not equate to an admission that the amendments are appropriate and well-founded in law.

[29] The Applicant’s counsel submitted as an alternative to the attornment position that jurisdiction simpliciter is established in this case under principles of private international law. They argued that even if the people of the Six Nations or the Haudenosaunee are considered to be akin to a sovereign nation with their own laws, jurisdiction simpliciter is established on the basis that there is a real and substantial connection between the parties and Ontario. Although the court can decline to assume jurisdiction in such circumstances on the basis that another forum is clearly the more appropriate one to hear the proceeding (the doctrine of “forum non conveniens”), the Applicant submitted that there is no evidence to support such a conclusion in this case.

[30] The Applicant submits that a declaration that this court has jurisdiction to hear this case is the appropriate remedy for addressing the jurisdiction issue. She relied on the court’s inherent jurisdiction to grant this relief as well as section 97 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that the Ontario Superior Court of Justice may make binding declarations of right.

B. The Requests to Strike the Amended Answer and Dismiss the Constitutional Case on a Summary Basis

[31] Turning to the Applicant’s requests for an order striking the Amended Answer and dismissing the Respondent’s constitutional case on a summary basis, counsel for the Applicant advanced the following grounds in support of these claims:

1. First, the Applicant argued that the Amended Answer should be struck on the ground that it fails to comply with the fundamental principle that a pleading must set out the material facts in support of each claim. She relied on the Supreme Court of Canada case-law respecting the test for proving the existence of an aboriginal right, and submitted that the Respondent has not articulated the material facts required to satisfy this test. She also argued that a party who seeks to rely on another system of laws must plead the basic elements of the laws which they are relying on, and that the Respondent has failed to do so.

2. Second, counsel for the Applicant argued that the Respondent’s constitutional case should be dismissed because the Respondent lacks standing to advance the aboriginal rights claims that he is pursuing. They submitted that the Respondent is essentially arguing that the Haudenosaunee or the people of the Six Nations have an inherent right of self-government with respect to the adjudication and resolution of inter and intra-familial disputes. Their position is that such a right, if it is cognizable in law and if it were established, would be a collective right of the Haudenosaunee or the people of the Six Nations, rather than a right that an individual can advance in their personal capacity.

3. Third, counsel for the Applicant argued that the Amended Claim should be struck and the Respondent’s s. 35(1) claims dismissed because the Amended Answer fails to set out a reasonable claim or defence in law. In this regard, the Applicant submitted as follows:

a) First, she argued that the broadly framed aboriginal rights that the Respondent is advancing are non-justiciable because they are fundamentally incompatible with the assertion of Crown sovereignty and the core principles that underlie Canada’s constitutional framework. Counsel for the Applicant argued that such claims are properly decided through political avenues, which allow for meaningful negotiations, consultation and input from all critical stakeholders, rather than through the judicial process.

b) Second, the Applicant argued that the Amended Answer fails to set out a reasonable claim for the existence of an aboriginal right in law, based on the test that the Supreme Court of Canada has articulated for establishing the existence of aboriginal rights. Counsel for the Applicant relied on the Supreme Court of Canada case-law that has established that an aboriginal rights claimant must identify precisely the nature of the aboriginal claim being advanced, and that claims asserting widespread rights of self-government are not cognizable in law.

4. Finally, the Applicant submitted that the Amended Answer should be struck pursuant to Rule 1(8.2) of the Family Law Rules, which allows the court to strike out all or part of any document that “may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.” She maintained that the court has the authority to strike the Amended Answer pursuant to this Rule on the basis of all of the reasons set out above. Furthermore, she argued that the Answer and Claim is a waste of time, since the constitutional claims set out therein are purely theoretical in relation to the parties and will not affect them. Her reasoning on this point is that even if the Respondent established that Ontario’s Family Law adjudicative processes, legislation and related regulations are unconstitutional, the remedy would inevitably be a suspension of any declaration of invalidity to allow the government an opportunity to craft an appropriate response to the constitutional infringement and the court’s reasons. Finally, counsel for the Applicant argued that an order disposing of the constitutional case on a summary basis under this Rule would be consistent with the court’s obligation to promote substantive equality pursuant to s. 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1 (the “Charter”). They submitted that indigenous women and children are entitled to the equal protection and benefit of the law, and that allowing the Respondent’s constitutional case to proceed to a full and protracted hearing would deny the Applicant and Brody, and potentially other women and children, access to basic and critical Family Law remedies and cause significant uncertainty.

C. The Request for a Stay of the Constitutional Case

[32] In addition, the Applicant seeks an order staying the Respondent’s constitutional case as set out in his Amended Answer. She also opposes the Respondent’s motion to stay the hearing of her application. The Applicant relies on the court’s inherent jurisdiction to grant a stay of proceedings, as well as section 106 of the Courts of Justice Act, which permits the court to stay any proceeding on such terms as are considered just. The Applicant submitted that the test that applies with respect to the parties’ respective requests for a stay is that which the Supreme Court of Canada articulated in R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.), which involves a determination of whether there is serious question to be tried, whether the party seeking the stay would suffer irreparable harm if the stay were denied, and which party would suffer greater harm from the granting or refusal of the stay. Counsel for the Applicant submitted that the Amended Answer does not set out a reasonable claim or defence, and that this satisfies the first branch of the test. They argued that the Applicant would suffer irreparable harm if the constitutional case were allowed to proceed, as she would be forced to remain in a situation where there is no clarity respecting which Family laws and processes apply to her and Brody. She indicated that the present situation, in which the Respondent is refusing to recognize the application of Ontario law or processes to him, has led to late payments of support in the past, the payment of support in large bundles of $20.00 bills which are difficult to manage and the Respondent making arrangements respecting access directly with Brody, without consulting with her. She submitted that all of these considerations are also relevant to the third branch of the test. In addition, in regard to the third branch, she emphasized that refusing the stay that she is requesting would force her to remain embroiled in an extremely protracted, complex and expensive court case that she has no interest in whatsoever and cannot afford, that this would seriously undermine her right to fair and affordable access to justice, and that the Respondent is unwilling to assist her in financing her defence if the constitutional case were to proceed. Her position is that any potential prejudice to the Respondent of his aboriginal rights being infringed would be far outweighed by the prejudice to her of being compelled to accept aboriginal processes, protocols and laws that she is not aware of, that have not been clearly articulated by the Respondent or anyone on his behalf to date, and which she does not wish to have applied to her.

[33] In response to the Respondent’s request for a stay of the application pending the outcome of his constitutional case, counsel for the Applicant submitted that the Respondent cannot meet the test for obtaining this relief. She submitted that there is no serious issue to be tried with respect to the Respondent’s claims, and that the Respondent would not suffer irreparable harm if he were denied a stay, since he would still have the full benefit of Ontario law and its processes, which are presumed to be in the public interest.

II. THE RESPONDENT’S POSITION

A. Response to the Request for a Declaration that this Court has Jurisdiction

[34] The Respondent opposes the relief which the Applicant has requested, and seeks a stay of the application pending the hearing of his constitutional case. With respect to the jurisdiction issue, he rejects the Applicant’s argument that the general common law rules respecting jurisdiction apply where the challenge to jurisdiction is founded on an alleged aboriginal right that is constitutionally protected by section 35(1). Counsel for the Respondent maintained that in this type of situation, the question of jurisdiction can only be determined on the basis of the tests that the Supreme Court of Canada has articulated for the determination of aboriginal rights pursuant to s. 35(1), whether those rights have been infringed, and if so, whether the infringement is justified. Their position on these issues is based on two arguments. First, they submitted that the general common law rules respecting jurisdiction which the Applicant relies on are intended to apply to foreign litigants, legal processes and laws. Counsel submitted that extending these principles to the Respondent is offensive, since he is not a foreigner and the laws of the Haudenosaunee and the people of the Six Nations are part and parcel of Ontario law. The Respondent’s second argument is that the constitutional protection that section 35(1) affords to aboriginal rights supersedes the common law, including the laws respecting jurisdiction. Accordingly, counsel argued that the concepts of attornment, real and substantial connection and forum non conveniens which the Applicant relies on are not germane to the jurisdiction analysis, except to the extent that they may provide some guidance within the context of the section 35(1) analysis. Ms. Hensel submitted that adopting the common law rules as the starting point for the jurisdiction analysis would render the Respondent’s constitutional rights subordinate to the common law.

[35] As an alternative argument, the Respondent submitted that even if the common law principles respecting jurisdiction apply and the court concludes that he attorned, his attornment was nullified when the Applicant consented to him filing his Amended Answer in which he squarely raised the constitutional challenge to the court’s jurisdiction. The Respondent’s position is that the Applicant’s consent to this amendment essentially estops her from now attempting to summarily dispose of the case based on attornment. Ms. Hensel suggested that the Respondent moved promptly to advance his constitutional rights once he fully appreciated the proper avenue for doing so.

[36] With respect to the Applicant’s request for a declaration that this court has jurisdiction to hear this case, the Respondent understood that the Applicant was requesting an interim declaration that the court has jurisdiction to hear her motion for interim relief only, and a stay of the constitutional case until after the determination of the interim motion for child and spousal support. Counsel for the Respondent submitted that this is not a logical approach, given that the constitutional case goes to the very issue of whether the court has jurisdiction to make any order, including an interim order. Ms. Hensel referred me to case-law that establishes that it is generally inappropriate to grant interim declaratory relief where the effect of doing so would essentially decide the dispute between the parties. In fact, as counsel for the Applicant clarified, the relief that the Applicant seeks is a final declaration respecting this court’s jurisdiction, and a final stay of the constitutional case, with the goal of completely disposing of the Respondent’s claims in his Amended Answer.

[37] The Respondent further argued that it would be inappropriate for the court to issue a declaration respecting jurisdiction at this stage, since such relief should only be granted where the court has a complete factual record upon which to decide the dispute between the parties. Given his position that jurisdiction must be decided solely according to the law respecting aboriginal rights and justification for infringement of such rights, he submitted that the jurisdiction issue can only be settled after a full and fair hearing of the Respondent’s aboriginal rights case on the merits. Counsel for the Respondent emphasized that a full and fair hearing 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. She emphasized that the Respondent is still in the process of gathering critical historical evidence to support his jurisdictional challenge, and that declaratory relief at this point would prematurely dispose of the case without the requisite factual record.

B. Response to the Request to Strike the Amended Answer and Dismiss the Constitutional Claims on a Summary Basis

[38] With respect to the Applicant’s request for an order striking the Answer and Claim and dismissing the constitutional case outright on a summary basis, counsel for the Respondent raised concerns about the adequacy of notice to the Respondent. They indicated that the Applicant did not specifically plead Rule 16 of the Family Law Rules in her Notice of Motion. Ms. Hensel suggested that there was insufficient notice of the extent to which the Applicant was seeking to have the constitutional issues in this case finally determined and disposed of on a summary basis. She asserted that if she had fully appreciated this based on the Applicant’s Motion materials, the Respondent would have created a much more extensive summary judgment record and would have pursued cross-examination on affidavits, with the goal of proving that there is a genuine issue requiring a full hearing for its determination.

[39] Counsel for the Respondent submitted that even if there had been proper notice regarding the Applicant’s request to dispose of the constitutional case on a final and summary basis, it would be inappropriate for the court to grant such relief. In response to the Applicant’s request that the Amended Answer be struck on the basis that it fails to set out the material facts to support the Respondent’s constitutional case, counsel for the Respondent submitted that the Respondent articulated the relevant facts as fully as can be expected at this point. Ms. Hensel emphasized that the Respondent is not a clan mother, chief or expert in Haudenosaunee protocols, processes and laws relating to the resolution of inter and intra-familial disputes, and that it would place him at an unfair disadvantage to require him to provide more specifics than he has at the pleading stage. She further submitted that it would be unwise for the Respondent to elaborate further upon the material facts in his pleading without the benefit of the expert evidence that he is in the process of gathering. Counsel referred to the Report of the Truth and Reconciliation Commission and the concerns outlined in that report respecting the impact of government policies over the decades which sought to eradicate and which threatened the survival of aboriginal customs, practices and traditions. She highlighted the portions of the Report that stressed the need to support aboriginal peoples in regaining knowledge about and revitalizing those traditional customs, practices and traditions, and argued that any request to strike the Respondent’s pleading in this case must be decided against the backdrop of these important considerations.

[40] With respect to the standing argument, Ms. Hensel insisted that the Respondent is not advancing a collective right on behalf of all Haudenosaunee and the peoples of the Six Nations. Rather, she submitted that he is only seeking to have the claimed aboriginal rights extend to him in the context of his personal Family Law dispute. Alternatively, she relied on case-law that has commented on the difficulties involved in attempting to characterize aboriginal rights as either individual or collective in nature, and argued that a full and fair hearing, with a complete evidentiary record, is necessary to determine whether the rights that the Respondent is advancing are collective and whether he has standing to advance them. The Respondent’s position is that these issues cannot be properly addressed on a summary basis as requested by the Applicant.

[41] In regard to the request to strike the Amended Answer as showing no reasonable claim or defence, and to dismiss the Respondent’s constitutional case on this basis, Ms. Hensel commented generally on the heavy burden that an indigenous person faces in attempting to establish an aboriginal right. She highlighted the need for oral and expert evidence respecting traditions and practices, and the challenges involved in amassing this information. She argued that stopping an aboriginal rights case such as this one summarily in its tracks, without allowing the Respondent a reasonable opportunity to gather the evidence required to meet his case, would seriously undermine the objectives of section 35(1) of the Constitution Act, 1982 and the goal of achieving reconciliation between Canada’s indigenous and non-indigenous peoples. Ms. Hensel acknowledged that the Respondent is still in the process of obtaining the evidence required to meet his case, but emphasized that he has been diligent in attempting to accumulate that evidence.

[42] In response to the argument that the aboriginal rights claimed are not cognizable in law on the ground of sovereign incompatibility, counsel for the Respondent argued that this line of reasoning is based on outdated European concepts regarding sovereignty. She submitted that these concepts are inappropriate in the context of Canada, and are at odds with the constitutional imperative of achieving reconciliation between the indigenous and non-indigenous peoples of Canada. She emphasized that constitutional law is evolving with respect to the manner in which Crown sovereignty should be reconciled with the reality that indigenous communities, laws and processes existed prior to European contact. She also relied on the case-law that has established that the Constitution is a living tree that must evolve in response to contemporary insight and analysis. The Respondent’s position is that the aboriginal peoples of Canada have inherent rights of self-government that were not extinguished by the assertion of Crown sovereignty, and that any arguments based on sovereignty must start from the proposition that Canada was formed based on a partnership between Canada’s aboriginal peoples and the non-aboriginal peoples who later settled here. The Respondent submits that the rights that he is claiming flow from the general, inherent self-governance rights of the Haudenosaunee people that existed prior to European contact.

