KITCHENER — Six Nations businessman Ken Hill has filed a application at the Kitchener Superior Court seeking the judge covering his family law case recuse himself.
The application says Justice James W. Sloan has demonstrated a bias against Hill on a number of factors in his ongoing family law case with the mother to his son, Brittany Beaver — after Hill declared he would raise a constitutional question that he does not follow Canadian law but Haudenosaunee law.
The case made national headlines in part due to the large financial claim Beaver is making for support — $33,000 a month for her son and an additional $85,000 a month for herself. And also in because Hill is disputing her claim, saying Haudenosaunee law applies to intra-familial disputes — an assertion that has stumped Canada’s justice system.
Hill alleges Sloan, in his decision-making, repeatedly made decisions about Hill and Beavers son when lawyers for Hill were absent —including a ruling on the custody of their son without Hill’s participation or the participation of his legal counsel.
The allegations are somewhat of a nightmare for Canada’s justice system which has been heavily critiqued by indigenous leaders for its history of removing indigenous children from their communities and systems that all too often devalue parent’s rights to engage in custody matters.
Further allegations in the application say that Justice Sloan allowed an amicus to speak on the constitutional question: Aaron Detlor.
Detlor’s authority to speak on Haudenosaunee governance issues at Six Nations was not verified outside of Sloan’s own interpretation and Detlor’s claim.
Detlor has been criticized for his work among the people of Six Nations with the Haudenosaunee Development Institute and was, at the time he spoke in the courts, a lawyer for the Haudenosaunee Confederacy, of which Hill, Beaver and their son are members.
According to an affidavit submitted by Hill, Detlor spoke as a friend of the court during an April 1, 2016 case conference when it was known Hill’s lawyers would not be present.
Detlor stated that he was “responsible” for opening and closing the Superior Court proceedings by reciting the Haudenosaunee opening prayer Ganohonyok in the courtroom, which he did according to court transcripts.
Detlor then told Justice Sloan he has acted for Beaver for “many many years” and was still acting for her. According to the claim, Sloan did not challenge Detlor’s authority or the appropriateness of him making submissions as a friend of the court while he was also retained or acting on behalf of Beaver.
Detlor then argued before the courts that allowing Hill to assert his right to apply indigenous law to resolve the matter would be “detrimental” because he claims the only parties on Six Nations who hold indigenous rights are the Confederacy Chiefs Council.
Hill’s claim is a case-in-point to how Canada’s justice system and child welfare cases have systematically failed to protect the interests of indigenous children having access to their culture.
Hill alleges these systemic patterns are being furthered by the actions of the Kitchener Superior Court as demonstrated by Sloan’s actions.
Further allegations include Justice Sloan using the term “Gattling gun” and referring to Hill, who is an indigenous person, as “fabulously wealthy” with “tax free” income — which a spokesperson for Hill says demonstrated the Justice had a “racialized tone” in the courtroom and a predisposition about Hill.
Further allegations in the filing were made about a second judge at the Kitchener Superior Court — suggesting that Justice Deborah L. Chappel denied Hill an opportunity to participate and dismissed his initial constitutional question calling it a “waste of time”.
Chappel said she believed Hill was using his constitutional right to uphold indigenous law over provincial law as a tactic to delay the proceedings.
That ruling was stayed earlier this year by Justice Roberts at the Court of Appeal and Chappel was repudiated by Roberts saying “Hill would suffer irreparable harm if his constitutional question is dismissed” and that it is not up to both Beaver and the Ontario legal system to unilaterally decide on Hill’s case — and that the case merits a full appeals court review.
Mohan Sharma, Executive Legal Officer for the Chief Justice at the Kitchener Superior Court declined to comment on the allegations saying in an emailed response to the TRT that “it would not be appropriate for the Court or a judge to provide comments outside of Court to media outlets or to any private individual on a particular case. This would be contrary to the open court principle.”
A ministry spokesperson for the Attorney General, Brian Gray, also declined to comment on the matter saying “As this matter is before the court, it would be inappropriate to comment.”
Norman Sabourin, Executive Director and senior General Counsel for the Canadian Judicial Counsel said in an emailed response that he has “no knowledge of the matter in question, nor of the specific allegations made.”
In light of the national allegations of indigenous people having such a struggle just to be treated equitably in Canada’s Justice system – why are no officials ready or willing to comment on this case?
A spokesperson for Hill, Raj Rasalingham says this case is a prime example of the systemic racism in Canada’s justice system. “The power imbalance in the courts is entrenched — this is just a glaring example that First Nations people can never get rights in the court system.”
