Court File and Parties
Ontario Court of Justice
Date: December 2, 2019
Court File No.: Toronto DFO-19-15894
Between:
Buck Neshkiwe Applicant
— And —
Nicole Hare Respondent
Before: Justice Alex Finlayson
Heard on: November 29, 2019
Endorsement Released on: December 2, 2019
Counsel
Matthew Pike — counsel for the applicant
Andrew Sudano — counsel for the respondent
Robert Shawyer — counsel for the M'Chigeeng First Nation
Jordan Lester — counsel for the U.C.C.M. Anishnaabe Police Service
ALEX FINLAYSON J.:
PART I: NATURE OF THIS ENDORSEMENT
[1] This case concerns, among other things, custody and access of two children, Bella Spring Hare, born […], 2015 and Lionel Taylor Neshkiwe, born […], 2017. The jurisdiction of this Court to decide the issues before it has also been called into question.
[2] The Applicant, Buck Neshkiwe is their father, and the Respondent, Nicole Hare, is their mother. Both parents, and the children, are Indigenous. The father is a member of Wikwemikong First Nation, located on Manitoulin Island. However, he has lived in Toronto since 2004.
[3] The mother is a member of M'Chigeeng First Nation, also located on Manitoulin Island. At times she has lived on the First Nation territory, but she has also lived in Toronto for considerable periods of time.
[4] Bella is a member of M'Chigeeng First Nation. After her birth, she lived with her mother briefly on Manitoulin Island. But for most of her life, Bella has lived in Toronto.
[5] Lionel is not yet a member of M'Chigeeng First Nation but he is entitled to be registered. From the time of his birth in May 2017 until September 11, 2019, he has lived in Toronto.
[6] According to the father's motion materials, the parties started dating in 2013. They initially lived together between January and July, 2014, in Toronto. They separated between July 2014 and April 2015, during which time the mother returned to her home on Manitoulin Island. After their reconciliation, there was another separation, but then again in August 2015, the parties resumed living together, in Toronto. That lasted until September of 2019.
[7] Although Bella was born in Sudbury, Ontario on […], 2015 and lived briefly with her mother on Manitoulin Island (ie. this was during the first separation), it is not really disputed that since mid-2015, right up until September 11, 2019, she has lived in Toronto. It is also not disputed that Lionel lived here for his entire life, also right up until September 11, 2019. While these facts are not seriously disputed, the application of Rule 5 of the Family Law Rules is in issue.
[8] The father commenced this proceeding on September 17, 2019 at the Ontario Court of Justice at 311 Jarvis Street in Toronto. That day, he brought an ex parte motion. He did so because he discovered that the mother had taken the children out of Toronto, to Manitoulin Island. According to the father's ex parte motion materials, the parents had an argument on September 5, 2019. The mother left their shared apartment with Bella and for the next 6 days, she went to stay with the maternal grandmother in Scarborough.
[9] Lionel remained in his father's care. On September 11, 2019, the father brought him to his day care. At the end of the day on September 11, 2019, when the father went to pick Lionel up, he was not there. It was at that time that the father learned that the mother had taken Lionel out of day care early, and that she was en route to Manitoulin Island with both children.
[10] The mother has since refused to return the children to Toronto. Her refusal has continued over the past several months, in the face of this Court's Order of September 17, 2019.
[11] In both parents' materials before the Court, each also claims to have been the children's primary parent. In his motion materials, the father raises concerns about the mother having taken the children to Manitoulin Island. He also raises other concerns about the children in their mother's care. The mother has responded, raising a number of concerns about the father, including allegations of domestic violence. The father has since been charged with assault.
[12] Meanwhile, unbeknownst to the Court (and to the father), on September 12, 2019, 5 days before the father came to this Court and obtained the ex parte order, the mother commenced a proceeding in the Ontario Court of Justice in Gore Bay, Ontario. She also brought an ex parte motion there that day. She did so by way of 14B Motion. In it, she sought an order for temporary custody and a restraining order.
[13] On September 12, 2019, Justice Keast refused to grant the mother's 14B Motion. He endorsed that the information the mother supplied in her 14B was insufficient. Keast J. directed the mother to serve the materials upon the father.
[14] The mother's motion materials filed in Gore Bay were subsequently attached to her materials that she filed in this Court. I note that the mother has since withdrawn her application before the Court in Gore Bay. Nevertheless, she has brought a cross-motion asking this Court to transfer this proceeding back to the Court in Gore Bay. Once there, she intends to challenge the jurisdiction of the Ontario Court of Justice generally.