[43] Counsel for the Respondent disputed the assertion that the Amended Answer does not set out a reasonable cause of action for the establishment of any aboriginal rights. Ms. Hensel argued that the Respondent’s pleading does in fact properly characterize the rights claimed, and that it addresses each of the elements required to prove an aboriginal right protected by s. 35(1), with the degree of particularity that is required at the pleading stage.

[44] The Respondent also opposes the Applicant’s request that his Amended Answer be struck on the basis that it is a waste of time, a nuisance or an abuse of the court process. With respect to the argument that the constitutional case is a waste of time since the remedy would inevitably be a suspension of any declaration of invalidity, Ms. Hensel clarified that the Respondent is not seeking to have any Ontario law declared invalid; rather, he simply seeks an order exempting him for the operation of Ontario Family Law legislation on the basis of his individual right to be governed by the adjudicative processes, protocols and laws of the Haudenosaunee and the people of the Six Nations. Counsel for the Respondent further rejected the proposition that the court should dispose of the Respondent’s constitutional challenge in furtherance of its obligation pursuant to s. 15 of the Charter to promote substantive equality. Ms. Hensel noted that the Applicant did not refer to s. 15 or this argument in her Notice of Motion, and that in any event, the argument inappropriately presumes that the application of Haudenosaunee processes, protocols and laws would impair the equality rights of aboriginal women and children. Counsel for the Respondent further responded to this argument by relying on s. 25 of the Charter, which stipulates that the guarantee in the Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada. Ms. Hensel submitted that this provision requires that any equality analysis that relates to claimed aboriginal rights must give equal consideration and weight to the aboriginal perspective and the importance of the claimed rights to the aboriginal person or community involved.

C. The Respondent’s Requests for a Stay of the Application and an Amendment to the Notice of Constitutional Question

[45] The Respondent opposes the Applicant’s request for a stay, and seeks this remedy in his favour to stay the hearing of the application so that his constitutional case can proceed. With respect to the Applicant’s request for a stay of the constitutional case, Ms. Hensel submitted that it was improper for the Applicant to request a stay at all, and that she should be simply responding to the Respondent’s request for a stay of the Family Law proceeding. Furthermore, she submitted that even if the Applicant could seek a stay, the Applicant’s argument on the first branch of the test incorrectly focussed on whether there is a serious issue to be tried from the perspective of the Respondent’s constitutional case. She submitted that the first part of the test for a stay requires that the Applicant identify whether there is a serious issue to be tried with respect to her motion.

[46] The Respondent’s position is that he has satisfied the test for obtaining a stay of the application. He asserts that there is a serious question to be tried regarding the existence of the aboriginal rights that he is claiming, and that he would suffer irreparable harm if he were denied the right to a fair and full hearing respecting his constitutional claims. Counsel for the Respondent submitted that neither the Applicant nor the child Brody would suffer irreparable harm if the stay were granted, since the Respondent has undertaken to continue to provide a significant amount of financial support to them pending the outcome of the constitutional case, including the provision of a home for them. By contrast, the Respondent emphasized the harm to him if the court compelled him to submit to a legal process and laws which he considers to be foreign and inapplicable to him. With respect to the balance of convenience analysis, the Respondent argued that the balance tips in favour of allowing the constitutional case to proceed in a fair manner on the merits, rather than dismissing it summarily on an inadequate record. In addressing the balance of convenience issue, Ms. Hensel proposed a timetable for advancing the constitutional case forward which she submitted would not result in protracted delay. This timetable envisioned the Respondent serving the Applicant with any oral and community-based evidence by no later than September 30, 2017, and the Applicant filing responding material by 30 days after the release of this decision. Counsel for the Applicant’s position was that the latter time frame would be completely unrealistic, and that the Applicant would require a considerable amount of time to properly respond.

[47] Finally, the Respondent requests an order permitting him to amend his Notice of Constitutional Question to include a claim that the Children’s Law Reform Act is inapplicable to him on the basis that the application of that legislation to his custody and access dispute with the Applicant would violate his aboriginal right to be governed by Haudenosaunee laws and protocols.

PART IV: ANALYSIS

I. ISSUE #1: THE APPROPRIATE FRAMEWORK FOR THE JURISDICTION ANALYSIS

A. Overview

[48] The first issue that I must determine in this case is whether the court has jurisdiction to deal with the Family Law dispute between the parties. Specifically, is the Applicant correct that the question of jurisdiction should be decided purely on the basis of conflict of laws principles respecting jurisdiction, or should I accept the Respondent’s position that the jurisdictional analysis must be governed exclusively by the legal principles that have evolved respecting the determination of aboriginal rights claims pursuant to s. 35(1) of the Constitution Act, 1982? Alternatively, is there a middle ground that must be carved out in the unique circumstances of this case? In addressing this issue, I rely on Rule 16(12) of the Family Law Rules, which permits the court to decide a question of law before trial if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs.

[49] In this section, I outline my conclusions regarding the general principles that should apply to the jurisdiction issue in a case such as this one, where a Respondent challenges jurisdiction based on an alleged aboriginal right that is protected by s. 35(1). For the reasons that follow, I conclude that the appropriate analytical path for the determination of the jurisdiction issue in this situation starts from traditional conflict of laws principles, but must be adapted in response to the constitutional recognition of aboriginal rights through s. 35(1). Against the backdrop of this framework, however, I conclude that the court may entertain motions to dispose of such a constitutional challenge to the court’s jurisdiction on a summary basis. The success of any such motions would pave the way for the application of the standard rules respecting jurisdiction. Accordingly, after outlining the general framework for approaching the jurisdiction question, I have addressed the Applicant’s requests to strike the Amended Answer and dismiss the constitutional case on a summary basis, and outlined my reasons for granting this relief. However, even if I had not struck the Amended Answer and dismissed the Respondent’s constitutional case on a summary basis I would have concluded based on the jurisdictional framework which I have described below that this court should take jurisdiction. Accordingly, I have outlined my reasons on this point following my discussion of the Applicant’s claims to strike the Amended Answer and dismiss the constitutional case.

B. Do Conflict of Laws Jurisdiction Principles Apply?

[50] The first issue that I must address in discussing the appropriate framework for the jurisdiction analysis is the Respondent’s argument that conflict of laws principles have no rightful part in the analysis because they are intended to apply to foreign litigants and processes, and not to Ontario residents and aboriginal laws and processes that form part of Ontario law. This discussion requires consideration of the basic purposes of this branch of the law.

[51] By way of general overview, conflict of laws, also referred to in the case-law as “private international law,” concerns three broad areas of inquiry. First, it addresses whether a court has jurisdiction to hear a dispute. Second, it deals with the law the court should apply in resolving the dispute between the parties. Finally, it provides principles for determining whether a court should recognize and enforce a decision of a court in another jurisdiction (Stephen G.A. Pitel and Nicholas S. Rafferty, Conflict of Laws, 2nd ed. Toronto: Irwin Law Inc., 2016, at p. 1; Van Breda v. Village Resorts Ltd., 2012 SCC 17 (S.C.C.), at para. 21). As in this case, situations in which conflict of laws questions arise often engage the first two issues. Conflict of laws principles require two separate analyses for the issues of jurisdiction and choice of law. A determination that the court has jurisdiction to hear and resolve a case does not necessarily mean that the laws which typically govern that court must be applied. It is for this reason that I deal with the issues of jurisdiction and choice of law separately in these Reasons.

[52] In Ontario and the other common law provinces, conflict of laws rules derive from the Constitution, public international law, legislation, the common law and equity. Conflict of laws principles form part of domestic law, rather than international law. The need to rely on this area of the law usually arises in cases involving foreign litigants who argue that the courts and laws of their own country should govern the dispute. However, the scope of conflict of laws principles is not limited to situations involving a foreign party. This branch of the law is relevant in any situation where the parties seek to rely on competing legal systems and systems or sets of law. The notion of a “foreign element’ for conflict of laws purposes relates to an adjudicative system and laws other than the court in question and the laws that typically govern that court’s decision-making (Dicey and Morris, Conflict of Laws, 13th ed., Vol. 1, London: Sweet and Maxwell, 2000, at p. 3). By way of example, conflict of laws principles apply to disputes between litigants from different provinces within Canada regarding the jurisdiction of the courts of the different provinces and the laws of those provinces (Pitel and Rafferty, Supra., at p. 3).

[53] One of the novel issues that this case raises is whether general conflict of laws jurisdiction principles are also relevant on a more “micro-level,” to an intra-provincial jurisdiction dispute between two Ontario citizens. In my view, these principles remain relevant in this case, even though the dispute has arisen at the intra-provincial level. Although the Respondent is not alleging that the Haudenosaunee or the Six Nations constitute a sovereign nation or other type of territorial entity within Ontario, his jurisdictional challenge is based on an alleged right to be governed by a complete system of dispute resolution, adjudicative processes and laws for handling Family Law matters that is independent of Ontario’s court system, processes and laws. This broad claim has raised basic preliminary issues about the appropriate forum for decision-making and the applicable laws. These are precisely the types of disputes that conflict of laws principles are intended to address.

[54] The added layer of complexity in this case is that the Respondent’s jurisdiction challenge is based on an alleged constitutionally protected aboriginal right. The Respondent asserts that this fact takes the dispute out of the realm of conflict of laws and requires the court to determine jurisdiction exclusively based on the law respecting s. 35(1) and the test for determining if the infringement of aboriginal rights is justified. I do not agree that advancing a jurisdictional challenge based on an alleged s. 35(1) right triggers an automatic immunity from all conflict of laws jurisdiction principles. Rather, I conclude that conflict of laws jurisprudence is the appropriate starting point for the analysis, but that the general conflicts principles regarding jurisdiction must be fine-tuned and adapted so as to ensure that appropriate protection is accorded to aboriginal rights. Conflict of laws principles are amenable to such modifications. The Supreme Court of Canada has in a number of jurisdiction cases emphasized that conflicts principles are not cast in stone, and that they can and should be adapted when necessary to accord with constitutional values and imperatives. For instance, in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 (S.C.C.), the court liberalized the conflict of laws rules respecting enforcement of judgments as between provinces on the basis that they should be shaped to conform to the federal structure of the Constitution, and should reflect the obvious intention of the Canadian Constitution to create one country. In that case, the court also found that the traditional rules which established jurisdiction over an out-of-jurisdiction defendant simply by effecting service ex juris in accordance with Rules of Court raised constitutional concerns regarding territorial over-reaching. The court responded to this concern by modifying the conflicts rules to provide that jurisdiction could only be asserted in circumstances involving a defendant outside of the court’s territorial jurisdiction who does not consent to jurisdiction if there is a “real and substantial connection” between the matter and the forum. In the court’s subsequent decision of Hunt v. T & N plc, [1993] 4 S.C.R. 289 (S.C.C.), the court was called upon to consider whether a Quebec statute which prohibited the removal from the province of documents of businesses in Quebec that were required pursuant to judicial processes outside of the province was ultra vires or constitutionally inapplicable to a judicial proceeding in another province. In deciding the case, the court reiterated that traditional conflict of laws rules respecting enforcement of judgments as between provinces must be adapted in order to comply with constitutional mandates. The court in that case also held that the finding of a real and substantial connection between the forum and the subject matter of the litigation was an absolute constitutional limit on the exercise of jurisdiction by provincial superior courts in a case involving such inter-provincial matters. In Tolofson v. Jensen, [1994] S.C.J. No. 110, [1994] 3 S.C.R. 1022 (S.C.C.), and Van Breda, the court again discussed how the real and substantial connection test evolved into a constitutionally mandated limit on the exercise of jurisdiction in response to constitutional concerns regarding territorial over-reaching. Lebel J. emphasized at paragraph 21 of Van Breda that conflict of laws principles must be adapted to fit within Canada’s constitutional structure, which limits the external reach of provincial laws and of a province's courts beyond the province’s territorial boundaries.

[55] The case-law regarding the adaptability of conflict of laws principles in the face of constitutional challenges supports my conclusion that the appropriate framework for determining jurisdiction in this case is one that incorporates important common law principles, while at the same time providing appropriate safeguards for the constitutional rights of Canada’s indigenous peoples. This type of approach respects the needs and interests of all parties involved. It is also supported by the general case-law respecting the purpose of s. 35(1) and the need for aboriginal rights principles to integrate harmoniously with the broader Canadian legal and constitutional framework. In R .v. Van der Peet, [1996] 2 S.C.R. 507 (S.C.C.), Lamer J. addressed the purposes underlying s. 35(1), and the articulated general principles for defining the scope of aboriginal rights. He explained that aboriginal rights are recognized and affirmed by s. 35(1) “in order to reconcile the existence of distinctive aboriginal societies prior to the arrival of Europeans in North America with the assertion of Crown sovereignty over that territory” (at para. 31). Subsequently, in R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686 (S.C.C.), Bastarache J. stated that section 35(1) “seeks to provide a constitutional framework for the protection of the distinctive cultures of aboriginal peoples, so that their prior occupation of North America can be recognized and reconciled with the sovereignty of the Crown” (at para. 23). Lebel J. held in Van der Peet that the test for determining the substantive rights which fall within the purview of s. 35(1) must correspond with this purpose. In determining the proper approach to assessing aboriginal rights claims, the court also emphasized that aboriginal rights exist within the reality of a broader legal and constitutional framework, and a country that consists of both indigenous and non-indigenous peoples. Lamer J. accepted the notion advanced by Mark Walters in his comment on Delgamuukw v. British Columbia ("British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia" (1992), 17 Queen's L.J. 350, at pp. 412-13) that aboriginal rights principles derive from the meeting of aboriginal and non-aboriginal legal cultures, and are intended to bridge these vastly different cultures. As Mark Walters highlighted, the corollary of these features of aboriginal rights is that “there will always be a question about which legal culture is to provide the vantage point from which rights are to be defined.” In addressing this question, the court accepted Mark Walters’ conclusion, at p. 413 of his comment on Delgamuukw, that the only morally and politically defensible conception of aboriginal rights is one that incorporates both aboriginal and non-aboriginal legal perspectives (at para 49). Accordingly, the court concluded that the task of reconciling the prior occupation of Canada by aboriginal peoples with the assertion of Crown sovereignty can only be carried out in a truly fair and just manner by giving equal weight and consideration to the aboriginal perspective and the perspective of the common law. As Lamer J. said, at paras. 49 and 50:

In assessing a claim for the existence of an aboriginal right, a court must take into account the perspective of the aboriginal people claiming the right. In Sparrow, supra Dickson C.J. and La Forest J. held at p. 1112 that it is "crucial to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake". It must also be recognized, however, that that perspective must be framed in terms cognizable to the Canadian legal and constitutional structure. As has already been noted, one of the fundamental purposes of s. 35(1) is the reconciliation of the pre-existence of distinctive aboriginal societies with the assertion of Crown sovereignty. Courts adjudicating aboriginal rights claims must, therefore, be sensitive to the aboriginal perspective, but they must also be aware that aboriginal rights exist within the general legal system of Canada. To quote again Walters, at p. 413: "a morally and politically defensible conception of aboriginal rights will incorporate both [aboriginal and non-aboriginal] legal perspectives". The definition of an aboriginal right must, if it is truly to reconcile the prior occupation of Canadian territory by aboriginal peoples with the assertion of Crown sovereignty over that territory, take into account the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal legal system.

