Henvey Inlet woman won't have to disclose treaty settlement amount in child support negotiations

Payments from the Robinson Huron Treaty (RHT) litigation settlement have been guarded fiercely by First Nations, but a recent motion in family court in Sudbury has challenged that confidentiality.

In the past, courts have ruled that the funds distributed to individuals is not income, but compensation and not to be thought of as a windfall.

However, the lawyer for a Sudbury man recently took a different avenue, asking a court to force the man's ex-partner to reveal the amount she received as part of a treaty settlement, arguing it would be relevant in child support negotiations.

Dennis Legault shares custody of two children with Mandy Herbert, who is a member of Henvey Inlet First Nation.

She received a one-time individual payment in 2024 from her First Nation, one of the 21 Anishinabek communities that were part of the settlement of a lawsuit against the federal and provincial governments for failing to honour a promise to share the wealth reaped from the territory, as set out in the 1850 Robinson Huron Treaty.

Herbert resisted the motion in court, saying the amount of money should not be made public nor was it important in settling retroactive child support.

"It would have been different had I won an actual lottery," she said. "I could see where that increased the amount of money, that might be taken into account, but that's not what this was. It was a settlement for compensation and harm."

Herbert adds she's been advised by the Robinson Huron Treaty legal team that she is not permitted to share the amount she received publicly.

She said she even had to sign an online non-disclosure agreement with Henvey Inlet First Nation when registering for her payment

Herbert did provide all the other financial information that Legault requested.

Ultimately, Justice Susan Stothart ruled in Herbert's favour, agreeing she should not have to disclose the amount. 

The judge wrote in her decision, that on balance, the annuities settlement did not increase Herbert's financial means.

"The RHT funds were a one-time payment to address historical wrongs committed against the respondent's First Nation," wrote Stothart. "The payment was non-recurring and will have no impact on the respondent's future means."

As well, the judge noted that Herbert had provided enough other personal background information to provide a clear picture of her finances.

And she wrote that it also seemed clear that most of Herbert's treaty funds had been used to pay for legal expenses and the money ultimately did not contribute to Herbert's ability to support the children.

Herbert's lawyer, Hayley Cairns, a partner at Niman Mamo, said the judge found that there were valid privacy interests in this case, but they don't always override an obligation to make proper disclosure.

Herbert disappointed with decision

That is a point that rankles Herbert, who had been hoping for a ruling that would have put a halt to future cases where families who received treaty payments may be called on to disclose them, not just her individual case.

"The judge left the door, in my opinion, wide open for future challenges. For myself, or other Indigenous litigants, rather than to firmly just shut it down because these funds are protected under treaty rights," she said.

"The judge's approach was more about privacy interests rather than.constitutional protections. [She] failed to link those clearly to constitutional protections we have under Section 35. That in and of itself minimizes the collective rights of all Indigenous people."