Ontario civil | Aboriginal Law | Family law | Miscellaneous
Mother and father of child were in relationship that began 2008 and ended in 2013. Mother, father and child were all H people and members of Six Nations and father lived on reserve. Mother applied for custody, child support and spousal support. Father filed Answer and Claim in response but month later served and filed Notice of Constitutional Question in which he gave notice that he intended to challenge jurisdiction of court and applicability of Family Law Act to his family law dispute with mother. Father filed Amended Answer and Claim seeking order dismissing application in its entirety or staying application based on his constitutional challenges. Father brought motion for orders including order that family law application by stayed pending hearing and outcome of constitutional questions and mother brought motion for various relief including order striking Amended Answer. Motion by mother granted in part. Amended Answer should be struck in its entirety and constitutional claims set out in pleading should be dismissed based on conclusions that Amended Answer failed to satisfy basic rules of pleading, father lacked standing to advance aboriginal rights claims set out in Amended Answer and pleading failed to set out reasonable claim or defence in law. Father’s Amended Answer did not satisfy minimum requirements for pleading. Notion that individual member of aboriginal group could on their own initiative and for their sole benefit seek to define content of broad H rights of self-government in family law matters was simply untenable. Aboriginal right father was relying on was communal one that was not capable of being exercised or advanced by individual member of community. Alleged aboriginal right as framed in pleading was not cognizable pursuant to jurisprudence about s. 35(1) of Constitution Act, 1982 regarding determination of aboriginal rights and father’s constitutional case should be dismissed on that basis. Allowing respondent in such circumstances to raise s. 35(1) jurisdiction challenge at any point, without giving court any discretion to determine whether constitutional case should proceed would essentially turn s. 35(1) into trump card that respondent could pull out at any time. Aboriginal rights must be pleaded and advanced in timely manner.
Beaver v. Hill (2017), 2017 CarswellOnt 19385, 2017 ONSC 7245, Deborah L. Chappel J. (Ont. S.C.J.).