[15] Throughout this time, the children have remained with the mother on Manitoulin Island. This is in violation of this Court's ex parte order of September 17, 2019, which has yet to be set aside or varied. As of the date of the release of this Endorsement, it will have been 76 days since this Court made the ex parte order for the children's return to Toronto.
[16] This Court has attempted, unsuccessfully, to hear the return of the ex parte order quickly. Initially, I ordered that the matter was to return before me on October 2, 2019. Unfortunately, there have been a number of Court appearances since that time, and the return of the ex parte motion has yet to proceed. The Continuing Record has rapidly expanded. It is now 3 volumes thick.
[17] The motions were finally scheduled to be heard on November 29, 2019. I made the November 29, 2019 return date peremptory. However, the motions did not proceed. Once all the material had been filed and the Court had an opportunity to review it, the Court became concerned that the Attorneys General for Ontario and Canada are entitled to notice of this proceeding, and that the Children's Lawyer should be invited to make submissions.
[18] On November 28, 2019, I requested, via email through the judicial secretary, that counsel be prepared to address these questions of notice to the Attorneys General as well as whether the Children's Lawyer should be appointed. I did so in view of the important issues that are being raised in this case. After hearing submissions about this on the morning of November 29, 2019, I adjourned the motions to December 5, 2019. I indicated that I would release this Endorsement over the weekend.
[19] By this Endorsement, I am directing that both Attorneys General for Ontario and Canada be notified. The Court is also appointing the Children's Lawyer. To explain why, it is necessary for me to set out some of the history of this case in more detail, as well as the positions that are actually, or by implication, being advanced. I will also set out the Court's concern about a conflict issue.
PART II: PRIOR PROCEEDINGS
[20] I begin by summarizing this Court's Endorsements to date.
[21] As I have said, on September 12, 2019, Justice Keast declined to grant the mother's ex parte 14B motion and directed her to serve the father. I was not made aware that the mother started a proceeding in a different Ontario Court of Justice location until after granting the September 17, 2019 Order.
[22] On September 17, 2019, this Court granted the father's ex parte motion and made a temporary without prejudice custody order in his favour. The Court also directed the mother to return the children to Toronto to the father's care. The Court granted an order that the children not be removed from the Greater Toronto Area without the father's consent, and the Court directed various police services, including the U.C.C.M. Anishnaabe Police Services to locate, apprehend and deliver the children to the father. For the police enforcement clause, I adopted the wording proposed by the father, including a term that it would expire in 3 months. The expiry date is approaching in December. This has now become an additional issue in this case.
[23] When this matter first returned before me on October 2, 2019, two principal things occurred. First, the mother was unrepresented. She appeared that day with the assistance of duty counsel and sought an adjournment to October 30, 2019, in order to retain counsel.
[24] Second, M'Chigeeng First Nation appeared, represented by a lawyer, Robert Shawyer. Mr. Shawyer told the Court that the First Nation intended to seek party status in this case to assert that it has jurisdiction over the children.
[25] In the result, on October 2, 2019, I adjourned this matter, only for 5 days to October 7, 2019, to be spoken to. My Endorsement of October 2, 2019 explains why. It reads as follows:
The First Nation, M'Chigeeng, has retained Mr. Shawyer. It intends to seek leave/standing in this case to assert that it has jurisdiction over the children. Its Application will be based on s. 35 of the Constitution Act and [will] ask the [Ontario Court of Justice] to decline jurisdiction.
This is the return of an ex parte motion. I am told that the mother is not complying with the ex parte order for the return of the child[ren] and the police force is not enforcing the order.
Mother has also launched a proceeding in Gore Bay before the [Ontario Court of Justice], which is inconsistent with an argument about jurisdiction. I am told [it] has a return date of October 31, 2019 scheduled there.
I am told that the First Nation would take the position, if its s. 35 argument fails, that the case should proceed in Gore Bay. On the other hand, father says that the children are resident in Toronto. [Rule] 5 directs this case should proceed before me.
In any case, the mother seeks an adjournment to retain Mr. Kay or perhaps someone else. Next date is TBST and to set a date for argument. I was prepared to put this over TBST on October 30, a date Mr. Kay is available. However, during the lunch break the parties had some negotiations, but I am told no consensus has been reached. Mother wishes there to be supervised access and is not returning the child[ren].
