NESHKIWE v. HARE

Ontario Court of Justice

Date: June 12, 2020

Court File No.: Toronto DFO-19-15894

PARTIES

Between:

BUCK NESHKIWE, Applicant

— AND —

NICOLE HARE, Respondent

Before: Justice Alex Finlayson

Heard on: May 25, 28 and 29, 2020

Endorsement Released on: June 12, 2020

COUNSEL

Matthew Pike — counsel for the applicant

Andrew Sudano — counsel for the respondent

Robert Shawyer — counsel for the M'Chigeeng First Nation

Ian Ross — counsel for the Office of the Children's Lawyer, legal representative for the children (in attendance only on May 25 and 28, 2020)

Tanya Muthusamipillai — counsel for the Attorney General for Canada (in attendance and observing only on May 25 and 28, 2020)

Rachel Pacquette — counsel for U.C.C.M. Anishnaabe Police Services (briefly in attendance at the outset of May 25, 2020)

Neither Counsel for the Attorney General for Ontario, nor for the O.P.P., was in attendance.

DECISION

ALEX FINLAYSON J.:

PART I: NATURE OF THIS ENDORSEMENT

[1] The Applicant father and the Respondent mother are the parents of three children, namely Bella Spring Hare, born […], 2015 (age 5), Lionel Taylor Neshkiwe, born […], 2017 (age 3), and Lincoln Winter Hare, born […], 2020 (6 months old).

[2] Both parents and the children are Indigenous. The parents are members of different First Nations. The mother's, M'Chigeeng First Nation, has been added as a party to this proceeding pursuant to an Order of this Court dated January 21, 2020.

[3] This case concerns custody and access, and among a number of other things, claims for constitutional relief. The mother and M'Chigeeng First Nation have each made claims pursuant to section 35 of the Constitution Act, 1982, asserting that M'Chigeeng First Nation has exclusive jurisdiction over Bella and Lionel, regardless of their residence, and asking this Court to decline jurisdiction to decide the family law issues that concern them.

[4] There have been numerous attendances, and a number of Endorsements and Orders made already in this case. This Endorsement arises in part out of M'Chigeeng First Nation's Notice of Motion dated March 3, 2020, now asking to transfer this case to the Ontario Superior Court of Justice.

[5] The transfer issue is not the only thing addressed in this Endorsement. Rather, this Endorsement addresses four issues, namely:

(a) the transfer motion;

(b) costs of several motions heard over two days on February 20 and 21, 2020, as well as costs of the current transfer motion;

(c) the appointment of amicus curiae; and

(d) a timetable and directions for the next steps in this case.

PART II: BACKGROUND CONCERNING THE TRANSFER MOTION

A. Prior Legal Proceedings

[6] The main constitutional issues raised in this case will be decided by way of a trial. In the meantime, this motion is the fourth form of a preliminary challenge to this Court's jurisdiction. The jurisdictional challenges so far have been made on both statutory and constitutional grounds at the interim stages of this case.

[7] This case began 9 months ago. This Court has already devoted considerable judicial resources to case managing this matter. There have been 13 appearances so far. The issues addressed in this Endorsement alone, were heard over three half-days of argument. Previously in February, 2020, the Court heard a long motion argued over two different days. There were several other appearances directed at organizing a way for this case to move forward, and to scheduling the motions.

[8] In addition to this one, this Court has already released three, detailed typed Endorsements, plus a number of other shorter hand-written Endorsements. A summary of the prior proceedings is set out in three decisions of this Court: Neshkiwe v. Hare, 2019 ONCJ 946, Neshkiwe v. Hare, 2020 ONCJ 42, and Neshkiwe v. Hare, 2020 ONCJ 149. The summary of the prior proceedings in those Endorsements is incorporated into this decision by reference. However, because of the nature of some of the arguments now being made at these three most recent attendances, I reiterate some of the key events in this case.

[9] As I found in the Neshkiwe v. Hare, 2020 ONCJ 149, the parents, and Bella and Lionel, all lived in Toronto substantially, prior to the parents' separation on September 5, 2019. The mother was pregnant with Lincoln at the time. On September 11, 2019, unbeknownst to the father, the mother took Bella and Lionel to M'Chigeeng First Nation.

[10] Soon after the mother's departure, the father commenced this Application and launched an ex parte motion, for an order for temporary without prejudice custody, for an order compelling the return of the children to Toronto and to his care, and for a police enforcement order, among other things. Around the same time, the mother commenced a proceeding in the Ontario Court of Justice in Gore Bay, Ontario. This Court granted the father's ex parte motion on September 17, 2019. The mother subsequently withdrew the Gore Bay proceeding and filed an Answer in this one.

[11] Despite this Court's ex parte Order, the mother would not return with the children to Toronto. M'Chigeeng First Nation intervened in this case, in support of the mother.