It is possible, of course, that the Court could be said to be "reconciling" the prior occupation of Canada by aboriginal peoples with Crown sovereignty through either a narrow or broad conception of aboriginal rights; the notion of "reconciliation" does not, in the abstract, mandate a particular content for aboriginal rights. However, the only fair and just reconciliation is, as Walters suggests, one which takes into account the aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each [emphasis added].

C. The General Conflict of Laws Principles Respecting Jurisdiction

[56] Having concluded that general conflict of laws principles are the starting point for the jurisdiction analysis, I turn now to an overview of those principles. The question of jurisdiction concerns the court’s power to deal with a case and render a decision that will be binding on the parties. In order for a decision to be binding, the court must have jurisdiction over the parties to the litigation as well as the subject matter of the dispute. (Pitel and Rafferty, Supra., p. 1).

[57] Conflict of laws jurisprudence establishes that the inquiry into the court’s jurisdiction involves two stages. First, the court must decide whether it has jurisdiction simpliciter, which involves a determination of whether it has or can assume jurisdiction. If jurisdiction simpliciter is established, the court must at the second stage of the analysis decide whether it should nonetheless decline to take jurisdiction (Van Breda, at paras. 101-103; Momentous.ca Corporation v. Canadian American Association of Professional Baseball Ltd., 2010 ONCA 722 (C.A.); aff’d on other grounds 2012 SCC 9, [2012] 1 S.C.R. 359 (S.C.C.)). With respect to the jurisdiction simpliciter stage of the analysis, the following principles apply:

1. The court has jurisdiction if there is a statutory provision that grants it jurisdiction.

2. If there is no applicable statutory provision, the court must turn to common law principles to determine the question of jurisdiction simpliciter. At common law, the traditional grounds for jurisdiction simpliciter are:

a. The Respondent was present in Ontario and was served within Ontario;

b. The Respondent consents to the jurisdiction of the court, even if they are not present in Ontario; or

c. A Respondent attorns to the court’s jurisdiction, even if they are not present in Ontario.

3. In addition, at common law, a court can assume jurisdiction in a case involving a Respondent who has no presence in the territorial jurisdiction of the court and does not consent or attorn to the court’s jurisdiction if the Respondent has been properly served ex juris and there is a real and substantial connection between the forum and the subject matter of the litigation.

(Momentous.ca Corp., at para. 35; Jasen v. Karassik, 2009 CarswellOnt 1504 (C.A.); leave to appeal to S.C.C. refused 2009 49591 (SCC), 400 N.R. 398 (note); Van Breda; Chevron Corp. v. Yaiguaje, 2015 SCC 42 (S.C.C.)).

[58] As discussed earlier in these reasons, the real and substantial connection test for establishing jurisdiction simpliciter evolved due to constitutional concerns about the exercise of jurisdiction across territorial boundaries where there is no statutory basis for jurisdiction, the Respondent has no presence in the province and there is no consent or attornment to the court’s jurisdiction. Given that this case does not involve a Respondent located outside of Ontario, I conclude that the real and substantial connection test is not relevant to the jurisdiction analysis.

[59] The real and substantial connection test for establishing jurisdiction simpliciter has not subsumed or overtaken the other statutory or common law grounds for taking jurisdiction. Accordingly, if the test for jurisdiction simpliciter is satisfied based on a statutory test, or because the Respondent was served while in the jurisdiction or attorned to the court’s jurisdiction, there is no need to engage in the real and substantial connection inquiry (Incorporated Broadcaster Ltd. v. Canwest Global Communications Corp. (2003), 63 O.R. (3d) 41 (C.A.); Shekhdar v. K & M Engineering and Consulting Corp., [2006] O.J. No. 2120 (C.A.); Ward v. Canada (Attorney General) (2007), 2007 MBCA 123, 220 Man. R. (2d) 224 (C.A.); Van Breda; Chevron Corp.). In addition, the cases have established that if there is a statutory test for jurisdiction simpliciter and it is not satisfied, a party cannot resort to a common-law test to ground jurisdiction (Rothgiesser v. Rothgiesser (2000), 46 O.R. (3d) 577 (C.A.); Dovigi v. Razi, 2012 ONCA 361 (C.A.), leave to appeal ref’d 34945 (November 22, 2012), [2012] CarswellOnt 14546 (S.C.C.); Wang v. Lin, 2013 ONCA 33 (C.A.); Nafie v. Badawy, 2015 ABCA 36 (C.A), leave to appeal ref’d, [2015] SCCA No. 128 (S.C.C.); Trylinski-Branson v. Branson, 2010 ABCA 322 at paras 25-34 (C.A.), leave to appeal refused 2004 CarswellAlta 366 (S.C.C.); Knowles v. Lindstrom, 2013 ONSC 2818 (S.C.J.), aff’d 2014 ONCA 116 (C.A.)).

[60] Consent and attornment are often grouped together as a ground for establishing jurisdiction simpliciter. However, they are distinct concepts. Consent entails voluntary submission to the court’s jurisdiction. By contrast, the concept of attornment at common law is not necessarily consensual in nature. Attornment occurs where a litigant takes actions that are inconsistent with a denial of the court’s jurisdiction. In such circumstances, the party will be deemed to have accepted and acknowledged the court’s jurisdiction to hear and resolve the dispute (Trylinski-Branson, at para. 26). Any step taken in a proceeding beyond merely challenging the court’s jurisdiction can constitute attornment (Van Damme v. Gelber, 2013 ONCA 388 (C.A.) at paras. 22-24; Frazer v. 4358376 Canada Inc. (cob Itravel 2000 and Travelzest PLC), 2014 ONCA 553 (C.A.)). Examples of conduct that may result in a finding that a party has attorned include the following:

1. Entering an unconditional appearance or a Notice of Intent to Defend (Trylinski-Branson; Kinch v. Pyle, [2004] O.J. No. 5232 (S.C.J.) at paras. 10-15);

2. Delivering a defence which responds to the merits of the claim (Clinton v. Ford (1982), 37 O.R. (2d) 448 (C.A.); Momentous.ca Corp.; Singh v. Kaur, 2015 ONSC 1279 (S.C.J.));

3. Seeking any type of relief from the court (Trylinski-Branson);

4. Taking advantage of the procedures and protections of the court (Trylinski-Branson);

5. Bringing a motion to challenge jurisdiction in which the party also seeks substantive relief (Krisko v. Krisko, 2000 CarswellOnt 3774 (C.A.)).

[61] The second stage of the jurisdiction analysis occurs only if the court determines that jurisdiction simpliciter has been proven. This second step requires the court determine whether it should take or decline to take jurisdiction. The decision on whether the court should take jurisdiction is ultimately a matter of judicial discretion, which flows from the court’s residual equitable authority to control its process to assure fairness to the parties and the efficient resolution of the dispute. The authority to decline jurisdiction should only be exercised in limited circumstances (Van Breda, at para. 101; Momentous.ca Corp., at para. 36). The case-law to date recognizes two bases upon which the court can decline jurisdiction. The first ground, referred to as the doctrine of forum non conveniens, allows the court to refuse jurisdiction if the Respondent establishes that there is another more convenient forum in which to try to claim (Van Breda, at para. 101). The second basis for declining jurisdiction is if the parties have previously agreed to another forum for the resolution of their disputes (Momentous.ca Corp., at para. 37).

[62] Once jurisdiction simpliciter has been established, the litigation should proceed before the court of the forum unless the Respondent advances a case that the court should decline to take jurisdiction. The onus is on the Respondent to raise this issue, and not with the court that is seized with the claim (Van Breda, at para. 102). If the Respondent relies on the doctrine of forum non conveniens, they have the onus of proving that the proposed alternative forum is clearly more appropriate than the forum which the Applicant has chosen (Van Breda, at para. 103; Knowles, at para. 47).

[63] There are conflicting authorities on the issue of whether the court’s discretion to decline jurisdiction extends to cases where jurisdiction simpliciter is based on the Respondent’s consent or attornment to the court’s jurisdiction. In some cases, the courts have viewed attornment as an absolute bar to further consideration of the jurisdiction issue (see Bedard v. Bedard, 2004 SKCA 101 (C.A); Han v. Cho, 2006 BCSC 1623 (S.C.)). However, Ontario case-law has gone in the opposite direction. In a series of cases leading up to the Momentous.ca Corp. decision in 2010, the courts held that there is a discretion in a stay motion brought pursuant to s. 106 of the Courts of Justice Act to decline jurisdiction on the basis of the doctrine of forum non conveniens, notwithstanding that the responding party attorned to the court’s jurisdiction (see for example ABB Power Generation Inc. v. CSX Transportation (1996), 47 C.P.C. (3d) 381 (Ont. Gen. Div.); Occidental Chemical Corp. v. Sovereign General Insurance Co. (1997), 32 O.R. (3d) 277 (Gen. Div.); Kinch v. Pyle (2004), 8 C.P.C. (6th) 66 (Ont. S.C.J.)). In 2010, the Ontario Court of Appeal weighed in on this issue in Momentous.ca Corp. In that case, the court concluded that there is a discretion to decline jurisdiction even in cases where the Respondent has attorned to the court’s jurisdiction. The court concluded on the facts of the case before it that it was appropriate to decline jurisdiction because the parties had contractually agreed to have disputes between them resolved through a different forum. On appeal to the Supreme Court of Canada, the court upheld the court’s decision, but did so on the basis that there had been no attornment. The Supreme Court did not comment on the Court of Appeal’s decision that the court has a residual discretion to decline jurisdiction notwithstanding a finding of attornment by the Respondent.

D. The Modified Analytical Framework for Determining Jurisdiction in This Case

1. The Approach to the Jurisdiction Analysis if the Respondent Has Not Attorned

[64] I turn now to how the general conflict of laws principles respecting jurisdiction need to be modified in the circumstances of this case, where both parties are resident in Ontario and the Respondent challenges the court’s jurisdiction on the basis of an alleged aboriginal right to have the case governed by aboriginal adjudicative processes.

[65] In the absence of the constitutional challenge based on s. 35(1), the jurisdiction of an Ontario court to deal with this case would be relatively straightforward. The court would rely on statutory provisions relating to jurisdiction or, in the absence of such provisions, the Respondent’s presence in Ontario and valid service on him as grounds upon which to take jurisdiction. The court would also consider the applicable Rules of court to determine the appropriate municipality in which the application should be commenced. This case involves the issues of custody, access, child support and spousal support. The Ontario legislation that governs custody and access issues is the Children’s Law Reform Act. Section 22 of that Act provides that the court may exercise jurisdiction to make an order for custody or access to a child if the child was habitually resident in Ontario at the commencement of the application for the order. Rule 5(1) of the Family Law Rules provides that in cases involving custody of or access to a child, the case shall be started in the municipality where the child ordinarily resides, except for cases described in section 22 of the Children’s Law Reform Act and sections 48(2) and 150(1) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended. In usual circumstances, the court would clearly have jurisdiction to deal with the custody and access issues on the facts of this case, since the child is ordinarily resident in Waterloo, Ontario. The issues of child support and spousal support as between parties who reside in Ontario and who have not been married are governed by the Family Law Act. Unlike the Children’s Law Reform Act, the Family Law Act does not set out a test for jurisdiction in child support and spousal support cases. Accordingly, the court could in the usual course assume jurisdiction based on the Respondent’s presence in Ontario.

[66] In this case, it is important to note that the Respondent is challenging the issue of jurisdiction at the jurisdiction simpliciter stage of the analysis. His position is that his aboriginal right pursuant to s. 35(1) to be governed by Haudenosaunee adjudicative processes would be violated by any attempt by this court to take or assume jurisdiction, and that this breach is not justified pursuant to the test for proving justification of an aboriginal right. I conclude that where such a claim is advanced and the Respondent has not consented or attorned to the court’s jurisdiction, the court cannot simply rely on a statutory provision or the Respondent’s presence in the province to take jurisdiction. To do so would essentially shut down the constitutional argument based on jurisdiction principles that were not designed with an aboriginal rights challenge to jurisdiction in mind. Such an approach would be inconsistent with the goal which the Supreme Court of Canada has clearly supported in the aboriginal rights jurisprudence of achieving reconciliation between Canada’s indigenous and non-indigenous peoples. Furthermore, the court cannot take jurisdiction on the basis of the real and substantial connection test. As I have already noted, that test was developed in response to constitutional concerns regarding territorial over-reaching, and has no application where the responding party in the litigation is present in Ontario. The constitutional protection afforded to aboriginal rights pursuant to section 35(1) mandates that in the face of a challenge to jurisdiction based on s. 35(1) by a Respondent who has not consented or attorned, the jurisdiction analysis must be conducted on the basis of the s. 35(1) jurisprudence relating to the determination of aboriginal rights and the justification test that must be satisfied to limit those rights. Based on this framework, the court would only be able to take jurisdiction if the Respondent did not prove the existence of the alleged aboriginal right, or if the right was established but the justification test was satisfied. However, as I discuss in further detail below, before embarking upon a full hearing to address these issues, the court is entitled to entertain preliminary motions by the other party to dispose of the constitutional challenge to jurisdiction on a summary basis. If any such motion is successful, then the challenge to jurisdiction disappears, and the court can proceed to take jurisdiction based on the standard statutory and common law jurisdictional rules. Alternatively, if any such motion fails, the court would have to proceed to a full hearing of the constitutional challenge to jurisdiction.

