ONTARIO COURT OF JUSTICE

Date: March 19, 2020

Court File No.: Toronto DFO-19-15894

BETWEEN:

BUCK NESHKIWE

Applicant

— AND —

NICOLE HARE

Respondent

Before: Justice Alex Finlayson

Heard on: February 20 and 21, 2020

Endorsement Released on: March 19, 2020

Counsel:

• Matthew Pike — counsel for the applicant
• Andrew Sudano — counsel for the respondent
• Robert Shawyer — counsel for the M'Chigeeng First Nation
• Tanya Muthusamipillai — counsel for the Attorney General for Canada
• Manizeh Fancy & David Tortell — counsel for the Attorney General for Ontario
• Christopher Diana — counsel for the Ontario Provincial Police
• Rachael Paquette — counsel for the U.C.C.M. Anishnaabe Police Service
• Caterina Tempesta — counsel for the Office of the Children's Lawyer, legal representative for the children

PART I: OVERVIEW

[1] The Applicant father, Buck Neshkiwe, and the Respondent mother, Nicole Hare, are the parents of three children, named Bella Spring Hare, born […], 2015 (age 5), Lionel Taylor Neshkiwe, born […], 2017 (almost 3 years old), and Lincoln Winter Hare, born […], 2020 (2 ½ months old). Lincoln was born about three months after this litigation began.

[2] 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. The mother is a member of M'Chigeeng First Nation, also located on Manitoulin Island. At different points she has lived in her home on the territory of M'Chigeeng First Nation, but she has also lived in Toronto for considerable periods of time, too.

[3] Bella is a member of M'Chigeeng First Nation. While Bella was born on M'Chigeeng First Nation, thus far, she has mostly been raised by her parents in Toronto.

[4] Lionel is not yet a member of M'Chigeeng First Nation, but according to Linda Debassige, Chief of M'Chigeeng First Nation, he is entitled to be registered as such. However, a note contained in the disclosure produced by Native Child and Family Services regarding this family, indicates that the mother previously reported that Lionel may be entitled to be registered with the father's First Nation. In any case, from the time of his birth in May 2017 until September 11, 2019, Lionel has lived in Toronto.

[5] I am unclear as to what Lincoln's status is, with either First Nation.

[6] On September 5, 2019, the parents separated. The mother left the parents' shared apartment in Toronto, with Bella only, and went to stay with her mother in Scarborough. Then, on September 11, 2019, unbeknownst to the father, the mother picked Lionel up early from his day care and left Toronto altogether, taking both children to M'Chigeeng First Nation.

[7] Soon after the mother's departure, the father launched an ex parte motion in this Court for an order for temporary without prejudice custody, for an order compelling the return of the children to Toronto to his care, and for a police enforcement order, among other things. Unbeknownst to this Court and the father at the time, a few days earlier, the mother had commenced an Application and brought an ex parte motion in the Ontario Court of Justice, in Gore Bay, Ontario, for temporary custody and a restraining order.

[8] This Court granted the father's ex parte motion; the Court in Gore Bay did not grant the mother's.

[9] Despite this Court's September 17, 2019 ex parte Order, the mother would not return the children to Toronto. M'Chigeeng First Nation has intervened in this case, in support of the mother. It asserts jurisdiction over the children, regardless of their residence. Both the mother and M'Chigeeng have raised constitutional issues, challenging this Court's jurisdiction over the children. M'Chigeeng instructed a local First Nations police service on Manitoulin Island not to enforce the Court's Order. And M'Chigeeng issued a trespass notice prohibiting the father from coming onto its territory, concurrently with his attempt to go there to get the children.

[10] Consequently, the father did not see either Bella or Lionel for about 4 months, until January, 2020. It was only after multiple appearances before this Court, a costs order made against the mother, and discussions between both parents' First Nations, that the father was able to have a short, supervised visit with the children. Then, after a case conference before Justice Pawagi on January 22, 2020, specifically to deal with access while a process for the constitutional questions to proceed was sorted out, the father was able to have a more substantial visit with Bella and Lionel.

[11] This is the return of the father's ex parte motion. There are also cross-motions, a contempt motion and a motion from the Ontario Provincial Police (the "O.P.P.") before the Court. This Endorsement addresses the issues raised in the Applicant father's ex parte motion dated September 17, 2019, the father's supplementary Notice of Motion dated November 25, 2019, the mother's Amended Notice of Cross-Motion dated November 11, 2019, the father's Notice of Contempt Motion dated January 7, 2020, and the O.P.P.'s Notice of Motion dated February 12, 2020.

[12] These various motions were heard on February 20 and 21, 2020. As the relief sought in the motions has changed somewhat over time, at the Court's direction, both parents filed Confirmation Forms and proposed draft Orders, so that the relief sought by the parents on their motions would be clear to the Court.

[13] The father seeks temporary sole custody of Bella and Lionel, an order that the children reside primarily with him, a finding that the children are "habitually resident" in Toronto, an order that the mother shall return the children to Toronto, an order that the children shall attend school and day care at Jesse Ketchum Public School, an order that once returned, the children not be removed from the Greater Toronto Area, and a police enforcement order pursuant to section 36(2) of the Children's Law Reform Act. The father's motion would have various named police forces or services enforce the Court's Order. For the purposes of this motion though, relief is really only sought against two such police forces or services.

[14] The father's proposed draft Order contains two different access schedules. If the mother remains living in her home on M'Chigeeng First Nation after the children are returned, then he seeks an order that she have access to Bella and Lionel three weekends each month. He would have the Court divide up various holidays between the parents. He says that the mother should be responsible for the children's travel between Toronto and M'Chigeeng to enable this access to occur. This would include her paying for the father's rental vehicle, or loaning him a car, if he is required to do the driving, and paying for his overnight accommodation.

[15] If the mother returns to Toronto, the father proposes that she have access on alternate weekends for a three-month period. Then, the parents would transition into a shared parenting schedule, equally, on a so-called "2-2-3" schedule. He says the three-month period is necessary for the children to transition back into school.

[16] The father seeks an order that the mother reimburse him for the costs he has incurred to travel to M'Chigeeng First Nation so far, in the amount of $1,200. His proposed draft Order also contains a term about requiring the mother to pay for day care, in the event that the daycare subsidy the parents had in Toronto has been lost as a result of the children not being in daycare for the past several months. But this was not strenuously pursued in argument, as the father says he has worked with the school/day care to preserve the subsidy, and there are still spots available in Bella's and Lionel's former school/day care for both children.

[17] The father seeks an order, pursuant to rule 1(8) of the Family Law Rules, that the mother shall pay him $200 per day, if she does not comply with any new order that the Court makes. But during argument, the father's counsel conceded that rule 1(8) first requires the Court to find a breach of an order before it may grant relief under that Rule. As the Order pursuant to which the father seeks to financially sanction the mother has yet to be made, and therefore yet to be breached, this relief too, was not pursued.

[18] Finally, the father asks the Court to find the mother in contempt of this Court's Order of September 17, 2019, based on her conduct of withholding the children between the date of the Order and January 31, 2020, and again based on her conduct of withholding from February 15, 2020 to the date of the motion.

[19] There is a gap in the periods of time upon which the father bases his request for a finding of contempt, because at the case conference on January 22, 2020, Pawagi J. was able to broker a 14-day visit for the father from February 1 to 14, 2020. So, the father says that the mother would not be found in contempt based on her conduct during that period.

[20] The mother seeks an order setting aside this Court's Order of September 17, 2019. She asks for an order for temporary joint custody of the two children, with them residing with her primarily. Although her proposed draft Order does not specifically say this, she asks for the Court's permission to relocate with the children to her home on M'Chigeeng First Nation.

[21] In that scenario, the mother asks for an order that the father have access to the children, one weekend per month during the school year, one month in the summer, and during various other holidays. When that one weekend per month during the school year would occur is not specified in the mother's draft Order. According to the mother's plan, the parents would be left to their own devices to organize that amongst themselves.

[22] While she asks for an order for joint custody of the children, the mother also asks for a restraining order. She would have the Court make an exception to its terms though, to allow contact between the parents for the purposes of arranging access, and "for providing updates on the children's education and health related issues".

[23] In both her Amended Answer and her Amended Notice of Motion, the mother sought an order transferring this matter to the Ontario Court of Justice in Gore Bay, Ontario. But at the outset of the hearing of the motion, I was told that this request for relief was not being pursued. At the end of the motion, I was told by counsel for M'Chigeeng First Nation, that he is finalizing instructions to bring a motion for the transfer of this file to the Ontario Superior Court of Justice. The mother advised the Court that she will be supporting that transfer motion.

[24] The Court scheduled that transfer motion to be heard on March 27, 2020. On March 18, 2020, the Court received a 14B Motion requesting that the motion proceed by way of telephone conference. The transfer motion will instead be adjourned due to the Court's COVID-19 procedures, which have been put into place since the motion was scheduled.

[25] And finally, the mother asks that I adjourn the Contempt Motion to a date after the issues raised in the Notices of Constitutional Question have been resolved.

[26] Lincoln was born after both parents' motions respecting the custody and access issues had been served and filed. At the hearing of the motion, I was told that neither party is seeking any orders respecting Lincoln. Apparently, both parents' counsel will assist them to sort out any issues relating to Lincoln, at least at this point. If they cannot and further issues arise respecting Lincoln, then those will have to be dealt with in due course.

[27] The Children's Lawyer's mostly takes no position respecting the motions before the Court. The Children's Lawyer has not yet formulated a position in this case. It has not yet completed all of the steps it usually takes in order to formulate that position.

[28] With the consent of the parties, Ms. Tempesta did update the Court about the steps the Children's Lawyer had taken so far in this case. She also advised the Court that the Children's Lawyer needs certain medical disclosure from the mother, particularly in light of some allegations about the mother's alcohol misuse. However, the mother had expressed some reluctance to provide those records and so the Children's Lawyer did not have them. Ms. Tempesta said that the missing information might influence the position the Children's Lawyer would take, including about the children's relocation on a final basis.

[29] And, Ms. Tempesta made some limited submissions about police enforcement. Later in these reasons I will set out those submissions in more detail when dealing with police enforcement.

[30] Although the Children's Lawyer requires more time to formulate its position, the Court asked Ms. Tempesta, and Ms. Tempesta confirmed, that the Children's Lawyer was not seeking an adjournment of the motions.

[31] When the parents attended before Pawagi J. on January 22, 2020 and agreed that Bella and Lionel could come to Toronto in February, 2020 for the two week visit with the father, that agreement was apparently contingent on a new police enforcement order being put in place. It is my understanding that the purpose of that new police enforcement order was just in case the father refused to return the children to their mother, at the end of his February visit, pending argument of these motions. That consent order of January 22, 2020 for police enforcement was made without notice to the O.P.P.

[32] On January 16, 2020, when I scheduled the case conference to proceed before Pawagi J., it was agreed that some of the counsel involved in this case, including counsel for the O.P.P., need not attend before her. As I will explain, by the time this case conference was booked, the Court had already stayed the police enforcement term in its prior ex parte Order of September 17, 2019 at the request of the O.P.P., pending further argument, for specific reasons, which are set out in a prior Endorsement.

[33] At no point when the January 22, 2020 case conference was being booked did either parent, or M'Chigeeng First Nation, raise the prospect of a new police enforcement order being made at the upcoming case conference, such that the O.P.P. might have felt the need to attend.

[34] In its new motion now before the Court, the O.P.P. asks that the Court set aside that police enforcement term in the Consent Order of Pawagi J. dated January 22, 2020, for various reasons, including, but not limited to the lack of notice to it. However, in the end, that request to set aside was not strenuously pursued at the hearing of the motions, as the February 1 to 14, 2020 visit that the police was asked to enforce, has come and gone, without the need for the police. The father returned the children to the mother at the end of the visit, as he agreed to do, and as he was ordered on consent to do.

[35] Otherwise, the O.P.P.'s position respecting police enforcement is twofold. First, it argues that the Court did have jurisdiction to order it, and a local First Nations police service on Manitoulin Island, U.C.C.M. Anishnaabe Police Service ("U.C.C.M."), to enforce the Court's ex parte Order of September 17, 2019. The O.P.P. takes no position respecting the father's request for a new police enforcement Order to secure the children's return to Toronto, and respecting their subsequent non-removal. However, during argument, counsel for the O.P.P. drew to the Court's attention certain concerns respecting police enforcement that he said the Court may wish to consider when deciding whether to order police enforcement or not.

[36] U.C.C.M. says the Court lacked the jurisdiction to have ordered it to enforce the September 17, 2019 ex parte Order in the first place, and it says the Court cannot order it to enforce a new Order. U.C.C.M. advances several arguments to arrive at this result, which I deal with below, but the principal argument is that U.C.C.M. is not a "police force" within the meaning of section 36(2) of the Children's Law Reform Act and section 2(1) of the Police Services Act.

[37] After the Court made its ex parte order on September 17, 2019, the Court directed this case to quickly return to Court, for October 2, 2019. The hearing of the ex parte motion, and the hearing of the other related motions that were subsequently served and filed, has been delayed, on account of the constitutional issues that have been raised in this case. The Continuing Record is now four volumes thick. Both parents, M'Chigeeng First Nation, and two police forces or services have filed voluminous affidavit material, facta and Books of Authorities. The mother and M'Chigeeng First Nation have filed Notices of Constitutional Questions, which they subsequently amended. During at least one of the court appearances, there were 12 lawyers present, representing different interests.

[38] The Court has devoted significant time towards organizing a way for the constitutional issues to go forward. The constitutional issues are not being dealt with in this Endorsement. The purpose of this Endorsement is to address the immediate issues concerning the children on a temporary basis. That includes temporary custody and access, interim relocation, and certain other related issues. That has been long outstanding.

[39] Regarding the motions now before the Court, it is my view that neither parents' positions are entirely reasonable or in the children's best interests on an interim basis.

[40] For the reasons that follow, the mother's request for a restraining order is dismissed. I find that she has not established the grounds for a restraining order to issue at this point. Moreover, it is incomprehensible to the Court that the mother would seek both a restraining order, and joint custody, in this case. The mother's allegations about the father's conduct, if accepted, are incompatible with an order for joint custody.

[41] That said, I do find it appropriate to order terms regarding the parents' interactions with one another based on some of their past behaviour towards one another.

[42] Regarding her request to relocate the children to M'Chigeeng First Nation, the mother has already moved them there, unilaterally. In September 2019, she left Toronto, went to M'Chigeeng First Nation, and then chose to stay there for what will end up being 6 months at the time of the release of this Endorsement, contrary to this Court's ex parte Order of September 17, 2019. The mother is in effect asking for an order for the children's relocation on an interim basis, after the fact.

[43] I am dismissing the mother's request to relocate the children on an interim basis. In so doing, I am taking into account her unilateral conduct. However, it is not for that reason alone, nor is that frankly, even the predominant reason for the dismissal of this request in her motion. Overall, the evidence does not satisfy me that an interim move is in Bella's and Lionel's best interests.

[44] Based on the record before the Court, the mother's proposal respecting the parenting issues does not go far enough to recognize the role that the father has played as Bella's and Lionel's parent. It does not sufficiently allow for their meaningful contact with the father. Furthermore, there are a number of logistic deficiencies in her plan. Her plan is unworkable. In the result, I find that the children should be returned to Toronto, until the issue of relocation is decided at a trial (or otherwise, depending on the outcome of the constitutional questions).

[45] To be clear to the parents, I am deciding this issue on an interim basis only. I do so, based on the test for an interim relocation, applied to the evidence before the Court, at this time.

[46] As this Court is ordering the children to be returned to Toronto, in a scenario where the mother also returns to Toronto, then I would mostly order the shared parenting schedule proposed by the father. The only schedule that has been put before the Court is a "2-2-3" schedule. I would have considered other alternatives, but no submissions were made.

[47] That said, I am prepared to conclude, based on the record before me and the submissions that I have heard, that there is no need for the three-month transition to the shared parenting schedule, as the father has sought. When the father had the children for two weeks in February, he transitioned Bella back into school with ease, and no issues concerning Lionel were raised. The mother should see the children regularly and frequently following their return, just like the father should have (but didn't get to) over the last several months.

[48] In a scenario where the mother decides to stay in M'Chigeeng First Nation without Bella and Lionel, the father has an alternative proposal that would attempt to facilitate a lot of regular contact with the mother. However, for reasons that I will explain, his alternative proposal appears to be as equally unworkable as the plan proposed by the mother in the scenario where she would remain with the children on Manitoulin Island. The father does not have a vehicle, and while the mother does, she no longer has a driver's license.

[49] Regardless, a single round-trip drive between Toronto and M'Chigeeng First Nation takes 13 hours. That is too much to accomplish in a single weekend. And the children need to be in one location during the week, for the parents to avail themselves of the subsidized child care that they require. So the alternative plan will have to be modified, for now.

[50] Yet the parents did not address this an alternative plan with the mother remaining in M'Chigeeng First Nation either, to the Court's satisfaction. So now that the outcome of this motion is known to the parents, the Court will require additional submissions on what the schedule would look like, if the mother does not return. Therefore, I may be contacted by 14B Motion once the mother decides how she intends to proceed.

[51] And finally, for the reasons that follow, the Court is dismissing the father's motions for police enforcement and for a finding of contempt. The Court is finding that both are available remedies in this case, however.

[52] In the case of the police enforcement, the Court finds that it had the jurisdiction to order both the O.P.P. and U.C.C.M. to enforce its Order of September 17, 2019, and it has jurisdiction to make a new police enforcement order that directs both of them to act now. That said, while it may, at some point, become necessary to send the police to enforce the Court's new Order, this is not an ideal scenario for several reasons. The Court prefers to give the mother one last chance to comply, and I would encourage her, and M'Chigeeng, to do so, not to erect any more barriers to compliance with the Court's Orders, and not to expose the children to the need to involve the police.

