



COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v. Hill, 2018 ONCA 816

DATE: 20181012

DOCKET: C64766 & M49326

Lauwers, van Rensburg and Nordheimer JJ.A.

BETWEEN

Brittany Beaver

Applicant (Respondent)

and

Kenneth Hill

Respondent (Appellant)

Chris G. Paliare, Bryan R.G. Smith, and Andrew K. Lokan,
    for the appellant

Harold Niman, Martha McCarthy, Sarah Strathopolous,
    Joanna Radbord, and Scott Byers, for the respondent

Manizeh Fancy and Estée L. Garfin, for the Attorney
    General of Ontario, intervenor

Heard: September 11, 2018

On appeal from the order of Justice D.L. Chappel of the
    Superior Court of Justice, dated December 8, 2017, with reasons reported at
    2017 ONSC 7245, 4 R.F.L. (8th) 53, and costs reasons reported at 2018 ONSC 3352,
    8 R.F.L. (8th) 288.

Lauwers J.A.:

[1]

Brittany Beaver and Kenneth
    Hill are Haudenosaunee and are members of the Six Nations of the Grand River.
    They were in an intimate relationship from 2008 to 2013. Together, they had one
    child  B., who was born in August 2009.

[2]

In the order under appeal,
    the motion judge struck out Mr. Hills amended answer and dismissed the
    constitutional claim he brought under s. 35 of the
Constitution Act, 1982
,
to have the parties family law dispute
    decided through Haudenosaunee governance processes and protocols and according
    to Haudenosaunee laws. Under the motion judges order, Ms. Beavers
    application for custody, spousal and child support would proceed in the
    ordinary course under the
Childrens Law Reform Act
, R.S.O. 1990, c.
    C.12 (
CLRA
) and
Family Law Act
,
R.S.O. 1990
,
c. F. 3 (
FLA
) and associated rules and practices, without regard to
    Mr. Hills constitutional claim.

[3]

For the reasons set out
    below, I would allow the appeal in part. I would dismiss Ms. Beavers motion
    before this court to dismiss the appeal as an abuse of process.

A.

The Proceedings to Date

[4]

In December 2015, Ms. Beaver
    brought an application for B.s custody under the
CLRA
and child and
    spousal support under the
FLA
. Mr. Hill filed an answer and defence in
    the usual form in February 2016. However, in March 2016, he filed a notice of
    constitutional question challenging the jurisdiction of the Superior Court, as
    well as the applicability of the
CLRA

and
FLA
, on the
    basis that he had an Aboriginal and treaty right, protected by s. 35 of the
Constitution
    Act, 1982
, to have his family law disputes resolved pursuant to
    Haudenosaunee law. He claimed what might be characterized as a constitutional
    exemption from the application of Ontario family law and the jurisdiction of
    the Superior Court to determine the parties dispute. Mr. Hill also gave notice
    of his constitutional claim to the Chief of the Six Nations and to the Haudenosaunee
    Confederacy Council but neither has taken steps to intervene or participate.

[5]

In pursuit of the
    constitutional question, Mr. Hill filed an amended answer consistent with his
    constitutional claim. He moved for an order dismissing Ms. Beavers family law
    application, or, in the alternative, for an order staying her application for
    interim relief in order to allow his constitutional challenge to proceed first.

[6]

Ms. Beaver moved for interim
    spousal and child support. She sought additional relief including:

(i)    a declaration
    that the Superior Court has jurisdiction to deal with the family law issues
    raised by the parties;

(ii)   an order
    striking the amended answer; or

(iii)   an order
    staying Mr. Hills constitutional challenge.

[7]

The motion judge granted Ms. Beavers motion and dismissed Mr. Hills stay
    motion. She held that the Superior Court had jurisdiction to hear the family
    law dispute. She struck Mr. Hills amended answer without leave to amend and
    dismissed his claim under s. 35(1) of the
Constitution Act, 1982
. The
    motion judge left Mr. Hill to decide whether to proceed with a conventional
    answer as he suggested he might do in his amended answer.

[8]

Based on the appellants non-taxable
    income in 2014 of $2,109,000, by order dated May 28, 2018, Sloan J. required
    the appellant to pay $33,183 per month interim child support, and 100% of the s.
    7 expenses.

B.

Overview

[9]

It is axiomatic that a
    person who has a constitutional right has the right to assert it in ordinary legal
    proceedings subject to the limitations in the jurisprudence to which I will
    refer later.

[10]

The
    constitutional issue to which Mr. Hills claim gives rise is whether s. 35 of
    the
Constitution Act, 1982
,
together with any applicable treaties, completely displace or otherwise modify
    the application of the
FLA
, the
CLRA
and associated rules to
    this family law dispute between Indigenous parties who live in Ontario. This is
    a complex legal issue with serious implications for the immediate parties and
    more broadly.