2. The Approach to the Jurisdiction Analysis if the Respondent has Consented or Attorned to the Court’s Jurisdiction

[67] I conclude that a different analytical approach is warranted where a Respondent who is present in Ontario consents or attorns to the jurisdiction of the court, but then later seeks to advance a challenge to the court’s jurisdiction based on an alleged s. 35(1) aboriginal right to have the case dealt with and decided through aboriginal adjudicative processes. In these circumstances, the traditional two-stage jurisdiction analysis should in my view apply, with some modifications. The court should first determine whether jurisdiction simpliciter has been established, and second, whether the court should nonetheless exercise its discretion to decline jurisdiction at that stage so as to allow the constitutional challenge to proceed. Again, the jurisdiction simpliciter analysis should begin with a consideration of any applicable statutory and Rules provisions respecting jurisdiction. If the court does not have jurisdiction based on those provisions, it cannot proceed with the case. Otherwise, jurisdiction simpliciter will be established on the basis of the applicable statutory and Rules provisions coupled with the Respondent’s consent or attornment to the jurisdiction. Notwithstanding the establishment of jurisdiction simpliciter, the court will then have a discretion to decide whether it should decline or accept jurisdiction at that stage. Again, as I discuss below, the court is entitled at this stage of the analysis to entertain preliminary motions by the party who wants the court to take jurisdiction to strike the other party’s pleading which sets out the jurisdictional challenge or dismiss the constitutional case on a summary basis. If any such motions are successful, the court should take jurisdiction and dismiss any request by the Respondent for a stay of the Family Law proceedings. However, if the constitutional case is not disposed of on a summary basis, the court will then need to embark upon a discretionary assessment of whether it is appropriate to take jurisdiction at that point, or whether it should decline jurisdiction at that stage and allow the Respondent to proceed with a full hearing of the aboriginal rights challenge on its merits. If the court decides to take jurisdiction, this will be a final determination respecting the court’s authority to deal with and decide the case, and the court should dismiss any motion brought by the Respondent for a stay based on the court’s alleged lack of jurisdiction. Alternatively, if the court concludes that the Respondent should be permitted to proceed with their case, the jurisdiction issue will be determined based on the s. 35(1) jurisprudence respecting aboriginal rights claims.

[68] I recognize that under common law principles, consent and attornment are considered grounds for establishing jurisdiction simpliciter when the Respondent is outside of the court’s territorial jurisdiction. However, I consider it appropriate to import the concepts into the jurisdiction analysis in the circumstances of this case in the manner described above for several reasons. A Respondent’s consent or attornment to the court’s jurisdiction gives rise to reasonable expectations by both the Applicant and the court that the preliminary issue of jurisdiction is not in dispute. The Applicant and the court system as a whole will proceed to expend resources and time on the case, and the Applicant will begin to develop litigation strategies based on the assumption that the court’s Rules and processes and Ontario law will apply. The passage of time will also have an impact on the Applicant’s rights. Allowing a Respondent in such circumstances to raise a s. 35(1) jurisdiction challenge at any point, without giving the court any discretion to determine whether the constitutional case should proceed, would essentially turn s. 35(1) into a trump card that a Respondent could pull out at any point if they were not content with how the case is going for them. While aboriginal rights are exceedingly important and must be protected, the court is not required to consider them in a vacuum. Aboriginal rights must be pled and advanced in a timely manner. If they are not, the court must balance the importance of protecting the alleged aboriginal right which the party is advancing with the legitimate concerns and interests of the other party and any children involved in the litigation. It is only through such a balancing of interests and concerns that the goal of reconciliation, which is at the heart of aboriginal rights jurisprudence, can truly be promoted.

[69] The analytical framework that I am adopting for situations where a Respondent has attorned will result in cases where the court will take jurisdiction notwithstanding the fact that a constitutional challenge has been raised based on s. 35(1). I do not consider this to be problematic where the Respondent has consented or attorned to the court’s jurisdiction. As discussed above, the real and substantial connection test for assuming jurisdiction simpliciter was developed directly as a result of constitutional concerns regarding territorial over-reaching by the court. However, the Supreme Court of Canada has concluded that attornment remains a valid ground for establishing jurisdiction simpliciter in cases involving Respondents outside of the court’s territorial jurisdiction notwithstanding such constitutional concerns. It has held that the substantial connection test has not subsumed the other traditional bases for founding jurisdiction simpliciter, including attornment (Van Breda; Chevron Corp.). Furthermore, the fact that a party advances a constitutional argument does not necessarily compel the court to rule on that argument. The well-established principle of constitutional restraint dictates that if a case can be decided on both a non-constitutional ground and a constitutional basis, it should be decided on the non-constitutional ground if possible (Phillips v. Nova Scotia (Commission of Inquiry Into Westray Mine Tragedy, [1995] 2 S.C.R. 97 (S.C.C.); R. v. Lloyd, 2014 BCCA 224 (C.A.); Peter Hogg, Constitutional Law of Canada, 5th ed., Supplemented, Vol. 2, Toronto: Thomson Reuters, pp. 59-22).

[70] The question that remains is what factors the court should consider in deciding whether to take or decline jurisdiction at the second stage of the analysis in the situation under discussion. As I have already noted, in Momentous.ca Corp., the Ontario Court of Appeal that the court may decline jurisdiction notwithstanding that jurisdiction simpliciter has been established based on attornment or consent in two situations; when the Respondent successfully invokes the doctrine of forum non conveniens, and when the parties have agreed to another forum to resolve their disputes (at para. 37). However, the court’s discretion is not limited to situations where the facts of the case before it can be neatly pigeon-holed into existing categories of cases in which discretion has previously been exercised. The doctrine of forum non conveniens is not in my view a suitable one upon which to determine whether to decline jurisdiction in this case. As stated above, where the Respondent relies on the doctrine of forum non conveniens, they have the onus of proving that the proposed alternative forum is clearly more appropriate than the forum which the Applicant has chosen. In this case, the Respondent has not provided any particulars of the adjudicative entity or processes that he wishes to access. The doctrine of forum non conveniens was not designed to incorporate a protracted and complex constitutional proceeding to determine as a preliminary issue whether alternative adjudicative systems, processes and laws should be legally recognized, and if so, the specifics of same. In any event, I note that the Respondent would have the onus of raising the issue of forum non conveniens, and he has not done so.

[71] Apart from the traditional bases for declining to jurisdiction at the second stage of the analysis, the factors which the court should consider where a Respondent has consented or attorned, but then contests jurisdiction based on s. 35(1) should be crafted keeping in mind that aboriginal rights are a necessary part of reconciliation of distinctive aboriginal societies that existed prior to the arrival of Europeans in North America with the broader political community of which they are a part (R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.)). Against the backdrop of this principle, the analysis should in my view involve a careful balancing of the respective concerns and interests of the party who is advancing the aboriginal rights claim and those of the other litigants and the children involved in the court proceeding. I conclude that in order to achieve a just and appropriate balance in the exercise of its discretion, the court should be guided by all of the circumstances of the case, with particular emphasis on the following factors and considerations:

1. The constitutional protection afforded to aboriginal rights, and the importance of supporting the advancement of those rights as part of the reconciliation process between Canada’s indigenous and non-indigenous peoples;

2. Whether the attornment by the Respondent was accidental in nature;

3. The reasons for the delay in advancing the aboriginal rights challenge to jurisdiction;

4. Whether the Respondent’s constitutional challenge raises a serious question to be tried;

5. Whether the Respondent would suffer irreparable harm if the court were to take jurisdiction without affording the Respondent a full hearing on the constitutional claim; and

6. Finally, which party would suffer greater harm from the court either taking jurisdiction or declining jurisdiction to allow for a full hearing of the constitutional challenge?

3. The Court’s Authority to Entertain Preliminary Motions at the Outset of a s. 35(1) Jurisdiction Challenge to Strike or Stay the Constitutional Case

[72] In this case, the Applicant has brought a preliminary motion to strike the Respondent’s Amended Answer and stay the Respondent’s constitutional case altogether, including the jurisdictional challenge, on a summary basis. It is therefore necessary to address how such a motion should be woven into the analytical framework outlined above. In particular, the question arises as to whether the court has the authority to deal with such preliminary motions to dispose summarily of the jurisdiction challenge, with the result that the standard rules respecting jurisdiction would then apply. I conclude that it does.

[73] It is clear that a decision must be made regarding this court’s jurisdiction so that the parties can move forward in resolving their Family Law disputes. Both parties have accepted the authority of this court to decide the jurisdiction issue and the aboriginal rights claim that the Respondent has advanced. Addressing the preliminary motions that the Applicant has brought to strike the Respondent’s pleading and stay the constitutional case falls squarely within these two areas of authority. Although the court has a duty to protect and foster aboriginal rights, this does not equate with an absolute obligation to allow a full hearing of any aboriginal rights claim, including one that challenges the court’s jurisdiction, regardless of fatal deficiencies in the pleading setting out the claim and without regard to how unmeritorious the case may seem on its face. The Supreme Court of Canada has clearly indicated in Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 (S.C.C.) that the courts are not obliged to allow a full hearing of an aboriginal rights case that appears to be fatally flawed from the outset.

[74] As I have indicated, the Applicant relies on various provisions of the Family Law Rules in support of her motion to strike the Amended Answer, dismiss the constitutional claims on a summary basis and stay the Respondent’s constitutional case. The Respondent’s constitutional challenge to the applicability of Ontario law does not extend to the Courts of Justice Act, pursuant to which the Family Law Rules were promulgated. Accordingly, I have no difficulty in relying on those Rules in dealing with the Applicant’s preliminary motion. I turn now to the Applicant’s preliminary motion to strike the Amended Answer and dismiss the Respondent’s constitutional claims on a summary basis.

II. ISSUE #2: SHOULD THE AMENDED ANSWER BE STRUCK AND THE RESPONDENT’S CONSTITUTIONAL CASE BE DISMISSED SUMMARILY?

A. Overview

[75] The Applicant seeks an order striking the Respondent’s Amended Answer in its entirety and dismissing the constitutional case summarily. Such an order would extend to both the jurisdictional challenge as well as the Respondent’s claim that he has an aboriginal right to be governed by Haudenosaunee laws. If the Applicant is successful in obtaining this relief, the challenge to the court’s jurisdiction disappears and the analytical framework outlined above would not apply. The court would clearly be able to take jurisdiction with respect to the support issues based on the Respondent’s presence in Ontario, and with respect to the custody and access issues based on the statutory test for jurisdiction set out in the Children’s Law Reform Act. For the reasons that follow, I agree with the Applicant that the Amended Answer should be struck in its entirety, and that the Respondent’s constitutional case should be dismissed on a final and summary basis.

[76] Before embarking upon the analysis of the bases upon which I am striking the Amended Answer and disposing summarily of the constitutional case, it is necessary to address Ms. Hensel’s submission that the Respondent did not receive adequate notice of the relief that the Applicant was seeking on the motion, or the various grounds upon which the Applicant seeks to strike the Amended Answer and dismiss the Respondent’s constitutional case. Ms. Hensel indicated if the Respondent had had a true appreciation of these matters, he would have served and filed extensive affidavit evidence in defence of the motion. I do not accept the Respondent’s position on these matters. Although the Applicant’s Notice of Motion did not set out all of the specific Rules that she relied on in support of the relief that she was pursuing, this was equally true for the Respondent’s motion for a stay of the Family Law proceeding. Furthermore, the Respondent only asked for an order amending his Notice of Constitutional Question to include reference to the Children’s Law Reform Act, and did not specifically request an order amending his Amended Answer. Notwithstanding this problem with the Notice of Motion, the Respondent was permitted to argue that the amendment request should apply to the Amended Answer. Both parties were granted significant latitude with respect to their failure to specifically refer to Rules and legislation that they were relying on in their respective Notices of Motion. In terms of notice of the relief that the Applicant was pursuing, her Notice of Motion clearly requested an order striking the Amended Answer in its entirety, seeking a declaration that this court has jurisdiction and staying the constitutional case. There was no indication in the Notice of Motion that the Applicant was seeking this relief on a temporary basis. Counsel for the Applicant addressed the various grounds upon which the Applicant sought to strike the Amended Answer in their Factum dated January 8, 2017, three months before argument began on the motion. The Respondent was permitted to file a Supplementary Factum dated February 8, 2017. Given the importance of the issues to both parties, I gave both of them significant leeway during the hearing of these motions to file additional Written Submissions on the legal issues and further legal authorities in support of their respective positions. Both parties took advantage of this flexibility and submitted additional voluminous Briefs of Authorities during the hearing. Some of these authorities were filed at my request, in order to assist in areas for which I required clarification. Both parties were given a full and fair opportunity to have their cases heard. The fact that the hearing spanned 8 days is in my view a testament to this fact.

[77] With respect to Ms. Hensel’s assertion that the Respondent would have filed supplementary affidavit evidence in defence of the motion to strike and to dismiss the constitutional case if he had appreciated the extent and finality of the relief that the Applicant was requesting, I note that both parties filed extensive materials in support of the motions. There was no request for leave to file additional materials after the exchange of the parties’ respective Facta, in which both parties set out their positions in detail. Moreover, the Applicant’s motion to strike and to dispose summarily of the constitutional case is based on the insufficiency of the Amended Answer and Claim on its face, and the failure of the pleading to set out a reasonable claim or defence in law; it is not based on a dispute as to whether there is a genuine issue of fact requiring a trial for its resolution.

B. Should the Amended Answer be Struck on the Basis that it Fails to Set out the Material Facts in Support of the Aboriginal Rights Claims?