[53] The Court's basis for dismissing the contempt motion is similar. While I do not agree with counsel for the mother that a finding of contempt is not available in this case, I am again giving the mother one more chance to comply. A further contempt motion may be brought back on before the Court, too, if the mother, M'Chigeeng First Nation, or U.C.C.M. (if a new police enforcement order is later made) decides to violate this Court's orders going forward.

PART II: BACKGROUND

A. Background Information About the Father

[54] The father is 47 years old. He has been unemployed since 2016. Previously, he held a part-time job.

[55] The father is a student at the University of Toronto, studying Human Rights and Equity Studies. He currently takes 2 credits per term. He has been studying part-time for several years. He says he has a learning disability, which explains why he has taken longer than usual to complete his education.

[56] The father expects to graduate at the end of the 2020-2021 school year. He may wish to attend law school when he is done his undergraduate degree.

[57] The father is a recovering alcoholic. He has not consumed alcohol in more than 10 years. Although it was not fully addressed in the motion materials, there is reference in the NCFS' disclosure, to the father's history of trauma. This was disclosed to NCFS by the mother. The father did file a letter of support from his psychologist, Dr. Dunlop, whom he has seen for counselling for the past 9 years.

[58] According to his financial statement sworn September 16, 2019, the father receives support of about $18,500 per year from Wikwemikong First Nation to support him while he pursues his education. I am told this includes support for him, plus a dependant amount for Lionel.

[59] The father used to receive child tax benefits for Lionel, too. According to the mother, the father was only receiving these, because he forced her to sign the benefits over to him, so that he could obtain some extra funding from the City of Toronto for Lionel's day care subsidy. Although the mother has alleged this, I also note that during the time the parents were together, both parents relied on subsidized day care for Lionel in Toronto.

[60] On October 3, 2019, following her unilateral departure from Toronto with the children, the mother notified the Canada Revenue Agency that the children no longer reside with the father. Consequently, I am told the father no longer receives any child tax benefit for Lionel as a result. This is in spite of the fact that the ex parte Order of September 17, 2019 granted the father custody of both children.

[61] On October 7, 2019, the mother sent an email, similarly advising Wikwemikong First Nation, that the children are no longer with the father. She did this in an attempt to reduce the dependant amount for Lionel that the father receives as part of his student funding. There was absolutely no reason for her to have done this, especially in light of this Court's Order that the children were supposed to have been returned to the father's care. Unlike the Canada Revenue Agency, Wikwemikong First Nation did not reduce the father's funding, but asked to be kept informed of any new developments.

B. Background Information About the Mother

[62] The mother is 33 years old.

[63] Since 2012, the mother has worked for Miziwe Biik Employment and Training in Toronto. In September 2019, she took an early leave from work, for her pregnancy with Lincoln. At the hearing of the motions, I was told by her counsel that she is off on maternity leave until January of 2021.

[64] The mother's salary, prior to her maternity leave, was a little over $57,000 per year. I am not certain what her total income will be while she is on maternity leave. She now receives child tax benefits for both children, too, as a result of her recent contact with the Canada Revenue Agency.

[65] The mother says that she had "high risk" pregnancies with her children, including most recently during pregnancy with Lincoln. After she went to Manitoulin Island with the children in September 2019, the mother said she could not travel (presumably that meant back to Toronto) on account of health reasons.

[66] However, the disclosure in the NCFS' file reveals that her Toronto OBGYN would not write her a letter, to support an early leave from work. She then obtained a brief note from a different health care professional, saying otherwise. At the hearing of the motions, the mother's counsel advised that the mother had an upcoming doctor's appointment and he expected her to be "cleared" to travel, now that Lincoln has been born.

[67] It is my understanding that the mother's job at Miziwe Biik Employment and Training is still available to her when her maternity leave ends. The mother may have some job prospect in M'Chigeeng First Nation following her maternity leave, but I am not fully clear what that is or whether it is preferable to her prior job. Regardless, she has not started any such new job, as she is still on maternity leave.

C. M'Chigeeng First Nation's By-Law and Band Council Resolution

[68] Linda Debassige is Chief of M'Chigeeng First Nation. As I will explain below when summarizing the prior proceedings in this case, on January 21, 2020, the Court added Ms. Debassige as a party to this proceeding in her capacity as representative of M'Chigeeng First Nation.

[69] Even before she was added as a party though, Ms. Debassige had filed affidavits in this proceeding in support of the mother. M'Chigeeng First Nation also enacted a by-law and band council resolution, which are relevant to the positions taken in this case.

[70] On February 12, 2001, M'Chigeeng First Nation passed "A By-Law for the Care of Children of the Members of M'Chigeeng First Nation – By-Law # 001/01". The By-law is a general by-law, not particular to Bella and Lionel.

[71] Section 3 of the By-Law states that "The Chief and Council shall have exclusive jurisdiction over any First Nation child custody proceeding notwithstanding the residence of the child."

[72] Although that By-Law had been passed years prior, M'Chigeeng First Nation passed a Band Council Resolution on September 18, 2019 specific to Bella and Lionel. This was done just 7 days after the mother left Toronto for her home on M'Chigeeng First Nation, and one day after this Court granted the ex parte order for Bella's and Lionel's return to Toronto.

[73] First, the resolution recognizes the mother and Bella as registered band members of the M'Chigeeng First Nation. It also recognizes that Lionel is eligible to be registered.

[74] Second, it states that the "permanent residence" of the mother and the children is M'Chigeeng First Nation.

[75] Third, 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.

[76] And fourth, 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.

PART III: PRIOR LEGAL PROCEEDINGS

[77] This Court has already released a number of Endorsements, including two, detailed typed Endorsements dated December 2, 2019 and January 21, 2020. Although the Endorsements contain a considerable amount of information about the prior proceedings, what has transpired so far in this case squarely relates to several of the requests for relief now before the Court. As such, I have decided to repeat again here, in some detail, the history of this case and the positions taken at various points in time along the way.

[78] However, I will also provide citations for the Endorsements of December 2, 2019 and January 21, 2020 here (see Neshkiwe v. Hare, 2019 ONCJ 946 and Neshkiwe v. Hare, 2020 ONCJ 42.) To the extent that I do not fully repeat the prior proceedings and explain the positions taken at different points in this Endorsement, what I have said before about the history of this case is incorporated by reference into this decision.

[79] The mother left Toronto with Bella and Lionel on September 11, 2019. The following day, September 12, 2019, she commenced the proceeding in the Ontario Court of Justice in Gore Bay, Ontario and brought an ex parte motion (by way of 14B Motion) for custody and a restraining order.

[80] 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.

[81] A few days later, the father started this proceeding in this Court, and also brought an ex parte motion, although he did so by way of a motion that was argued orally. On September 17, 2019, this Court granted the father's ex parte motion. The Court made a temporary without prejudice custody order in his favour. The Court also directed the mother to return the children to Toronto, and 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 forces or services, including the O.P.P. and U.C.C.M., to locate, apprehend and deliver the children to the father. The Court adopted the wording proposed by the father respecting police enforcement, including that it would expire in 3 months.

[82] When this matter first returned before me on October 2, 2019, the mother sought an adjournment to retain counsel, which I granted. A representative of M'Chigeeng First Nation also appeared, represented by counsel, who told the Court that the First Nation intended to seek party status in this case, and to assert that it has jurisdiction over the children.

[83] But already by October 2, 2019, the mother was not prepared to return the children, despite the Court's ex parte Order of September 17, 2019. As a result, the Court did not grant a lengthy adjournment. The Court adjourned this matter to October 7, 2019, to be spoken to. I directed the parties to come to Court with a litigation plan.

[84] Next, on October 7, 2019, the mother attended represented by a lawyer other than her current counsel (I refer to that person as "mother's former counsel"). Mother's former counsel requested a further adjournment to prepare additional materials. At that point, I was told that the constitutional claims, if brought, would be based on section 35 of the Constitution Act, 1982.

[85] Mother's former counsel conceded that the Court had jurisdiction to deal with interim relief under to the Children's Law Reform Act, even if there would be a constitutional challenge to the Court's jurisdiction. That concession was based on the Ontario Court of Appeal's ruling in Beaver v. Hill, 2018 ONCA 816 concerning how interim issues are to be dealt with, pending a trial of a section 35 claim.

[86] It was also at this point that the mother agreed to withdraw her application before the Ontario Court of Justice in Gore Bay, without prejudice to her to seek to have this case transferred there later.

[87] On October 7, 2019, the Court indicated that it was prepared to schedule a date for the constitutional claim to be heard, as early as in the December 2019 trial sittings if counsel wished. In response to that suggestion, counsel for M'Chigeeng First Nation indicated that the First Nation may or may not be proceeding with its constitutional claim after all, depending on the outcome of the custody and access motion. (Yet as I explain, during the appearances that followed, the mother and M'Chigeeng First Nation continued to challenge the Court's jurisdiction to deal with the custody and access motion, nevertheless).

[88] Finally, the Court was told that U.C.C.M. was still not enforcing the September 17, 2019 ex parte Order. And, the Court was told that there had been some prior involvement of Native Child and Family Services with this family, during the time that the parents and children resided in Toronto.

[89] Therefore, the Court endorsed, among other things, that the mother would withdraw the proceeding in Gore Bay, on consent. The Court adjourned the return of the ex parte motion to November 1, 2019, and it made a scheduling order for the exchange of further materials, and for the mother's cross-motion. As U.C.C.M. was not enforcing the ex parte Order, the Court directed that counsel for U.C.C.M. was to be present on the return date, and it ordered U.C.C.M. "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". Finally, the Court also ordered that NCFS' notes and records relating to this family were to be released to the parties.

[90] On October 22, 2019, the mother's former counsel filed a 14B motion asking for an adjournment of the November 1, 2019 motion. The request was based on the volume of the material, just received from NCFS. Mother's former counsel asked for more time to respond. On October 24, 2019, the Court directed that the adjournment request was to be spoken to in Court on November 1, 2019.

[91] Then, by November 1, 2019, the mother's former counsel was no longer acting for her. Instead, on November 1, 2019, the Court was informed that an associate of the lawyer acting for M'Chigeeng First Nation would now be representing the mother.

[92] The Court granted another adjournment to November 29, 2019, but this time, the Court indicated that the return date would be peremptory. The Court made a further scheduling order. The Court also raised a concern about whether this change in counsel gave rise to a conflict of interest. I addressed the reason for the Court's concern about this conflict issue later, in more detail, in the Court's Endorsement of December 2, 2019.

[93] At the end of the hearing on November 1, 2019, the father asked for costs. For reasons that I need not repeat here, I ordered the mother to pay costs to the father in the amount of $2,800 forthwith.

[94] As of November 1, 2019, M'Chigeeng First Nation had yet to bring a motion to be added as a party to this proceeding, nor had it launched the section 35 claim. Yet, at some point soon after this litigation commenced, counsel for the mother and M'Chigeeng First Nation, and then counsel for U.C.C.M., referred to the existence of the aforementioned By-Law and Band Council Resolution as ousting the Court's jurisdiction.

[95] Despite the mother's former counsel's concession that this Court had jurisdiction to deal with the interim issues, between November 1 and November 29, 2019, the Court became concerned that there had been a retreat from that concession. In particular, in reviewing the new materials filed for these motions, the Court became concerned that counsel were in fact raising different constitutional questions. The materials raised arguments that the By-Law and Band Council Resolution had been passed pursuant to federal legislation, and therefore based on the division of powers in sections 91 and 92 of the Constitution Act, 1867, the Children's Law Reform Act, being provincial legislation, was inoperative. The argument appeared to be that the Court could not deal even with the interim issues, and that Beaver v. Hill was distinguishable in this regard. In other words, without having served and filed Notices of Constitutional Questions, constitutional claims were already being advanced, and not just based on section 35 of the Constitution Act, 1982 alone.

[96] As such, in the days before the motion, I notified counsel to be prepared to address whether the Attorneys General for Canada and Ontario should be put on notice, now. I also advised counsel that I wanted to hear submissions about whether the Children's Lawyer should be appointed, given the potential implications of this case, not only for the children in this family, but for other children in Ontario.

[97] After hearing submissions on these points, the return of the ex parte motion did not proceed on November 29, 2019. For the reasons set out in the Endorsement of December 2, 2019, the Court directed that the Attorneys General of Canada and Ontario were to be notified. The Court also appointed the Office of the Children's Lawyer. The Court specified what it thought the constitutional questions were that had already been raised, based on what had been filed by the mother and M'Chigeeng First nation. The Court directed a short return date to proceed on December 5, 2019.

[98] On December 5, 2019, a number of lawyers appeared before the Court. Counsel for both parents, M'Chigeeng First Nation, the Office of the Children's Lawyer, and several lawyers for both Attorneys General for Canada and Ontario, as well as counsel for U.C.C.M. were all in attendance. U.C.C.M. was still not enforcing the order, so between December 2 and 5, 2019, counsel for the father had decided to now serve the September 17, 2019 ex parte Order upon the O.P.P. This caused counsel for the O.P.P.'s to attend on December 5, 2019, too.

[99] At the risk of oversimplifying what transpired on December 5, 2019, the Attorneys General requested an adjournment. The Court adjourned the matter to January 16, 2020, to allow counsel for the Attorneys General to consider their position respecting intervention. And on December 5, 2019, M'Chigeeng First Nation now advised, definitively, that it was ready to commit to bringing a motion to be added as a party to this proceeding and to delivering a Notice of Constitutional Question, so the Court made a scheduling Order for that motion to proceed.

[100] Counsel for the O.P.P. asked to make some preliminary submissions about the police enforcement term that had been ordered on September 17, 2019. While counsel for the O.P.P. indicated that the O.P.P. would enforce the September 17, 2019 ex parte order, as I said earlier, he also wished to draw the Court's attention to some possible adverse consequences from so doing. (Some of the same submissions were made again, when these motions were eventually heard in February 2020). Based on the O.P.P.'s preliminary submissions, the Court stayed the police enforcement term in the September 17, 2019 ex parte Order, pending further argument, on a without prejudice basis.

[101] Finally, on December 5, 2019, for the second time in this case, the Court directed that all parties, or other motion participants, were to come to Court on January 16, 2020 with a litigation plan, "bearing in mind that it is essential that the return of the ex parte custody and access motion be heard in a timely fashion."

[102] The appearance on January 16, 2020 was the 8th appearance before this Court. By that date, the mother and M'Chigeeng First Nation had now served and filed Notices of Constitutional Questions. M'Chigeeng First Nation also brought its motion to be added as a party.

[103] Based on those documents filed (as well as based on other affidavits and documents also filed), the mother and M'Chigeeng First Nation are challenging the Court's jurisdiction over the children based on section 35 of the Constitution Act, 1982. However, it continued to appear to the Court, as of the January 16, 2020 appearance, that they were also basing their jurisdictional challenge on division of powers arguments, too. The material filed by U.C.C.M. very clearly rested, in part, on division of powers arguments.

[104] But then, at the attendance on January 16, 2020, I was told by M'Chigeeng and the mother that the division of powers arguments, would likely be abandoned. And during this attendance, counsel for the mother said, for the first time, that the mother may now be seeking to transfer the case to the Superior Court. (As I explain in this Endorsement, subsequently it was M'Chigeeng First Nation who brought the transfer motion, not the mother.)

[105] It was following this attendance on January 16, 2020 that the Court issued its second, typed Endorsement dated January 21, 2020.

[106] Among other things in that Endorsement, the Court added Chief Linda Debassige, representative of M'Chigeeng First Nation, as a party to this proceeding pursuant to rule 7(5) of the Family Law Rules. The Court made a further scheduling Order, including imposing a timetable for the mother and M'Chigeeng First Nation to clarify their constitutional questions, after which the Attorneys General were to advise as to their positions respecting intervention. The Endorsement indicated that the mother and M'Chigeeng had to decide whether they were going to make division of powers arguments, otherwise those arguments would be treated as abandoned and could not be raised later, as others in the litigation were taking positions based on those decisions. The Court needed to know, whether at the custody and access motions, there would be any strictly legal arguments on constitutional grounds made about jurisdiction, or whether in fact all parties agreed that the Court of Appeal's comments in Beaver v. Hill would apply. And the Court indicated that it may consider appointing amicus for future steps in this case, if the Attorneys General declined to intervene.

[107] Regarding this new, potential request for a transfer to the Superior Court, the Court indicated that would have to be dealt with in due course, properly on motion, but that it should not be another basis to further delay the hearing of the motions.

[108] I do not intend to repeat again here the reasons why the Court made those orders, but that is all explained in the Endorsement of January 21, 2020. In the result on January 16, 2020, the Court scheduled these motions to be heard over two days, on February 20 and 21, 2020.

[109] Prior to the hearing of these motions in February, the Court directed the parents, M'Chigeeng First Nation, the Children's Lawyer and certain support persons to attend the case conference before Pawagi J., which I referred to earlier in this Endorsement.

[110] At the case conference on January 22, 2020, the parents and M'Chigeeng First Nation agreed that the father would have a visit with Bella and Lionel, from February 1 to February 14, 2020. They agreed to suspend the September 17, 2019 ex parte Order, but for that period of time only, and M'Chigeeng First Nation agreed to lift a "trespass notice" that it had issued against the father to allow the visit to occur. The mother agreed to contribute $100 towards the father's travel costs for this visit. The father now complains that his travel costs were significantly higher. And as I set out earlier, on consent of the parents, Pawagi J. also ordered that the police were directed to enforce her order.

[111] Next, at some point between the Court attendance on January 16, 2020, and the return of the motions on February 20, 2020, the mother and M'Chigeeng First Nation did clarify that their constitutional questions would now be solely based on section 35 of the Constitution Act, 1982. In response to that, on February 19 and 20, 2020, counsel for the Attorneys General of Canada and Ontario advised the Court in writing, and again orally at the return of the motions, that neither government will be intervening in this case at this time.