[11]

The
    Superior Court of Justice has jurisdiction to decide the constitutional issue.
    It is a court of inherent and plenary jurisdiction, and has authority over
    disputes between citizens and residents subject to the provisions of
    legislation and the Constitution, with associated rights of appeal:

Canada
    (A.G.) v. Law Society of British Columbia
, [1982] 2 S.C.R. 307 at pp.
    326-27. This appears to be trite law and is now common ground on the appeal,
    although the appellant at first instance mounted a comprehensive challenge to
    the jurisdiction of the Superior Court, including its ability to make any order
    in the family law proceedings in the face of his s. 35 claim.

[12]

The
    prospective delay in resolving Mr. Hills constitutional claim added urgency.
    Ms. Beaver needed support for herself and B., and Mr. Hills proposed stay
    would have exempted him from any obligation to pay support under provincial law
    while the constitutional claim proceeded. He implicitly recognized how
    untenable that position was by undertaking to pay support voluntarily at the
    rate of $10,000 monthly, considerably less than the amount required by the
    applicable Ontario guidelines.

[13]

The
    version of Mr. Hills amended answer considered by the motion judge was poorly
    pleaded and lacking in detail. Neither Mr. Hills pleading, nor the ramshackle
    way in which the constitutional claim was asserted and is being developed, does
    justice to the seriousness of the claim. The appellant provided this court with
    a draft Amended Answer and Claim, which would amend extensively the version
    considered by the motion judge. Nonetheless, as I will explain, it was
    premature to dispose of the constitutional claim at this early stage. It is
    difficult to evaluate Mr. Hills claim under s. 35 of the
Constitution Act,
    1982
at this early stage of the
    proceeding. I
t would be unwise to dismiss the claim summarily on
    such a scanty record.

[14]

In
    the end result, I would permit Mr. Hill to seek leave before another Superior
    Court judge to amend his answer to address the motion judges criticisms of his
    pleading and the requirements of the jurisprudence. I would refuse to stay the interim
    support order and would permit Ms. Beaver to pursue any other remedy open to
    her short of a final order while the constitutional challenge is pending. This
    would properly balance the contending interests: Ms. Beavers immediate
    interest in obtaining interim support for herself and B., and Mr. Hills
    interest in having the constitutional claim determined.

C.

The Issues

[15]

The
    appeal raises the following issues:

1.

Should conflict of laws concepts be applied to determine whether the
    Superior Court had jurisdiction over Mr. Hill?

2.

Was it appropriate for the motion judge to strike Mr. Hills constitutional
    claim without leave to amend?

3.

Does Mr. Hill have standing to assert the constitutional claim, and is
    it justiciable?

4.

Was Mr. Hill entitled to a stay of Ms. Beavers family law claims
    pending disposition of his constitutional claims?

D.

Analysis

[16]

I
    address each issue in turn.

(1)

Should conflict of laws concepts be applied to determine whether the
    Superior Court had jurisdiction over Mr. Hill?

[17]

I
    agree with the appellant and with the Attorney General of Ontario that it was
    an error of law for the motion judge to take into account general conflict of laws
    principles in her analysis of the jurisdiction issue raised by the appellant.
    These principles do not provide an apt framework for reconciling Aboriginal
    rights with the family law of Ontario. For the purpose of applying s. 35 of the
Constitution Act, 1982
, Aboriginal rights or Indigenous law do not
    constitute foreign law, even conceptually.

[18]

I
    note here, to be fair, that the appellants approach to the motions at first
    instance was to deny that the general common law rules respecting jurisdiction
    apply where the challenge is founded on a s. 35 right. The motion judge
    described the appellants assertion, at para. 37, that it was premature for the
    court to issue a declaration respecting jurisdiction at that stage, in the
    absence of a full and fair hearing of [the appellants] aboriginal rights case
    on the merits,  [which] can only occur in this case if the court has the
    benefit of a complete evidentiary record respecting relevant current and
    pre-European contact practices, customs and traditions of the Haudenosaunee and
    the people of the Six Nations. This might explain the motion judges resort to
    the concept of attornment. In any event the appellant conceded on appeal the plenary
    jurisdiction of the court.

(2)

Was it appropriate for the motion judge to strike Mr. Hills constitutional
    claim without leave to amend?

[19]

The
    motion judge found Mr. Hills amended answer to be woefully inadequate with
    respect to his constitutional claim. I generally agree with the motion judges
    analysis of the deficiencies in the amended answer, at paras. 76-92 of the
    reasons.