The jurisdictional issue aside, unless and until standing is granted and the Court finds no jurisdiction or the order is otherwise set aside on the return of the ex parte motion there is an order outstanding. As there is an expressed intention not to follow the order, I will not adjourn to Oct. 30.
Parties to come to Court next time with a litigation plan and proposed scheduling order. This includes Mr. Kay, if he is retained, or someone else being present. If there is no agreement about the schedule, then I will set it.
[26] As I indicated in the Endorsement, in the end, I was not prepared to grant an adjournment of close to a month as it became readily apparent that the mother did not intend to comply with the Court's Order. As well, it quickly became clear that more active case management would be required to ensure these motions proceeded promptly and in an organized fashion.
[27] Next, on October 7, 2019, the mother attended represented by a lawyer named Katherine Long. M'Chigeeng First Nation was represented by Andrew Sudano that day. Mr. Sudano is Mr. Shawyer's associate. Ms. Linda Debassige, the Chief of M'Chigeeng First Nation, was also in attendance.
[28] On October 7, 2019, Ms. Long requested a further adjournment to prepare additional materials. She conceded that the Court had jurisdiction to deal with the motions for interim relief, based on the Court of Appeal's comments in Beaver v. Hill, 2018 ONCA 816 (quite apart from the fact that no section 35 claim had yet been pleaded).
[29] Ms. Long also consented, on the mother's behalf, to withdraw the application before the Ontario Court of Justice in Gore Bay, without costs, but also without prejudice to her to seek to have this case transferred there later, should the mother's request for permission to move with the children to her home in Manitoulin Island on an interim basis be granted.
[30] The Court was prepared to schedule a date for the constitutional claim to be heard in the December trial sittings. However, on October 7, 2019, Mr. Sudano told the Court that the First Nation may or may not be proceeding with a claim based on section 35 of the Constitution Act. M'Chigeeng now wanted to take a 'wait and see' approach in the litigation. For example, if this Court were to grant temporary custody to the mother, then the constitutional claims may not be necessary. Consequently, as of October 7, 2019, it appeared to the Court that the motions would proceed on their merits, with any constitutional claims to be dealt with later, if at all.
[31] I was also told that the U.C.C.M. Anishnaabe Police Service was still not enforcing the Order. And it was brought to the Court's attention that there had been some prior involvement of Native Child and Family Services with this family during the several years that they resided in Toronto together with the children.
[32] On October 7, 2019, I issued another Endorsement containing the following terms:
1 – Mother consents to withdraw the Gore Bay [Ontario Court of Justice] Application [without costs], without prejudice to her seeking to have the file transferred there later, should he request for interim mobility be granted.
2 – Return of Ex Parte Motion Nov 1, 2019 @ 2pm.
3 – Father's supplementary affidavit by October 21, 2019. Mother's supplementary affidavit by October 24, 2019 with Notice of Motion. Father's Reply by October 28, 2019. Both parties to submit facta or summary of argument and law by October 28, 2019.
4 – Counsel for the UCCM Anishnaabe Police Services is to be present on the return date. The Court requires the police to provide any applicable legislation/regulations/contractual arrangements that govern it and to explain on what basis they say they are not enforcing a police assistance order of this Court.
5 – The mother agrees to this Court continuing to make interim orders unless or until the s. 35 remedy is heard and the Court rules otherwise. This is without prejudice to her arguing at the s. 35 hearing, should it proceed, an argument akin to what which the First Nation intends to proceed with.
6 – First Nation is obtaining a draft expert report. It is not seeking to intervene at this point but it may do so after the ex parte motion's return. Mr. Sudano can update the Court on Nov 1 as to next steps. At some point, draft Motion materials and an NCQ setting out the Constitutional relief sought will have to be served and filed if this issue is to proceed and there must be notice to the AG Ontario and Canada per s. 109 of the CJA.
7 – NCFS' notes and records to be released to the parties by October 16, 2019. The Court requires a letter from NCFS summarizing its prior involvement, any protection concerns, and a letter describing its current investigation, plus any verifications to be filed with the Court and to be provided to both counsel and the parents prior to Oct 18, 2019.