1. The Legal Requirements of a Pleading, and the Authority to Strike a Pleading for Failure to Plead the Necessary Material Facts

[78] The Applicant’s request for an order striking the Respondent’s Amended Answer is based in part on her argument that the Amended Answer fails to set out the material facts in support of the Respondent’s aboriginal rights claims. The Family Law Rules do not specifically address the requirements of a Family Law pleading. However, Rule 1(7) provides that if the Rules do not cover a matter adequately, a matter may be decided by reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended if the court considers it appropriate to do so. Given the absence of direction in the Family Law Rules about the basic requirements of pleadings, I consider it appropriate to refer to the Rules of Civil Procedure for guidance. Rule 25.06 sets out the basic rules of pleading in the civil law context. The relevant portion of that Rule for the purposes of this case is Rule 25.06(1), which stipulates as follows:

RULES OF PLEADING — APPLICABLE TO ALL PLEADINGS

Material Facts

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved

[79] In support of her request that the Amended Answer be struck on the basis of a failure to plead material facts, the Applicant also relies on Rules 1(8.2), 2(2) to (4) and 2(5)(a) of the Family Law Rules. These Rules provide as follows:

DOCUMENT THAT MAY DELAY OR IS INFLAMMATORY, ETC.

1(8.2) The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.

PRIMARY OBJECTIVE

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

2(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

DUTY TO MANAGE CASES

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial.

[80] The direction set out in Rule 25.06(1) of the Rules of Civil Procedure essentially confirms the well-established principle that a pleading must contain the material facts that establish the constituent elements of a claim or defence (Dhieux v. Potter, 2013 ONSC 7881 (S.C.J.)). This rule mandates that the factual content of the pleading be sufficiently precise to allow the other parties to identify the evidence and arguments that they will need to muster to respond to other claims or defences that are being advanced in the litigation. (Québec (Directeur de la Protection de la Jeunesse) c. X., 2000 CarswellQue 3265 (Q.C.C.Q.); C.M.T. et al. v. Government of Prince Edward Island et al., 2016 PESC 4 (S.C.)). The facts set out in the support of the claims or defences must have substance in order to satisfy this rule. As the court emphasized in McDowell and Aversa v. Fortress Real Capital Inc., 2017 ONSC 4791 (S.C.J.), at para. 49, “[b]are allegations and conclusory legal statements based on assumptions or speculation are not material facts.”

[81] The rule that pleadings must contain a concise statement of material facts in support of any claim or defence is a critical centrepiece to the operation of a fair and just system of adjudication. Its goal is to ensure that every party involved in the litigation has a clear understanding of the claims and defences that they must respond to at the outset of the litigation. Given the critical importance of this basic rule, the court may strike a pleading if it fails to disclose the material facts in support of the claims or defences set out in the document (Copland v. Commodore Business Machines Ltd. (1985), 52 O.R. (3d) 586 (S.C.); Kang v. Sun Life Assurance Co. of Canada, 2011 ONSC 6335 (S.C.J.); McDowell). The authority to strike a pleading on this ground flows from Rule 25.06(1) itself (Quest Management Services Inc. v. Quest Management Systems, 2014 ONSC 3473 (S.C.J.)). However, Rule 1(8.2) of the Family Law Rules provides additional authority for the court to strike a pleading on this basis. A pleading that fails to set out the material facts in support of the claims makes it difficult to have a fair trial, is a nuisance, and is an abuse of the court process in that it causes delays and unexpected burdens on the court system as a whole (see George v. Harris, 2000 CarswellOnt 1714 (S.C.J.) for a case in the civil context). Rules 2(2) to (5) of the Family Law Rules also provide additional authority for the court to strike a pleading as failing to plead the material facts in support of the claims or defences set out in the document. Those Rules impose a positive duty on the court to apply the Rules and actively manage cases in such a way as to promote the primary objective of the Rules of enabling courts to deal with cases justly. Ensuring that pleadings are in proper form is a critical part of this obligation, since unclear pleadings that do not set out the material facts contribute to inefficiencies and unjust processes and litigation outcomes.

[82] The Respondent’s aboriginal rights case includes an alleged right to have the Family Law issues with the Applicant governed by Haudenosaunee laws and protocols. The assertion that laws other than those of Ontario should govern him brings into play conflict of laws rules relating to the pleading of foreign law. Under conflict of laws principles, the concept of a “foreign law” refers to any law other than the law that typically governs the adjudicative body that is dealing with the case. Accordingly, Haudenosaunee laws would fall within this definition. The court cannot take judicial notice of foreign law. The nature and effect of foreign law are treated as questions of fact, which must be pleaded (Jean-Gabriel Castel and Janet Walker, Canadian Conflict of Laws, 6th ed., loose-leaf (Markham: LexisNexis Canada Inc., 2005), vol. 1, at p. 7-1; Hope v. Caldwell (1871), 21 U.C.C.P. 241, 1871 CarswellOnt 100 (H.C. Common Pleas); Canadian National Steamships v. Watson, [1939] S.C.R. 11 (S.C.C.); Hunt; Lear v. Lear, 1974 CarswellOnt 162 (C.A.); Pitre v. Nguyen, 2007 BCSC 1161 (S.C.); American Home Assurance Co. v. Temple Insurance Co., [2009] O.J. No. 249 (S.C.J.); Yordanes v. Bank of Nova Scotia (2006), 78 O.R. (3d) 590 (S.C.J.)). Accordingly, if a party seeks to rely on foreign law, their pleading must include sufficient particulars of the substance of the law to allow the other parties to determine the effects of the law on the issues in question. If they fail to do so, the court may strike the pleading, and the law of the forum will then apply (Castel and Walker, Supra., at p. 7-5; Ontario Stone Corp. v. R.E. Law Crushed Stone Ltd., [1964] O.J. No. 685, [1964] 1 O.R. 303 (Master); Yordanes, at para. 36).

[83] On a motion to strike due to deficiencies in a pleading, the court should read the pleading generously and overlook inadequacies that are merely the result of drafting deficiencies (Hunt; Tran v. University of Western Ontario, 2015 ONCA 295 (C.A.)) The Supreme Court of Canada has emphasized that a functional approach to pleadings is particularly important in Aboriginal Law cases, given that the legal principles may be unclear at the outset, the evidence supporting the claim may also be uncertain in the early stages of the litigation, and community and expert evidence may need to be engaged to clarify the particulars supporting the claim (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257 (S.C.C.)). The court has held that minor defects in pleadings should be overlooked in these cases, provided that the pleadings provide the parties and the court with an outline of the material allegations and relief sought. The court has emphasized that an overly technical approach to pleadings in Aboriginal rights cases undermines the project of reconciliation. As the court stated in Tsilhqot’in at para. 23:

[C]ases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved.

[84] While a sense of flexibility with respect to rules of pleading is appropriate in Aboriginal Law claims based on the considerations outlined in Tsilhqot’in, this does not allow a claimant to rely on a pleading that simply sets out bald assertions with no material facts in support of those statements. The law requires that basic, material facts in support of the claims be articulated, and the principle of flexibility comes into play through recognition that those facts may evolve and to a certain extent change as further evidence emerges and the case unfolds. Binnie J. emphatically made this point in Lax Kw’alaams Indian Band. He noted that litigation of aboriginal and treaty rights claims is best carried out in the context of civil actions rather than regulatory proceedings, since the ordinary rules governing civil litigation, including the rules of pleading, facilitate a full and fair hearing of all relevant issues. He emphasized the critical role and importance of pleadings in ensuring that the process is fair to all participants in the litigation. On this issue, he commented as follows, at para. 43:

Pleadings not only serve to define the issues but give the opposing parties fair notice of the case to meet, provide the boundaries and context for effective pre-trial case management, define the extent of disclosure required, and set the parameters of expert opinion. Clear pleadings minimize wasted time and may enhance prospects for settlement.

[85] Binnie J. agreed with the general proposition that rigidity of form should not triumph over substance in Aboriginal and treaty rights litigation. However, he stressed that this does not negate the obligation of the claimant to satisfy the minimum legal requirements of a pleading. As he stated at para. 41, “[t]he statement of claim…defines what is in issue. The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.” The court in Lax Kw’alaams Indian Band clearly rejected the notion that aboriginal and treaty rights litigation should follow a commission of inquiry model in which “a commissioner embarks on a voyage of discovery armed only with very general terms of reference,” and through which the material facts in support of the claims emerge along the voyage (at para. 40). Binnie J. held that such a commission of inquiry approach “is not suitable in civil litigation, even in civil litigation conducted under rules generously interpreted in Aboriginal cases to facilitate the resolution in the public interest of the underlying controversies” (at para. 40). He added that 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” (at para. 11). Binnie J. articulated these principles with a full appreciation of the goal of promoting reconciliation between Canada’s aboriginal and non-aboriginal communities, but noted that the interests of non-aboriginal Canadians must also be respected in advancing this goal. In his words, at para. 12:

It is true, of course, that Aboriginal law has as its fundamental objective the reconciliation of Canada's Aboriginal and non-Aboriginal communities, and that the special relationship that exists between the Crown and Aboriginal peoples has no equivalent to the usual courtroom antagonism of warring commercial entities. Nevertheless, Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic wellbeing of both. 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.

2. The Essential Elements of an Aboriginal Rights Claim

[86] Applying the principles outlined above to the facts of this case, the starting point is to identify the constituent elements of an aboriginal rights claim. The Supreme Court of Canada first addressed the scope of s. 35(1) and the test for adjudicating upon aboriginal rights in Sparrow. The court held that s. 35(1) must be construed in a generous, liberal and purposive manner. However, it also concluded that the rights that s. 35(1) recognizes and affirms are not absolute, and may be infringed provided that any infringement meets the test of justification. The court held that a party advancing an aboriginal rights claim must establish the following:

1. First, they must demonstrate the existence of an aboriginal right and identify the characteristics or incidents of the alleged right at stake. The court ruled that aboriginal rights are to be interpreted flexibly, and that they are not frozen in time. They may evolve over time, with the result that they may be carried out in a different manner as time passes;

2. Second, they must establish that the aboriginal right in question was not extinguished prior to the enactment of s. 35(1);

3. Third, they must show that the impugned action or legislation in question has the effect of interfering with the aboriginal right. If it does, then the court will find that there has been a prima facie infringement of s. 35(1). To determine whether the aboriginal right has been interfered with such as to constitute a prima facie infringement of s. 35(1), the claimant must address the following:

a. First, is the limitation unreasonable?

b. Second, does the limitation impose undue hardship?

c. Third, does the impugned act or legislation deny to the claimant their preferred means of exercising that right?

4. If a prima facie infringement is proven, the case moves to the justification stage of the analysis. The onus shifts to the other party to prove that the infringement is justified. In order to satisfy the justification test, they must show that:

a. There is a valid legislative objective; and

b. The governmental entities involved acted in a manner that is consistent with the fiduciary duty of the government towards aboriginal peoples.

[87] In Sparrow, the Supreme Court of Canada did not address the test that applies for determining the existence of an aboriginal right that is constitutionally protected pursuant to s. 35(1). The court dealt with this issue in Van der Peet, and has since elaborated upon the test in several cases including R. v. Jones, [1996] 2 S.C.R. 821 (S.C.C.) (hereinafter referred to as “Pamajewon”), R. v. Gladstone, [1996] 2 S.C.R. 723 (S.C.C.), Mitchell v. Minister of National Revenue, 2001 SCC 33, [2001] 1 S.C.R. 911 (S.C.C.), R. v Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220 (S.C.C.), R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686 (S.C.C.) and Lax Kw’alaams Indian Band. In Van der Peet, Lebel J. concluded that in order to be an aboriginal right, an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. In that case and in subsequent decisions, the Supreme Court of Canada has articulated the following principles for determining the existence of an aboriginal right that is recognized and affirmed by s. 35(1):

1. First, the claimant must in their pleading clearly characterize the right that they are asserting, and the nature of the activity that they state is being carried out pursuant to that right (Van der Peet, at para. 51; Lax Kw’alaams Indian Band, at paras. 40-47). With respect to this branch of the analysis, Lebel J. emphasized in Van der Peet the importance of characterizing the claimant’s right properly so that the court can determine whether the activity in question actually falls within the purview of that right, and so that it can ascertain whether the evidence actually supports the existence of the alleged right. He emphasized that aboriginal rights claims run the risk of being dismissed if they are cast in excessively broad terms, since these claims must be assessed in light of the specific historical practices, customs and traditions of the relevant aboriginal community. In Pamajewon and Mitchell, the court emphasized that the right claimed must be characterized in context and not distorted to fit the desired result. The court also stressed that the right claimed must not be artificially broadened or narrowed. The Supreme Court has held that the court is not bound by the claimant’s characterization of the alleged right, and that it may refine the characterization of the right claimed on terms that are fair to all parties (Lax Kw’alaams Indian Band, at para. 44). For instance, in Lax Kw’alaams Indian Band, Binnie J. noted that the courts have narrowed the characterization of the right claim in circumstances where this would facilitate an acquittal in a case involving a prosecution of the claimant. In Van der Peet, Lebel J. held that the proper characterization of the right involves a consideration of such factors as the nature of the action which the Applicant is claiming was done pursuant to an aboriginal right, the nature of the governmental regulation, statute or action being impugned, and the tradition, custom or practice being relied upon to establish the right.

2. Second, the claimant must clearly identify the aboriginal community which they associate with for the purposes of the aboriginal rights claim, and whose traditions, customs and practices they are relying on as the foundation for the alleged right. In Van der Peet, Lebel J. emphasized that claims to aboriginal rights cannot be determined on a general basis. As he stated, “[t]he fact that one group of aboriginal people has an aboriginal right to do a particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community” (at para. 69).

3. Third, the claimant must show that the activity in question is an element of a practice, custom or tradition that was integral to the distinctive culture of the aboriginal community in question prior to that community’s first contact with Europeans. To satisfy this test, the claimant must do more than demonstrate that a practice, tradition or custom was an aspect of, or took place in, the aboriginal society of which they are a part. They need to establish that the practice, tradition or custom was a central and significant part of the society's distinctive culture. In Van der Peet, the court clarified that it is not necessary to show that the practice, tradition or custom was “distinct” to the aboriginal community and culture in question as compared to the practices, traditions or customs of other communities. Rather, the claimant must demonstrate that the practice, tradition or custom was “one of the things which made the culture of the society distinctive — that it was one of the things that truly made the society what it was” (at para. 55). In other words, the practice, tradition or custom must be “a defining feature of the culture in question” (at para. 59), such that the culture would be fundamentally altered without it (Mitchell, at para. 12). In considering this issue, the significance of the practice, custom or tradition to the community is a key aspect of the court’s inquiry into whether it is an integral part of the distinctive culture of the aboriginal community in question. The test excludes practices, traditions and customs that are only marginal or incidental to the aboriginal community’s cultural identify

4. The court has recognized the practical difficulties involved in attempting to prove that a practice, custom or tradition was integral to the distinctive culture of the aboriginal community in question prior to European contact. In order to address this concern, the court held in Van der Peet that the evidentiary burden can be satisfied by showing that the practice, custom or tradition in question is currently integral to the community’s distinctive culture, and that there is continuity between the current practice, custom or tradition and the one that existed pre-contact. Lebel J. described this “continuity” principle as follows, at para. 63:

“[w]here an aboriginal community can demonstrate that a particular practice, custom or tradition is integral to its distinctive culture today, and that this practice, custom or tradition has continuity with the practices, customs and traditions of pre-contact times, that community will have demonstrated that the practice, custom or tradition is an aboriginal right for the purposes of s. 35(1).”