[112] Ontario's letter to the Court states that it may intervene at a later stage, "depending on the circumstances" and that it "would be pleased to assist the Court in identifying potential amicus counsel to assist the Court with respect to the s. 35 constitutional issues that have been raised".

[113] Although M'Chigeeng First Nation abandoned its earlier position that the By-Law and Band Council Resolution had been passed pursuant to federal legislation and that paramountcy arguments are in issue (which resulted in the governments not intervening at all), when these motions proceeded before me in February, U.C.C.M. attempted to argue that the By-Baw and Band Council Resolution had been passed pursuant to the Indian Act, R.S.C. 1985, c. I-5, as amended, thereby raising a question about the operation of provincial law concerning police enforcement. I address the impact of that argument later in this Endorsement.

[114] Furthermore, by the time of argument of the motions on February 20 and 21, 2020, U.C.C.M. had still not filed the Agreement entitled "United Chiefs and Councils of Mnidoo Mnising Anishnaabe Policing Services Agreement 2019- 2023" (the "Tripartite Agreement"). This Tripartite Agreement governs policing on Manitoulin Island in certain respects and on October 7, 2019, I had ordered U.C.C.M. to file it with the Court.

[115] It was counsel for the O.P.P. who provided this document to the Court, only on February 21, 2020. The Court made a sealing order respecting that document, to address the confidentiality concerns that had been raised by U.C.C.M.

[116] This document is relevant to the police enforcement issues before the Court.

[117] Because of the late production of the Tripartite Agreement, counsel for the father, the mother and M'Chigeeng First Nation had limited advance opportunity to review and make submissions about this document. However, neither the mother nor M'Chigeeng First Nation ended up taking a position about police enforcement, and counsel for the father took very few steps leading up to the motion to insist on the prior production of this document.

[118] In this Endorsement, I do refer to, and rely upon the Tripartite Agreement, in coming to the conclusion that the Court has jurisdiction to order U.C.C.M. to enforce a custody and access order. I raise this timing issue respecting production of this document here, in the event there is a complaint about a lack of opportunity to have made submissions about this document.

[119] The delay in filing the document (in violation of a court order) rests solely on the shoulders of U.C.C.M. However, both U.C.C.M. and the O.P.P. had this document, and both were able to make submissions about it, if they so chose. Both counsel did refer to the Tripartite Agreement during their submissions, albeit not to the level of detail as I do in this Endorsement. And as I will explain, M'Chigeeng First Nation's Chief is a signatory to this document. Presumably she had a copy of it well in advance of the motion.

[120] At the conclusion of argument of the motions on February 21, 2020, the Court indicated that it intended to reserve its decision, with this written decision to follow. On consent, the Court also made another order for the father to have another visit with the children between March 4 and 20, 2020, pending the release of this decision. The Court mapped out processes for the appointment of amicus, and it made a consent order respecting the production of some of the mother's health records sought by the Children's Lawyer.

[121] At that point, the Court invited a discussion about what the next steps in this case would be. The Court was then prepared to schedule a Trial Management Conference to organize the trial of the constitutional questions, and perhaps this case could be ready to proceed to a trial in June, 2020. However, counsel for M'Chigeeng First Nation advised that he would likely be bringing a motion to transfer this file to the Superior Court. So the Court scheduled that motion for March 27, 2020, and made a scheduling order for the exchange of those new materials. As I expressed earlier, that date will be adjourned.

PART IV: ISSUES AND ANALYSIS

A. The Test on the Return of an Ex Parte Motion

[122] There is a request before the Court, by the mother, to set aside the ex parte Order of September 17, 2019. Counsel for the father submits that the mother bears an onus to satisfy the Court that the ex parte Order of September 17, 2019 ought not have been made in the first place, in order for it to be set aside or changed. He relies on A.Z. v. C.Z., 2015 ONSC 3540 as standing for that proposition.

[123] A.Z. v. C.Z. does not stand for that proposition.

[124] Rule 14(12) sets out the circumstances in which a motion may be brought without notice. An ex parte order is by definition, an order made based on information from only one side. It is usually made in the very short term, to address an unfolding, and often urgent situation.

[125] Pursuant to rule 14(14), the motion is supposed to return on notice, ideally before the same judge, and ideally within 14 days (or as soon as possible thereafter), to be reviewed. An ex parte Order is not intended to create some form of status quo that the responding party then has to argue ought to be disturbed.

[126] Pursuant to rule 25(19)(d), the Court has discretion to set aside the order of September 17, 2019, as it was made on a without notice basis. In A.Z. v. C.Z. at ¶ 25, the Court set out the well-known principle that the moving party on an ex parte motion bears the onus of providing full and frank disclosure of all material facts, even where some of those facts may not be helpful to his or her position. If he or she does not, he or she risks the order being set aside later. But that statement is not tantamount to shifting an onus onto the responding party to establish material misrepresentation, or otherwise that the order ought not have been made in the first place. Even in a case where there has been no withholding of material information, the Court may make a fresh order on the return of the ex parte motion as new information comes to light.

[127] Indeed, in addition to having made the September 17, 2019 Order on an ex parte basis, the Court also clarified that its order was made on a "without prejudice basis". Murray J. addressed the test that applies when a party moves to change a without prejudice order in Copeland v. Perreault, 2007 ONCJ 217 at ¶ 42-44. When an order is made "without prejudice", the Court does not have to first find that any threshold is met, like a material change in circumstances, before the order is changed. As Murray J. held, the proper approach is not to bring a motion to vary the order, but rather the matter should be brought back on for a determination on its merits.

[128] The Court now has voluminous material before it, including responding material from the mother, M'Chigeeng First Nation, U.C.C.M. and the O.P.P. This Endorsement provides a determination of the motions on their merits, now that more complete information is before the Court. The mother does not need to satisfy the Court that the ex parte Order ought not to have been made. The Court is making a fresh order based on the more complete record before it now.

B. The Parties' Competing Arguments About the Children's Residence

[129] As explained earlier, the mother initially commenced a proceeding in the Ontario Court of Justice in Gore Bay, Ontario. By October 7, 2019, she agreed to withdraw that proceeding, without prejudice to seeking to transfer this proceeding back there at some point. Until recently, I understood the mother's plan was that she intended, at the return of these motions to seek an order transferring this case to the Ontario Court of Justice in Gore Bay, Ontario, as part of her request to relocate the children on an interim basis.

[130] M'Chigeeng's Band Council Resolution of September 18, 2019 refers to M'Chigeeng First Nation as being the children's "permanent residence". During at least one appearance leading up to the hearing of these motions, I was told that I would hear submissions that the Band Council Resolution altered the operation of Rule 5 of the Family Law Rules, such that the Court should determine that this case ought to have been started in Gore Bay, or now be sent to Gore Bay, for the later constitutional argument that the Court lacks jurisdiction at all. But such arguments based on the Band Council Resolution and Rule 5 of the Family Law Rules were then abandoned by the time of argument of the motions in February 2020.

[131] Although she has abandoned her request to transfer this case to the Ontario Court of Justice in Gore Bay, the mother's factum continues to allege that the children are "habitually resident" on M'Chigeeng First Nation. In making this argument, she relies on section 22 of the Children's Law Reform Act, a number of cases that consider section 22, and the Supreme Court's decision in Office of the Children's Lawyer v. Balev, 2018 SCC 16. The latter is recent Supreme Court authority concerning the concept of "habitual residence" under the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), not the Children's Law Reform Act or the Family Law Rules.

[132] By contrast, the father asks for a "declaration" that the children are "habitually resident" in Toronto. He does so in tandem with relying on a number of relocation cases, in which courts have been critical of a parent who effected a move unilaterally.

(1) Do Section 22 of the Children's Law Reform Act and/or the Hague Convention Cases Apply To This Case?

[133] The manner in which these arguments have been advanced in the material is confusing. The confusion arises out of the evolving legal landscape of this case. In particular, these arguments are still being made, even though the Rule 5 issue is no longer being pursued. Upon reflection, they still do have some relevance to the issues before the Court, although the purpose of making findings about the children's residence now relates more to the merits of the interim relocation and other substantive issues before the Court, as opposed to a ruling about where the case ought to have begun.

[134] I will begin by addressing the mother's reference to, and reliance upon section 22 of the Children's Law Reform Act.

[135] Section 22 talks about the jurisdiction of a Court, in a custody or access case, when a child either is, or is not, habitually resident in Ontario. Regarding Office of the Children's Lawyer v. Balev, 2018 SCC 16, there is some suggestion in her material that the so-called "hybrid approach" in Hague Convention cases would have some application to this case by analogy. Indeed, she says that the children are now settled into their new home environment.

[136] I did not find these arguments to be particularly helpful. Section 22 of the Children's Law Reform Act applies where there is a jurisdictional contest in a custody or access case between Ontario, versus somewhere else, outside Ontario. Somewhat similarly, the Hague Convention sets out the rules that apply to the parental abduction of children across international borders, as between two states which are signatories to the convention. Neither are the facts of this case.

[137] In this case, of course subject to the constitutional questions about jurisdiction, there is otherwise no question that this Court has jurisdiction to make custody and access orders based on the children's residency in Ontario. Section 22(1)(a) of the Children's Law Reform Act clearly provides for this. There is no question that the children are habitually resident in Ontario.

[138] The issue that used to be before the Court (but which no longer is), is whether the case was properly brought in Toronto versus somewhere else in Ontario. That concerns the application of Rule 5(1)(b) of the Family Law Rules; not section 22 of the Children's Law Reform Act or the Hague Convention. Section 22 does not differentiate between municipalities within Ontario. Similarly, the Hague Convention has no application to this question.

[139] Rule 5(1)(b) provides that a custody or access case shall be started in the municipality where the child ordinarily resides. That is largely a question of fact. See for example Mohr v. Sweeney, 2016 ONSC 2248 ¶ 10, 15. In Mohr v. Sweeney, McGee J. tied the child's ordinary residence to that of their primary parent. Regardless of where a case is started, rule 5(8) makes provision for the transfer of a case to another municipality.

[140] It may be that the mother was going to argue that section 22 of the Children's Law Reform Act and the principles in some of the case law, including decisions interpreting the meaning of "habitual residence" under the Hague Convention, ought to inform how those rules should be interpreted. However, again, the request to transfer the case to the Ontario Court of Justice in Gore Bay got abandoned, and the applicability of those cases were not argued.

[141] Nevertheless, the real issue before the Court that remains, as I see it, is that raised by the father. The problem with the way he has worded his Notice of Motion notwithstanding (ie. asking for a "declaration" of "habitual residence"), what the father really wants is a finding of fact that the mother removed the children from their residence in Toronto, unilaterally. And that, he says, is relevant to how the Court should decide the custody, access, relocation and other issues before it. I agree with him.

[142] Regarding those findings of fact, based on the record before me, I find that the mother unilaterally removed the children from their home in Toronto, took them to Manitoulin Island, and then withheld the children from having contact with the father for several months.

[143] I say this for the following reasons.

(2) The Parents' and the Children's Residential History

[144] While the facts before the Court are in some respects conflicting, much of the evidentiary record about where the parents, and the children lived, and when, and about their connections to Toronto and elsewhere, is not in conflict. There is much common ground on these subjects.

[145] The record reveals that both parents have lived in Toronto for a number of years prior to this proceeding. In the father's case, he has lived here for many years.

[146] The mother did not specify the length of time that she has lived in Toronto, although during the last number of years, and certainly during the lifetime of the children, she has resided predominantly in Toronto, as opposed to on the territory of M'Chigeeng First Nation.

[147] The evidence about the mother's residential arrangements came via an affidavit from Sally Hare. Sally Hare is the children's maternal grandmother. She has lived in Scarborough for about 15 years. She lives in a two-bedroom apartment there.

[148] Ms. Hare deposed that the mother used to live with her "until she chose to go back to school". The mother went to college in Sudbury. That would have been at some point prior to 2012. The mother then resumed living with the maternal grandmother in Scarborough in 2012, until early 2014.

[149] The parties met and started dating at some point 2013. They began living together in January of 2014 in the apartment in Toronto, for about 7 months. The apartment is a one-bedroom apartment. According to the mother, the parties argued constantly during their early relationship.

[150] By about July of 2014, the mother was pregnant with Bella. The parties separated at that point, and the mother went to her home on M'Chigeeng First Nation. As I will explain though, during certain periods of separation, the mother went to M'Chigeeng. Other times, she went back to live with her mother in Scarborough.

[151] According to the father, after leaving in July of 2014, the mother came back to Toronto in April of 2015. According to the mother, her return was in May. Either way, this was shortly after Bella's birth.

[152] Although the mother said the father was disinterested during her pregnancy with Bella, the mother also said she returned so she could introduce the father to Bella, and because she said that she wanted the father involved in Bella's life.

[153] It is unclear to me whether that return to Toronto was intended to be a visit only, or something more permanent. In the end, the trip lasted about one month, and it appears that the parents resumed cohabitation during that time frame.

[154] According to the father, during this one-month period, the mother was drinking "excessively". The father says he telephoned the police around this time, because the mother wanted to leave with Bella again, and return to M'Chigeeng First Nation. The mother says that during this argument between them, the father ran down the hallway of the apartment building with Bella in his arms, refusing to let her leave with Bella. The building security guard had to separate the two parents. The mother agreed that police were called because the father would not let her leave.

[155] In the result, the mother did return to M'Chigeeng First Nation with Bella, but by either mid-August or September 2015, the mother was again back in Toronto, and the parties had reconciled.

[156] The parents then lived together, with Bella, for almost another two years, except for a brief separation in the summer of 2017. During this two-year period, Lionel was born, in Toronto (d.o.b. […], 2017).

[157] On July 30, 2017, the mother left the father's apartment again. This time she went to her mother's apartment in Scarborough.

[158] According to the mother, the father "kicked her out" of his apartment. During this dispute, the mother telephoned the maternal grandmother, who in turn called the police.

[159] According to the father, the parents had an argument because the mother wanted to visit the maternal grandmother. The father, by contrast, wanted to take Bella to the park first, something that he says he did every day. The father also says he was fearful that the mother would take the children away again as had been the history with Bella, and that he would not be allowed to see them.

[160] This time, the mother did go to stay with the maternal grandmother in Scarborough, and not M'Chigeeng First Nation, for some period of time. At most, she was gone for three months. At this point, NCFS became involved with this family.

[161] But then, the parents resumed cohabiting again. The mother says that she allowed the father to have a two-week visit with the children in August, on the condition that the father would return them to the mother in September of 2017. The mother says that the father refused to return the children, so she felt she had no choice but to move back in with him. She says she did so in October, 2017.

[162] But by the end of August 2017, NCFS closed its file. It did not feel that there were child protection issues. Instead, it directed the parents to resources in the community, and to the Court.

[163] The NCFS notes and records reveal that during the summer of 2017, the mother wanted to launch a proceeding in Gore Bay. She was advised she would have to do so in Toronto, based on the children's residency here. No court proceedings began at that time. Instead, the parents participated in relationship counselling for a number of months after that.

[164] According to the father, that counselling ended in March of 2019, as the mother no longer wanted to participate in counselling. According to the mother, the father "kicked her out" of his apartment, again, in April of 2019. The mother left for Scarborough with Bella only. Lionel stayed behind in his father's care.

[165] Once again, the parents reconciled after this. It is not clear to me from my review of the motion materials when that happened next, but they did resume living together.

[166] The mother says that after this, she was the "victim of verbal and mental abuse" on a "daily basis" during the months of June, July and August, 2019.

[167] On September 5, 2019, the mother left with Bella, once again, for her mother's apartment in Scarborough. Lionel remained in his father's care.

[168] I was not initially told, in either the father's initial motion materials or the mother's initial response to them, that on July 3, 2018, the parents had signed a written agreement providing that Bella would reside with her mother, that Lionel would reside with his father, and that each parent would have both children in his or her care on alternating weekends. In fact, it was as a result of the NCFS disclosure that the Court was made aware, for the first time, of the existence of some kind of agreement between the parties.

[169] The NCFS disclosure refers to the agreement as an "informal one". More particularly, on September 6, 2019, the Toronto Police reported to NCFS that on September 5, 2019, the mother took Bella with her to Scarborough, and Lionel remained with the father, on basis of this "prior agreement". The disclosure also states that the parents had implemented this arrangement during their prior separation in April of 2019.

[170] Once the existence of this agreement was revealed to the Court through the NCFS disclosure, the father attached a written document to this effect. That is how the Court came to know that the agreement had actually been reduced to writing.

[171] In reply to this, the mother now says that this 2018 agreement was entered into to enable the father to secure greater financial benefits for Lionel. She denies that they implemented it in September, 2019, saying that they never had an access exchange according to its terms. But I also note that 6 days after the mother left the Toronto apartment with Bella on September 5, 2019, she did something completely different, taking both children to M'Chigeeng First Nation. It may be that not enough time had passed to allow the parents to implement their written agreement.

[172] On the morning of September 11, 2019, the father took Lionel to his day care. At the end of the day on September 11, 2019, when the father went to pick Lionel up, Lionel 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.

[173] Then, within 6 days after that, the father had commenced the proceeding before this Court. It cannot be said based on this, and his subsequent conduct which I detail below, that he agreed to, or somehow acquiesced to the children's relocation to Manitoulin Island.

[174] According to the mother's materials, she "fled" the father's abuse in Toronto. Later in this Endorsement, I address the allegations and evidence of violence and abuse.

[175] The mother also says that she could not stay in Scarborough longer term in September 2019, because her mother's apartment was "full". The mother did not offer any additional evidence to explain what exactly "full" means. But the NCFS disclosure also reveals at least during one prior separation, the mother's plan was to go to Scarborough until she could find housing in Toronto.

