Challenge of act heading to OCA

A wealthy businessman takes his Constitutional challenge of Ontario’s Family Law Act to the province’s top court later this month in a case that one of the lawyers involved predicts will end up at the Supreme Court of Canada.

Challenge of act heading to OCA
Harold Niman says a challenge of Ontario’s Family Law Act ‘goes to the heart of the legislation.’

A wealthy businessman takes his Constitutional challenge of Ontario’s Family Law Act to the province’s top court later this month in a case that one of the lawyers involved predicts will end up at the Supreme Court of Canada. 

In Beaver v. Hill, cigarette magnate Kenneth Hill, a Haudenosaunee person and member of the Six Nations of the Grand River, failed to convince Ontario Superior Court Justice Deborah Chappel that the FLA infringes the constitutionally protected rights of Aboriginal peoples to govern themselves in matters of care and support for children and other family disputes.

The case concerns a claim for child and spousal support by Brittany Beaver, Hill’s former partner and the mother of his eight-year-old son.

Harold Niman, co-founder of family law boutique Niman Gelgoot and Associates LLP, was part of Beaver’s legal team, which also includes lawyers at Martha McCarthy and Company LLP, and will argue the appeal at a hearing on June 27. 

“This is a challenge that goes to the heart of the legislation,” he says. 

“I don’t think it’s ever been done before, but it obviously has severe consequences for any individual who feels similarly aggrieved by the application of this law,” Niman says. “My guess is that, regardless of the result, someone will seek leave to appeal to the Supreme Court of Canada. Mr. Hill is a very wealthy man and clearly has the resources to do what he feels is the right thing to do.”

Niman says the protracted nature of the proceedings, which date back to the pair’s separation in late 2013, has taken its toll on Beaver, who has not worked outside the home since before the birth of her son. 

“My client is in a very difficult position. She just wants to get the support and parenting arrangements finalized, but [she] has found herself immersed in this very time-consuming, complicated and expensive constitutional challenge,” he says.

Neither of the lawyers who argued Hill’s case before Chappel responded to requests for comment.

According to Chappel’s decision, Beaver began a relationship in 2008 with Hill, the owner of Grand River Enterprises, a cigarette maker he co-founded. 

The businessman rakes in an annual income of $2.1 million from the company, the decision says, noting that his earnings are tax-free, due to his Indian status and the business’ presence on the reserve where he lives, near Brantford, Ont. 

Beaver and Hill stopped living together before the birth of their son, and he disputes that they ever co-habited as spouses. However, the decision says the relationship continued after the boy’s birth in August 2009, when Hill purchased a house off-reserve for Beaver and the child to live in, until November 2013. 

Hill has been paying Beaver $10,000 child support per month in cash, but her application, launched in late 2015 after months of failed negotiations, seeks to bump that up to around $33,000, plus a further $85,000 per month in spousal support.  

The businessman launched his Constitutional challenge in March 2016, claiming that the Haudenosaunee people had never given up their inherent right to self-government, which he says includes the right to settle familial disputes, guaranteed under s. 35 (1) of the Constitution Act 1982.

As a result, the Superior Court had no jurisdiction to hear the matter, Hill argued, asking instead that the case be decided according to the governance system and laws of the Haudenosaunee.

Neither of the attorneys general of Canada nor Ontario took up their option to intervene, and Chappel delivered her decision rejecting the challenge on Dec. 8, 2017. 

She found that Hill’s claims were non-justiciable, based on previous jurisprudence regarding aboriginal self-government.

“Having regard for the complexity of the balancing act required in cases involving widely-cast aboriginal self-governance claims, the Supreme Court of Canada has sent a clear message that reconciliation in these cases should be carried out on a political level, through the treaty-making process which allows for meaningful consultation and discussion with all interested and affected parties,” Chappel wrote.

She also rejected Hill’s request for a stay of the case pending a full hearing of his constitutional claim, noting that he had failed to adduce any evidence about how the alternative procedure would improve on existing family laws in Ontario.

