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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Kahnawake evictions: sovereignty v. Constitution to human rights. Controversy, in fact, has been swirl- A ing ever since the band council in Kahn- awake moved to evict non-natives living on the reserve southeast of Montreal. The evictions, officials there argue, are about preserving Mohawk identity by limiting the presence of outsiders. The key targets of the evictions are non-natives in relationships with band members. The council, then, is essen- tially taking a shot at mixed marriages. The band does, of course, have points to make. Fighting against assim- ilation is a legitimate goal. At the same time, under federal law, First Nations have the right to decide who is eligible t first blush, the expulsion of non-natives from a Quebec re- serve appears an obvious affront for band membership, a key element of self-government. As a result, federal officials have so far kept their distance from the issue. Nevertheless, the evictions are dis- turbing. Mixed marriages are a reality in our society, which makes any effort to fight against them a fruitless task. The Kahnawake council could, of course, argue that rather than battling against that tide, it's simply exercising its right to decide who gets band membership, but of course the effect of the evictions is to punish those who marry outside native bloodlines. At the same time, it's questionable whether those efforts are the best way to preserve Mohawk culture anyway. The mere presence of non-natives doesn't necessarily imperil Mohawk identity. Obviously, we live in a pluralistic so- ciety where culture is about more than bloodlines and ancestry. There are other less disturbing ways to promote it than reverting to race-based policies. The legal issues are trickier, how- ever. The evictions have raised the prospect of a constitutional challenge given their clearly discriminatory na- ture. But governments typically take a hands-off approach to these issues given the sensitivity around native sov- ereignty and self-government, both of which band councils have a legitimate interest in protecting. Nevertheless, the Kahnawake move is yet another example of the continu- ing clouds that linger over those very issues. On the one hand, it raises ques- tions about the ways in which the Con- stitution applies to native reserves while on the other hand evoking concerns over sovereignty and cultural rights. Of course, the whole area of native rights has been a murky one for some time, especially since politicians veered away from dealing with constitutional issues following the Meech Lake and Char- lottetown Accord battles of the 1990s. Once again, we're left with few answers. It would be nice to think cases such as the Kahnawake evictions will prompt a search for clarity in that area. But, given other examples of similarly tricky disputes — Caledonia comes to mind — it seems likely we'll be wait- ing a long time for that. Still, that doesn't mean we shouldn't hope things were different. — Glenn Kauth were they thinking?" Neill v. Neill is one such case and cer- tainly a lesson learned about having a sympathetic, or rather an unsympathetic, client. In this case, Paul and Nancy E Neill had been separated for ap- proximately 11 years. Paul had a historical income of roughly $155,000. As a result of a settle- ment reached by the parties, the minutes of which were turned into a court order, he was to pay child support of just under $2,000 per month for the one remaining child of the marriage as defined in the Divorce Act and $4,000 per month in spousal support, which was to be up for review in 2012. Nancy had been unable to secure gainful employment due to al- leged problems with her knees and a history of related surgeries. The one remaining child of the marriage, Michael, was a post-secondary student. One of the preconditions for paying child support was that Michael be enrolled in a full-time program at school and that he achieve very so often, a case comes out, and one can't help but wonder, "What A cautionary tale on child support Family passing grades. They're not un- common terms put into agree- ments for older children but ones that should be construct- ed carefully from now on. Paul brought a motion seeking relief that included a retroactive termination of child support for Michael and alleging the preconditions had not been met and that dur- ing negotiations he was misled about the true state of affairs relating to his son's status and performance at school. Paul also sought to retroac- tively terminate spousal sup- port. He argued Nancy had not made full efforts to support her- self and thereby claimed a mate- rial change in circumstances. As an alternative rationale for relief — and wisely so — he sought to vary the amount of spousal support on the basis that his in- come had dropped roughly 20 per cent to $122,000. The case did not result in a termination of spousal support, but Justice Michael Quigley did reduce it by approximately $1,300 due to the change in income. He was quick to point Law By Marta Siemiarczuk out, however, that not becom- ing gainfully employed prior to an established time for a review contained in the minutes of settlement and corresponding court order certainly did not constitute a material change in circumstances. Nevertheless, the judge did caution Nancy to make stronger efforts at sup- porting herself as the review period was coming up in sever- al years. So far, then, score one for Paul and one for Nancy. On the issue of child support and the alleged misrepresenta- tions of Michael's grades and sta- tus, it turned out that he had be- come diabetic and was apparently misdiagnosed for some time. He was also suffering serious depres- sion from the onset of diabetes. It's clear from Quigley's judg- ment that there was no sympathy for the father's plight. The judge www.lawtimesnews.com went so far as to say it would be unconscionable for him to retro- actively terminate Michael's sup- port over the fact that he hadn't passed all of his courses due to his struggle with diabetes. The human side of the de- cision aside, Quigley also ex- plained that notwithstanding the academic "precondition," he couldn't rely on such terms dur- ing the school year as no one would know whether a student had passed or failed a course until it was over. Therefore, to retroac- tively vary or terminate child sup- port on that basis would be inap- propriate. Score two for Nancy. She, in fact, sought two ad- ditional orders, one being that Paul pay for an insulin pump for Michael at approximately $8,000 and the other that he pay his share of the educational expenses of roughly $3,500. Unfortunately for the father, had he claimed the cost of the insulin pump earlier, his medi- cal benefits would have covered it. Because he didn't do so, he now had to make the full pay- ment out of pocket. Moreover, as the child support was to continue, Quigley made a fur- ther order requiring Paul to pay his portion of the educational expenses. Score three and four for Nancy. All in all, it was a rather ex- pensive, and likely avoidable, day for Paul. At the end of the day, Quigley noted Nancy was successful on four out of five is- sues. Although he didn't fix costs, he certainly encouraged the par- ties to resolve them on that basis, failing which they could bring the matter back for direction. Conditional clauses, like the one outlined in this case relating to support for adult children, are very common and understandably so. However, Neill certainly serves as a cau- tionary tale on their use if you are seeking to terminate sup- port, particularly if you wish to do so retroactively. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Kathleen Chapman & Associ- ates in London, Ont. She can be reached at msiemiarczuk@ gmail.com.