[12] Following the mother's departure with the children, the father did not see either Bella or Lionel for about 4 months, until January, 2020. In Neshkiwe v. Hare, 2020 ONCJ 149, I found this to have been the result of certain actions of the mother and M'Chigeeng First Nation. I also found that the U.C.C.M. Anishnaabe Police Service ("U.C.C.M.") failed to discharge its duty to enforce this Court's September 17, 2019 ex parte Order for the children's return to Toronto. It was only after a series of interventions by the Court and others that the father was able to start to see the children.

[13] Lincoln was born in January 2020, about three months after this litigation began, and during the time that the mother remained with Bella and Lionel on M'Chigeeng First Nation in contravention of the ex parte Order. As he was not then born, claims relating to Lincoln were not initially pleaded by either parent. And when the motions were argued in late February, 2020, the pleadings still omitted reference to Lincoln. Neither parent asked the Court to make any orders relating to him at that time.

[14] The motions argued on February 20 and 21, 2020, included the return of the father's ex parte motion and a number of issues raised in Notices of Motion that had been served and filed subsequently. The additional issues were the mother's request for custody and to relocate the children, the mother's request for a restraining order, and the father's motion to find the mother in contempt and for police enforcement to secure the children's return, among others.

[15] On March 19, 2020, in Neshkiwe v. Hare, 2020 ONCJ 149, the Court replaced its September 17, 2019 ex parte Order with a fresh Order. The Court ordered that the children were to be returned to Toronto, it made an Order that the parents have temporary joint custody of Lionel and Bella, and the Court imposed a shared parenting schedule.

[16] Although the Court found that some of the mother's conduct had made out the elements of contempt, the Court exercised its discretion not to find the mother in contempt. The Court also found that it had jurisdiction to order both U.C.C.M. and the Ontario Provincial Police to enforce the custody and access orders of this Court, but it declined to make an order for police enforcement right now. U.C.C.M. has since filed an appeal of the ruling respecting police enforcement.

B. The Parties' Positions Respecting M'Chigeeng First Nation's Motion to Transfer this Case to the Superior Court

[17] On January 16, 2020, at the 7th appearance leading up to the hearing of the February 2020 motions, counsel for the mother, in passing, suggested that a motion to transfer this matter to the Superior Court might be brought. Until that point, the mother had taken the position that this case should be transferred to the Ontario Court of Justice in Gore Bay, Ontario, a position that she abandoned at the outset of argument of the motions in February, 2020.

[18] Then, at the conclusion of argument of the February, 2020 motions, counsel for M'Chigeeng First Nation (rather than the mother) indicated that he anticipated bringing this motion to transfer this case to the Superior Court, so I scheduled the motion. At the hearing of this transfer motion, the mother supported M'Chigeeng First Nation's position on the transfer motion, but otherwise she chose to make no submissions.

[19] In its Notice of Motion dated March 3, 2020, M'Chigeeng First Nation does not specify the particular location/court site/municipality of the Superior Court to which it seeks a transfer, nor did counsel for M'Chigeeng First Nation make any submissions about that during the motion. M'Chigeeng First Nation's Notice of Motion and Factum do refer to the Family Court of the Superior Court of Justice. I raise this here because this case is currently being heard in Toronto. The only prior request for a transfer of this case came from the mother (supported by M'Chigeeng First Nation), and was for a transfer to the Ontario Court of Justice in Gore Bay, Ontario. If the request to transfer this case to the Superior Court now requires this Court to choose as between the locations of Toronto and Gore Bay, neither are locations having a Family Court of the Superior Court of Justice.

[20] Regardless, the arguments in support of, and in opposition to a transfer to the Superior Court do not really turn on the case being sent to any particular locale of the Superior Court, nor to a Family Court site in particular. Rather, the submissions centred around this Court's jurisdiction to grant a constitutional remedy, and delay, not the territorial or family jurisdiction of various courts within Ontario.

(1) M'Chigeeng First Nation's Position

[21] M'Chigeeng First Nation relies on section 110 of the Courts of Justice Act, or section 2(2) of the Family Law Act, as the statutory authority for the transfer of this case to the Superior Court. Counsel also made reference to section 66 of the Children's Law Reform Act in oral argument, as well as to arguments about this Court's inherent jurisdiction to transfer a case.

[22] If this Court is not prepared to transfer the entire case, then in the alternative M'Chigeeng First Nation submits that the constitutional issues only, should be transferred to the Superior Court, leaving the custody and access issues to be dealt with by this Court. That would necessarily be subject to the Superior Court later ruling that this Court lacks the jurisdiction to address those remaining issues, at all, on constitutional grounds.

[23] According to the affidavit of Linda Debassige, Chief of M'Chigeeng First Nation, sworn February 28, 2020, M'Chigeeng First Nation's request to transfer this case is tied to its assertion of an "aboriginal right in accordance with customary law to jurisdiction over the parties' children". When the trial of the constitutional issues is heard, M'Chigeeng First Nation intends to argue, among other things, that "the affirmation and recognition of an aboriginal right to address family well being matters in accordance with customary law under section 35(1) of the Constitution Act, 1982" renders various provisions of the Children's Law Reform Act, the Family Law Rules and the Court of Justice Act inapplicable.