“He has made broad, general assertions that he and other Haudenosauee people are bound to follow the aboriginal laws and protocols on which he is relying, that those laws and protocols focus on the best interests of children and that they emphasize the importance of maintaining connections with their aboriginal culture,” Chappel wrote. 

“In the absence of even basic specifics regarding the Haudenosaunee laws and protocols that he is relying on, these assertions are akin to an empty shell.” 

Lindsay, Ont. family lawyer Russell Alexander, who was not involved in the case, says Chappel’s lengthy judgment “did a great job addressing a pretty novel argument.” 

“She took a really practical approach to the issues, and her analysis addressed each and every argument in detail. I don’t think anyone could say he didn’t get his day in court,” Alexander says.

High-end legal teams will battle it out (Sidebar story)

BY Shannon Kari
For Law Times

The long-running litigation between Brittany Beaver and Kenneth Hill has attracted significant media attention, in part because of the significant amounts of money involved and the profile of the co-founder of Grand River Enterprises.

The company is the largest exporter of tobacco in Canada and it is no stranger to civil litigation in this country and the United States over its operations. 

Last month, the Supreme Court of Canada denied leave of an Ontario Court of Appeal ruling that upheld the province’s demand for the company to post $1.4 million in security for tobacco permits. 

The appeal court rejected a constitutional challenge by Grand River and found the security costs were within provincial jurisdiction.

For this constitutional challenge, Hill has added to his legal team since the Superior Court decision, with two prominent litigators from Paliare Roland Rosenberg Rothstein LLP. 

Chris Paliare and constitutional law expert Andrew Lokan have joined up with Robert Halpern, head of the family law group at Torkin Manes LLP.

On the other side, in addition to Harold Niman, who has acted for clients in a number of high-profile family law cases, there are three lawyers from Martha McCarthy’s firm on the record, including Joanna Radbord and McCarthy herself.

Radbord has previously acted in a number of cases (along with McCarthy) that resulted in expanded legal recognition for same-sex couples. Last year, she received a Law Society medal for her contributions to LGBTQ rights.

The high-end legal teams for both sides are also putting forward a very different focus on what the case actually is, that the Court of Appeal must decide, based on written submissions filed in advance of the June 27 hearing.

Lawyers for Beaver are suggesting that the Aboriginal rights claim by Hill is no more than a litigation strategy aimed at defeating his family law obligations.

 “The appellant’s ill conceived claim undermines the interests of all indigenous people other than himself,” writes Radbord. 

“The appellant’s bald pleading of immunity is a transparent attempt by one very wealthy individual to co-opt the progressive discourse of indigenous rights so that he can avoid making disclosure and delay paying child and spousal support commensurate with his income,” she adds.

On the other side, lawyers for Hill say the Superior Court ruling is procedurally flawed and did not permit him to argue a legitimate Aboriginal rights claim on its merits and a full record.

“Aboriginal rights as collective or individual (or both) is not a settled area of the law,” writes Lokan. 

“It was fundamentally unfair to the appellant for the motions judge to conclude that the Aboriginal rights asserted are solely collective on a preliminary pleadings motion.”

The issues before the Court of Appeal are also being closely watched by the Aboriginal law community.

“It is a novel case,” says Kerry Wilkins, a lawyer and adjunct professor at the University of Toronto law school who teaches a course on Indigenous Peoples and Canadian Law.

“It would be a very significant outcome” if Hill is ultimately successful, says Wilkins. 

“The implication would be that an Indigenous person could assert an Aboriginal right at any time he wanted, without the consent of the community to whom the right is said to belong,” Wilkins says.

While the courts have found there may be individual components as well, it has not been argued in a family law context. 

“The kinds of Aboriginal rights typically offered as examples of rights with individual aspects are those involving practices or activities — hunting or fishing, for instance — that individuals can engage in as individuals,” says Wilkins.

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