[20]

The
    motion judge did not give Mr. Hill leave to amend the answer in relation to the
    constitutional claim, presumably on the basis that she had dismissed it. In the
    circumstances of this case, this was an error in principle. There is a general
    right to amend pleadings absent non-compensable prejudice: r. 26.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194; r. 11 of the
Family Law
    Rules
, 0. Reg. 114/99. Even where the motion is to strike the pleading for
    failure to disclose a cause of action, the court should consider whether an
    amendment could remedy the deficiency:
Spar Roofing and Metal Supplies Ltd.
    v. Glynn
, 2016 ONCA 296, 348 O.A.C. 330, at para. 37.  Even in this case,
    where the appellant had already amended his answer, the motion judge ought to
    have considered whether he should be given the opportunity to further amend the
    answer in an effort to address the serious deficiencies she identified.

[21]

As
    noted, the appellant provided this court with a draft Amended Answer and
    Claim. It is not our role to decide whether the draft passes pleadings muster.
    That decision lies with the Superior Court of Justice on a proper motion. But I
    will make occasional references to it in these reasons because it clarifies
    somewhat the appellants constitutional claim.

(3)

Does Mr. Hill have standing to assert the constitutional claim, and is
    it justiciable?

[22]

The
    issues of standing and justiciability are best addressed together because the
    motion judges logic for her disposition of both stems from the same root: in
    her view Mr. Hill impermissibly makes a comprehensive claim to self-government
    for the particular Aboriginal community, the Haudenosaunee, to which he, Ms.
    Beaver and B. belong by blood.

[23]

As
    I will explain, the motion judges decision that Mr. Hill does not have
    standing to assert the claim he is making and that it is not justiciable cannot
    be sustained on the record before us. This is a determination that should
    usually (but not invariably) be made on the basis of evidence, as the Supreme
    Court jurisprudence urges.

(a)

The Motion Judges Reasons

[24]

The
    motion judge characterized Mr. Hills constitutional claim under s. 35(1) of
    the
Constitution Act, 1982
, at para. 100, as a broad claim to have
    his family law dispute dealt with through Haudenosaunee processes and laws. She
    concluded, at para. 99, that Mr. Hill did not have standing to make the claim,
    and dismissed the constitutional claim. She added a second reason, at para.
    122, that the constitutional claim was not justiciable.

[25]

On
    the standing issue, the motion judge noted the uncertainty in the law regarding
    the right of an individual member of an Aboriginal community to pursue personally
    a claim based on Aboriginal rights: paras. 96-97. She rejected Mr. Hills
    argument that his claim is essentially individual in nature: para. 98. She
    noted that:

[H]is claim is in essence that the Haudenosaunee and the
    people of the Six Nations as a collective group, or as two separate
    communities, have an inherent right of self-government with respect to the
    management, adjudication and resolution of inter and intra-familial disputes,
    and that he as an individual member of these communities is entitled to avail
    himself of the benefit of that right.

She added, at para. 99:

The Respondent's attempt to describe his claim as
    being purely individual to him does not in my view make sense given that
    aboriginal rights derive from practices, customs and traditions that are
    integral to the distinctive culture of the collective
community
.
    Furthermore, if he were to succeed in advancing such a broad right to be
    governed by Haudenosaunee adjudicative processes and laws, the decision would
    have precedential value for all other Haudenosaunee peoples, which would in
    essence render any established right a communal one. The notion that an
    individual member of an aboriginal group can on their own initiative and for
    their sole benefit seek to define the content of broad Haudenosaunee rights of
    self-government in Family Law matters is simply not tenable.

[26]

On
    justiciability, the motion judge again characterized Mr. Hills claim as essentially
    a claim to self-government. She noted, at para. 123, that courts cannot
    adjudicate upon claims involving broadly framed rights of self-governance. She
    referred, at para. 124, to Lamer C.J.s statement that aboriginal rights
    claims to self-government, if they exist, are not cognizable under s. 35(1)
    if they are cast in overly broad terms:
Delgamuukw v. British Columbia
[1997] 3 S.C.R. 1010, at para 170. She also cited this courts decision to the
    same effect in
Mississaugas of Scugog Island First Nation v. National
    Automobile, Aerospace, Transportation and General Workers Union of Canada
,
    2007 ONCA 814, 231 O.A.C. 113 (at paras. 18 and 47), leave to appeal to the
    S.C.C. denied , [2008] S.C.C.A. No. 35.

[27]

The
    motion judge analyzed and rejected Ms. Beavers argument that some of the
    claims Mr. Hill makes in his answer should be struck as incompatible with Crown
    sovereignty, at paras. 108-121. Although I do not necessarily agree with the
    text of every paragraph in her reasons on this point, in my view she correctly
    refused to strike the amended answer on this basis.

(b)

Discussion

(i)

The Governing Principles

[28]

I
    pick out five relevant principles from the jurisprudence. First, courts have
    been instructed to keep in mind the basic purpose of s. 35(1) of the
Constitution
    Act, 1982
, which is the reconciliation of the pre-existence of aboriginal
    societies with the sovereignty of the Crown:

per Lamer C.J. in

R.
    v. Van der Peet
, [1996] 2 S.C.R. 507 at para. 31, see also

Delgamuukw
,
    at para. 186, and
Haida Nation v. British Columbia (Minister of Forests)
,
2004 SCC
    73, [2004] 3 S.C.R. 511, at para. 17
. Proceedings in this area call for
    a measure of flexibility not always present in ordinary litigation:

Lax
    Kwalaams Indian Band v. Canada (Attorney General)
, 2011 SCC 56 [2011]
    3 S.C.R. 535, at para. 46.