Rasalingam says the case has become a fight for the rights of indigenous people not be forced through Ontario’s legal system.
“Hill is challenging the very system of laws that did experiments on First Nations children, deprived Six Nations of lands and a legal system that took First Nations kids away from their parents to deprive them of their heritage and culture and identity,” says Rasalingam, pointing to the Truth and Reconciliation Commission’s finding of Canadian systems inflicting “cultural genocide” against indigenous people in Canada.
Hill wants his son’s heritage to have a factor in the child’s life — but Rasalingham says the case and the actions of the two judges at the Kitchener Superior Court are pushing past those assertions. “[The child’s] heritage doesn’t matter and his living conditions and connection to the community don’t matter — all that matters is his connection to Ontario and their standards.”
Rasalingham said, “The courts haven’t changed. The prejudice of the Kitchener court system is on occupied land which is subject to a land claim on the Haldimand Tract. The issues of aboriginal rights are seen as a nuisance.”
“It’s a series of compounding injustices,” said Rasalingham. “Overall the court is taking the side saying ‘we don’t care about your native heritage’ but at the end of the day and they are supposed to look after the best interests of the child. If the best interests of the child does not include his heritage what else matters?”
Hill says in his affidavit that he has made a commitment to his culture and community by remaining a resident and involving his other children in the community as well.
Lawyers for Hill reached out to the Haudenosaunee Confederacy Chiefs Council (HCCC) and the Six Nations Elected Council (SNEC) on the constitutional question via letters to Elected Chief Ava Hill and Jock Hill, Secretary to the HCCC.
According to court documents, Katherine Hensel, an Toronto indigenous lawyer for Hill noted that the while SNEC did not respond, the Haudenosaunee Confederacy did and 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.
Hill’s resistance to the imposition of a foreign legal system is not unique.
In 2015, a Six Nations family fought a historic battle in an Ontario court for their indigenous right to treat their child with indigenous medicine instead of chemotherapy for leukaemia — stating it was their constitutionally protected indigenous right.
In that case, Justice G.B. Edwards pointed to a 1996 decision at the Supreme Court from a BC fishing dispute. Justice Antonio Lamer then defined what indigenous rights look like in the Canadian legal system as defined by the constitution.
Lamer said in his ruling that indigenous rights exist because indigenous people were already present in the continent prior to the arrival of Europeans — “participating in distinct cultures, as they had done for centuries.”
Lamer goes on in his ruling saying the litmus test to qualify if a matter is an indigenous right or not — is to “determine if an activity is an element of the practise, custom or tradition integral to the distinctive aboriginal group claiming the right.”
Hill is arguing that the Haudenosaunee have “a robust law, a dispute resolution system, which, among other things, determined how disputes within and between families were to be resolved.” He argues the traditional governance system “has been practiced continuously since the time of contact with European settlers, despite the operation of other, colonial legal systems.”
Hill says that imposing Ontario’s legal system in this matter violates his indigenous rights.
But Beaver and her lawyers argue that although she is a Tuscarora woman ethnically, she does not consider herself to be culturally Haudenosaunee — and sought a dismissal of Hill’s right to assert his indigenous rights in resolving this case.
Hill says 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 — whereas Haudenosaunee culture and law “prioritizes the interests of children and considers the collective community to be responsible for the care, protection and well-being of children.”
Though Beaver and her son reside in Waterloo and not on Six Nations of the Grand River reserve — they do reside on Six Nations territory within the Haldimand Tract. Hill says 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.
But Beaver and her lawyers argue that although she is a Tuscarora woman ethnically, she does not consider herself to be culturally Haudenosaunee. She sought a dismissal of Hill’s right to apply his indigenous right in resolving this case — and wants only provincial law to apply.
Beaver declined to comment on the Appeal Court decision to stay.
In her affadavit, Beaver says, “I cannot provide (my son) with a lifestyle comparable to the lifestyle enjoyed by Kenny on the current amount of child support paid by him.”
Currently that amount is $33,000 a month and additional fees for the child’s private school tuition.
Beaver currently lives with her new partner, their child, and her son in Waterloo — in $900,000 home Hill purchased for her. She is pursuing $33,183 a month in child support for their son and $85,701 a month in spousal support for their five year relationship which ended in 2013. Hill’s team says there is significant evidence showing a spousal relationship never existed.
According to court documents Beaver is seeking a Muskoka cottage, to be designated the beneficiary of Hill’s life insurance policy and $200,000 in legal costs.
Hill provided Beaver with an extensive list of gifts, properties, vacations and vehicles for herself and extended family members totalling over $2 million.