[33] Next, on October 22, 2019, Ms. Long filed a 14B motion asking for an adjournment of the November 1, 2019 motion. The 14B Motion complained that the father had filed all of the NCFS' records obtained as a result of the October 7, 2019 disclosure order, and that they were voluminous. Although on October 7, 2019 all counsel had agreed to a tight time table for the exchange of materials for this motion, while knowing the Court was making a production order for the NCFS records, Ms. Long now sought more time for the mother to address the records. On October 24, 2019, I endorsed that the adjournment request was to be spoken to in Court on November 1, 2019.
[34] By November 1, 2019, Ms. Long was no longer acting for the mother. Instead, on November 1, 2019, the Court was informed that Mr. Shawyer would still be representing the First Nation, but now Mr. Sudano (again he Mr. Shawyer's associate) would be representing the mother. Jordan Lester, who is counsel for the U.C.C.M. Anishnaabe Police Services, was also in attendance in Court pursuant to my October 7, 2019 Endorsement.
[35] On November 1, 2019, I granted another adjournment to November 29, 2019 as a result of the 14B Motion, but I indicated this time that the return date would now be peremptory. I also questioned counsel whether Mr. Shawyer and Mr. Sudano could represent both M'Chigeeng First Nation and the mother.
[36] My Endorsement of November 1, 2019 reads as follows:
1 – I asked whether Mr. Sudano and Mr. Shawyer could represent both the mother and the First Nation if their interests diverge. Mr. Sudano indicates the First Nation and the mother are not adverse and so there is no conflict at this point. Mr. Pike may be raising an issue.
2 – Adjourned to November 29, 2019 – Full Day
A – Mother's Amended Notice of Motion, Amended Answer, Supplementary Affidavit and Factum and BOA by November 13, 2019
B – Father's Reply by November 25, 2019 to include Factum and BOA
C – UCCM to file an affidavit, factum and BOA to address the legal basis upon which the police force says it need not enforce the Court's Order by Tuesday, November 26, 2019
D – Motion is peremptory. No more adjournments.
[37] As of November 1, 2019, the children still remained with the mother on Manitoulin Island. At the end of the hearing on November 1, 2019, the father asked for costs. For written reasons that I need not repeat here, on November 1, 2019 I ordered the mother to pay costs to the father in the amount of $2,800 forthwith.
[38] The parties then filed more material as set out in my Endorsement. In reviewing the materials in preparation for the hearing on November 29, 2019, the Court became concerned that counsel are now in fact raising different constitutional questions without notice to the Attorneys General. It was in that context, as I said earlier, that I notified counsel to be prepared to address the notice issue on the morning of November 29, 2019.
PART III: EXCERPTS FROM THE EVIDENCE RELEVANT TO NOTICE TO THE ATTORNEYS GENERAL AND TO APPOINTING THE CHILDREN'S LAWYER
A. Excerpts of the Evidence of M'Chigeeng First Nation Chief, Ms. Debassige
[39] Although the M'Chigeeng First Nation has not yet moved to intervene in this case, Ms. Debassige has nevertheless filed affidavits before the Court in support of the mother.
[40] Attached to her affidavit of September 23, 2019, Ms. Debassige has supplied the Court with a number of documents. One such document is entitled "A By-Law for the Care of Children of the Members of M'Chigeeng First Nation – By-Law # 001/01". The By-Law reads that it was enacted on February 12, 2001 pursuant to section 81(1) of the Indian Act, R.S.C. 1985, c. I-5, as amended.
[41] The By-Law contains a number of paragraphs. Section 3 states that "The Chief and Council shall have exclusive jurisdiction over any First Nation child custody proceeding notwithstanding the residence of the child."
[42] Another document filed by Ms. Debassige is a M'Chigeeng First Nation Council Resolution dated September 18, 2019. The resolution was passed immediately following the parents' separation. The resolution states a number of things.
[43] First, it recognizes the mother and Bella as registered band members of the M'Chigeeng First Nation.
[44] Second, it recognizes that Lionel is eligible to be registered.
[45] Third, it states that the "permanent residence" of the mother and the children is M'Chigeeng First Nation.
[46] Fourth, it states that M'Chigeeng First Nation also recognizes the mother as the primary caregiver and sole provider for the children in accordance with Anishinaabe custom.
[47] And fifth, paragraph 9 of the Resolution reads:
M'Chigeeng First Nation does not grant permission for the removal of the children Bella Spring Hare and Lionel Taylor Neshkiwe from the M'Chigeeng First Nation and will continue to assert jurisdiction over these children and support that the children remain together in their home with their mother, Nicole Hare in the First Nation community of M'Chigeeng First Nation.