[29]

Second,
    because we are still feeling our way in this delicate area, courts should avoid
    making definitive pronouncements where a case is in the early stages and where the
    applicable law is yet in the early stage of development:
Behn v. Moulton
    Contracting Ltd.
, 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 32 and 35.

[30]

Such
    caution is consistent with the decision in
Lax Kwalaams Indian Band
.
    Binnie J. noted, at para. 11, that Aboriginal and treaty claims are complex.
    They are best suited to civil actions for declaratory relief, where there are
    pleadings, pre-trial discovery and procedural advantages afforded by the civil
    rules of practice to facilitate a full hearing of all relevant issues. He
    added an important caution:

Such potential advantages are
    dissipated, however, if the ordinary rules governing civil litigation,
    including the rules of pleading, are not respected. It would not be in the
    public interest to permit a civil trial to lapse into a sort of free-ranging
    general inquiry into the practices and customs of pre-contact Aboriginal
    peoples from which, at the end of the day, the trial judge would be expected to
    put together a report on what Aboriginal rights might, if properly raised in
    the pleadings, have been established.

The pleadings play an important role in defining the
    issues.

[31]

Third,
    Binnie J. concluded his observations in
Lax Kwalaams Indian Band
with
    a clear direction, at para. 12: The existence and scope of Aboriginal rights
    protected as they are under s. 35(1) of the
Constitution Act, 1982
,
    must be determined after a full hearing that is fair to all the stakeholders. This
    direction should give courts some pause before employing summary processes such
    as pleadings motions to dismiss claims involving Aboriginal and treaty rights.

[32]

Fourth,
    the four-stage structure for analyzing s. 35(1) claims was set out by the
    Supreme Court in
Lax Kwalaams Indian Band
, at para. 46. The decision
    built on the framework initiated in
R. v. Sparrow
,
[1990] 1 S.C.R. 1075 and developed
    further in
Van der Peet
. This structure would apply with necessary
    modifications to Mr. Hill:

First, at the characterization stage,
    identify the precise nature of the First Nation's claim to an Aboriginal right
    based on the pleadings. If necessary, in light of the evidence, refine the
    characterization of the right claimed on terms that are fair to all parties.

Second, determine whether the First Nation has proved, based on
    the evidence adduced at trial:

(a) the existence of the pre-contact
    practice, tradition or custom advanced in the pleadings as supporting the
    claimed right; and

(b) that this practice was integral to
    the distinctive pre-contact Aboriginal society.

Third, determine whether the
    claimed modern right has a reasonable degree of continuity with the
    "integral" pre-contact practice. In other words, is the claimed
    modern right demonstrably connected to, and reasonably regarded as a
    continuation of, the pre-contact practice? At this step, the court should take
    a generous though realistic approach to matching pre-contact practices to the
    claimed modern right. As will be discussed, the pre-contact practices must
    engage the essential elements of the modern right, though of course the two
    need not be exactly the same.

[33]

The
    fourth stage is to consider whether any infringement of the right established
    on the evidence could be justified.

[34]

Finally,
    how the individual and collective aspects of Aboriginal and treaty rights are
    to be reconciled practically in live litigation like this case is an unresolved
    issue.

[35]

In
Behn
,
the Supreme
    Court considered when and how an individual might personally claim the shelter
    of a communal constitutional right under s. 35, which is the issue we face here.
    While acknowledging, at para. 31, that the duty to consult is owed to the
    Aboriginal community and cannot be asserted by an individual, the court
    resisted the invitation of intervenors to classify or categorize Aboriginal or
    treaty rights into those that are exclusively collective, those that are
    predominantly individual and those that are mixed: paras. 34-35.

[36]

The
    analysis is subtle, and can best be seen by considering together several
    passages. LeBel J. noted the Crowns argument, at para. 33, that claims in
    relation to treaty rights must be brought by, or on behalf of, the Aboriginal
    community. He rejected this argument: This general proposition is too
    narrow. While accepting that Aboriginal and treaty rights are collective in
    nature, LeBel J. left the door ajar for individuals to assert or protect such
    rights:

However, certain rights, despite
    being held by the Aboriginal community, are nonetheless exercised by individual
    members or assigned to them. These rights may therefore have both collective
    and individual aspects. Individual members of a community may have a vested
    interest in the protection of these rights. It may well be that, in appropriate
    circumstances, individual members can assert certain Aboriginal or treaty
    rights, as some of the interveners have proposed.

