Law Times

Page 12 June 18, 2018 • Law Times www.lawtimesnews.com Court had no jurisdiction to hear the matter, Hill argued, asking instead that the case be decided according to the gov- ernance system and laws of the Haudenosaunee. Neither of the attorneys gen- eral 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 regard- ing aboriginal self-government. "Having regard for the com- plexity of the balancing act re- quired 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 po- litical 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 re- quest for a stay of the case pend- ing a full hearing of his constitu- tional claim, noting that he had failed to adduce any evidence about how the alternative proce- dure would improve on existing family laws in Ontario. "He has made broad, gen- eral 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 fo- cus on the best interests of chil- dren and that they emphasize the importance of maintaining connections with their aborigi- nal culture," Chappel wrote. "In the absence of even basic specifics regarding the Haude- nosaunee laws and protocols that he is relying on, these asser- tions are akin to an empty shell." Lindsay, Ont. family lawyer Russell Alexander, who was not involved in the case, says Chap- pel'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 ev- ery argument in detail. I don't think anyone could say he didn't get his day in court," Alexander says. LT "The engagement of the combined effect of subsections 118(5) and 118(5.1), at a mini- mum, requires a comprehensive documentary and evidentiary record. "If separating spouses, seeking joint custody, wish to avail them- selves of a dependent deduction for both spouses in such situa- tions, surely family law lawyers can deploy their usual f lexible skills to ignore the set off provi- sions within the paradoxically named 'Divorce Mate' for a brief moment and mandate and ef- fect actual periodic payments by both spouses to each other in cases of shared parenting of two or more children," he wrote. "Surely cheques, or even their more modern replacement of re- curring e-transfers, may evidence a clearly enumerated, reciprocal and mandatory support amount paid by each spouse to the other. "Regrettably, until this fac- tual scenario is placed before the Court, sympathetic appellants, like Mr. Harder, shall have their appeals dismissed. That result will continue to be both unfor- tunate generally and purposive- ly defeating of the child benefit programme specifically; depen- dent deductions for a second child shall remain legally un- available to a unilateral support paying parent," Bocock added. But Mimi Marrello, a fam- ily lawyer with Ottawa law firm Low Murchison Radnoff LLP, says Bocock's suggestion is un- realistic. "If one former spouse is ex- pected to pay $200 and the other is supposed to pay $400, I can guarantee that, at some point, someone will not pay," she says, adding that the chance of default would skyrocket in cases where relationships have deteriorated between the parties over dis- putes potentially unrelated to support amounts. And Marrello says she's not sure the message has fully trick- led down into the practising bar, noting that she recently co- chaired a family law conference at which a tax law expert ex- plained the impact of the Hard- er decision. "The gasps from the crowd suggested not all of them were aware," she says. Marrello says she's not fond of broaching the subject with clients in shared parenting ar- rangements who want to keep payments to set-off amounts. "They're frustrated. They don't understand why they can't both claim credits without ac- tually paying each other, and I can't give them a good answer FOCUS Continued from page 10 Continued from page 11 Federal government missed chance to clear up confusion other than, 'Because the CRA says so,'" she says. "I wish the CRA would sit down and have a discussion with us, because they're just making our clients' lives very difficult." "Flexibility is not in the vo- cabulary of the Income Tax Act, but the CRA needs to look at its policy, because I don't think it ref lects what should happen in this day and age when parents separate," Marrello adds. Schuman says the federal government missed an oppor- tunity to clear up the confusion as part of its recent overhaul of family laws. The Department of Justice claims its recently introduced bill C-78 will strengthen and modernize family justice by amending the Divorce Act, the Family Order and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Penson Diversion Act, but steers clear of the Income Tax Act altogether. "These federal family law changes will not fix the problem, at least not with the current draft of the bill," Schuman says. LT 'Really practical approach' to issues © 2018 Thomson Reuters Canada Limited 00252JY-91615-NP Premiere boutique family law firm MacDonald & Partners LLP has identified and examined important niche issues in family law to craft 200 high-value legal memos you won't find anywhere else. See for yourself the level of insight and expert analysis you can access when you have Family Law memos to help kick off your research. Download a complimentary memo or access a free trial today. westlawnextcanada.com/family- law-memos ACCESS INSIGHT FROM LEADING EXPERTS

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