[48] Elsewhere in the material, I have been informed that the First Nation caused to be issued a trespass notice to prevent the father from coming onto its territory.
[49] In her next affidavit of November 6, 2019, Ms. Debassige writes that she is requesting a transfer of the Court proceeding from the Ontario Court of Justice at 311 Jarvis Street in Toronto, to Gore Bay. In saying this, she makes a number of statements as to the reasons for that.
[50] First, she says that the mother intends to challenge the jurisdiction of the Ontario Court of Justice based on the aforementioned By-Law (as opposed to, or perhaps in addition to section 35). She also states that the Chief and Council shall have exclusive jurisdiction over any First Nation child custody proceeding.
[51] Second, she states that the "court in Gore Bay may render efficiency as it is accustomed to handling court cases involving First Nations and First Nations peoples and has handled Notices of Constitutional Questions under s. 35 of the Constitution Act, 1982."
[52] Third, she says that the Court in Gore Bay is closer to the First Nation and to where the mother and the children are currently residing.
[53] And fourth, she says that, "Toronto is a much larger centre and justice may be accomplished in less time in a smaller northern Ontario centre".
B. Excerpts of the Material Filed by the U.C.C.M. Anishnaabe Police Service
[54] Pursuant to my Endorsement of October 7, 2019, the U.C.C.M. Anishnaabe Police Service filed a book of documents, which includes the By-Law and Band Council Resolution, and an expert from a Tripartite Agreement that governs it. The police service later filed an affidavit of Yves Forget, who is the Appointed Interim Chief of Police of the UCCM Anishnaabe Police Service, sworn November 25, 2019, and a Factum and Book of Authorities.
[55] Mr. Forget's affidavit states that the police service is not a creature of statute; rather it is a program that was created by the First Nations it services, including M'Chigeeng First Nation, the U.C.C.M. Police Commission Canada and Ontario. He says that the purpose of a governing Tripartite Agreement includes to "affirm the roles and responsibilities and relationships between the parties in the tripartite policing agreements".
[56] Mr. Forget's affidavit goes on to state that the police service is "empowered to enforce federal and provincial statutes and regulations enacted pursuant to the Indian Act" as set out in its Tripartite Agreement.
[57] The Tripartite Agreement appears to contain relevant information about the police service's duties, and about the question of this Court's jurisdiction to direct the police service to enforce its Order. However, the police service has instructed its counsel not to produce the Agreement in full, at this time.
[58] Instead, what Mr. Lester has filed is the cover page of "United Chiefs and Councils of Mnidoo Mnising Anishnaabe Policing Services Agreement 2019-2023" and only two paragraphs of the Agreement. The paragraphs that he has supplied purport to deal with disclosure of the Agreement and other information.
[59] One such paragraph, paragraph 5.5.2, states that Canada and Ontario have the right to make this Agreement public. The paragraph does not, on their face, prohibit the police service from producing it to the Court. Still, the police service takes the position that it must get both the federal and provincial governments' consent before producing the Agreement.
[60] Regarding whether it has a duty to enforce the Order, the U.C.C.M. Anishnaabe Police Service advances a number of arguments as to why it says this Court lacked the jurisdiction to direct it to enforce its custody order in the first place. Two of those arguments center around the fact that M'Chigeeng First Nation has passed a By-Law and Band Council Resolution, that it says appears to be in conflict with the Children's Law Reform Act.
[61] In particular, at paragraphs 30, 31 and 33 of his affidavit, Mr. Forget deposes:
As a result of the language in section 36(2) of the CLRA and the exclusive jurisdiction asserted by M'Chigeeng First Nation it is not clear whether the provincial court has jurisdiction to order the U.C.C.M. Anishnaabe Police Service to enter onto a First Nation to access youth where a First Nation has a By-law relating to the Care of its Children made pursuant to section 81 of the Indian Act.
It is also not clear to the U.C.C.M. Police Service whether the Provincial Court had the jurisdiction to order UCCM Police Service to enter onto a First Nation to access children where a First Nation has passed a Band Council Resolution exercising its exclusive jurisdiction over its members and other persons residing on the First Nation.
Notwithstanding the jurisdiction issues, I do verily believe that U.C.C.M. Police Service has the discretion whether to enforce a court order in any case.