(3) The Father Was Unable to See the Children for Four Months After the Mother's Departure

[176] According to the mother, when she got to M'Chigeeng First Nation on September 11, 2019, she attended at U.C.C.M.'s offices, and advised them of the father's abuse. The mother returned to the police station one week later on September 18, 2019, and made a formal statement to the police that the father had assaulted her. This happened to be the day after the mother had been served with this Court's ex parte order of September 17, 2019.

[177] The father and his counsel made a number of attempts to enforce this Court's ex parte Order of September 17, 2019. Generally, those efforts included letter writing by father's counsel to mother's counsel, to M'Chigeeng First Nation or its counsel, and to the police. The father himself also attended at U.C.C.M.'s offices, with the Court Order.

[178] In addition, the father brought the mother's non-compliance to the Court's attention. He asked for costs against her, and he brought a contempt motion.

[179] Despite these efforts, the father did not see the children again until January 2020.

[180] More particularly, on September 19, 2019, two days after this Court made its ex parte Order, the father and his sister drove up to M'Chigeeng First Nation with the ex parte Order. When he attended at U.C.C.M., he was served with a trespass notice generated by M'Chigeeng First Nation.

[181] The trespass notice was signed on September 19, 2019, the same day that the father attended in an attempt to retrieve the children.

[182] The trespass notice reads:

TRESPASS NOTICE

TO: Buck Neshkiwe

OF: [Address in Toronto]

Take notice, you are hereby advised that your presence on the property of M'Chigeeng First Nation, in its entirety, is prohibited and further that in the event that you again enter the aforementioned premises you will be charged with trespassing pursuant to the Indian Act or accordingly under the Criminal Code of Canada and will be dealt with according to law.

[183] The trespass notice is signed by "Forrest Hare". According to the father, at one point when he had an encounter with Mr. Hare in passing, Mr. Hare called him a "wife beater".

[184] After this, the father's counsel attempted to secure the children's return by correspondence. His out of court efforts were not successful.

[185] Then, on or about October 24, 2019, the father was charged with assault, arising out of a statement the mother made to the police on September 18, 2019. He was released by the police on an undertaking and a promise to appear. The original terms of his undertaking were that he was not to have any direct or indirect contact with the mother, nor attend at any location where she is known to be or frequent.

[186] On December 4, 2019, the father secured a variation of the terms of his release, which allows for more contact with the mother, including pursuant to a family court order.

[187] By December of 2019, both parents' First Nations had entered into discussions with each other, perhaps in an attempt to de-escalate the situation. But I have been told by the father, that M'Chigeeng First Nation would not lift the trespass notice it had issued against the father, unless he agreed to sign some form of a written document. The father would not sign such a document, worried that it would prejudice his position in the litigation.

[188] Nevertheless, the father made a second trip to M'Chigeeng First Nation on December 26, 2019 in another attempt to see the children. He was told by Ms. Debassige that he could not see the children as no agreement had been signed.

[189] Throughout this period, there were several court attendances. The ex parte motion was adjourned many times while the Court attempted to organize the related constitutional questions. During several of the court attendances, the Court impressed upon the parties the need to comply with its ex parte Order, unless or until it was set aside or varied. Throughout this period of time, the mother and M'Chigeeng First Nation took the position that the Court lacked the jurisdiction to have made the Order in the first place. Simultaneously, and although the mother's former counsel conceded otherwise about the Court's jurisdiction to have made an interim order, the mother would not return with the children.

[190] Nevertheless, it appears that the parallel out of court discussions between counsel continued and resulted in some, albeit minimal, agreements. On January 11, 2020, the father was able to have a two hour visit with Bella and Lionel at M'Chigeeng Youth Center. He was only allowed to have a supervised visit though. The visit was supervised by a representative of M'Chigeeng First Nation. It appears that he was allowed to have this visit without having to sign whatever document had been previously insisted upon.

[191] The father had another, short visit, with Lionel again on January 13, 2020, also on M'Chigeeng First Nation. However, the visit was cut short because Lionel was sick with the flu.

[192] As I said earlier, on January 16, 2020, the Court directed that the parents, a representative of M'Chigeeng First Nation, and certain others, to attend a case conference before Pawagi J., pending the hearing of these motions. At that case conference, the parents' agreed that the father could have a 14-day visit, from February 1 to 14, 2020, with Bella and Lionel in Toronto on certain terms.

[193] Over the course of the past several months, the father has managed to remain in contact with Bella's and Lionel's school, keep them abreast of the court proceedings, and he was able to maintain subsidized day care spots for the children in Toronto. Consequently, during the 14-day visit in February, 2020 in Toronto, he was able to resume taking Bella to school, while Lionel remained at home with him. As I said earlier, Bella transitioned well back into her school.

[194] I am also told by the father that there is still a subsidized day care spot for Lionel as of March 2, 2020, and before and after school care for Bella is also ready to resume, if the children are returned to Toronto.

(4) M'Chigeeng First Nation's Role in the Interruption of the Father's Relationships with the Children

[195] Ms. Debassige supports the mother in this litigation. In addition to filing affidavits and relying on its pre-existing custody By-Law, M'Chigeeng First Nation passed the Band Council Resolution pertaining to Bella and Lionel in particular.

[196] M'Chigeeng First Nation also specifically instructed U.C.C.M. not to enforce this Court's Order of September 17, 2019, and as I have said, it issued a trespass notice against the father to prohibit him from coming onto its territory.

[197] In her affidavit of November 6, 2019, Ms. Debassige says that the mother intends to challenge the jurisdiction of the Ontario Court of Justice based on the aforementioned By-Law, as well as based on section 35 of the Constitution Act, 1982. As I have said, until mid-January 2020, the mother and M'Chigeeng raised the different, and separate constitutional questions, based on division of powers arguments, and resisted against the Court making interim orders.

[198] After much effort on the part of the Court, and numerous court attendances, to ensure that all of the necessary interested individuals were notified before the Court heard these arguments on their merits, in mid-January 2020, the mother and M'Chigeeng First Nation abandoned division of powers arguments.

[199] The Court was prepared to hear the legal arguments on division of powers grounds at the same time as it heard these motions. The changes in position have delayed the hearing of the motions, it has prolonged the length of time that the children have remained with the mother on Manitoulin Island, and it has contributed to the interruption of the father's relationships with the children.

(5) The Relevance of the Mother's Argument that the Children Have Settled into A New Community

[200] Whether the children have settled into a new community may have been, but is no longer relevant to an argument about where the case ought to have been brought according to rule 5(1)(b) of the Family Law Rules. But as this Court is determining the merits of the custody and access dispute on an interim basis, the children's current circumstances in their community are relevant to that assessment of the children's best interests.

[201] However, in light of the manner in which they came to reside, and remain on Manitoulin Island since September 2019, the Court will place only some weight on those current circumstances. How I have taken that into account is dealt with later in these reasons.

C. The Parties' Respective Custody Claims and the Mother's Request for A Restraining Order

[202] The father seeks an order for sole custody of Bella and Lionel, whereas the mother seeks an order for joint custody in this case. Curiously, the mother also seeks a restraining order in tandem with seeking an order for joint custody.

(1) Applicable Legal Principles Concerning Custody versus Joint Custody

[203] Pursuant to section 21 of the CLRA, both parents are entitled to apply for an order respecting custody of or access to Bella and Lionel, or respecting determining any aspect of the incidents of custody. Section 20(1) of the CLRA says that except as otherwise provided in Part III of the legislation, both parents are equally entitled to custody the children.

[204] Pursuant to section 24(1) of the CLRA, the merits of the custody and access claims are to be determined on the basis of Bella's and Lionel's best interests, in accordance with sections 24(2) through (4).

[205] Section 24(2) requires the Court to consider all the child's needs and circumstances. The Court will apply the statutory factors listed in section 24(2) to the evidence before it. Section 24(3) and (4) sets out when the court will consider past conduct and violence and abuse as part of its decision making, and in this decision, I apply those sections to the evidence before the Court.

[206] Pursuant to sections 28(1)(a) and (b), the Court may grant custody of or access to Bella and Lionel to one or more persons, and the Court may determine any aspect of the incidents of the right to custody or access. Section 28(1)(c) indicates that the Court may make additional orders that it considers necessary and proper in the circumstances, including a non-exhaustive list of 7 different kinds of orders.

[207] It is trite that a joint custody order is generally only appropriate in cases where there is evidence of historical and appropriate communication between the parents. See Kaplanis v. Kaplanis. But just because one parent professes an inability to communicate does not preclude an order for joint custody. Nevertheless, where there is poor communication, joint custody should not be ordered in the hopes that two parents' communication will approve. There must be some evidence before the Court that, despite their differences, the parents are able to communicate effectively with one another.

[208] Nevertheless, courts are increasingly willing to order joint custody or some form of parallel parenting where such an order is considered necessary to preserve the balance of power between the parents. This is particularly so in cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties. See Roloson v. Clyde, 2017 ONSC 3642 ¶ 59.

(2) Analysis Respecting Temporary Custody vs. Joint Custody

[209] To decide the question of temporary custody, I turn to the statutory criteria as a guide to my analysis.

[210] I am satisfied that both parents love the children. My application of section 24(2)(a) of the Children's Law Reform Act favours each parent equally.

[211] There is no evidence of the children's views and preferences. Given the children's young ages, I would place no weight on section 24(2)(b) in any event.

[212] In regards to sections 24(2)(c)-(f), both parents claim to have been Bella's and Lionel's primary parent prior to the separation and to be better able to parent the children now. The record before the Court is conflicting on this topic. That said, there are some common threads.

[213] At this point, I conclude that both parents played an important role in raising Bella and Lionel, and that parenting them was a joint endeavour.

[214] According to the father, he was responsible for enrolling Bella into day care. He says he took both children to their day care and school over 90% of the time.

[215] The father says that he took the children to 90% of their doctor's and community health nurse appointments. He arranged for their medical care through Anishnaabe Health in Toronto. He also took the children to their dentist appointments. In the record, he has filed two emails, addressed to him, reminding him of upcoming appointments.

[216] As a part-time student, the father has a flexible schedule. The father says he was available to stay home with the children when they were sick, or not otherwise in day care. He regularly took the children on outings. He took Bella to the park on a daily basis.

[217] The father deposed that he bathed the children every second day, he brushed their teeth and he put them to bed. He said the mother bathed the children on weekends.

[218] The father also arranged for his sister, Glenna Neshkiwe, to babysit and help out regularly, and he arranged for regular visits between the children and his extended family in Fort Erie.

[219] The father's sister deposed that she used to see the children between 1 and 3 times each week, and no less than once per week. At times, she took the children on outings, such as to the YMCA or for other activities. She confirmed that she was available to provide babysitting on an ad hoc basis.

[220] Ms. Neshkiwe observed her brother to be an "immersive" parent. She explains that she saw him skating with the children, playing with them and engaging with them. She described how he would dress the children up in regalia for pow wows. She also commented fondly about how the father would brush Bella's hair in the mornings before she left for school.

[221] Ms. Neshkiwe described her brother as an "excellent father", who has taken care of their needs, and that they have a "very strong relationship".

[222] Ms. Neshkiwe's cousin, Anonghous Kitchikake, who used to live in Toronto but who now lives in Fort Erie, Ontario, described her interaction with the Neshkiwe/Hare family, too. She deposed that she used to see the family 3 to 4 times per month when she lived in Toronto, but after June of 2018, when she moved to Fort Erie, only 1 to 2 times per month. She says that both parents are good parents, but she supports her cousin, saying that she observed the children turn to their father for nurturing.

[223] By contrast, the mother says that she was the sole provider for the family. She explains that she paid for the car expenses, day care, internet expenses, groceries, baby supplies, clothing and entertainment expenses. The father paid for the family's rent. As I will explain, conflict over finances has been a significant stressor for this family.

[224] The mother says that the parents made joint decisions respecting the children's education.

[225] The mother disputes that the father was primarily responsible for the children's medical care. She says that the parents went to doctors' appointments together. She had to be there specifically when either child was getting a shot, as the father was afraid of needles. They also went to emergency appointments at Sickkids together, too.

[226] According to the mother, the father did take the children to and from school, but that was a function of the logistics of driving. The mother had a car during the relationship, whereas the father did not. The father used her car during the days when she was at work. So he would drive her to work, and the children to school each morning, and then keep the car during the day. But she says it was she who would get the children ready in the morning, and then she would have to wake the father up to get him going, too.

[227] The father would pick her and the children up at the end of the day, around 4:30 pm. Once per week, the mother would pick the children up from school herself, via TTC, because the father had a night class.

[228] The mother says that she was the children's primary caregiver during her two maternity leaves with Bella and Lionel, but then she had to return to work as she was supporting the family. After Lionel's birth, she returned to work on a probationary period. She had less flexibility in her schedule than the father did, as a result.

[229] The parents jointly decided that it was important that she not jeopardize her job during the probationary period, to preserve this source of income. So when her probationary period was over, and while she did offer to stay home with the children when they were sick, the father would not allow her to do so. He took on that role. The mother says she did provide care for the children in the evenings and on weekends, however.

[230] According to the mother, she cooked daily as the father does not cook. She says she was responsible for bathing and dressing the children daily, too. Contrary to what the father says, the mother says the father rarely bathed them. Lionel is afraid to be bathed by the father, according to the mother.

[231] Lastly, the mother also describes having a strong bond with the children. She says she would take the children to events, to the park and to family gatherings.

[232] At this stage, based on this evidence, I am unable to conclude that either parent has been primarily responsible for the children's care. In summary, and in the absence of cross-examination respecting the parents' divergent positions about the status quo, what is before the Court at this point is that:

(a) The children clearly love and are bonded to both parents;

(b) It appears that the mother may have assumed more of the financial support for the family. The father paid for rent and the mother paid for the other expenses;

(c) Each parent cared for the children, either together, or separately during certain periods of separation when both children left with the mother. Sometimes, during certain separations, each parent had one child in his or her care;

(d) While the mother worked, the father was the parent at home when the children were sick;

(e) I am not prepared to find that the father was solely responsible for making educational decisions for the children. However, I would not find that the mother did this on her own either. Even on the mother's own account, the parents made joint decisions respecting the children's education prior to the separation. However, I do note that the father has been able to maintain subsidized day care or school spaces for the children in Toronto, despite their absence. This suggests active involvement on his part, in the educational domain;

(f) The father appears to have taken the lead respecting the children's health, although it may be that this was a joint endeavour, too; and

(g) The father was involved on a daily basis in transporting the children to and from school, except when he had a night class, along with the mother. The mother did the pick up alone, once per week. But in general, they did this together.

[233] In regards to sections 24(2)(e) and (g), below, when dealing with the relocation issue, I will set out each parent's plan at this stage of the case. Nevertheless, one factor to consider as part of the best interests' determination, is whether a parent will facilitate a relationship with the other parent.

[234] I find it to have been contrary to the children's best interests that the mother suddenly removed from their familiar home environment in Toronto, and then imposed a four-month period of no access to the father, followed by only two short, supervised visits thereafter, until the conference before Pawagi J. on January 22, 2020.

[235] Fortunately, the father was able to have two meaningful visits with the children in February, 2020 and then in March, 2020, but this was only achieved on the cusp of this motion, once it was finally resolved that the mother and M'Chigeeng First Nation, would no longer raise jurisdiction arguments, as an impediment to the Court deciding the interim issues.

(3) Applicable Legal Principles Concerning the Allegations of Violence or Abuse and the Mother's Request for A Restraining Order

[236] The mother has made a number of allegations of violence and abuse by the father. The allegations of abuse are primarily about verbal abuse, although there are also allegations of physical violence.

[237] However, it is not just the mother who has made these allegations. Both parents have alleged poor behaviour on the part of the other. In the father's case, he has also alleged that in one instance, the mother hit Bella.

[238] These allegations are relevant to the Court's determinations about custody, access and interim relocation under sections 24(3) and (4) of the Children's Law Reform Act. But in addition, the mother claims a restraining order, relying on section 35 of the Children's Law Reform Act and on section 46 of the Family Law Act. As I said earlier, she would have the Court carve out exceptions to the restraining order, to permit the joint custody order that she seeks, to operate.

[239] The father says that the request for a restraining order, and the mother's allegations of violence and abuse generally, are attempts to distract from the fact that she unilaterally removed the children from Toronto and then withheld them for the past number of months. According to him, the record reveals a single allegation of physical violence, that allegedly occurred over 2 ½ years ago. More recently, there has essentially been no contact between the parents since September 2019. In short, there is no objective basis for the mother to fear the father.

[240] Section 24(3) of the Children's Law Reform Act requires the Court to consider a person's past conduct only: (a) in accordance with section 24(4); or (b) if the Court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. Section 24(4) requires the Court, in assessing a person's ability to act as a parent, to consider whether the person has at any time committed violence or abuse against his or her spouse, a parent of the child, a member of the person's household or any child.

[241] The statutory language of both sections 35 of the Children's Law Reform Act and section 46 of the Family Law Act requires that there be reasonable grounds for the mother to fear for her own safety or for the safety of any child in her lawful custody in order for a restraining order to issue. There is no real suggestion that the mother fears for the safety of the children. Therefore, I address the reasonableness of her own fears, only.

[242] In D.C. v. M.T.C., 2015 ONCJ 242, Starr J. summarized a number of principles concerning restraining orders from the case law. At ¶ 64 of the decision, she held that the general principles to be considered and applied when determining whether there are reasonable grounds for a person to fear for her own safety, include the following:

(a) The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required;

(b) As a general rule the court must approach the issue of whether to impose a restraining order with caution. The nature of an order is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature;

(c) A restraining order is not restricted to situations where the fear relates to physical safety. It can also include ongoing fear for one's psychological safety;

(d) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed;

(e) An applicant does not have to have an overwhelming fear that could be understood by almost everyone; on the other hand, the applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant; and

(f) There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words and a Court must be able to connect or associate a respondent's actions or words with an applicant's fears.