[37]

LeBel
    J. noted, at para. 35, that despite the collective aspect of Aboriginal and
    treaty rights, rights may sometimes be assigned to or exercised by individual
    members of Aboriginal communities, and entitlements may sometimes be created in
    their favour. Consequently, he observed: it could be said that these rights
    might belong to them or that they have an individual aspect regardless of their
    collective nature.

[38]

The
    Supreme Court was not required in
Behn
to make a definitive ruling on
    how the individual and collective aspects of Aboriginal and treaty rights are
    to be reconciled practically in live actions because the case, which was about
    fishing rights, was decided on the ground of abuse of process. But the courts
    observations are instructive.

(ii)

The Principles Applied

[39]

Mr.
    Hill has no authority to pursue a constitutional claim on behalf of the
    Haudenosaunee or the people of Six Nations. He is not a representative
    plaintiff. However, this is not necessarily fatal to Mr. Hills personal claim
    to have the parties family law dispute decided through Haudenosaunee
    governance processes and protocols and according to Haudenosaunee laws. Consistent
    with LeBel J.s observations in
Behn
, some Aboriginal and treaty
    rights might be capable of being asserted by an individual. The claim Mr. Hill
    makes could fall into that category, depending on how the evidence unfolds.

[40]

The
Sparrow
framework requires the court first to characterize the Aboriginal
    and treaty claim, and then to refine it if necessary. This can only be done by
    looking at the pleading, which has changed significantly.

A Moving Target?

[41]

Earlier,
    I made the observation that Mr. Hills claim had been pursued in a ramshackle
    way. Counsel for Ms. Beaver argues that Mr. Hill continues to present a moving
    target, which changes as success eludes him. It could be said that his position
    is evolving as his lawyers grasp more clearly the full implications of his
    claim and what he will need to prove in order to be successful. The case we are
    asked to consider is not the same as the one before the motion judge.

[42]

The
    case has changed in two ways. First, as I have already observed, the thrust of
    Mr. Hills argument to the motion judge was that the Superior Court had no
    jurisdiction over this family law dispute, based on s. 35 of the
Constitution
    Act, 1982
. The Superior Courts undoubted jurisdiction is now conceded by
    Mr. Hill. Second, Mr. Hill insisted before the motion judge that he was
    asserting an essentially individual claim, although his pleading could arguably
    be characterized as a claim to self-government. Mr. Hills draft amended
    answer clarifies his claim somewhat.

[43]

I
    proceed by considering first the amended answer before the motion judge and
    then the draft amended answer filed with this court.

The Amended Answer Assessed by the Motion Judge

[44]

In
    the amended answer Mr. Hill began by describing the dispute as one concerning
    quantum of child support and whether he has any spousal support obligations
    to Ms. Beaver.

[45]

In
    relation to the constitutional claim, Mr. Hills pleading largely tracked the
Sparrow
framework. He asserted an Aboriginal and treaty right to be bound by the laws
    of the Haudenosaunee and the people of the Six Nations of the Grand River,
    including with respect to the care and support of children, and obligations
    from intimate relationships. He claimed the right to have this dispute
    resolved through processes, and pursuant to protocols, that are determined and
    specific to the Haudenosaunee and the people of the Six Nations of the Grand
    River.

[46]

Mr.
    Hill asserted the historical dimension:

The Haudenosaunee and the people of the Six Nations have,
    since prior to the arrival of European settlers and colonization, a robust law,
    a dispute resolution system, which, among other things, determined how disputes
    within and between families were to be resolved.

[47]

He
    added a reference to continuity:

This system of law and governance
    has been practiced continuously since the time of contact with European
    settlers, despite the operation of other, colonial legal systems. It is
    distinct to the Haudenosaunee and the Iroquois people of the Six Nations of the
    Grand River. It is comprehensive and exclusive, in its application to the
    Haudenosaunee and the people of the Six Nations of the Grand River within their
    lands and territory. The right of the Haudenosaunee and the people of the Six
    Nations of the Grand River [to] be governed, and to have intra- and inter-familial
    disputes resolved through and according to this system has never been
    extinguished nor surrendered.

[48]

Finally,
    Mr. Hill asserted that: the application and imposition of the
Family Law
    Act
of Ontario, and associated laws, regulations, and legal processes to
    this dispute infringe his right, and the infringement is not justified.

[49]

I
    agree with the motion judges trenchant and accurate criticisms of the version
    of Mr. Hills pleading before her. I make no substantive comments on the
    adequacy of the draft amended pleading; that is the task of a Superior Court
    judge. But it factors into the analysis.

The Draft Amended Answer and Claim

[50]

The
    pleading considered by the motion judge was sparse and consisted of 20
    paragraphs. The draft pleading now consists of 176 paragraphs. The first 119
    paragraphs respond in conventional terms to the application. The thrust of
    these paragraphs is to address what Mr. Hill continues to call a dispute
    concerning quantum of child support and whether he has any spousal support
    obligations to Ms. Beaver.