In assessing whether there is continuity between the current practice, custom or tradition and the pre-contact one, the court has held that the current and pre-contact practice, custom or traditions relied on need not be identical in form, since aboriginal rights are not frozen in their pre-contact shape and may evolve over time. Accordingly, the question is whether the modern day practice, custom or tradition that the claimant is relying on is “demonstrably connected to, and reasonably regarded as a continuation of the pre-contact practice, custom or tradition (Lax Kw’alaams Indian Band, at para. 46). The court is required to take a generous but realistic approach to matching modern day and pre-contact practices, customs and traditions (Lax Kw’alaams Indian Band, at para 46). In Van der Peet, the court noted the concept of continuity does not require the claimant to provide evidence of an unbroken chain of continuity (at para. 75).

5. Finally, if an aboriginal right is established, the claimant must establish that the activity that gave rise to the case under consideration is actually an expression of that right. In Mitchell, McLachlin C.J.C. highlighted that since aboriginal rights are not frozen in their pre-European contact form, the question at this stage is whether the activity in question represents the modern exercise of an ancestral practice, custom or tradition (at para. 13).

[88] The court emphasized in Van der Peet that in assessing a claim for the existence of an aboriginal right, the court must take into account the perspective of the aboriginal people claiming the right (at para. 49). However, it added that since the intention of aboriginal rights is to reconcile the prior occupation of Canadian territory by aboriginal with the assertion of Crown sovereignty over that territory, the definition of an aboriginal right must incorporate both aboriginal and non-aboriginal perspectives, including the perspective of the common law. In other words, the aboriginal perspective must be framed in terms cognizable to the Canadian legal and constitutional structure (at para. 49).

3. Analysis of the Respondent’s Amended Answer and Claim

[89] I have carefully considered the Respondent’s Amended Answer to determine whether it satisfies the minimum requirements for a valid pleading. I agree with the Applicant that it does not. As I have stated, he contests both the jurisdiction of this court and the application of Ontario Family Law legislation to this dispute. Although the Amended Answer touches upon the elements of a cause of action for establishing the existence and infringement of an aboriginal right, it does not set out the material facts in support of his constitutional case. Rather, I find that the Amended Answer consists primarily of bald assertions, some of which are confusing. The shortcomings in the pleading in terms of material facts include the following:

1. First, the Respondent is required in his pleading to clearly characterize the alleged aboriginal right that he is claiming and the nature of the activity that he states is being carried out or that he has a right to engage in pursuant to that right. In regard to the alleged right, the Respondent claims an exceedingly broad aboriginal right to have the Family Law issues in this case dealt with through the governance processes, processes and laws of the Haudenosaunee and the people of the Six Nations. This was precisely the type of broadly-cast claim that the Supreme Court of Canada stated in Delgamuukw would not be cognizable under s. 35(1), because of the need to assess the claim in light of specific current and historical practices, customs and traditions of the aboriginal community. Even if the claim were theoretically cognizable, the Respondent would need to plead the material facts relating to the specific practices, customs and traditions that he is relying on as the foundation for the alleged right, and how they meet the test for establishing an aboriginal right. As I discuss below, he has not done so.

2. The second difficulty with respect to the characterization aspect of the Respondent’s claim is that he does not set out the material facts relating to the activities that are being carried out pursuant to his alleged aboriginal right. He makes vague references to the Haudenosaunee and the peoples of the Six Nations having “a robust law, a dispute resolution system, which among other things determined how disputes within and between families were to be resolved,” and to processes and protocols that are determined and specific to the Haudenosaunee and the people of the Six Nations. There are no specifics whatsoever in his pleading, or even in the evidence before the court, about the particular adjudicative or dispute resolution processes that are being carried out currently or that were carried out historically. Furthermore, the Respondent does not plead the material facts in support of the laws that he says should govern this dispute. Accordingly, on this front, the pleading fails to set out the material facts in support of his claim that Haudenosaunee and Six Nations laws should apply, and also offends the basic conflicts rule that a party must set out a concise statement of any laws that they are relying on which are different than the laws that typically govern the court.

3. As I have indicated, a claimant must clearly identify in their pleading the aboriginal community from which the alleged aboriginal right derives. The Respondent has failed to do so in his Answer. He refers to both the Haudenosaunee people generally and to the people of the Six Nations. However, he fails to set out the material facts relating to the activities of either the broader Haudenosaunee community or the local Six Nations community which he states are being undertaken pursuant to the alleged right.

4. The Respondent has not set out any facts whatsoever in support of his claim that the alleged dispute resolution processes and laws relating to inter and intra-familial disputes are either in and of themselves practices, customs and/or traditions that are and were during pre-contact times, integral to the distinctive culture of the aboriginal community, or elements of such practices, customs and/or traditions. The Amended Answer asserts at paragraph 16 that the system of law and governance that the Respondent is relying on is “distinct” to the Haudenosaunee and the people of the Six Nations, but a cause of action for an aboriginal right requires “distinctiveness” to the community’s culture, not distinctness as compared to other cultures. Moreover, the Amended Answer does not set out any material facts to support the existence of continuity between the existing practices, traditions and/or customs relied on and those that existed in pre-contact times. Paragraph 16 of the pleading simply includes a bald assertion that the system of governance and laws relied on has been practiced continuously since the time of contact with European settlers.

5. At paragraph 6 of the Amended Answer, the Respondent refers to having a “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 arising from intimate relationships. However, the Amended Answer does not identify any applicable treaty or set out any particulars whatsoever in support of this alleged treaty right.

6. Finally, the Amended Answer does not set out any material facts in support of the claim that the Respondent’s aboriginal rights have been infringed. Again, there is simply a blanket assertion of infringement with no particulars as to how the alleged right has been interfered with in any way by this court asserting jurisdiction or applying Ontario law. The importance of particulars regarding this aspect of the claim cannot be understated. It cannot be taken as a given that aboriginal laws and decision-making processes are infringed simply by the fact of an Ontario court taking jurisdiction and applying Ontario Family Law. Our system of Family Law welcomes and supports alternative dispute resolution processes and models, and allows opportunities for them to work in tandem with the litigation process if a matter proceeds to court. It is not a given that one set of processes and approaches interferes with or undermines the other.

[90] Based on the concerns outlined above, I agree with counsel for the Applicant that the Respondent’s Answer and Claim essentially amounts to an invitation to this court to adopt the type of commission of inquiry approach that Binnie J. clearly indicated in Lax Kw’alaams Indian Band was inappropriate in aboriginal rights litigation. He wishes to compel both the court and the Applicant to embark upon a complex, expensive and likely very protracted litigation journey with no clear map, no set destination and no end in sight, a proposition which the Supreme Court of Canada has clearly stated should not be entertained. The parties separated in November 2013, and have therefore been attempting to resolve their Family Law dispute for over four years. The application was issued two years ago, on December 8, 2015, and the Amended Answer was dated June 8, 2016. Despite the passage of time since these Family Law issues came to a head, the Respondent had not as of the date of the commencement of the hearing of these motions provided any particulars to the Applicant addressing the matters outlined above. In all of the circumstances, an order striking the Amended Answer in its entirety for failure to plead the material facts in support of the constitutional claim is warranted.

[91] I find support for my decision to strike the Amended Answer on the basis of deficiencies in the pleading from the decisions of Kátlodééche First Nation v. Canada, 2003 NWTSC 70 (S.C.) and Québec (Directeur de la Protection de la Jeunesse. In Kátlodééche First Nation, the Plaintiff was the governing body for the band of Dene persons and was in charge of managing the reserve. The Plaintiff brought an application to restrain the Canada Industrial Relations Board (“CIRB”) from hearing an application by the Public Service Alliance of Canada (“PSAC”) to become the certified bargaining agent for employees of the Applicant. The Plaintiff based its claim on an alleged aboriginal and treaty right to self-government that was protected by s. 35(1). The Defendant brought a motion to strike the Statement of Claim as disclosing no reasonable cause of action. The court noted that the argument advanced by the Defendant was that the claim was cast in overly broad and abstract terms and lacked the specificity required for an aboriginal rights pleading. Vertes J. emphasized that a claim that an aboriginal right has been infringed cannot be framed in broad, vague terms. Rather, it must be structured in the context of a substantive issue, not abstractions, and the pleadings must reflect the particulars of the claim. The court concluded that the Statement of Claim in that case failed to meet the minimum requirements of a valid pleading, and that the court could in such circumstances strike the pleading. On the facts of that case, the court chose instead to permit the Plaintiff to amend its Statement of Claim.

[92] The case of Québec (Directeur de la Protection de la Jeunesse) involved a child protection proceeding brought by the Applicant child welfare agency. The Respondent parents served a Notice of Intent in which they challenged the jurisdiction of the court and the application of Quebec child protection law on the basis that they had an aboriginal right protected by s. 35(1) to have issues relating to the safety and protection of their children dealt with and resolved according to their own aboriginal processes and laws. The Applicant sought to strike the pleading of the Respondent parents on the basis that it failed to set out the material facts in support of the aboriginal rights claim. The court held that a litigant is not excused from respecting the rules of pleading simply because they raise important constitutional law issues. It concluded that the Respondents’ claim was cast in excessively broad, vague and unspecific terms, and dismissed the constitutional case on the basis of the deficiencies in the Respondents’ pleading. The problems which the court identified respecting the Respondents’ pleading were virtually identical to those which I have identified in this case.

C. Should the Constitutional Case be Dismissed on the Basis that the Respondent Lacks Standing to Advance the Aboriginal Rights in Question?

[93] The Applicant’s alternative ground for disposing of the Respondent’s constitutional case summarily is that the Respondent lacks standing to advance the claims that he is pursuing. As previously noted, her argument is that the alleged aboriginal right upon which the Respondent bases his case, if it exists, would be a collective right of either the people of the Six Nations or the Haudenosaunee people. She submits that the Respondent would require clear authority from the leadership of the relevant collective community as a whole in order to pursue the claim. For the reasons that follow, I agree with the Applicant’s position on this issue.

[94] The court has the authority to dismiss or suspend a case on a summary basis on the ground that the party lacks the legal capacity to carry on the case. This authority flows from Rule 16(12)(c)(ii) of the Family Law Rules, which stipulates as follows:

MOTION FOR SUMMARY DECISION ON LEGAL ISSUE

16(12) The court may, on motion,

(c) dismiss or suspend a case because,

(ii) a party has no legal capacity to carry on the case

[95] The authority to dismiss or suspend a case based on lack of standing also derives from Rules 2(4) and 2(5)(a) of the Family Law Rules. As I have already indicated, Rule 2(4) requires the court to apply the Family Law Rules to promote the primary objective of ensuring that cases are dealt with justly. Rule 2(5) directs the court to actively manage cases, and subrule (a) of that Rule specifically highlights that part of this positive duty involves disposing of issues that do not require a full investigation and trial at the earliest stage possible.

[96] The Supreme Court of Canada addressed the right of an individual member of an aboriginal community to pursue claims based on aboriginal rights that have a collective aspect to them in Moulton Contracting Ltd. v. British Columbia, 2013 SCC 26 (S.C.C.). In that case, a number of members from the Fort Nelson First Nation blocked the Applicant corporation from accessing logging sites after the company obtained licences from the Crown to harvest timber in two areas within the territory of the First Nation. The Plaintiff company responded by bringing a tort action against the individual members. The Defendant members argued in their defence that the logging licences were void because they had been issued in breach of the Crown’s constitutional duty to consult the First Nation, and because they violated the members’ treaty rights. The Crown argued that the members could not advance the treaty rights claims, since such claims must be brought by the relevant aboriginal community or on behalf of the community by an authorized representative. The court decided the case on grounds other than the standing issue, but made some general comments regarding standing in aboriginal rights litigation. Lebel J. held that aboriginal and treaty rights are communal in nature, but that some such rights may be capable of being advanced by individual members of the community. For instance, he noted that some aboriginal rights that have a collective nature may be assigned to or specifically exercised by individual members of the community, and that in some cases, individual members of a community may have a particularly pressing interest in the protection of aboriginal rights. Accordingly, the court concluded that in a broad sense, some such rights have an individual aspect regardless of their general collective nature (at para. 35).

[97] Notwithstanding the foregoing comments, the court in Moulton Contracting Ltd. also appeared to accept the notion that some aboriginal rights are purely communal in nature and not capable of being exercised by an individual member of the community. This proposition was accepted by the Federal Court in Sawridge Band. v. R., [1999] F.C.J. No. 138 (T.D.); aff’d 2001 FCA 339 (C.A.). In that case, the issue was whether an individual member of a First Nation had standing to pursue a broad claim based on his community’s alleged treaty rights, its aboriginal title to land and an alleged right of self-government The band in question had been involved in the proceeding but had filed a Notice of Discontinuance. The individual plaintiff wished to proceed with the claim. The court concluded that the rights in question were purely communal in nature and not susceptible to individual exercise. Furthermore, the court held that the individual had commenced the action as a representative action, and there was no evidence before the court indicating that he continued to be authorized by the band to continue with the proceeding. The decision was upheld by the Federal Court of Appeal, which limited its reasons to the latter point.