[243] As the evidence relevant to these issues is overlapping, I will apply sections 24(3), (4) and section 35 of the Children's Law Reform Act, and section 46 of the Family Law Act, to the evidence before the Court, together in this next section of this Endorsement.

(4) Analysis Concerning the Allegations of Violence or Abuse

[244] The mother says that the parents argued a lot during their relationship. The mother says that during her pregnancy with Lionel, the father called her certain names. I do not intend to repeat her allegations of his profane and degrading language here, but the gist of his hurtful insults were that he said she was "fat", "ugly" and "lazy".

[245] There is some merit to these allegations that the father hurled insults at the mother during their arguments. For example, the mother has filed a text message exchange between the parents dated September 5, 2019, which documents their argument about the mother not contributing towards the payment of rent. This fight appears to have been the final trigger that led to the parents' separation.

[246] In this exchange about the payment of rent, their argument escalated. The father called the mother a "bum", "fat" and a "pig". However, there is also some suggestion that the mother was not always kind with her words to the father. The mother responded, accusing the father of gambling and calling him a "f&^king loser".

[247] The father now acknowledges his role in this name calling and insulting conduct. He admits his behaviour, although he says that they each called each other names. He says he regrets his role in this.

[248] It appears that several of the parents' arguments concerned financial issues. The father feels that he had to spend most of his income on rent, while the mother maintained control of her income to use for their discretionary spending. He also says she took some of his student grant money to fix up her house on M'Chigeeng First Nation. He views this as unfair.

[249] In response, the mother says that she paid for everything else apart from rent, and so she did not want to pay for rent too, especially while the father would gamble his money away. The mother accuses the father of having a gambling problem. She says that he would go to the casino, and at times, he gambled their rent money or Lionel's child tax benefit cheques away.

[250] The father admits to having gambled, although his version is that his gambling was not a problem and that it was entertainment only. The father says that he had placed a manageable limit on his gambling. He also points out that both the mother, and the grandmother, gamble and play bingo, too. However, his evidence about gambling may be minimization. I do note that in the September 5, 2019 text message exchange, the father refers to needing money in order to get something back from a pawn shop.

[251] The father has contributed to the conflict between the parents, in that when he threatened to end the relationship, he would also sometimes threaten the mother's housing, by telling her to leave. The mother claims that the father "kicked her out" a dozen times. However, in the motion materials, I counted 3, not 12, different occasions, where the father either threatened to, or actually "kick[ed the mother] out" of the apartment. This includes, most recently, during their exchange of September 5, 2019.

[252] The father does not deny having asked the mother to leave in the past, but he says that when he would do this, he was not really serious about following through. His comments were made in the heat of the moment, and out of frustration over their financial disputes about rent.

[253] On the other hand, the father has expressed concern, more than once, that the mother would withhold the children from him in the event of a separation. He cites the events post-September 11, 2019 as the most recent, and most profound example. This fear has led to arguments, and at times, to the parents calling the police and NCFS. I note that the mother alleges that the father withholds the children from her, also.

[254] Regarding the mother's allegations of physical violence, in her affidavit sworn September 23, 2019, the mother explains that when she was 8 months pregnant, the father pushed her with so much force that she could not breathe. The mother admits to having pushed the father too, on this occasion.

[255] In her affidavit sworn September 23, 2019, the mother says she did not report the incident to the police, because the father apologized. In her affidavit of November 12, 2019, she elaborated saying that she did not call the police because she felt sorry for the father, given his history of trauma. She also says she was worried about triggering the involvement of a child welfare agency, and she was worried that the father would withhold the children from her. She says she later found the courage to tell her story in counselling.

[256] The father denies that physical violence. He says that the allegation of physical violence was first raised to NCFS in August of 2017, in the context of a past attempt by the mother to get custody. He says the allegation was then made to the police, again, over two years later, and only after the mother had been served with the ex parte Order of September 17, 2019. By that point, he says that her allegation had become more serious.

[257] The father also says that a few days earlier, on September 5, 2019, the maternal grandmother alleged an assault by the father, but fortunately the mother was "honest" with the police, telling them that it did not happen. If in fact that report to the police happened, it would have been made while the mother was still in Toronto. Then she went to Manitoulin Island.

[258] I have reviewed the notes of NCFS, filed in the record, in some detail with a view to assessing the allegations of physical violence. Some of the notes reveal no evidence or allegations of physical violence. Others refer to some physical contact. It appears from my review of the notes, that there is a reference to one, and possibly two incidents of physical violence.

[259] Meanwhile, there is other disclosure in the possession of other third parties, that may shed light on these allegations, and what transpired. Both parents have participated in counselling, including joint relationship counselling. There have also been contacts with the police. But none of these records were obtained by the parents and filed with the Court. This may be some of the disclosure that the Children's Lawyer is gathering.

[260] Regarding the NCFS disclosure that the Court does have, on August 1, 2017, the mother alleged that the father grabbed her by the arm and pushed her when she was pregnant.

[261] On August 31, 2017, the mother said the violence consisted of name calling, but also that one year prior to that, the father grabbed some chips that she was eating, and pushed her down. However, another note reveals that the parents pushed each other during that incident involving the chips.

[262] An October 3, 2017 case note reveals that the mother reported that the only family violence was one time, when she was 8 months pregnant. According to the mother, the father pushed her, and she pushed him back.

[263] A more recent case note dated September 18, 2019 reveals that the mother reported to U.C.C.M. police that "the children were present during the assaults". However, this report may be in conflict with the suggestion that the only incident of physical violence occurred during the mother's pregnancy.

[264] It is not only the father's conduct that is called into question in the NCFS notes, however. In the notes there are concerns raised by father about the mother's conduct, too.

[265] On August 25, 2017, the father reported to NCFS that the mother hit Bella. The mother now denies this.

[266] He also described an incident during which the mother threw a hamburger at him. He responded by trying to pour soda on her.

[267] The mother's explanation of the hamburger incident deflects from her role in it. In her affidavit, she says that the father asked her to pass him a hamburger. Without providing any explanation as to why, she refused to do so. And then according to her, unprompted, he tried to pour soda on her. The mother's explanation does not make sense to the Court. It is more likely that she threw the hamburger at him, as he said, which prompted his inappropriate reaction with the soda.

[268] Throughout the notes, there are also references to the father's concerns about the mother's drinking. Yet in the notes, the mother self-describes as a social drinker only. She says that she does not have a problem with alcohol, but the father was essentially obsessed with alcohol, given that he is a recovering alcoholic. If she would drink, he didn't like it, and it would be a trigger for him.

[269] Yet according to a report in the NCFS disclosure dated January 19, 2018, the mother disclosed that she would sometimes rent a room with her girlfriends, after a night of drinking, to avoid coming home drunk. But she said this was to avoid triggering the father's own issues with alcohol.

[270] Furthermore, and as I will later explain, during the motion, I questioned both counsel about the logistics of how access would work in a scenario where there is a move to Manitoulin Island. First, I was told that the mother did not have a car. But her September 23, 2019 affidavit says otherwise. Then, I was told that the mother's driver's license has been suspended until August of 2020. I was not told why.

[271] In the absence of an explanation, and given the father's allegations about the mother's alcohol use, the Court is left wondering, in light of the father's allegations about the mother's alcohol use, whether the license suspension is related to alcohol and driving.

[272] This concern about alcohol is another area that needs to be explored in this case. As I said earlier, it is part of the review that the Children's Lawyer is undertaking, in order to formulate a position.

[273] The mother's perception, and her statement to the Court, is that she had to "seek refuge in [her] community". Elsewhere in her affidavit material, she said that she now realizes that she suffers from "Battered Woman Syndrome".

[274] The father says that the mother's claims of abuse are "heavily exaggerated and/or fictional, and are an attempt to justify her abduction of the children from their home in Toronto to M'Chigeeng First Nation". In this respect, I find there is some merit to the father's response. The mother's statements about "Battered Woman Syndrome" and seeking refuge in the community do appear to be exaggerated.

[275] All that said, the material before the Court reflects poorly on both parents and sometimes in different respects. In particular:

(a) It reflects poorly on the father that on three occasions, he tried to kick the mother out of his apartment. That has contributed to the current trouble that is before the Court;

(b) The language that both parents used towards each other reflects poorly on both of them. While I agree with the mother that the father's language is very inappropriate, insulting and denigrating, she has not acknowledged the reality that she engaged in it too. The father has at a minimum expressed the statement that he regrets this behaviour; and

(c) It seems that both parents have at times withheld the children from the other. Both have turned to the police to complain about the other, often inappropriately, and also to NCFS.

[276] Nevertheless, the Court heavily disapproves of the mother's behaviour of withholding the children over the last few months.

(5) Summary Respecting Temporary Custody and Restraining Order

[277] What is clear is that the parents had a dysfunctional relationship. I have considered this evidence as relevant to their respective abilities to act as a parent. At this stage, the Court would not empower either parent to be the sole custodial parent. In my view, an order for joint custody is appropriate at this stage. A restraining order is not appropriate either.

[278] I say this because:

(a) There is some evidence of historic joint decision making, despite the conflict in the relationship;

(b) Both parents were heavily involved in parenting before the mother left Toronto. The father's role has been limited since September 11, 2019, only because of the mother's unilateral departure and her subsequent withholding;

(c) Despite her allegations against the father, the mother has nevertheless sought an order for temporary joint custody. The father, by contrast, seeks an order for sole custody. I would not, at this stage, prefer the father as the sole custodial parent over the mother, despite his concerns about the mother's unilateral conduct;

(d) There is evidence that the mother, supported by M'Chigeeng First Nation, has taken steps to exclude the father from the children's lives. In my view, an order for temporary joint custody is necessary to preserve the father's role in the children's lives;

(e) Although each parents' behaviour reflects poorly on each of them in different respects, I am unable to endorse the mother's account of the violence and abuse during the relationship;

(f) I do not find that the mother has reasonable grounds to fear the father based on this evidence, particularly in the absence of complete disclosure of the missing records, and cross-examination; and

(g) A conduct order can be put into place to address the various complaints that each parent has raised about the other.

[279] Orders regarding conduct pursuant to section 28 of the Children's Law Reform Act and section 47.1 of the Family Law Act, may be made, short of a restraining order. In light of the above, and until the parents can better learn to control their emotions with one another, it has become necessary for the Court to regulate the parents' communications.

D. The Mother's Request to Relocate the Children to M'Chigeeng First Nation on an Interim Basis

(1) Applicable Legal Principles Concerning Interim Relocation

[280] The leading case concerning a child's relocation on an interim basis is Plumley v. Plumley. At ¶ 7 of that decision, the Court set out three factors that are important in deciding whether to allow an interim relocation:

(a) A court will be reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial;

(b) There may be compelling circumstances that militate in favour of a move, such as a financial benefit, which will be lost if the matter awaits trial, or where the best interests of the children might dictate that they commence school at a new location; and

(c) Where there is a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at trial.

[281] In assessing whether there is a genuine issue for trial, and whether the party seeking to move has a strong likelihood of success at trial, the Court must undertake a preliminary assessment of the factors a court will consider at trial in a relocation case. That includes the factors in section 24(2)-(4), and other criteria set out in relocation case law.

[282] The leading case concerning a child's relocation is Gordon v. Goertz, 1996 CarswellSask 199 (S.C.C.). Although Gordon v. Goertz was decided as a variation pursuant to section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), its principles apply to cases decided under the Children's Law Reform Act. Its guiding principles also apply at an original hearing, where no final order as to custody or access has yet been made, such as in this case before me.

[283] In such cases, there is no need to consider first the threshold of material change, because there is no order to be varied. See Bjornson v. Creighton, 2002 CarswellOnt 3866 (C.A.) ¶ 17-19. However, the Court should determine the issue of custody first.

[284] That said, the custody determination will not necessarily resolve how the Court should consider and weigh the various factors concerning the relocation. For example, where a Court orders temporary joint custody, it may still be that one parent or the other would be considered the "custodial parent" for the purposes of the mobility analysis. See Burns v. Burns, 2000 NSCA 1 ¶ 27-33; see also Porter v. Bryan, 2017 ONCA 677 ¶ 15-16.

[285] As explained at ¶ 18 of Bjornson v. Creighton, the guiding principles, taken from Gordon v. Goertz, that are applicable at an original hearing are:

(a) The judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them;

(b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect and the most serious consideration;

(c) Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case;

(d) The focus is on the best interests of the child, not the interest and rights of the parents;

(e) More particularly, the judge should consider:

(i) the existing custody arrangement and relationship between the child and the custodial parent;

(ii) the existing access arrangement and the relationship between the child and the access parent;

(iii) the desirability of maximizing contact between the child and both parents;

(iv) the views of the child;

(v) the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(vi) the disruption to the child of a change in custody; and

(vii) the disruption to the child consequent on removal from family, schools and the community he has come to know.

[286] There is a considerable discussion at ¶ 26-48 of Gordon v. Goertz as to whether a "presumption in favour of the custodial parent" exists. The Supreme Court held that no such presumption exists. However, at ¶ 48, McLaughlin J. stated, "[w]hile a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability". See also Rushinko v. Rushinko, 2002 CarswellOnt 1997 (C.A.) at ¶ 5-6; see also Porter v. Bryan, 2017 ONCA 677 at ¶ 12.

[287] Lastly, the Court held that it should try to maximize contact with both parents as is consistent with the children's best interests. See Gordon v. Goertz at ¶ 24-25; see also Woodhouse v. Woodhouse.

[288] On its face, the maximum contact principle could be said to be completely inconsistent with a move. However, the Supreme Court also gave guidance about how to weigh this factor. As McLaughlin J. held at ¶ 24 of Gordon v. Goertz, and previously at ¶212-219 of Young v. Young, 1993 CarswellBC 264 (S.C.C.), the maximum contact principle is mandatory, but not absolute. The Court must respect it to the extent that such contact is consistent with the children's best interests.

[289] Nevertheless, the maximum contact principle must be carefully weighed. The failure to attach appropriate weight to it is an error in principle. See Berry v. Berry, 2011 ONCA 705, 2011ONCA 705 ¶ 13-15. It will generally be an error for a judge to fail to refer to and apply the "maximum contact" principle, without providing any reason for departing from it, particularly where the judge makes findings of fact that suggest it ought to be applied. See Rigillo v. Rigillo, 2019 ONCA 548 ¶ 6-10.

(2) Analysis Respecting Interim Relocation

[290] By this Endorsement, I have now determined that the parents should have joint custody of Bella and Lionel on an interim basis. I have found that both parents were heavily involved in the up brining of Bella and Lionel. There is evidence before the Court of joint decision making. I have found that the children are bonded with both parents.

[291] Therefore, at this point, for the purposes of any analysis respecting interim relocation, I would not find one parent over the other to be the "custodial parent".

[292] There is a status quo of the children residing in Toronto with their parents, since birth. There was also an agreement, however brief, for the parents to share parenting in some fashion during past periods of separation, and after the separation on September 5, 2019.

[293] The evidence before the Court does not, in my view, elevate this case to one in which the Court could conclude that there would be a strong possibility of success at trial in favour of the move. In saying that, I not only rely on the facts set out earlier, but I say this also with reference to the parties' plans post-move.

[294] The father resides in a one-bedroom apartment in Toronto. His plan, if the children return to Toronto, is to arrange for bunk beds for the children in the bedroom. While he attempts to secure larger accommodations via University of Toronto housing, he will sleep on a pull-out couch in the living room of the apartment.

[295] The children would return to their doctor and dentist, already set up in Toronto. And as I have said, the father still has school and subsidized day care available for the children.

[296] The father also intends to expose and involve the children in the First Nations community in Toronto.

[297] The father's interim plan ensures that the children enjoy a relationship with their mother, if she returns to Toronto. Apart from his transitional phase (for which I do not see a need), the father proposes that the parents will parent equally, pending trial.

[298] Arguably, the mother's plan respecting her housing is better than the father's, at this point, in a scenario where she remains on M'Chigeeng First Nation, insofar as space is concerned. Her house on M'Chigeeng First Nation is a four-bedroom house.

[299] The mother says that on M'Chigeeng First Nation, she and the children are surrounded by extended family and their community. She says that in the past, she used to spend time there when not working, and Bella refers to it as "home".

[300] Her housing on M'Chigeeng First Nation is not without concern, however. The father is concerned about the children living there. The father alleges that there is a high rate of unemployment and opioid addiction in the community. The father also alleges that the mother's father, who has a history of alcoholism, lives in the home, and that she has a close relationship with her brother. He is concerned about the children having contact with the brother, too.

[301] The father attached a 2017 decision of Justice Christie, in which she sentenced the mother's brother for various criminal offences. The decision references the mother's brother's Gladue Report. There is a history of alcoholism, and cocaine and crack cocaine use discussed therein.

[302] The mother says that her father is not living in her house. Regarding the brother, although a case note from the NCFS disclosure dated November 24, 2017, reveals that back then, the mother's brother was living in her home on M'Chigeeng First Nation, the mother says this is not currently the case. The mother says that she has not been in contact with her brother, and she does not plan to be. Apparently, there is a warrant for his arrest. The mother says that he is "not welcome" in her home.

[303] These issues will have to be addressed fully at a trial (if there is to be one, subject to the constitutional claims). But even if I disregard the father's concerns about the children remaining in M'Chigeeng First Nation entirely, the fact that the mother has larger accommodations there does not tip the scale so heavily in favour of interim relocation when the other factors are weighed and considered, that the test in Plumley v. Plumley would be met.

[304] First, I am not satisfied at this point, in part based on history, and in part based on her scant statement about it in her materials, that the mother's home on M'Chigeeng First Nation is her only option. I am not satisfied that the mother cannot reside with her mother in Scarborough, pending making other arrangements.