[62] Mr. Forget's affidavit concludes by saying that the police service finds itself in a "difficult situation". Mr. Forget says the police service feels it must balance various interests including those of the community it services while also observing the rule of law. Mr. Forget is concerned that "forcibly removing" the children from the mother and the First Nation could "give rise to a breach of the peace" and damage relationships between the police service and the First Nation. That is because "it would be acting contrary to the First Nation By-Laws and Band Council Resolution passed by M'Chigeeng First Nation".
[63] Given the police service's position at this point, at the attendance on November 29, 2019, I asked counsel for the father whether he had taken any steps to get the other police forces (the OPP or the RCMP) named in the order to enforce it. The father has not taken many such steps.
[64] Mr. Lester added, anecdotally, that the OPP or the RCMP may not enforce the Order either.
[65] Following that exchange, father's counsel then asked the Court to extend the deadline that he initially asked be imposed on the initial police enforcement order.
C. The Mother's Fresh Materials
[66] In her Amended Application of November 7, 2019, the mother claims (I repeat this here verbatim):
(a) "An Order transferring jurisdiction of this child custody proceeding to M'Chigeeng First Nation pursuant to "A By-Law For the Care of Children of the Members of M'Chigeeng First nation # 001/01" and/or
(b) An order for the Challenge to Ontario and Canada on the issue of the Constitutional Question that M'Chigeeng has jurisdiction over the children be heard in Gore Bay; and
(c) Costs.
[67] At paragraph 62 of her Amended Answer, she states:
I respect this court and His Honour, however, M'Chigeeng First Nation has its own law to decide on child custody proceedings concerning children of the First Nation as it has a legal fiduciary duty owed to them and cannot neglect that duty. I ask His Honour to transfer this proceeding to Gore Bay so that a legal challenge as to jurisdiction can be held in a court closest to my First Nation and where such matters may be more familiar.
[68] At the same time, the mother has filed a Notice of Motion seeking various orders for custody and access, including that she be permitted to relocate to her home on Manitoulin Island with the children. Curiously, she asks that the Court order that the parents have joint custody, but also that there be a restraining order made against the father.
[69] While her Amended Answer speaks of the By-Law, her factum refers to various provisions of the Children's Law Reform Act. Orally, as I will explain, her counsel indicated that she intends to rely on the By-Law in seeking the transfer of this file to Gore Bay.
PART IV: ANALYSIS
A. Notice of this Case Should Be Given to the Attorneys General of Ontario and Canada
[70] This case has quickly become complicated, procedurally.
[71] On the one hand, the parents are arguing about which location of the Ontario Court of Justice should hear this case. Yet at the same time, the mother (and the First Nation) intend to challenge the jurisdiction of the Ontario Court of Justice in its entirety.
[72] Until the mother's Amended Application was filed on November 7, 2019, no claim that this Court should decline jurisdiction pursuant to section 35 of the Constitution Act, 1982 based on an existing aboriginal and treaty right, had actually been pleaded, although it had been referred to orally. Now, the mother's pleading appears to claim this, but the manner in which it is drafted is vague and unclear. And still, no Notice of Constitutional Question has been served or filed.
[73] It still remains unclear to the Court if the mother and/or M'Chigeeng First Nation will proceed with a claim under section 35 of the Constitution Act, 1982 at all. Nevertheless, the mother and M'Chigeeng have already placed other constitutional questions before the Court. There arguments raise questions about jurisdiction in view of the division of legislative powers in the Constitution Act, 1867 under sections 91 and 92 in a number of respects.
[74] First, rule 5(1)(b) of the Family Law Rules states that a case shall be started in the municipality where the child ordinarily resides, if the case deals with custody and access. Even though her current factum does not specifically rely upon it, in her Amended Answer, the mother pleads the By-Law in support of her request to transfer the case to Gore Bay.
[75] Based on the submissions Mr. Sudano made on November 29, 2019, it appears that at the return of the motions, the mother intends to rely on the By-Law and/or the Band Council Resolution in support of her request to transfer the file to Gore Bay. It appears that she will argue these documents either inform the Court's interpretation of Rule 5, or perhaps even override it on the basis of paramountcy.
[76] Meanwhile, both the First Nation and the police service have squarely placed division of powers arguments in issue, in relying on the By-Law and the Band Council Resolution as impacting enforcement of this Court's order.
[77] The father continues to want the police to enforce the Order.