[98] I turn to the nature of the aboriginal right which the Respondent is advancing in this case. Counsel for the Respondent argued at length at the hearing of these motions that the right that the Respondent is asserting is essentially individual in nature. She submitted that the Respondent claims only an individual right to be exclusively subject to and bound by the processes, protocols and laws of the Haudenosaunee and the people of the Six Nations. In my view, regardless of how the Respondent has attempted to describe the alleged right, his 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. This is how he framed his claim in his Notice of Constitutional Question, in which he states at paragraph 4 that the Haudenosaunee people and the people of the Six Nations “have an inherent right to govern themselves, with respect to the care and support of children, and the resolution of disputes within and between families concerning such care and support.” The Respondent continues in paragraph 5 of the Notice of Constitutional Question by stating that as a Haudenosaunee person and a member of the Six Nations, he has “a right to be governed by Haudenosaunee law and governance systems, and to have the within 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.” The Respondent also acknowledges in his Factum filed in support of these motions that the constitutional claim is founded on an alleged general right of self-government by the Haudenosaunee people in regard to Family Law disputes. The essence of his position is captured at paragraph 29 of the Factum, where he states as follows:

The issues raised by the Respondent in his Notice of Constitutional Question concern the Haudenosaunee right to be subject, solely and exclusively, to the family law and child support and parenting processes under Haudenosaunee law. This is characterized as the exercise of an inherent right to self-government, which is recognized and affirmed as an Aboriginal and Treaty right by section 35 of the Constitution Act (emphasis added).

[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. In concluding that the Respondent does not have standing, I have considered the fact that the wide-ranging aboriginal right of self-government in Family Law matters which the Respondent is asserting, if it exists in law, is simply not capable of exercise and realization by one individual alone. The very nature of the alleged right requires extensive involvement and investment of time and resources by members of the relevant aboriginal community. The adjudicative process that the Respondent is relying on by necessary implication would involve other members of the community to manage and carry out the processes. The development, interpretation and elucidation of the laws that he relies on would also require the involvement of members of the aboriginal communities. A system of Family law governance and laws requires a community for its effective management, development and implementation. The alleged right that the Respondent is advancing is distinct from most cases in which an individual advances an aboriginal rights claim in that it would impose considerable responsibilities and burdens on the aboriginal communities in question. The Supreme Court of Canada recognized and stressed in Delgamuukw that any aboriginal right of self-government, if it were found to exist, would involve exceedingly complex issues and require consensus from the community in question about critical matters such as the general model of self-government that exists, conceptions of territory, citizenship, jurisdiction and internal government organization (at para. 170). 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. Although the evidence indicates that the Six Nations band and the Haudenosaunee Confederacy Council are aware of this litigation, there is no evidence indicating that they have authorized the Respondent to act on their behalf in a representative capacity. Moreover, the constitutional case is not framed as a representative proceeding in the Respondent’s pleading. The evidence in fact raises questions as to whether the Haudenosaunee Confederacy Council supports the broad right that the Respondent is advancing respecting governance and applicable laws in Family Law matters. As I have already noted, that Council has advised the Respondent’s counsel that it objects to this court making any determination as to whether the Council has jurisdiction or whether it has authority under the Great Law that it states governs the Haudenosaunee people. All of these considerations lead me to conclude that the aboriginal right that the Respondent is relying on in this case is a communal one that is not capable of being exercised or advanced by an individual member of the Haudenosaunee or Six Nations community. The corollary of this conclusion is that the constitutional case set out in the Amended Answer should be dismissed pursuant to Rule 16(12)(c)(ii) of the Family Law Rules.

D. Should the Amended Answer be Struck and the Constitutional Claims Dismissed on the Ground that the Amended Answer Fails to Set out a Reasonable Claim or Defence in Law?

1. Overview of Conclusions

[100] As I have indicated, the Applicant advances a further argument that the Respondent’s Amended Answer should be struck and his constitutional claims dismissed on the ground that the Amended Answer fails to set out a reasonable claim or defence in law. This argument is based on two general points. First, the Applicant submits that the broadly cast claim to a right to be governed by Haudenosaunee processes and laws in regard to all of the Family Law issues in dispute in this case is non-justiciable on the basis that it amounts to a bald assertion of immunity from Ontario Family Law. The argument is that the court cannot adjudicate upon this type of claim, because it is fundamentally incompatible with the assertion of Crown sovereignty, which gave the Crown plenary authority to legislate throughout the realm. Second, the Applicant submits that the Respondent’s broad claim to have his Family Law dispute dealt with through Haudenosaunee processes and laws is not cognizable according to the jurisprudence regarding the determination of aboriginal rights pursuant to s. 35(1).

[101] For the reasons that follow, I do not accept the Applicant’s argument that the Amended Answer should be struck on the basis of incompatibility with Crown sovereignty. However, I agree that it should be struck on the ground that the alleged aboriginal right as framed in the pleading is not cognizable pursuant to the s. 35(1) jurisprudence regarding the determination of aboriginal rights, and that the Respondent’s constitutional case should be dismissed on this basis.

2. Rules and Principles Applicable to a Request to Strike Pleadings for Failing to Set Out a Reasonable Claim or Defence

[102] The Applicant relies on Rule 16(12)(b), Rule 16(12)(c)(iv), Rule 1(8.2) and Rule 2(5)(a) of the Family Law Rules in support of her request that the Amended Answer be struck for failure to set out a reasonable claim or defence. Rule 16(12)(b) stipulates that the court may on motion strike out an application, answer or reply because it sets out no reasonable claim or defence in law. Rule 16(12)(c)(iv) provides that the court may dismiss or suspend a case if it is a waste of time, a nuisance, or an abuse of the court process. As I have already noted, Rule 1(8.2) states that the court may strike out all or part of any document that may delay or make it difficult to have a fair trial, or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. Rule 2(5)(a) stipulates that the court’s duty to promote the primary objective of the Rules includes “at an early stage, identifying the issues and separating and disposing of those that do not need full investigation and trial.” Rules 1(8.2) and 2(5)(a), when considered together, authorize a summary dismissal process for claims without merit as long as the process for doing so is fair (Nichols v Nichols, 2015 ONCJ 360 (O.C.J.) at paras. 10, 13).

[103] On a motion to strike a pleading on the basis that it discloses no reasonable claim or defence in law, the analysis should focus on the pleadings alone, and not the evidence (Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 (S.C.C.)). The matter must be decided on the premise that the material facts set out in the pleading are true, unless they are patently ridiculous or incapable of proof (Attorney General of Canada v. Inuit Tapirisat of Canada; Operation Dismantle Inc. v. R., [1985] 1 S.C.R Hunt; Odhavji Estate v. Woodhouse, 2003 SCC 69; [2003] 3 S.C.R. 263 (S.C.C.); Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (S.C.C.)). However, bare allegations and conclusory legal statements based on assumptions or speculation are not material facts, and therefore they should not be assumed to be true for the purposes of a motion to strike a pleading as setting out no reasonable claim or defence in law (Losier v. Mackay, Mackay & Peters Ltd., [2009] O.J. No. 3463 (Ont. S.C.J.) at paras. 39-40, aff'd 2010 ONCA 613 (Ont. C.A.), leave to appeal ref'd, [2010] S.C.C.A. No. 438 (S.C.C.); Deluca v. Canada (Attorney General), 2016 ONSC 3865 (Ont. S.C.J.); Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 (F.C.A.) at para. 34; Grenon v. Canada Revenue Agency, 2016 ABQB 260 (Alta. Q.B.) at para. 32; McDowell at para 49). The Supreme Court of Canada emphasized in Knight in the context of a motion to strike for failure to disclose a reasonable cause of action that the claimant must clearly plead the facts upon which they rely in advancing their claim. It emphasized that a claimant is not entitled on such a motion to rely on the possibility that new facts may turn up to support their case as the litigation progresses. As the court stated at para. 22:

It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.

[104] The court further emphasized that arguments by a party resisting such a motion that more evidence will emerge to support the claim reflect a fundamental misunderstanding of what such a motion is about. As the court stated, at para. 23:

This fundamentally misunderstands what a motion to strike is about. It is not about evidence, but the pleadings. The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike. The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless.

[105] Assuming that the party has pleaded the material facts to support their claim, and that those facts are true, the test for striking the pleading is whether it is "plain and obvious" that the pleading discloses no reasonable cause of action and must fail (Attorney General of Canada v. Inuit Tapirisat of Canada; Operation Dismantle Inc.; Dumont v. Can. (A.G.), [1990] 1 S.C.R. 279 (S.C.C.), Hunt; Odhavji Estate; Knight, at para. 17)). In Knight, the Supreme Court of Canada indicated that another way of putting the test is that the claim has no reasonable prospect of success. The test is a stringent one, and if there is a reasonable prospect that the party may succeed in their claims, the court should allow the party to advance their case (Hunt; Odhavji Estate; D. (B.) v. Children's Aid Society of Halton (Region), 2007 SCC 38, [2007] 3 S.C.R. 83 (S.C.C.); Knight). The pleading should only be struck on the basis of disclosing no reasonable cause of action if it is certain to fail due to a radical defect. (Hunt; Odhavji Estate; Kátlodééche First Nation). Matters of law that that are not yet fully settled should not be disposed of on a motion to strike on this basis, and the court should allow this remedy only in the clearest of cases (Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.); Temelini v. Ontario Provincial Police Commissioner (1999), 73 O.R. (2d) 664 (C.A.); McDowell, at para. 51). In considering whether to strike a pleading for failure to set out a reasonable claim or defence, the court must construe the pleading generously, and overlook deficiencies or inadequacies that are merely the result of drafting deficiencies. Furthermore, the pleading should not be struck solely on the basis of the complexity of the issues, the novelty of the claims being advanced or the strength of the other party’s defences to the claim (Operation Dismantle; Hunt; Odhavji Estate; Knight). As the Supreme Court of Canada stressed in Knight, at para. 21:

[t]he law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed…Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[106] Notwithstanding the strict requirements outlined above, the Supreme Court of Canada has emphasized that the remedy of striking out a pleading as showing no reasonable claim or defence is an extremely valuable litigation tool not only from the perspective of litigants seeking the relief but from the broader perspective of the administration of justice as a whole. In Knight the court noted as follows, at paras. 19-20:

The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties' respective positions on those issues and the merits of the case.

[107] Having regard for these valuable aspects of a motion to strike for disclosing no cause of action, the motion should not be dismissed solely on the ground that it will require lengthy and complex argument. (Operation Dismantle).

3. Are the Respondent’s Aboriginal Claims Non-Justiciable Based on the Doctrine of Sovereign Incompatibility?

[108] I turn first to the Applicant’s argument that the Respondent’s claim is non-justiciable on the basis that it is fundamentally incompatible with the assertion of Crown sovereignty. I do not accept this argument, because it is not in my view plain and obvious that the doctrine of sovereign incompatibility as it has been traditionally framed applies in the context of aboriginal claims based on alleged rights of internal self-government. In order to address this argument, it is necessary to review the jurisprudence respecting the doctrine of sovereign incompatibility, and how it has been addressed in the case-law respecting aboriginal rights.

[109] The traditional concept of Crown sovereignty involves the notion that the assertion by the British Crown of sovereignty over Canadian lands vested absolute political authority in the Crown, including absolute and exclusive legislative authority within the territory of those lands (Sparrow, at para. 49). This notion did not allow room for any aboriginal sovereignty which could be recognized by the law or the courts. The courts have relied on this traditional concept of Crown sovereignty in cases that have not involved s. 35(1) aboriginal rights claims as a basis upon which to decline to adjudicate upon cases which have questioned the Crown’s authority to exercise its legislative jurisdiction and authority throughout its territory. These types of claims led to the development of the doctrine of sovereign incompatibility, which provides that claims which are fundamentally incompatible with the Crown’s assertion of absolute sovereignty were non-justiciable. For instance, in R. v. Pena, 103 BCAC 273 (B.C.C.A.), the accused applied for a declaration that the court lacked jurisdiction to hear the indictment on the ground that the alleged offences occurred on land which had not been acquired by the Crown through treaty or purchase. The court held that this claim was non-justiciable on the ground that it challenged the Crown’s plenary authority to enact laws that govern all inhabitants of the province. Similarly, in R. v. David, 2000 CarswellOnt 540 (S.C.J.), Rutherford J. rejected the claim of the accused Mohawk person charged with a number of offences under the Customs Act and the Excise Act that the court lacked jurisdiction to try him on the basis of an inherent right of sovereignty on the part of the Mohawk Nation. The court held that the assertion of Crown sovereignty gave the Crown plenary authority to exercise its legislative jurisdiction under its constitution and to govern throughout its territory. It concluded that claims that are incompatible with this principle are non-justiciable by the court, and dismissed the accused’s application in the nature of habeas corpus on this basis. Similarly, in Ro:ri:wi:io v. Canada (Attorney General), 2006 CarswellOnt 8694 (S.C.J.); aff’d 2007 ONCA 100 (C.A.), the Applicant brought an application seeking a declaration that a certain area in the province was hunting grounds reserved for Indians unless the Crown was able to establish sovereignty over the land in question. The court concluded that this claim was non-justiciable on the basis that the court has no authority to adjudicate upon challenges to the acquisition of sovereign jurisdiction by Canada. The Ontario Court of Appeal upheld this decision, but noted that the result may have been different if the Applicant had advanced an aboriginal title claim, since aboriginal title exists within Canadian sovereignty.

[110] The doctrine of sovereign incompatibility has also been invoked in several Criminal Law cases in which the accused has relied, inter alia, on s. 35(1) to argue that they should be immune from prosecution on grounds related to aboriginal sovereignty and alleged immunity from Canadian law. In R. v. Francis, 2007 CarswellOnt 1548 (S.C.J.) and R. v. Cook, 2010 ONSC 675 (S.C.J.), the courts rejected such broad claims on the basis that claims seeking adjudication on the limits of Crown sovereignty are non-justiciable.

[111] Notwithstanding the foregoing decisions, the notion of one, all-encompassing sovereignty that is vested in the Crown has been revisited in the aboriginal rights jurisprudence in the past two decades. Although the Supreme Court of Canada’s decision in Sparrow is often cited by litigants who invoke the doctrine of sovereign incompatibility in aboriginal rights cases, a careful review of that decision indicates that the court questioned the notion that aboriginal rights claims could be summarily dismissed on the basis of arguments based on an exclusive sovereignty vesting in the Crown. The portion of the judgment which has been relied on in support of sovereign incompatibility arguments is found at para 49 of the judgment, where the court stated as follows:

It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown: see Johnson v. McIntosh (1823), 21 U.S. (8 Wheat.) 543 (S.C.); see also the Royal Proclamation itself (R.S.C. 1985, App. II, No. 1, pp. 4-6); Calder, supra, per Judson J. at p. 328, Hall J. at pp. 383, 402.