[305] Second, there is no realistic plan at this point for the Court to give effect to the maximum contact principle and for the children to see their father in a scenario where the Court allows the move. I am told that the drive between Toronto and M'Chigeeng First Nation is 6 ½ hours each way. The mother's plan would be to allow the father to see the children once a month for a weekend. He would be responsible for the driving. If the father wanted to take the children to Toronto, he would be in a car for about 26 hours over a weekend (the children would be in the car for 13 hours).

[306] A scenario where there would be more weekends than just once per month cannot work. A regular commute of 13 hours over a weekend for these children too much. And the Court should be mindful of the effect on the father too. From the children's perspectives, there is little point to setting up an access schedule for the father to enjoy time with the children, only to have him exhausted during it, from driving.

[307] Moreover, the father does not have a car. He has limited resources. It has now been revealed that the mother cannot drive. The mother's plan that the father would have to deal with all the transportation logistics is neither fair, nor realistic, nor in the children's best interests. It jeopardizes the likelihood that the father will actually see the children. I note that the mother had no real proposal to contribute towards the cost of transportation, and then during the motion, and only when the Court asked about it, she offered to contribute $100 per trip.

[308] The mother did propose to forgo child support to assist with the transportation costs. I do not find that to be a meaningful proposal at this time. It is not clear that the father would have a child support obligation given the parenting arrangements. Child support was not argued at the motions. And given the father's income, any financial relief that he would receive from not having to pay child support (if he owes any) would not likely adequately cover travel expenses anyway.

[309] There is also the issue of M'Chigeeng First Nation's trespass notice. While counsel for M'Chigeeng First Nation said it would allow the father to go onto the reserve to retrieve the children pursuant to this schedule proposed by the mother, were the father to try to go there at other times, such as in case of an emergency, he would not be allowed to go onto the reserve, unless he notified the police in advance. As I will explain below, this family needs to disentangle itself from calling the police, unnecessarily.

[310] And then there is Lincoln. Although neither parent made submissions about him and whether an order should be made about him, the fact of the matter is that parents recently had this new child. At this point, the father has not started to develop a relationship with Lincoln. I fail to see how the father can do that in a meaningful way, given the distance involved, and these other logistic problems.

[311] The mother submits that the children are now settled in their community in M'Chigeeng First Nation. Since her departure for M'Chigeeng First Nation in September 2019, the mother has enrolled Bella in the Lakeview School and has arranged for day care for Lionel.

[312] Ms. Debassige explains that the school system is language and culture based, designed for Anishinaabe children. The mother says that Bella is learning the Anishinaabemowin language.

[313] The mother has also enrolled Bella in skating. She hopes to similarly enrol Lionel when he is a little bit older.

[314] To respond to this evidence, the father has accused the mother of overstating her interest in being involved in, and in involving the children in her First Nations' community. The mother has made similar allegations about the father's own interest in his involvement in the First Nations community in Toronto.

[315] I place very little weight on each parents' statements about the other in this respect at this point. I am satisfied that the father is actively involved in the First Nations Community in Toronto, and elsewhere. He has been a dancer at a number of pow wows in Toronto and elsewhere in Ontario, he attends sweat lodges, shaking tent ceremonies and fasting ceremonies. He is involved in First Nations House at the University of Toronto. He is enthusiastic about involving the children in these experiences. There is some evidence that he has taken Bella to such some events in the past.

[316] Likewise, I have no doubt that the mother would involve the children in the community in M'Chigeeng First Nation. Indeed, that has already been happening via Bella's school and language instruction, since September.

[317] However, the real difficultly with these arguments about the children having settled in at M'Chigeeng First Nation, is that never should have happened in the first place. The mother unilaterally left and then refused to return to Toronto in the face of this Court's Order. What should have happened is that the mother should not have unilaterally left with the children. She should have come to Court. But once she did, and then once this Court made the ex parte Order, it ought to have been followed, and then this motion could have been argued in due course (and arguably earlier than February 20 and 21, 2020, but for the various other positions taken).

[318] Regarding the relevance of the unilateral behaviour to the relocation issues, I agree with counsel for the father that the Court should not condone the mother's conduct. See for example Hauyman v. Matticiew, 2017 ONSC 5725; Rifai v. Green, 2014 ONSC 1377; and Skitch v. Hiscock, 2018 ONSC 5581. The mother has marginalized the father from the children's lives for the past several months. She could have embarked upon a different path.

[319] Although it is not its primary consideration in dismissing the request for interim relocation, the Court is concerned, based on the history of this case, that the father will have enforcement difficulties if the children remain with the mother on M'Chigeeng First Nation. Later in this Endorsement, I address the contempt motion, as well as the problems that the father has faced in getting the police to assist him with enforcement, until now.

[320] Nevertheless, I considered different forms of a 50-50 schedule whereby the children would remain with their mother on M'Chigeeng First Nation and also live with their father in Toronto. But in addition to the transportation issues, the parents' limited financial resources, and the enforcement problems, such a 50-50 schedule would pose a problem concerning the children's school or day care. Bella is already in junior kindergarten. She needs to attend school in one location. Likewise, the parents availed themselves of day care for Lionel when they lived together. Even though she is on maternity leave right now, the mother still uses day care for Lionel on M'Chigeeng.

[321] This is an indication that both parents need day care. While it may be possible for Lionel to go half of the time when Lionel he is in M'Chigeeng, I have a serious doubt that the parents can keep day care subsidies for Lionel to attend part time in Toronto.

[322] Therefore, the Court is ordering that the children be returned to Toronto. The Court also intends to order the 2-2-3 schedule, proposed by the father (the only schedule that has been proposed) in a scenario where the mother herself returns too.

[323] The Court is making a non-removal order. However, the Court also understands that the mother may wish to take the children to M'Chigeeng First Nation. It is important for the children to be able to enjoy that with their mother.

[324] But due to the mother's unilateral conduct, her disregard for this Court's ex parte Order, the Court's enforcement concerns (which I have addressed but will address further below), and the considerable judicial resources that have been devoted to managing this case and these issues thus far, the Court is placing a restriction on the children's removal from Toronto at this time. This is being done to avoid going forward, some of what has transpired thus far. It is being done to ensure that both parents enjoy relationships with their children.

[325] Once the mother demonstrates that she is prepared to comply with Court orders, the Court will consider lifting the non-removal order to allow again for travel to M'Chigeeng First Nation.

[326] If the mother decides not to return to Toronto, then the Court requires additional submissions about what the schedule would look like. I may be contacted by 14B Motion to arrange for submissions in such a scenario.

E. Police Enforcement

[327] The father seeks a fresh order for police enforcement, that would be require both the O.P.P. and U.C.C.M. to enforce the Court's custody and access order.

[328] U.C.C.M.'s primary position is that it is not a "police force" within the meaning of section 36(2) of the Children's Law Reform Act, and therefore the Court lacked the jurisdiction to have ordered it to enforce its ex parte Order of September 17, 2019 in the first place. Let alone, it says, the Court does not have jurisdiction to order it to enforce any new orders.

[329] The O.P.P. submits that the Court did have the jurisdiction to have ordered it, and U.C.C.M., to enforce the ex parte Order. The O.P.P.'s position is that it will enforce a new Order, if it is directed to. Although the O.P.P. maintains that the police would have "operational discretion" as to when and how to enforce the Order, it is not open to the police to decide not to enforce.

[330] While the O.P.P. assisted the Court by making submissions about the Court's jurisdiction to compel enforcement, it takes no position about whether an order for police enforcement should be made. However, as I said earlier, counsel did wish to draw to the Court's attention some factors that may influence the decision about whether to order police enforcement.

[331] The Children's Lawyer's position is that it would prefer to avoid the use of police enforcement, because of the emotional impact on children, in general. Ms. Tempesta also pointed out to the Court that there had been some recent de-escalation between the parents, as evidenced the father being permitted to have the February 1-14, 2020 visit with the children. She suggested that a police enforcement order may not be necessary given the new developments.

[332] As part of its submissions about the various factors, the O.P.P.'s point is in line with the Children's Lawyer's. For example, the O.P.P. says, "[i]n a situation where such removal is opposed by the community", it is concerned that "if force must be used to remove the children, it may be emotional or traumatic for the children".

[333] Curiously, neither the mother nor M'Chigeeng First Nation are taking a position about police enforcement. Yet in M'Chigeeng's case, Ms. Debassige previously directed U.C.C.M. not to enforce the Court's September 17, 2019 Order.

[334] To fully consider this issue and the arguments, I begin with a review of the structure of policing on Manitoulin Island.

(1) Important Facts Concerning Policing on Manitoulin Island

[335] Megan Cavanagh holds the rank of Inspector with the O.P.P. She is also currently the Detachment Commander for the Manitoulin O.P.P. detachment.

[336] According to Ms. Cavanagh's affidavit, there are three police services on Manitoulin Island. In addition to the O.P.P., there is U.C.C.M., which provides policing services to a number of small communities, including M'Chigeeng First Nation. There is also Wikwemikong Tribal Police service, which provides police services to its community and land area.

[337] The O.P.P. enjoys a cohesive and very good working relationship with both First Nations police services on Manitoulin Island. For example, they are partners in the Tripartite Agreement. The various police coordinate prisoner transport. The O.P.P. provides back up and other assistance to the other two police services as needed. The O.P.P. assists the other two police services by engaging in police enforcement where its assistance is requested. U.C.C.M. uses the O.P.P. dispatch system. The three police share equipment (for example, ATVs and snowmobiles) for emergency calls. They jointly participate and volunteer in community building activities together, and they often attend each other's social events.

[338] There is a regular communication amongst the police. The O.P.P. frequently updates the U.C.C.M. Chief and Band Council on its activities. There are two members of U.C.C.M. who are trained as liaisons, through training offered by the O.P.P. Where possible, the O.P.P. reaches out to U.C.C.M. to discuss all contentious issues in Maintoulin Island. As far as Ms. Cavanagh is aware, the O.P.P. has never engaged in police enforcement in the U.C.C.M. communities, without advising U.C.C.M. in advance.

[339] It is well known that there is a history of negative relationships between the police and Indigenous people. Historically, the police have been used to colonize and assimilate Indigenous people. The establishment of First Nations police services was done with this history in mind.

[340] According to Ms. Cavanagh, the good working relationship that now exists amongst the three police services is built on many years of trust. The Court must be mindful of this when balancing the impact of an order for police enforcement, in the somewhat unusual circumstances of this case.

(2) Background Concerning U.C.C.M.'s Refusal to Enforce this Court's Ex Parte Order of September 17, 2019

[341] Early on in this case, the Court was told that U.C.C.M. was refusing to enforce the ex parte Order of September 17, 2019. As a result, on October 7, 2019, this Court directed that counsel for U.C.C.M. attend before it. It also directed that U.C.C.M. was to provide to the Court "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".

[342] Yves Forget is the Appointed Interim Chief of Police of the U.C.C.M. He filed an affidavit sworn November 25, 2019 in this proceeding following this Court directing U.C.C.M. to attend Court.

[343] Despite this Court's production Order of October 7, 2019, U.C.C.M. instructed its counsel not to produce the Tripartite Agreement, taking the position that the consent of the federal and provincial governments was required.

[344] And I was told by counsel for the O.P.P. at the eventual hearing of these motions in February 2020 that there may be additional documents created when the U.C.C.M. officers were appointed. Those appointment documents may set out the roles and responsibilities of the First Nations constables. Yet to the extent that such documents exist, none of those documents were supplied to the Court either.

(3) Applicable Statutory Principles Concerning Police Enforcement

[345] There is no general jurisdiction for the Court to order the police to enforce a civil court order. There is nothing in the Courts of Justice Act that authorizes this, nor is there any specific guidance in the Police Services Act, R.S.O. 1990, c. P.15, as amended. See Re Bonczuk and Bourassa, (1986), 55 O.R. (2d 696 (H.C.J.).

[346] Sections 141(1) and (2) of the Courts of Justice Act provide that, unless the act provides otherwise, orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement. The sheriff may ask for the assistance of a police officer if he or she believes that the execution of an order may give rise to a breach of the peace, however. But the default is that enforcement of court orders falls to the sheriff's office.

[347] There is an exception to this rule that the sheriff is to enforce, which is carved out for cases involving children. Pursuant to sections 36(2)(a) and (b) of the Children's Law Reform Act, where a court is satisfied that there are reasonable and probable grounds for believing (a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child, the court may direct a "police force" having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. See Allen v. Grenier ¶ 18-25. There are other circumstances in section 36, which do not apply in this case, and so I need not specify them here.

(4) The Police Have A Duty to Act Pursuant to An Order for Police Enforcement Made Under Section 36 of the Children's Law Reform Act

[348] In this case, I was specifically asked by the father to name multiple police, including the O.P.P. and U.C.C.M., when I made the ex parte Order of September 17, 2019. While I adopted his proposed wording, I do note that naming those police forces or services was not strictly necessary. A police enforcement order need not name a specific force or service.

[349] And, the fact that there are multiple police forces or services in an area does not mean that one, over the other, must enforce the Order to the exclusion of the others. For example, in Duff v. James, [2017] O.J. No. 3791, the O.P.P. argued that the municipal police force had to enforce the Court's Order in that case. The O.P.P.'s argument did not succeed. In the result, the Court directed that the O.P.P. was required to enforce the Order, as there was a conflict of interest within the municipal police force. Both the O.P.P. and the municipal force had a presence in the area.

[350] In this case, armed with the ex parte Order, the father went to U.C.C.M. first, and then to the O.P.P. after U.C.C.M. refused to act. While the O.P.P. is prepared to enforce a custody order with police enforcement in this case, counsel for the O.P.P. directed the Court to Duff v. James to highlight that U.C.C.M. did have the obligation to enforce in the first place, when asked by the father to do so.

[351] Indeed, where an order for police enforcement is made, section 36(4) of the Children's Law Reform Act provides that the police force directed to act shall do all things reasonable able to be done to locate, apprehend and deliver the child in accordance with the order. These are statutory duties of the police, imposed by the Children's Law Reform Act. The police must then discharge their duties, unless and until the enforcement clause is removed.

[352] I agree with counsel the O.P.P. (and I disagree with counsel for U.C.C.M.) about whether there is any discretion on the part of the police to decline to enforce. The police do not have that discretion.

[353] The case upon which U.C.C.M. relies in support of its argument otherwise (CNR v. Plain, 2012 ONSC 7356) is a case involving a railway injunction, not an order concerning children made pursuant to section 36 of the Children's Law Reform Act.

[354] Unlike the injunction in CNR v. Plain, again the Children's Law Reform Act imposes upon the police the statutory duty to act. (See also Perkins J.'s ruling in L. (N.) v M. (R.R.)¶ 75, in which he states that that the police do in fact have to act when ordered to do so under section 36; and see Allen v. Grenier ¶ 31-33).

[355] That said, I do agree with counsel for the O.P.P. that the police have operational discretion as to when and how they will discharge their duty. See Allen v. Grenier ¶ 31-33.

[356] Where the police decline to enforce such an order, then there must be exceptional circumstances, and the police are to return to Court and seek to be relieved of that duty. See L. (N.) v M. (R.R.) ¶ 92. Perkins J. held that the return to court must be prompt in L. (N.) v M. (R.R.). See also Allen v. Grenier ¶ 10-11.

[357] In this case, U.C.C.M. did not bring the matter back to Court at all. Rather, it was the Court, which required U.C.C.M. to attend before it, after learning that U.C.C.M. had decided on its own that it was not going to enforce the ex parte Order. Only when I insisted that counsel attend did U.C.C.M. make various arguments about why it need not have enforced the Court's Order.

[358] U.C.C.M. did not follow the proper procedure. It chose not to follow the Order, when it was not open to it to do so, and it did not proactively return to court to ask that the Order be set aside.

(5) Did the Court Lack Jurisdiction to Order U.C.C.M. To Enforce The Custody and Access Order Because U.C.C.M. is Not a "Police Force"?

[359] Section 36(2) very clearly states that the Court may direct a "police force" to act.

[360] U.C.C.M.'s principal argument is that it is not a "police force" within the meaning of the Police Services Act and the Children's Law Reform Act, and therefore it is not subject to being ordered to enforce a custody or access order under section 36(2).

[361] There is no definition of "police force" in the Children's Law Reform Act.

[362] Pursuant to section 2(1) of the Police Services Act, however, "police force" means the O.P.P. or a municipal police force.

[363] A "police officer" in section 2(1) of the Police Services Act means a chief of police or any other police officer, including a person who is appointed as a police officer under the Interprovincial Policing Act, 2009. However, it excludes certain types of constables, including a First Nations Constable.

[364] These sections suggest there is some merit to U.C.C.M.'s argument that it is not subject to being ordered to enforce. However, the merit becomes dubious upon further review.

[365] The father submits that the Court should not, necessarily or exclusively, turn to the Police Services Act to find the definition of a "police force" for the purposes of the enforcement provisions in the Children's Law Reform Act. He submits that the Court could alternatively look at other legislation. Unfortunately, the father only provided the Court with one example,

[366] In section 1(1) of the Missing Persons Act, 2018, S.O. 2018 c. 3, Schedule 7, "police force" means (a) a police force as defined in subsection 2(1) of the Police Services Act, or (b) a group of First nations Constables who are employed by an entity that has an agreement with the Minister.

[367] I cannot accede to this argument from the father, that the Court should draw upon a definition from another piece of legislation, such as the Missing Persons Act, 2018.

[368] According to Sullivan and Driedger on the Construction of Statutes, statutes enacted by a legislature that deal with the same subject matter are presumed to be drafted with one another in mind. Any definitions in one statute are taken to apply in the others. Statutes should be presumed to operate together harmoniously. See also Claridge Development (Hawthorne) Ltd. v. British Columbia, 2000 BCCA 104.

[369] Apart from the Missing Persons Act, 2018, the father did not provide other statutes that might have a different definition of police force to make fuller submissions as to which definition should apply, or as to how some other statute with a different definition might operate more harmoniously with the Children's Law Reform Act.