[78] One of the core arguments of the police service in response to that is that there is "confusion" as to its legal authority to act given the existence of the By-Law and Band Council Resolution. Moreover, the police service views these two documents as a statement by M'Chigeeng First Nation that the police service is not to enforce this Court's Order.
[79] The questions surrounding this Court's jurisdiction to order the police to enforce its order overlap with questions about this Court's jurisdiction to have made the custody Order in the first place. In my view, it would not make any sense to decide the ex parte motions without reference to the By-Law and Band Council Resolutions that have been placed before the Court, only to then hear submissions about their import in relation to enforcement. If they impact the Court's jurisdiction to have made an enforcement order, then they may very well jurisdiction respecting the custody order.
[80] Section 109(1) of the Courts of Justice Act requires that notice of a constitutional question be served on the Attorneys General of Canada and Ontario when the constitutional validity or constitutional applicability of an Act of Parliament or the legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
[81] Section 109(2) states that if a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.
[82] Pursuant to sections 109(4), the Attorneys General are entitled to adduce evidence and make submissions in respect of the constitutional question.
[83] Regardless of whether a claim under section 35 of the Constitution Act, 1982 will be pursued in the future, what the Court has before it now is a By-Law, enacted pursuant to federal legislation, that is said to be in conflict with provincial legislation. Yet none of the counsel has yet to put the Attorneys General on notice.
[84] It is the Court's view that all the interrelated issues about the impact of the By-Law and the Band Council resolution should be addressed at once. See Lacey v. Kakabeka Falls Flying Inc., 2018 ONCA 1007 ¶ 14.
[85] As no notices have been prepared by any of the counsel, but because it is important that the ex parte motions be heard in a timely fashion, the Court is setting out what it believes the constitutional questions to be, based on the record that has been put before the Court. Each party, M'Chigeeng and the police service are free to serve and file their own supplementary notices if they wish, but they must do so in a timely fashion after the date of this Endorsement.
B. The Children's Lawyer Should Be Appointed
[86] The Children are 4 and 2 years old. This is not a case where the Court would appoint the Children's Lawyer to ascertain views and preferences given their young ages.
[87] However, the children's legal interests are engaged in this case. Again, important questions about how, and according to what legal principles the custody and access issues should, or will be decided for them, have been put in issue. Moreover, the question of how the children's relationships with each of their parents will be maintained, is also before the Court at this time. A decision respecting the issues raised in this case could have broader implications for other children.
[88] In that context, I invited submissions about whether the Court should appoint the Children's Lawyer.
[89] On November 29, 2019, I was told that the father does not object to the Court appointing the Children's Lawyer.
[90] According to Mr. Sudano, the mother and M'Chigeeng First Nation do object, on the basis that such an appointment would breach their fiduciary rights to take care of the children. Thus, the Court's power to appoint the Children's Lawyer to make submissions about these important issues appeared to turn into a constitutional question during the process of the Court asking about whether it should appoint it. Appointing the Children's Lawyer is an area that Mr. Sudano says may also be outside the authority of this Court, based on the By-Law.
[91] The Court is appointing the Children's Lawyer pursuant to section 89(3.1) of the Courts of Justice Act. The Court will direct that a copy of this Endorsement be sent to Katherine Kavassalis at the Office of the Children's Lawyer. The Court asks that the Children's Lawyer seriously consider accepting this Court's referral. It would be helpful for the Court for the Children's Lawyer to send senior counsel, experienced with the issues raised in this case.
[92] I will leave it open to the mother and to M'Chigeeng First Nation to argue that the Children's Lawyer's appointment be set aside later, based on the By-Law if either wishes, once the Court hears full submissions about its effect. But it will have to be dealt with in due course, and based on full submissions from all parties entitled to be heard.
C. Whether there is a Conflict of Interest
[93] On November 29, 2019, I raised again whether there is a conflict of interest arising from the fact that Mr. Shawyer's firm is representing both M'Chigeeng First Nation and the mother. I asked Mr. Sudano whether there was a conflict in their duties to their respective clients. For example, Mr. Shawyer's firm has a duty to advise the mother to comply with court orders (unless or until the order is set aside or varied). By the same token, the First Nation has passed a resolution indicating that it does not grant permission for the removal of the children from the First Nation.
[94] Mr. Sudano continued to maintain that there is no conflict. In the end, I suggested that counsel consult with the Law Society about this.
[95] I will say nothing further at this point, except that on November 29, 2019, the Court warned counsel that it does not wish to have this case delayed, should there be a later discovery that the joint retainer is problematic, or that it becomes problematic.