[112] An important point that has often been overlooked in cases discussing the doctrine of sovereign incompatibility is that the court’s comments outlined above were made in the context of its discussion regarding historical British policy towards aboriginal peoples, and were not directed to the approach that should be followed since the enactment of s. 35(1). In fact, the court went on to emphasize that s. 35(1) marked the advent of a new era in the law of aboriginal rights, in which the rights and interests of Canada’s indigenous peoples need to now be considered through a fresh lens. Of significance to the Applicant’s sovereign incompatibility argument, the court emphasized that s. 35(1) requires a fundamental shift in how we think about the concept of Canadian sovereignty. In this regard, the court quoted Professor Lyon in "An Essay on Constitutional Interpretation" (1988), 26 Osgoode Hall L.J. 95 at 100, as follows:

... the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown (emphasis added).

[113] The highlighted portion of this citation telegraphed at an early stage the Supreme Court of Canada’s questioning of the proposition that aboriginal claims based on the concept of aboriginal sovereignty, with related inherent rights to self-government, can be dismissed outright by the court on the basis of the notion of an exclusive, over-arching sovereignty that vests solely in the Crown. The court also appears to have rejected the notion that aboriginal claims which challenge this exclusive concept of Crown sovereignty are not justiciable by the courts. These comments by the court in Sparrow represent the first indication by the Supreme Court of Canada that the concept of “Canadian sovereignty” needed to be re-defined to account for and acknowledge the reality that the indigenous peoples of Canada had systems of governance and laws in place prior to the arrival of Europeans on the North American scene.

[114] Cases decided since Sparrow have provided further guidance about how we should re-cast the concept of “Canadian sovereignty” to respect the reality of pre-existing aboriginal systems of governance and laws, and the implications of such a revised conception of sovereignty in the context of aboriginal claims based on rights of self-government. As I have already indicated, in Van der Peet, the court held that the purpose of s. 35(1) is to give constitutional acknowledgement and protection to the fact that “when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries” (at para. 30). It added that s. 35(1) provides the constitutional framework through which “the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown” (at para. 31). The wording that the court used in describing the purpose of s. 35(1) is significant, since it represented a recognition that Canada’s indigenous peoples did in fact have organized “societies,” with shared practices, traditions and cultures. The majority in the subsequent decision in Pamajewon, left open the possibility that s. 35(1) could extend to protection of aboriginal self-government claims, and held that such claims, if they exist, would be determined having regard for the purposes underlying s. 35(1) and according to the same test which the court articulated in Van der Peet for the determination of other aboriginal rights claims. McLachlin C.J.C. dissented in the result in Van der Peet, but her general discussion regarding the purpose of s. 35(1) provided important guidance to subsequent courts grappling with cases involving aboriginal claims based on rights of self-government. She noted that the purpose of s. 35(1) is not limited to reconciling the prior occupation of the land by aboriginal peoples who had distinctive “practices, traditions and cultures” with the assertion of Crown sovereignty. Rather, she emphasized that Canada’s aboriginal peoples also had existing legal regimes prior to the arrival of Europeans in North America, and that the purpose of s. 35(1) must also encompass this reality. Accordingly, she concluded that the existence of pre-existing legal regimes gives rise to aboriginal rights which persist, absent extinguishment (at para. 230). She also stressed that s. 35(1) requires that the process of reconciling the prior occupation of aboriginal peoples with distinctive practices, traditions, cultures and legal regimes with the assertion of Crown sovereignty must be carried out in a manner that “provides the basis for a just and lasting settlement of aboriginal claims consistent with the high standard which the law imposes on the Crown in its dealings with aboriginal peoples” (at para. 230). The other important principle that the court established in Van der Peet was that in determining the existence and defining the nature of aboriginal rights, the court’s analysis and decisions must occur within the framework of the overall Canadian legal and constitutional structure. Accordingly, aboriginal rights cannot be defined so broadly as to undermine basic constitutional values and principles.

[115] The case of Campbell v. British Columbia (Attorney General), 2000 BCSC 1123 (S.C.) continued to pave the path towards a new conception of Canadian sovereignty, and discussed the implications of this new mindset for aboriginal claims based on alleged rights of self-government. The Applicants in that case were three members of the British Columbia provincial assembly who challenged the constitutionality of portions of the comprehensive treaty and land claims agreement which the federal Crown had executed with the Nisga’a Tribal Council which provided that the Nisga’a government may make laws in some areas that would prevail over federal and provincial law. Williamson J. dismissed the application for a declaration that the settlement legislation implementing the agreement and the Treaty itself were in part void and of no effect. In reaching this decision, he reviewed the historical American case-law respecting the impact of the assertion of sovereignty on the survival of aboriginal claims to a right of self-government, and held that this jurisprudence supported a conclusion that the right of indigenous peoples to govern themselves had been diminished, but not extinguished, by the Crown’s assertion of sovereignty over North American lands (at para. 90). In support of this conclusion, Williamson J. cited the following portion of the decision of Chief Justice Marshall of the United States Supreme Court in Johnson v. M’Intosh, 21 U.S. (8 Wheat) 43 (1823) regarding relations between Crown representatives and indigenous peoples after the Crown’s assertion of sovereignty, which he noted had also been referred to with approval by Lamer C.J.C. in Van der Peet:

In the establishment of these relationships, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished…

[116] The court also cited the later decision of Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), in which Chief Justice Marshall wrote that although the legislative powers of Indian nations had been diminished, they were still “domestic dependent nations” who retained the power to speak for their people and to enter into treaties. In Campbell, Williamson J. also concluded that the Constitution Act, 1867, 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5, had not exhaustively distributed legislative power in Canada between the federal Parliament and the provincial legislative assemblies, since it had only addressed the division of powers within the limits of the British North America Act. The court held that aboriginal rights, including rights of self-government, survived as an underlying value of the Constitution outside of the powers distributed to Parliament and the provincial legislatures in 1867, and that the division of powers provided for in section 91 and 92 of the Constitution Act, 1867 was always intended to be a division “internal” to the Crown aimed at ensuring that the local and distinct needs of Upper and Lower Canada and the maritime provinces were protected under the new federal system (at para. 78). The corollary of this was that the enactment of the Constitution Act, 1867 did not in and of itself eliminate any aboriginal rights of self-government that existed as of that time. Williamson J. concluded that aboriginal peoples could have limited rights of self-government that survived both the assertion of Crown sovereignty and Confederation, and that any such rights that were not extinguished or surrendered prior to the enactment of the Constitution Act, 1982 would be protected by s. 35(1).

[117] The Mitchell case must also be considered in addressing the Applicant’s argument that the Respondent’s aboriginal rights claim in this case is non-justiciable on the basis that it is incompatible with Crown sovereignty. That case involved a claim by the Respondent that he had an aboriginal and treaty right to be exempt from the payment of customs duties at the Canada/United States border. The Crown argued that the aboriginal rights claim that the Respondent was advancing could not fall within the scope of s. 35(1) because it was fundamentally incompatible with the federal Crown’s sovereign interest in regulating its borders. McLachlin C.J.C., writing for the majority, noted that this argument found its source in the doctrine of continuity, which governed the absorption of aboriginal laws and customs into the new legal regime upon the assertion of Crown sovereignty over the region (at para. 62). She indicated that at common law, “aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights, unless (1) they were incompatible with the Crown’s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them” (at para. 10) Subject to these exceptions, the practices, customs, traditions and laws that defined aboriginal societies as distinctive cultures continued as part of the law of Canada (at paras. 10 and 62). McLachlin C.J.C. noted that s. 35(1) elevated any such existing common law aboriginal rights, and any other aboriginal rights not yet absorbed into the common law, to constitutional status. The court’s decision therefore supports the conclusion that customary aboriginal laws, and legal processes supporting those laws, which were integral to an aboriginal community’s distinctive culture could be constitutionally protected by s. 35(1). McLachlin C.J.C. decided that it was unnecessary in that case to consider whether the doctrine of sovereign incompatibility should be incorporated as a preliminary threshold factor in determining the existence of an aboriginal right, before engaging upon the analysis set out in Van der Peet, since the Respondent had not satisfied the Van der Peet test in any event. However, she noted at para. 63 that the court had not expressly invoked the doctrine of “sovereign incompatibility” in defining the scope of rights protected under s. 35(1). She emphasized that to date, the court had relied on the factors set out in Van der Peet for determining the existence of an aboriginal right, and had affirmed the doctrines of extinguishment, infringement and justification as forming the appropriate framework for resolving conflicts between aboriginal rights and competing claims, including those based on Crown sovereignty (at para. 63).

[118] Binnie J. concurred with the majority in Mitchell in finding that the Respondent had not met the Van der Peet test for proving the existence of an aboriginal right. However, he felt compelled to weigh in on whether the doctrine of sovereign incompatibility applies as a threshold issue in the determination of aboriginal rights under s. 35(1). In addressing this issue, he held that the concept of “sovereignty” was fundamentally revised and updated in 1982, when the Constitution was patriated and s. 35(1) was enacted. He concluded that at that point, all aspects of the country’s sovereignty became “firmly rooted within our borders” (at para. 129), and he specifically referred to this revised concept of sovereignty as “Canadian sovereignty” rather than using the traditional phrase “Crown sovereignty.” Binnie J. held that the concept of Canadian sovereignty assumes that First Nations were not wholly subordinated to non-aboriginal sovereignty, but rather became “merger partners” in the formation of the country, with the result that “aboriginal and non-aboriginal Canadians together form a sovereign entity with a measure of common purpose and united effort” (at para. 129). In his words, “[a]boriginal peoples do not stand in opposition to, nor are they subjugated by, Canadian sovereignty. They are part of it” (at para 135). He concluded that it was this new merged sovereignty, based on a partnership between Canada’s indigenous and non-indigenous peoples, with which existing aboriginal and treaty rights must be reconciled pursuant to s. 35(1). Binnie J. concluded that the doctrine of sovereign incompatibility applies as a preliminary consideration at the definitional stage in the s. 35(1) analysis, for the purpose of determining whether the right being asserted can fall within the scope of s. 35(1). However, he noted that if the doctrine is invoked, the issue would be whether the asserted legal right is fundamentally incompatible with the new concept of merged Canadian sovereignty. He concluded that the doctrine would come into play where it is clear that the claim relates to national interests that all Canadians have in common rather than to distinctive interests that for some purposes differentiate an aboriginal community (at para. 164). He also held that the doctrine of sovereign incompatibility should be sparingly applied, and that for the most part, the protection of practices, traditions and customs that are distinctive to aboriginal cultures in Canada would not raise legitimate sovereignty issues at the definitional stage. His conclusion was that the broad international trading/mobility right claimed by the Respondent in that case as a citizen of the Haudenosaunee (Iroquois) Confederacy was fundamentally incompatible with the historical attributes of Canadian sovereignty. However, he emphasized that this conclusion should not be construed as either foreclosing or supporting any position on the compatibility or incompatibility of internal self-governing institutions of First Nations with Crown sovereignty (at para. 165). In this regard, he noted that the sovereign incompatibility principle has not prevented the United States from recognizing forms of internal aboriginal self-government which it considers to be expressions of residual aboriginal sovereignty.

[119] The Supreme Court of Canada’s decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (S.C.C.) marked an important evolution in the court’s framing of the concept of Canadian sovereignty. The decision is relevant to the issue of whether the doctrine of sovereign incompatibility, either in its traditional form or in the revised form that Binnie J. envisioned, has any part to play in the analysis of s. 35(1) aboriginal rights claims. The issue in Haida Nation was the legality of the Crown’s decision to issue a tree farm licence to a forestry company despite the objections of the Haida people. The Haida argued that the Crown had failed to engage in adequate consultation. The Court concluded that the Crown’s duty to consult and accommodate extends to situations where an alleged aboriginal right has not yet been established, and that the nature of the duty in such circumstances will be proportionate to a preliminary assessment of the strength of the case and the potentially adverse effects of the impugned activity on the alleged right. Of significance to the Applicant’s sovereign incompatibility argument in this case, the court clearly referred to and acknowledged the existence of pre-existing aboriginal sovereignty. It discussed the honour of the Crown in the treaty-making process, and in the context of that discussion, McLachlin C.J.C. stated as follows, at para. 20:

Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represent a promise of rights reconciliation, and “[i]t is always assumed that the Crown intends to fulfil its promises” (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This in turn implies a duty to consult and, if appropriate, accommodate.

[120] The court clearly acknowledged in Haida Nation that the aboriginal peoples of Canada not only enjoyed sovereignty prior to contact with Europeans, but that elements of their sovereignty continued after the assertion of sovereignty by the Crown. Of significance, the court described the Crown’s sovereignty as “assumed,” and clearly viewed treaty making and s. 35(1) as the vehicles through which aboriginal claims to sovereignty rights could be reconciled with the Crown’s assumed sovereignty. McLachlin C.J.C. further emphasized that the Crown has a duty to act honourably in attempting to reconcile such claims, in a fashion that ensures a just and lasting settlement of claims. The court summarized this vision of Canadian sovereignty as follows:

Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.

[121] These comments reflect the court’s acknowledgement that aboriginal self-governance claims can fall within the purview of aboriginal rights protected by s. 35(1). Furthermore, the court appears to have accepted a vision of “Canadian” sovereignty that includes elements of aboriginal sovereignty that may be officially defined and recognized through either the voluntary treaty process or alternatively, recognized by the courts as aboriginal rights pursuant to s. 35(1). The doctrine of sovereign incompatibility is in my view antithetical to this vision. It derived from the common law of succession and was based on the historical all-encompassing concept of sovereignty that did not allow room for any form of aboriginal sovereignty. Moreover, there is a serious conceptual difficulty in attempting to mould the doctrine to incorporate the new vision of Canadian sovereignty that Binnie. J. described in Haida Nation and to apply it in the context of internal aboriginal sovereignty claims within Canada. The court cannot dismiss an aboriginal sovereignty claim outright at the definitional stage of the s. 35(1) analysis on the basis of incompatibility with Canadian sovereignty when that sovereignty includes elements of aboriginal sovereignty that have remained intact and which the Crown has a duty to reconcile in an honourable fashion. Accordingly, I conclude that there are serious questions as