[370] Even the Missing Persons Act, 2018, to which the father did refer, uses the definition of "police force" from the Police Services Act. It goes on to expand the definition to include a First Nations Constable for the purposes of the Missing Persons Act, 2018. That suggests to me that but for that expanded definition, a First Nations Constable would not otherwise fall within the definition of "police force". That suggests to me that in fact, the more restricted definition in the Police Services Act, is the definition to be used in when considering the meaning of "police force" under the Children's Law Reform Act.

[371] Furthermore, the Children's Law Reform Act has been amended to change the word "police force" in section 36(2) to "police service". This amendment is part of a series of consequential amendments, that accompanied an overhaul of policing legislation in Ontario. See Bill 68, An Act with respect to community safety and policing. Bill 68 received royal assent on March 26, 2019, but it has not yet been proclaimed. At the time of the Court's ex parte order of September 17, 2019 and still today, the old definition of "police force" in the Children's Law Reform Act prevails.

[372] The fact of this legislative overhaul and the consequential amendments also lead me to the conclusion that the meaning of "police force" in the current Children's Law Reform Act, is that as defined in the current Police Services Act. Otherwise, why would the change in the Children's Law Reform Act to "police service" have been made as part of an overhaul of the Police Services Act itself?

[373] But these narrow references to definitions are only part of the analysis, in my view. Even with the words "police force" still being used in the Children's Law Reform Act, I am neither persuaded that this Court lacked the jurisdiction on September 17, 2019 to have ordered U.C.C.M. to enforce, nor am I persuaded that this Court cannot now order U.C.C.M. to enforce a new order. I say this because of the powers and duties, conferred upon U.C.C.M.'s First Nations Constables, as a result of the statutory and contractual framework that currently governs it.

[374] Section 42 of the current Police Services Act specifies the statutory duties of a police officer. The statutory duties listed in section 42(1) of the Police Services Act do not include the enforcement of Court orders, but the list of duties in section 42(1) is not exhaustive.

[375] Pursuant to section 42(3) of the Police Services Act, a police officer also has the powers and duties ascribed to a constable at common law. As the Supreme Court held in R. v. Dedman, [1985] 2 S.C.R. 2, at ¶ 16, "[t]he common law duties of police have been described as the preservation of the peace, the prevention of crime and the protection of life and property…" But according to Re Bonczuk and Bourassa, the enforcement of a custody order is not part of the common law duties of a police officer, either.

[376] Nevertheless, as the statutory duties of a police officer in section 42(1) of the Police Services Act are not exhaustive, they are complemented by section 36(4) of the Children's Law Reform Act. Again, it specifies the duty of the police to act, when ordered to do so by a court in a custody case. (It may be that other statutes add to the statutory duties of the police in other ways, too).

[377] Therefore, as a police officer has the statutory duties under both the Police Services Act and the Children's Law Reform Act, the question becomes whether there is anything in the Police Services Act, or otherwise, that goes on to impose those duties upon a First Nations Constable, who is not otherwise defined as a "police officer" or a "police force".

[378] In my view, the answer to that question is yes.

[379] Pursuant to section 54(1) of the Police Services Act, the Commissioner of the O.P.P. may appoint a First Nation Constable to perform specified duties. Section 54(3) provides that the appointment of a First Nations Constable confers upon him or her the powers of a police officer for the purpose of carrying out his or her specified duties. Therefore, by virtue of his or her appointment under the Police Services Act, a First Nations Constable has the same powers as a police officer, when engaging in specified duties.

[380] So what are the specified duties of a U.C.C.M. First Nations Constable?

[381] While in a number of respects, the Tripartite Agreement deals with the funding police services, there are a number of provisions of the Tripartite Agreement that are relevant to this issue about the duties of a First Nations Constable.

[382] Paragraph 1.6 of the Tripartite Agreement sets out that the purposes of the Agreement include the establishment and/or maintenance of a police service to ensure the provision of police services to the Communities.

[383] Pursuant to paragraphs 1.4.4. and 2.1.4.(a) of the Agreement, First Nations Constables have policing responsibility on M'Chigeeng First Nation. However, I do note that, according to paragraphs 2.1.4(b) and (c), neither the RCMP or the O.P.P. are precluded from discharging their duties on that territory too (in the enforcement of a custody order context, I note that this would be in keeping with the Court's ratio in Duff v. James).

[384] According to paragraph 2.1.1., policing services funded under the Agreement are to be delivered by "police officers" who are appointed as First Nations Constables by the Commissioner of the O.P.P. under section 54 of the Police Services Act, employed by the Police Board and who are "empowered to enforce federal and provincial statutes and regulations enacted pursuant to the Indian Act."

[385] Pursuant to paragraph 2.1.2 of the Agreement, First Nations Constables are to conduct their activities in accordance with their appointment instrument and section 54 of the Police Services Act; and where not inconsistent, with any policies established by the Chief of Police.

[386] Regrettably, despite the production order of October 7, 2019, I was not provided with any appointment documents of any of the First Nations Constables of U.C.C.M., nor any policies established by the Chief of Police. It may be that those appointment documents or policies might clarify that a specified duty of a First Nations Constable is not the enforcement of a custody or access orders. Yet in his own affidavit of November 25, 2019, Mr. Forget said nothing about that. Rather all Mr. Forget says is that U.C.C.M.is "empowered to enforce federal and provincial statutes and regulations enacted pursuant to the Indian Act" as set out in a Tripartite Agreement. I assume that such an important limitation of a duty, if it existed, would have been put before the Court.

[387] In the result, the Court is left to decide the issue based on the evidence before it. The Court tried, through its October 7, 2019 Order, to ensure that all relevant documents were placed before it. Based on the Court's review of the legislation, Mr. Forget's affidavit and the Tripartite Agreement, I find:

(a) A police enforcement clause forms part of an order made pursuant to provincial legislation (see section 36(2) of the Children's Law Reform Act);

(b) Provincial legislation imposes upon the police a duty to enforce such an order (see section 36(4) of the Children's Law Reform Act);

(c) U.C.C.M.'s First Nations Constables' duties include the enforcement of provincial legislation (see section 54 of the Police Services Act and the Tripartite Agreement);

(d) U.C.C.M.'s First Nations Constables' powers are those of a police officer for the purposes of carrying out a specified duty (see section 54 of the Police Services Act); and

(e) U.C.C.M. has jurisdiction in the area where the children were taken (see the Tripartite Agreement and Duff v. James).

[388] Therefore, one of the specified duties of a U.C.C.M. First Nations Constable is the enforcement of a custody or access order made pursuant to section 36(2) of the Children's Law Reform Act, and a U.C.C.M. First Nations Constable must enforce it when directed to do so by the Court. Even if U.C.C.M. does squarely fit within the definition of "police force", the duty to enforce, and the corresponding power to enforce, has been delegated to First Nations Constables, by virtue of a combined reading of these various pieces of legislation and the Tripartite Agreement.

[389] I note this is essentially the approach taken by the Supreme Court of Canada in R. v. Decorte, 2005 SCC 9 with respect to the power of First Nations Constables to set up a R.I.D.E. operation, and then to intercept, detain and arrest a person passing through it. Under section 48(1) of the Highway Traffic Act, police officers are empowered to establish a R.I.D.E. operation. But the combined reading of section 48(1) of the Highway Traffic Act, section 54(3) of the Police Service Act, and the Anishinabek Police Service Agreement 1999-2004 regarding the First Nations Constable's duties in that case, led the Court to conclude that the First Nations Constables were also so empowered. See R. v. Decorte ¶ 11-22.

(6) Whether U.C.C.M. May Decline to Enforce the Court's Order on Account of the By-Law and Band Council Resolution

[390] U.C.C.M. advances other arguments as to why U.C.C.M. says this Court lacked the jurisdiction to direct it to enforce its Order of September 17, 2019 in the first place, and why the Court should not again order it to enforce a new order. Two of those arguments center around M'Chigeeng First Nation's By-Law and Band Council Resolution.

[391] In particular, at paragraphs 30 and 31 of his affidavit, Mr. Forget deposes:

30. 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.

31. It is also not clear to the U.C.C.M. Police Service whether the Provincial Court had the jurisdiction to order U.C.C.M. 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.

[392] 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. Again, that is because "it would be acting contrary to the First Nation By-Laws and Band Council Resolution passed by M'Chigeeng First Nation".

[393] I accept that U.C.C.M. may have felt conflicted. Based on the above, U.C.C.M. is required to enforce both provincial legislation and regulations made pursuant to the Indian Act. But while U.C.C.M. is to enforce by-laws enacted under the Indian Act, its overall function is to provide police services authorized under the Police Services Act. The status of being a First Nations Constable flows directly from the Police Services Act, not federal law. See Nishnawbe-Aski Police Service Board v. Public Service Alliance of Canada, 2015 FCA 211 ¶ 65; see also R. v. Stephens (1995), 22 O.R. (3d) 417 (C.A.).

[394] Furthermore, while this conflict about which law to enforce may have been present when the ex parte Order was first brought to U.C.C.M.'s attention, it is no longer an issue at this point. Again, these arguments about the By-Law and the Band Council Resolution have been abandoned by M'Chigeeng First Nation. M'Chigeeng First Nation no longer says that these documents were passed pursuant to the Indian Act. As of January 2020, M'Chigeeng First Nation took the position that the documents were passed as an expression of inherent jurisdiction and/or pursuant to a claimed right under section 35 of the Constitution Act, 1982. That will be determined at the trial of the constitutional issues, and in the mean time, according to Beaver v. Hill, provincial legislation continues to apply respecting interim orders. As a result, there is no conflict between provincial legislation and a regulation under the Indian Act giving rise to any confusion about which one U.C.C.M. has to enforce.

[395] Moreover, the appropriate forum for the resolution of that conflict, to the extent that it existed previously, was for U.C.C.M. to seek direction from the Court. However, as I have already said, U.C.C.M. did not return the matter to Court, instead choosing just not to enforce the ex parte Order. Its decision was made at the direction of Ms. Debassige. U.C.C.M. chose to follow the direction of the Chief of M'Chigeeng, over an order of a Court.

(7) The Broader Consequences of A Ruling that A First Nations Police Constable or an Indigenous Police Service Need Not Enforce A Custody Or Access Order

[396] The O.P.P. is concerned about the broader implications, were the Court to accept U.C.C.M.'s submission that it is not subject to being ordered to enforce a custody or access order.

[397] While counsel for the O.P.P. submits that the O.P.P. has both a good working relationship with U.C.C.M, aspects of Ms. Cavanagh's and Mr. Forget's affidavits cause the Court to pause for concern.

[398] Ms. Cavanagh's affidavit raises a legitimate concern about damage to relationships that would flow from police enforcement in this case, relationships which the O.P.P. has worked hard to build. The Court wishes to avoid damaging any relationships through its orders. But it must balance this with what is in the children's best interests.

[399] In my view, the preservation of relationships and the children's best interests can be accommodated here. In the future, if the Court determines that police enforcement is needed in this case, given the history of the two police operating harmoniously, it does not make sense to order one, to the exclusion of the other, to embark upon this task. This makes little sense when there is a local, First Nations police service, with policing responsibilities in the area.

[400] The O.P.P. has consistently engaged, consulted and cooperated with that service in their operations. If U.C.C.M. felt conflicted, then it could have consulted with the O.P.P. and sought its assistance, as Ms. Cavanagh said was done in the past. Respecting operational discretion, the two police could have coordinated and sorted out how best to enforce the Order. But it was not open to U.C.C.M. just to say no under the circumstances.

[401] Moreover, while the O.P.P. has a presence on Manitoulin Island and a good working relationship with U.C.C.M., there are parts of Ontario, such as in Northern Ontario, where I am told by counsel for the O.P.P. that the O.P.P. has no presence, nor the resources, nor the capacity to intervene if directed by a Court. Anecdotally, Mr. Diana submitted that in some of those locations, the reaction to the O.P.P. being sent to enforce a custody order could be more problematic from a community relations perspective. The option to require the assistance of a local police service in those areas must be left on the table, in his view.

[402] Section 1 of the Police Services Act is the Act's declaration of principles. They include both the need for co-operation between the providers of police services and the communities they serve, the need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society, and the need to ensure that police forces are representative of the communities they serve.

[403] The establishment of a First Nations police service is a recognition of self-governance. Why would the Court make an order that limits its powers in this context?

[404] Two of the purposes of Part III of the Children's Law Reform Act, set out in section 19, are to ensure that custody and access applications are determined on the basis of the best interests of the children and to provide for the more effective enforcement of custody and access orders.

[405] I find that the position that U.C.C.M. has taken respecting police enforcement in this case is contrary to these principles and purposes in the two pieces of legislation that apply to it.

(8) Whether the Court Should Order Police Enforcement in this Case

[406] Just because I have found that an Order may be made compelling U.C.C.M. (and the O.P.P.) to enforce a custody or access Order, does not mean that such an order ought to be made, on the facts of this case.

[407] In L. (N.) v M. (R.R.), 2016 ONSC 809 ¶ 83 (aff'd on other issues by the Court of Appeal in 2016 ONCA 915), Perkins J. cited Pazaratz J. in Patterson v Powell, 2014 ONSC 1419 as to the factors to consider in determining whether to make an order for police enforcement under section 36 of the Children's Law Reform Act as follows:

……I note the following principles from it:

• Section 36 of the Children's Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paras 14-15)

• Section 36 does not make police enforcement available "as a long-term, multiple-use, on-demand enforcement tool." (Para 16)

• Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paras 21-22)

• Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24)

• Police should be served with notice, if a party proposes a broad order under section 36(4) that they "do all things reasonably able to be done". (Para 30)

• Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paras 44-62)

• Chronic non compliance with a custody or access order is "likely … a problem that police can't fix anyway." (Para 74)

[408] With these principles in mind, the Court is reluctantly declining to attach to its new Order police enforcement at this point. As my reasons for reaching that ultimate conclusion are similar to the Court's reasons relating to why the Court is not finding the mother in contempt, I will set them out below, together.

F. The Father's Contempt Motion

(1) The Parties' Positions Concerning Contempt

[409] Paragraphs 3 and 4 of the ex parte Order of September 17, 2019 read:

3. The Respondent Mother, Nicole hare, shall return the children, Bella Hare, born […], 2015, Lionel Neshkiwe, born […], 2017, to Toronto, Ontario.

4. The Respondent Mother, Nicole hare, shall return the children, Bella Hare, born […], 2015, Lionel Neshkiwe, born […], 2017, to the care of the Applicant Father, Buck Neshkiwe.

[410] The father's Notice of Contempt Motion dated January 7, 2020 alleges that the mother is in contempt because she did not return the children as required by paragraph 3 and 4. Again, the father brought this contempt motion only after his other attempts to secure compliance with the order had failed, including after he was unable to secure the assistance of U.C.C.M. to enforce the Court's ex parte Order.

[411] The mother makes a number of arguments as to why the Court should not find the her in contempt. One is completely without merit.

[412] First, the mother argues that the father's Notice of Motion lacks sufficiently specific details. I do not comprehend this submission. There is no question that the children have not been returned to Toronto, nor to the father's care, as required by the Order.

[413] Second, the mother also makes some submissions about fairness. She says that a finding of contempt is a final Order and therefore she is entitled to certain procedural safeguards, such as a trial. Yet, when the Court asked for her position on this, the mother neither requested that the father be cross-examined on his affidavit in support of the contempt, nor did she request a viva voce trial on the contempt itself, at this time. Instead, she said there would be a trial of the constitutional issues. But when unpacked, her submissions about fairness turn on the fact that, she says, the contempt should actually not be dealt with until after a trial of the constitutional issues.

[414] And third, if the Court finds that the elements of contempt are established, the mother argues that the Court should exercise its discretion and not use the contempt power at this point.

[415] Given the seriousness of a finding of contempt, I intend to deal with the mother's second and third arguments, in some detail.

(2) Applicable Legal Principles Concerning Contempt

[416] Rule 31 of the Family Law Rules is the rule that provides for civil contempt in a family law case.

[417] As the Court of Appeal held at ¶ 5 of Chong v. Donnelly, 2019 ONCA 799, three elements must be proven beyond a reasonable doubt in order for the Court to make a finding of contempt in a civil case:

(a) The order alleged to have been breached must state clearly and unequivocally what should and should not be done;

(b) The party alleged to have breached the order must have actual knowledge of it; and

(c) The party allegedly in breach must have intentionally done the act that the order prohibits, or intentionally failed to do the act that the order compels.

[418] In Janowski v. Zebrowski, 2019 ONSC 4046 at ¶ 24, Trimble J. summarized the above, and certain other principles concerning the law of civil contempt. I highlight that an additional principle, taken from Trimble J.'s summary of the law, is where a parent does not comply with the order, he or she must have "clear and compelling reasons to legally justify" that violation of the order.

[419] The example that Trimble J. cites in Janowski v. Zebrowski is where there is "admissible evidence" of a "reasonably held belief", such as that there will be "imminent harm" to the children. However, that belief must be "validly held" and there must be "objective justification" for the breach.

[420] The Court should also consider the best interests of the children when a finding of contempt is sought. For example, in Ruffolo v. David, 2019 ONCA 385 the motions judge made findings of contempt based on two instances of alleged access denials, and one instance of a parent failing to provide the children's summer activity schedule. See ¶ 4.

[421] The Court of Appeal reversed the findings of contempt. I note that it had some concerns about the record before the motions judge, the brevity of the reasons and whether all of the contempt findings had been made out. But the Court of Appeal also stated that the best interests of the children also had to be the paramount consideration in reversing the court below. I will come back to this principle.

[422] And finally, even if the elements of contempt are made out, the use of the contempt power is still discretionary. It is not to be resorted to, routinely. It should be exercised "cautiously and with great restraint" as "an enforcement power of last rather than first resort". Alternatives may include an admonishment by the Court. See Chong v. Donnelly ¶ 9 and 10. I would add that another alternative may be an order for costs.