D. Production of Documentation from U.C.C.M. Anishnaabe Police Service
[96] As set out above, the full text of the Tripartite Agreement has not been filed with the Court. Admittedly, Mr. Lester was not present on October 7, 2019 when the Court requested that counsel for the police service attend and file this documentation.
[97] As such, on November 29, 2019, I asked Mr. Lester to consider this issue further, including whether the aforementioned paragraph of the Tripartite Agreement actually prevents the police service from filing the full document with the Court. I also asked Mr. Lester to consider whether any confidentiality concerns could be dealt with by way of a sealing order.
[98] Mr. Lester indicated he needed to speak to the governments and to his client further.
PART V: ORDER
[99] Based on the foregoing, I make the following orders for a number of directions:
(a) A copy of this Endorsement shall be sent to Mr. Pike, Mr. Shawyer, Mr. Sudano and Mr. Lester. I will ask Mr. Lester to immediately serve this Endorsement upon counsel for the Attorneys General of Canada and Ontario by Monday, December 2, 2019 at 5:00 pm;
(b) The Court shall send this Endorsement to Katherine Kavassalis at the Office of the Children's Lawyer;
(c) The following questions appear to the Court to be engaged in this case respecting both the custody and access issues, the applicability or interpretation of Rule 5 of the Family Law Rules, the appointment of the Children's Lawyer, and regarding the police enforcement issue. The Court requires submissions about them at the return of the ex parte motion:
(1) Is the subject matter of the By-Law and the Band Council Resolution, either in whole or in part, properly within the jurisdiction of the M'Chigeeng First Nation to pass, pursuant to the applicable provisions of the Indian Act and the wording of the statute;
(2) If so, are either ultra vires as matters that fall within provincial jurisdiction pursuant to section 92 of the Constitution Act, 1867;
(3) If not and they are intra vires, then is there an inconsistency between the By-Law and/or Band Council Resolution and provincial legislation? What is the extent of the inconsistency?
(4) As a result of the answers to the above questions, which statutory provisions, whether provincial legislation, including the Children's Law Reform Act, the Courts of Justice Act or the Family Law Rules, and/or the By-Law and/or the Band Council Resolution enacted pursuant to federal legislation, apply to the Court's decision on the motions in this case, and how should the relevant legal principles be applied; and
(5) In particular, how, if at all, do the By-Law and/or Band Council Resolution impact the application of the Children's Law Reform Act, the Courts of Justice Act and the Family Law Rules upon the children in this case; and
(6) Similarly, how, if at all, do the By-Law and/or Band Council Resolution impact the application of provincial legislation upon the U.C.C.M. police service in this case.
(d) Either of the motion participants are free to raise other constitutional questions, based on the material already filed before the Court, if they see fit, if they are of the view that other constitutional questions are engaged. However notice must be given to the Attorneys General and I will impose a timetable for those Notices to be provided when this matter returns before me on December 5, 2019;
(e) The parties, M'Chigeeng First Nation and hopefully counsel for the Attorneys General for Canada and Ontario and counsel from the Office of the Children's Lawyer, shall appear before me on December 5, 2019 at 9:00 am, at which point the Court will set a date for the return of the ex parte motion to be heard and make any further scheduling orders that are necessary;
(f) On December 5, 2019, the Court will request that Mr. Lester advise the Court whether his client is prepared to produce the Tripartite Agreement in full. Otherwise the Court will request submissions from the Attorneys General as to the disclosure issue addressed above in this Endorsement that have been raised by the police service in response to this Court's Endorsement of October 7, 2019;
(g) At the end of the hearing on November 29, 2019, Mr. Pike asked the Court to extend the police enforcement order, which will expire in December. Given that the U.C.C.M. Anishnaabe Police Service has now been put on notice and intends to challenge this Court's jurisdiction to have made the order requiring it to enforce, this issue about the extension will have to be argued;
(h) On November 29, 2019, Mr. Pike advised the Court that he had prepared an additional Book of Authorities regarding the jurisdictional arguments about police enforcement that he wished to file. The Court neglected to address that. As such, that issue may be raised on December 5, 2019; and
(i) As I indicated in my Endorsement of November 29, 2019, the costs of the appearance on November 29, 2019 are reserved to the motion.
Released: December 2, 2019
Signed: Justice Alex Finlayson