[51]

There
    is a lengthy new section on constitutional issues that is 56 paragraphs long
    and elaborates considerably on the earlier pleading. The appellants
    constitutional claim has been clarified somewhat. In self-government terms, the
    draft pleading describes an organization known as the Haudenosaunee
    Confederacy Council, which is said to be the peak body that acts as a forum
    for resolution of disputes, and coordinates discussions and deliberations
    leading to decisions of the Haudenosaunee. It adds that the Confederacy
    Council does function as the highest forum for resolving disputes, including
    family disputes.

[52]

The
    draft pleading states in paras. 150 and 151:

In or about 2016, the Respondent gave notice of the Dispute to
    the Confederacy Council.

The Confederacy Council has not
    yet determined the Dispute, in part because the Applicant has brought these
    proceedings in the Ontario Superior Court of Justice.
It is the stated
    position of the Confederacy Council that no Haudenosaunee person should
    compromise their sovereignty by appearing before courts of another
    jurisdiction.
(Emphasis added.)

[53]

This
    would appear to be a sweeping claim by the Haudenosaunee Confederacy Council to
    a form of sovereign immunity from the laws of Ontario and of Canada. In oral
    argument, counsel advanced the claim that Haudenosaunee laws in relation to
    this family dispute are exclusive and compulsory for Haudenosaunee people
    including the appellant, the respondent, and B. This is the upshot of the draft
    pleading, which states at paras. 163 and 164:

The Respondent pleads that, as a Haudenosaunee person and as a member
    of the Six Nations of the Grand River,
he has a right to be governed by
    Haudenosaunee law and governance systems, and to have the dispute resolved
    within and pursuant to the jurisdiction and authority of his own government,
    rather than by or pursuant to the Province of Ontario
, a provincially or
    federally mandated adjudicative body, and provincial or federal law. He pleads
    that these rights are recognized and affirmed under s. 35(1) of Canadas
Constitution
    Act, 1982
.

Further, the Applicant, as a
    Haudenosaunee person and a member of the Six Nations, cannot avoid her
    responsibilities to her community by opting out of Haudenosaunee laws,
    processes, and protocols.
Under Haudenosaunee law, once the Respondent has
    invoked the laws, processes, and protocols of the Haudenosaunee by notifying
    the Confederacy Council of the dispute, as he did in 2016, he has the right to
    have the dispute determined according to these laws, processes, and protocols,
    and the Confederacy Council has the responsibility to determine the dispute
    under Haudenosaunee laws, processes, and protocols by the means set out above.
Both
    parties have the responsibility to comply with the results
. (Emphasis
    added.)

[54]

Mr.
    Hill asserts that neither the
FLA
nor the
CLRA
apply to him
    or to Ms. Beaver and B., and, in fact, any effort to apply Ontario law would infringe
    his s. 35 rights as a Haudenosaunee person. In oral argument counsel sharpened
    the claim by referring to several American authorities, which rest on a theory
    of complete Aboriginal sovereignty in some spheres:
Fisher v. District
    Court
, 424 U.S. 382 (1976),
Davis v. Means
, Indian Law Reporter
    6125 (Navajo Nation Supreme Court 1994). This is evidently the claim Mr. Hill
    wants to pursue.

[55]

Counsel
    pointed out that some limited recognition has been given to this feature of American
    law in Canada. In
S.R.L. v. K.J.T.
, 2014 BCSC 1562, with respect to a
    First Nations couple and their two children who resided in British Columbia,
    Fenlon J. recognized the jurisdiction of the
Shakopee
    Mdewakanton Sioux (Dakota) Community Tribal Court in Minnesota
respecting divorce, property division and spousal support, but took
    jurisdiction over parenting and child support; this outcome was accepted by the
    judge of the Tribal Court whose analysis of American law led to the same result.

[56]

This
    is quite different from the constitutional basis of reconciliation heretofore
    understood to be the Canadian vision under s. 35 as expressed in
Van der Peet,
    Delgamuukw
, and
Haida

Nation
.

[57]

In
    oral argument, the appellants counsel agreed that characterizing Haudenosaunee
    laws as exclusive and compulsory in relation to this family dispute was the
    strongest form of Aboriginal right Mr. Hill could claim, but he allowed that
    the case might not pan out for Mr. Hill that way based on the evidence and the
    development of the law.

Do the Clarifications Affect the Analysis?

[58]

I agree with the motion judge that Mr. Hills constitutional
    claim does draw on an aspect of self-government, because in order to succeed,
    he must establish the existence, in reality, of a functioning family dispute
    resolution system, personal access to which qualifies as an Aboriginal right
    under s. 35 of the
Constitution Act, 1982.