(3) Analysis Respecting Whether Contempt Has Been Made Out

[423] There is no issue that the three elements of contempt have been proven beyond a reasonable doubt. There is no ambiguity in the meaning of paragraphs 3 and 4 of the Order, nor is there any issue about the mother's knowledge of what was required of her, nor is there any issue that her failure to comply with the Court order has been deliberate.

(4) Analysis Respecting Whether the Mother Has A Justification for Her Non-Compliance

[424] In this case, the mother has made a number of allegations concerning the father, which I have dealt with above. There is no risk of harm to the children in the father's care whatsoever. I do not accept the evidence before the Court and the allegations about the parents' conflict and their dysfunctional relationship are a sufficient basis for the mother to have gone to M'Chigeeng First Nation and not to have returned the children, contrary to the Court's Order, within the meaning of the test as articulated by Trimble J.

[425] The mother has also put forward her constitutional claim as justification of her conduct. As I said, the mother submits that a finding of contempt is a final Order, and if, at the conclusion of the trial regarding the constitutional issues, the Court finds that it lacked the jurisdiction to have made a custody and access order in the first place, the finding of contempt will have already been made and then, it is too late.

[426] I reject this argument for three reasons.

[427] The mother and M'Chigeeng First Nation have caused a certain amount of disorder so far in this litigation, respecting this argument. They have raised this, not only now as a reason why the Court should not make a finding of contempt, but as I have said previously, as a bar to the Court addressing the return of the ex parte motion on its merits at all.

[428] They raised the constitutional arguments respecting the latter, even though, again, in Beaver v. Hill, 2018 ONCA 816, the Court of Appeal was clear that a court has the jurisdiction to deal with issues on a temporary basis pending trial, even when a section 35 claim is raised. This has been addressed earlier in this Endorsement, and previously at ¶52-56 of this Court's January 21, 2020 Endorsement as well: See Neshkiwe v. Hare, 2020 ONCJ 42.

[429] To make matters worse, the mother's former counsel conceded this on October 7, 2019, the very first time she attended before the Court on the mother's behalf. But then the mother (and M'Chigeeng) took a very different position after that.

[430] Only after the Court intervened, mapped out what the constitutional questions appeared to be (as they were then being advanced), and directed that the Attorneys General be notified, and only after the Court imposed a number of time tables, and only after multiple lawyers attended this Court, did the mother and M'Chigeeng finally concede (for the second time) that this Court could in fact deal with the custody and access issues before it on a temporary basis.

[431] This took months to resolve while the children were withheld from the father on M'Chigeeng First Nation. This is very unreasonable conduct, particularly in light of the finding that the Court now makes, that the father was a very involved parent.

[432] I wish to be crystal clear to the mother and to M'Chigeeng First Nation, again. The constitutional questions raise important issues. But they have implications not only for this family, but perhaps others in Ontario. The Court has more than once indicated it was prepared to address them. The Court has gone to great lengths to ensure that can happen. But these arguments must be addressed fully and properly. In the mean time, there must be order in the Court's process and a respect for its orders.

[433] The argument, now that a contempt motion has been brought, is that the Court is restricted in its enforcement power pending the constitutional claim. This is similar to the argument raised previously, and abandoned previously, that the Court was restricted regarding dealing with interim issues. Nevertheless, this argument, raised in this different context of a contempt motion, is worthy of careful consideration, given the serious implications of contempt finding.

[434] If the mother and M'Chigeeng First Nation succeed in establishing their constitutional claims, then they may say that the Court ought not have made the ex parte Order in the first place. At first blush, there is some merit to the argument that the Court therefore should not exercise its contempt power at this point. However, I did not hear full submissions about what the effect on the ex parte order would be, if the Court later decides that the section 35 right exists, and therefore that the Children's Law Reform Act does not apply, in whole or in part, to this family.

[435] This is the same practical problem that the Court of Appeal highlighted in Beaver v. Hill. That is, the trial of the constitutional issues has not yet occurred, and therefore, no constitutional right has yet been judicially determined. But what if, after the constitutional trial, the Court decides that the applicable provisions of the Children's Law Reform Act do apply? Does that mean that interim orders cannot be made whenever a constitutional claim is made? Or that they can be made but they do not have to be followed and cannot be enforced? Or that only some, but not all of the enforcement tools are available to the litigants and to the Court, if those orders are not followed?

[436] That cannot be the case.

[437] According to Central Canada Potash Co v. Government of Saskatchewan, [1979] 1 S.C.R. 42 at page 89, a law may be enforced until it has been found not to apply. Likewise, the Court of Appeal took a consistent approach in Beaver v. Hill, when discussing the Court's jurisdiction to act on an interim basis.

[438] In any event, the mother's submission about the finding of contempt being final and therefore problematic in such an event, neglects reference to rule 31(12) of the Family Law Rules. Rule 31(12) provides that the Court may, on motion, change an order under rule 31, give directions and make any other order that is just. This includes both the finding and any sentence imposed.

[439] At ¶ 65 and 66 of Carey v. Laiken, 2015 SCC 17, Cromwell J. said the following:

[65] The starting point is that, in civil contempt proceedings, once a finding of contempt has been made at the first stage of a bifurcated proceeding, that finding is usually final. As the Court of Appeal stated, "[a] party faced with a contempt motion is not entitled to present a partial defence [at the liability stage] and then, if the initial gambit fails, have a second 'bite at the cherry"' at the penalty stage (para. 32). This would defeat the purpose of the first hearing. This is what the judge at first instance erroneously permitted Mr. Carey to do.

[66] Without exhaustively outlining the circumstances in which a judge may properly revisit an initial contempt finding, I agree with the Court of Appeal that he or she may do so where the contemnor subsequently complies with the order or otherwise purges his or her contempt or, in exceptional circumstances, where new facts or evidence have come to light after the contempt finding was made.

[440] In my view, a subsequent ruling of about the existence of a right, and about the constitutionality of a law, pursuant to which the order breached was made, may be one such exceptional circumstance. It would of course be open to the Court to set aside any finding of contempt to give effect to the subsequent constitutional ruling.

[441] Therefore, this argument, that the Court lacks the contempt power at this point does not make good sense to me. If the Court retains jurisdiction to deal with interim issues, then surely it retains all of its jurisdiction to enforce its interim orders.

[442] However, in spite of saying this, I agree that the spectre of a section 35 right is a reason for the Court to proceed cautiously respecting contempt. It is yet another reason for the Court to be satisfied that contempt is truly a tool of last resort. But in my view, this consideration relates more to the exercise of the Court's discretion concerning contempt, rather than to negating its jurisdiction to use contempt altogether, or to the existence of a constitutional claim being used a justification for the non-compliance.

G. Conclusions Respecting Police Enforcement and Contempt

[443] In summary, the exercise of discretion concerning whether to order police enforcement, and whether to find the mother in contempt, or not, (given that I have found the elements of contempt have been established), requires a balancing of factors.

[444] I agree that important constitutional rights have been placed in issue. There are broader community interests engaged too. And of course, the children's interests in enjoying relationships with both of their parents are at the forefront.

[445] I have reluctantly decided against ordering the police to enforce the custody and access order, and against finding the mother in contempt, at this point. These were close calls.

[446] Militating in favour of ordering enforcement and finding the mother in contempt is the length of time that she has withheld the children, and the extent of the interruption of beneficial relationships between the father and the children.

[447] As well, in terms of whether this is a case of last resort, the Court has already admonished the mother, and the Court has already sanctioned her by way of a costs order. Yet the non-compliance continued.

[448] It is for those reasons that I find that this case is very close to being a situation of last resort.

[449] In terms of the children's best interests, considered in the police enforcement context, the Court prefers not to subject them to the use of the police, if this can be avoided.

[450] In the contempt context, in Ruffolo v. David, between the time of the contempt motion and the appeal, the parties had taken steps to involve professionals to work on their relationship with one of the parents (the parents whose access had been denied). I gather that part of the defence on the access denial allegation in that case, was that the other parent's and children's relationship was estranged. The Court of Appeal felt that the professional assistance should be encouraged and took that into account in setting aside the finding of contempt.

[451] This case before me is not a case where the father-children relationships is in any way estranged. To the contrary, I have found otherwise. However, regarding both the police enforcement and contempt issues, I do take into account some subsequent conduct. I take into account that the mother has consented to two, considerable visits between the father and the children, in Toronto. Although this was done only after the police enforcement and contempt motions had been brought, and only after all of the other jurisdictional obstacles to the Court making interim orders had been dealt with, I will still give the mother the benefit of the doubt here, and I take this as some progress that there will now be compliance with the Court Order.

[452] To the extent that there was any confusion as to the conflict between the constitutional claims, if proven, and the validity of this Court's ex parte Order, or between the By-Law and Band Council Resolution and provincial legislation, given these novel facts and how the positions have changed over time, then I will also give the mother, and U.C.C.M., the benefit of the doubt here too.

[453] However, in saying this I wish to also state that the mother, and U.C.C.M., have experienced counsel, and this issue about the Court's jurisdiction to make interim orders was discussed more than once during this Court's various case management dates.

[454] And finally, regarding the contempt, there is one additional mitigating factor, but it is only slightly mitigating. Where an interim ex parte order is later superceded with a different Order of the Court, but a contempt motion is then brought respecting that prior Order, there is "no order outstanding in respect of which the trial judge could find the mother in contempt". See Fiorito v. Wiggins, 2015 ONCA 729 ¶ 17.

[455] In this case, while I am continuing the Order that the children are to be returned to Toronto, I am not ordering the children to be returned to the father's sole custody.

[456] So in part, the ex parte Order is being superceded with some new terms. I have taken that into account too, in declining to find the mother in contempt at this point. By the same token, I say this is only slightly mitigating, because the aspect of the ex parte Order that the children are to be returned to Toronto is in effect remaining.

[457] Therefore, I find that enforcing the children's return to Toronto, either by way of police enforcement, and/or by way of a contempt finding, or both, is close to, but is not yet a matter of last resort. For those reasons, I intend to give the mother one last chance to comply.

[458] However, to be clear to the mother, to M'Chigeeng First nation and to U.C.C.M., I am also finding that the contempt power is available for the Court's use in this case, notwithstanding the constitutional claims, as is police enforcement available to direct both the O.P.P., and U.C.C.M., to act.

[459] The Court has held off on the use of the police in part out of a serious concern for the community relationships in the community that U.C.C.M. and the O.P.P. serves. But if there is non-compliance with the Court's new order being made today, then I would invite the father to bring a new motion for police enforcement and/or a contempt motion. At that point, it may very well become a relationship issue that the police will have to manage, in the local communities that they know best. If community relationships are damaged at that point, the responsibility may very well lie on the shoulders of M'Chigeeng First Nation, U.C.C.M. and/or the mother.

[460] I would add to that these comments in no way limit the fact that there may be other complimentary powers of enforcement available under the Family Law Rules, too, including a stay of the constitutional claims, pending compliance. For example, one of the tools that the Court has decided to use now, is the non-removal order, subject to the comments that I have already made about that.

H. M'Chigeeng First Nation's Interference with Police Enforcement

[461] I also intend to comment on M'Chigeeng First Nation's role in the confusion surrounding police enforcement. In addition to generating the trespass notice, the Court has been made aware that Ms. Debassige may have interfered in the exercise of U.C.C.M.'s duties.

[462] Paragraph 27 of Mr. Forget's affidavit of November 25, 2019 reads that, "… on or about September 18, 2019, M'Chigeeng Chief Linda Debassige explicitly declared that the M'Chigeeng (sic.) was exercising its exclusive jurisdiction over the Children and prohibited the police service from executing the court order." Ms. Debassige delivered the By-Law of February 12, 2001 and the Band Council Resolution of September 18, 2001 to U.C.C.M. in furtherance of that direction.

[463] Paragraph 2.4 of the Tripartite Agreement states that the councils shall not be involved in the day to day operations of the Police Service, nor shall any member of the council attempt to influence or interfere with the police service in the performance of its duty. One of the signatories to the Tripartite Agreement is the Chief of M'Chigeeng First Nation. She signed it on May 22, 2019.

[464] During submissions, the Court asked counsel for M'Chigeeng First Nation as to its position respecting police enforcement. M'Chigeeng First Nation took no position.

[465] Yet the Court is concerned that M'Chigeeng's counsel avoided answering the Court's questions, about whether M'Chigeeng would interfere with the return of the children, having regard to its prior instructions to the police.

[466] Nevertheless, I am relying on M'Chigeeng's counsel's submissions that M'Chigeeng will now "support the mother" in returning the children, if that is what the Court orders, as a factor that has reduced the need for police enforcement or a contempt finding.

PART V: ORDER

[467] I make the following orders:

(a) The Court's ex parte Order of September 17, 2019 is replaced in its entirety with the terms set out below;

(b) The parents shall have temporary joint custody of the children, Bella Spring Hare, born […], 2015 and Lionel Taylor Neshkiwe, […], 2017;

(c) If Bella and Lionel are currently in Toronto at the date of the release of this decision pursuant to the consent order of February 21, 2020, then they shall remain in Toronto;

(d) If Bella and Lionel are not currently in Toronto notwithstanding the consent order of February 21, 2020, then the mother shall return the children to Toronto forthwith;

(e) The children shall be in the care of the father from the date of the release of this decision until Monday, March 23, 2020;

(f) If the mother also returns to reside in Toronto, then commencing Monday March 23, 2020:

(i) Bella and Lionel shall reside with the mother from Mondays after school or day care (or 5:00 pm if the children are not in school or day care until Wednesday mornings, return to school or day care (or 5:00 pm if there is no school or day care);

(ii) Bella and Lionel shall then reside with the father from after school on Wednesdays (or 5:00 pm if there is no school or day care) until Fridays morning, return to school or day care (or 5:00 pm if there is no school or day care); and

(iii) Bella and Lionel shall then reside with the mother on alternating weekends, from Friday after school or day care (or 5:00 pm if there is no school or day care) until Monday return to school or day care (or 5:00 pm if there is no school or day care). And then the next weekend, the father shall have Bella and Lionel during these time frames, and so forth;

(iv) Pick-ups and drop-offs shall be at the children's school/day care, or at a mutually agreed upon location if the school/day care is closed. If the parents cannot agree about a location then I may be contacted by 14B Motion and I shall decide;

(g) If the mother does not return to Toronto, then the schedule provided in paragraph (f) above shall not apply. The children shall remain in their father's care until the issue of access can be argued. The parties shall send in a 14B Motion to organize a date and time for argument to proceed by way of a telephone conference as soon as possible;

(h) The children shall be immediately re-enrolled in school and day care at Jesse Ketchum Public School (or as soon as possible if the school and day care are closed as a result of COVID-19);

(i) The parents may speak on the telephone to Bella and Lionel when they are in the care of the other parent;

(j) Unless they are required to attend a medical or educational appointment concerning the children together, and except for enabling the telephone contact referred to in paragraph (i) above, the parents shall endeavour to communicate with each other in writing. They shall do so only about issues concerning the children. Their written communications with each other shall be by way of email or by text message and they shall keep their communications civil. In the event of an emergency, an urgent issue, or a last minute problem with the parenting schedule, the parents may communicate by telephone, but they shall also keep those communications civil;

(k) The mother, or anyone on her behalf shall be prohibited from removing the children from the City of Toronto, without the consent of the father, or a court order;

(l) The parties are to complete CPIC forms respecting the non-removal order in paragraph (k) and it shall be filed with the draft Order incorporating these terms;

(m) The father's contempt motion is dismissed, but leave is granted to the father to bring a fresh contempt motion, if there is non-compliance (within the meaning of the test for civil contempt) with the terms of this Order;

(n) The father's motion for police enforcement is dismissed but leave is granted for the father to bring a fresh motion for police enforcement on notice to the O.P.P. and U.C.C.M. if there is non-compliance with the terms of this Order. Notice to the police will be sufficient by way of fax to counsel for the O.P.P. and U.C.C.M. in this case;

(o) The mother's motion to relocate the children to M'Chigeeng First Nation on a temporary basis is dismissed;

(p) The mother's motion for a restraining order is dismissed;

(q) The O.P.P.'s motion for an order setting aside the police enforcement Order of Pawagi J. dated January 22, 2020 is dismissed. The issue is moot and it was not strenuously pursued in argument;

(r) The March 27, 2020 date now scheduled for M'Chigeeng First Nation's motion to transfer this matter to the Superior Court of Justice is vacated, in light of the Court's COVID-19 policy. That matter shall instead proceed before me on May 25, 2020 at 2:00 pm. Two hours shall be scheduled. If counsel are not available on that date, then an adjournment shall be arranged by way of 14B Motion;

(s) The Court shall release a supplementary endorsement concerning the next steps regarding the appointment of amicus curiae in this case in due course;

(t) If any party or motion participant seeks costs, including costs against M'Chigeeng First Nation or U.C.C.M., then costs shall be argued on May 25, 2020 at 2:00 pm also. The Court directs that the parties and motion participants send correspondence to each other to advise against whom costs will be sought, and by whom, so that all those whose presence is required will be in attendance;

(u) For the costs hearing, the Court requires a Bill of Costs from anyone claiming or responding to a claim for costs, copies of any Offers to Settle, and any relevant case law. Those may be filed in Court on May 25, 2020, but should be exchanged amongst counsel at least 7 days before; and

(v) On May 25, 2020, the parents should consider being prepared to make submissions regarding whether the pleadings in this case need to be amended to include their new child, Lincoln Winter Hare, born […], 2020, whether any other orders are required respecting him, and if so, about a process pursuant to which that should be determined, if necessary.

[468] I wish to thank all counsel for their assistance with this matter.

Released: March 19, 2020

Signed: Justice Alex Finlayson