[59]

On
    their face, the clarifications of Mr. Hills position in the draft pleading
    appear to support Ms. Beavers argument that he is really making a strong claim
    to self-government, one that is no longer veiled or unclear. Accordingly, her
    counsel argued, the motion judge got it right on the self-government issue and
    on standing. She added that Mr. Hills assertions do not seek reconciliation of
    two systems, which the Supreme Court envisaged as the essential spirit of s. 35
    of the

Constitution Act, 1982
in its decisions on
    reconciliation. He is not seeking the accommodation of Aboriginal perspectives
    in Ontario family law, but the exclusion of Ontario law. This is not
    reconciliation but repudiation, and on that basis alone is constitutionally
    unsound.

[60]

I
    do not see it that way, for four reasons. First, Mr. Hill is not personally or
    by proxy representing the Haudenosaunee Confederacy Conference. The Conference
    is not a party to these proceedings, nor at this stage has the Confederacy
    chosen to intervene. How the Confederacy actually sees its s. 35 rights is not
    known.

[61]

Second,
    Mr. Hills personal rights depend on the proven existence of a functioning Indigenous
    family dispute resolution system, access to which qualifies as an Aboriginal
    right under s. 35 of the
Constitution Act, 1982
. How the
    constitutional claim fares on the evidence is not the issue before us. That is
    for another forum. Mr. Hills focus now is not so much on self-government at
    large, but on having whatever support obligations he might owe determined
    through the Indigenous family dispute resolution system. Consequently, despite
    his own earlier characterization of the claim, Mr. Hills claim is not
    exclusively a claim to self-government.

[62]

Third,
    although it is true that the determination of Mr. Hills claim might affect
    other Haudenosaunee people, this does not make this constitutional dispute
    different from any other. This feature is common to much constitutional
    litigation. Consider the example of minority language education rights.

[63]

Fourth,
    I would note that the recognition of separate spheres of jurisdiction is a form
    of reconciliation, albeit not the one that Ms. Beaver seeks.

[64]

It
    is not clear to me at this early stage of the litigation that Mr. Hill lacks
    standing to make the constitutional claim, or that it is not justiciable. I
    noted above that it is axiomatic that a person who has a constitutional right
    has the right to assert it in ordinary legal proceedings, as Mr. Hill has done,
    subject to the limitations in the jurisprudence.

[65]

If
    Mr. Hills factual assertions about the existence of Haudenosaunee laws and
    protocols are true, and if he can prove they do qualify as Aboriginal rights
    under s. 35 of the

Constitution Act, 1982
, then I see no way for
    him to obtain access to the alleged Aboriginal family dispute resolution system
    to which he claims entitlement other than by the means he has pursued in this
    case.

[66]

However,
    Mr. Hills claim faces some serious, perhaps insuperable obstacles raised by
    the jurisprudence, including the following. First, the underlying facts are
    disputed. Ms. Beavers evidence is that there is no such robust law that Aboriginal
    persons from Six Nations have used and are using to resolve their family law
    issues, as the motion judge pointed out at para. 24. She noted Mr. Hills
    failure to adduce any evidence as to the Haudenosaunee laws and protocols that
    he relies on, at para 151. This might turn out to be fatal to Mr. Hills claim
    under the
Sparrow
framework.

[67]

Second,
    it is not yet clear whether the Aboriginal law to which Mr. Hill refers, if it
    exists, would entirely displace Ontario family law or only modify it, a
    possibility to which the motion judge alluded at para. 89. Indeed, many of the
    assertions he makes in the draft pleading could easily inform the process under
    Ontario law, leading to the form of reconciliation to which Ms. Beavers
    counsel alluded.

[68]

Third,
    it is not clear whether the Aboriginal law would bind Ms. Beaver and B., who do
    not live on the reserve, if they do not consent to its application to them.

[69]

In
    short, neither the constitutional claim, nor the standing issue, is ripe for
    disposition on this record. I would set aside the motion judges dismissal of
    the claim and her determination of the standing issue. It would be open to Ms.
    Beaver to pursue a motion for summary judgment after the pleadings have been
    improved and the evidence has been adequately developed.

(4)

Is Mr. Hill entitled to a stay of Ms. Beavers family law claims pending
    disposition of his constitutional claims?

[70]

The
    motion judge based her analysis of Mr. Hills entitlement to a stay on the
    Supreme Courts decisions in
Metropolitan Stores (MTS) Ltd. v. Manitoba
    Food and Commercial Workers, Local 832
, [1987] 1 S.C.R. 110 and
R.J.R.
    MacDonald Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311.

[71]

The
    motion judge said, at para. 140: I would have declined to grant him a stay of
    the Family Law proceedings even if I had not struck out his Amended Answer. I
    largely agree with her analysis.

[72]

The
    Superior Court of Justice clearly has jurisdiction to grant interim relief
    incidental to its plenary inherent jurisdiction to decide questions of law in
    private and constitutional matters while the s. 35 claim is being determined.


[73]

If
    Mr. Hill wishes to pursue his constitutional claim, he will have to do so while
    at all times abiding fully with the terms of any and all interim orders. Ms.
    Beaver and B. are entitled to enforceable support pending the determination of
    the constitutional claim.

E.

The Motion to Dismiss the Appeal as an Abuse of Process

[74]

Ms.
    Beaver brought a motion to dismiss the appeal as an abuse of process on the
    basis that Mr. Hill had not paid arrears of support and had not complied with
    disclosure orders. This court has held that it would not grant a right of
    audience to an appellant in such a position. Aware of the possibility that this
    would deny him an audience, Mr. Hill paid up the arrears and largely complied
    with the disclosure orders before the hearing of this appeal.

[75]

Ms.
    Beaver nonetheless persisted in the motion on two grounds. First, she pointed
    to the primary objective of family law proceedings as set out in Rule 2 of the
Family
    Law Rules
, which is to deal with cases justly. This includes ensuring
    that the procedure is fair to all parties; saving expense and time; dealing
    with the case in ways that are appropriate to its importance and complexity;
    and giving appropriate court resources to the case while taking account of the
    need to give resources to other cases. Her counsel argued that the protracted
    proceedings in a full bore constitutional case on s. 35 of the
Constitution
    Act, 1982
would defeat the primary objective. Ms. Beaver and B. need their
    support issues to be finally determined.

[76]

The
    second ground advanced by counsel for dismissing on the basis of abuse of
    process is that, quite apart from the constitutional claim, Mr. Hill has taken
    a scorched earth approach to every step of this case, including seven motions
    in this court alone. The moving target characterization applies to Mr. Hills
    changing positions on paternity and custody, for example. He initially denied paternity,
    but in the draft pleading says he is not certain he is [B.]s biological
    father. Before Roberts J.A. on March 14, 2018, she noted that he no longer
    disputes paternity. He seeks access in the draft pleading, but before Sloan J.
    in May he sought leave to amend the answer to include a claim for custody of B.
    The judge refused on the basis that the new custody claim was meant to
    intimidate [Ms. Beaver] and for [Mr. Hill] to get more leverage than he already
    has over the financial issues.

[77]

Nonetheless,
    I would dismiss the abuse of process motion. The appellant has the right to
    advance his constitutional claim, as inconvenient to the respondent, time-consuming
    and expensive as that might be, even in view of the primary objective of family
    law proceedings. However, that does not relieve the judiciary or the parties from
    making every effort to adhere to the primary objective where possible. As for
    controlling abuse of process, that is a matter of case management as well as
    the ordinary application of the
Family Law Rules
, including costs
    consequences.

F.

Going Forward

[78]

This
    case has developed into a procedural morass, to which both sides have
    contributed. A phalanx of lawyers appeared before us. The parties have
    made no effort to save expense or time as required by ss. 2(3) of the
Family
    Law Rules
:
Titova v. Titov
, 2012 ONCA 864, 299 O.A.C. 215, at
    para. 54. Their tactics have led to a proliferation of materials, skirmishes
    and arguments that the Rules seek to avoid. This must not be permitted to
    continue.

[79]

The
    case going forward requires active and determined case management, with a view,
    in particular, to avoiding the sort of free-ranging general inquiry Binnie J.
    deplored in
Lax Kwalaams Indian Band
.
We were told that this
    matter is now being case-managed. It will fall to the case management judge, in
    the first instance, to ensure that this objective is met.

[80]

Mr.
    Hill can easily afford constitutional litigation, it would appear. Not so Ms.
    Beaver. She is simply seeking support under provincial legislation for herself
    and B. in her family dispute; she should not be left to defend the
    constitutionality of provincial legislation as important as the
FLA
and the
CLRA
on her own.

[81]

The
    Attorney General of Ontario has intervened, thus far only on the conflicts of
    laws issue, which has now been resolved. If the Attorney General chooses not to
    become involved in the substantive constitutional issues, in my view it may
    well be an appropriate case for
amicus
to be considered to assist the
    court regarding the constitutionality of the impugned provincial legislation.

[82]

I
    would also observe that this might well be an appropriate case to consider the
    trial of an issue regarding the appellants constitutional claim, which could
    proceed independently of the support and custody issues.

G.

Disposition

[83]

In
    light of these reasons, I would allow the appeal in part by setting aside
    paragraph 4 of the order, which dismissed the constitutional claim, and
    substituting the following: The Respondents Amended Answer and Claim dated
    June 8, 2016 is struck, with leave to amend.

[84]

I
    would otherwise dismiss the appeal.

Released: October 12, 2018

P.
    Lauwers J.A.

I
    agree. K. van Rensburg J.A.

I
    agree. I.V.B. Nordheimer J.A.