[24] But whereas previously M'Chigeeng First Nation had been asking this Court to consider the constitutionality of only certain aspects of provincial legislation and to decline jurisdiction over these particular children, now at paragraph 15 of her affidavit of February 28, 2020, Ms. Debassige also says that M'Chigeeng First Nation will argue for a declaration that all "Ontario Provincial and Canadian Federal legislation is of no force and effect" as they pertain to all M'Chigeeng children. This proposed, broadened scope of the litigation (ie. a claim declaratory relief, a challenge to additional laws, and arguments about the applicability of those laws to other children), was raised for the first time in M'Chigeeng First Nation's Answer dated January 27, 2020, filed on January 31, 2020, and in its (and the mother's) revised Notices of Constitutional Question, filed on January 22, 2020. This broadened scope was not averred to when M'Chigeeng First Nation brought its motion to be added as a party to this proceeding.

[25] M'Chigeeng First Nation's arguments to transfer this case to the Superior Court are based almost, if not exclusively on this Court's inability to grant declaratory relief. M'Chigeeng First Nation submits that its constitutional questions are questions of law, which if decided in its favour, require a declaration of an aboriginal right. Only the Superior Court may recognize an aboriginal right by way of a declaration, and only the Superior Court may declare legislation to be invalid as a result.

[26] M'Chigeeng First Nation argues that any decision of a court of first instance in this case will likely be appealed. Therefore, the case might as well be heard by the Superior Court of Justice in the first place, since that will allow for an appeal directly to the Court of Appeal, as opposed to first going to the Superior Court on appeal, should the case remain in this Court. And Ms. Debassige indicates in her affidavit that there is another case, namely M.M.A. v. Kunuwanimano Child and Family Services, involving a claim for an aboriginal right to self-governance pending before the Family Court of the Superior Court of Justice in Belleville, Ontario.

(2) The Mother's Position

[27] The mother supports M'Chigeeng First Nation's position. Again, she made no submissions respecting the transfer issue.

(3) The Children's Lawyer's Position

[28] The Children's Lawyer opposes the request to transfer this case to the Superior Court for several reasons. First, the Children's Lawyer says that the statutory provisions upon which M'Chigeeng First Nation relies to transfer this matter to the Superior Court do not actually apply in this case. In oral argument, counsel for the children also questioned whether there is any inherent jurisdiction in this Court to transfer the case elsewhere.

[29] The Children's Lawyer says that this transfer motion must be viewed through the lens of the children before the Court, and that their best interests must be paramount. The Children's Lawyer correctly points out that this Court may grant an individual constitutional remedy in relation to the particular children before the Court. If M'Chigeeng First Nation wants to broaden the scope of the litigation, the Children's Lawyer submits it should do so in a separate proceeding involving all interested parties.

[30] Counsel submits that the children will be prejudiced by the delay to be occasioned if this case is transferred to the Superior Court. The children are entitled to finality. A transfer may, or even will necessarily result in a number of others having an interest in this case, more expensive litigation will ensue, and more evidence may be required. It may also trigger the Attorneys General of Canada and Ontario to reconsider their decisions not to intervene in this case, decisions they have already made in a different case landscape. Since a determination about the assertion of a section 35 right and its application to the particular children before this Court can be considered within this proceeding, the delay and prejudice consequent upon a transfer must be avoided, by dismissing the motion.

(4) The Father's Position

[31] The father also opposes the motion to transfer this matter to the Superior Court. In some respects, he adopts the submissions of the Children's Lawyer.

[32] In addition, in his written material, he also argues that the mother and M'Chigeeng First Nation have raised constitutional issues as "a distraction and delay tactic" to justify the mother's non-compliance with court orders. He says that M'Chigeeng First Nation's position regarding the constitutional question, on its merits, is disingenuous.

[33] But really during argument, the father's submissions focused on the fact that the parties have three young children together. He wants the custody and access issues resolved in a timely way. He finds it unfair that he is being made to be the principal respondent, opposing significant constitutional litigation, when he just came to Court to address issues relating to his own family. He makes this argument already in the context of the case before this Court, let alone in relation to what might be expanded litigation, if this case is transferred.

[34] Some of the father's arguments are economic in nature. In short, he cannot afford the litigation. He raises access to justice issues.

PART III: CONTEXT OF THE TRANSFER MOTION

[35] To properly understand the various arguments made, I must place them into their full context, including that of the prior proceedings, out of which this transfer motion has arisen. And because M'Chigeeng First Nation's position in particular, focuses on this Court's inability to grant declaratory relief, I must first map out what is already before the Court in the pleadings and Notices of Constitutional Questions filed, and what can properly be before this Court, versus the Superior Court.

A. The Timing and Substance of The Mother's and M'Chigeeng First Nation's Constitutional Claims

(1) Overview

[36] At the very early stages of this case, this Court was told that constitutional claims may be brought. This Court was initially told that it lacked the jurisdiction to hear the custody and access issues relating to these children, not based on a request for declaratory relief, but because of the assertion of certain constitutional rights, and how certain statutory and constitutional legal questions should be decided and applied within this case.

[37] Nonetheless, neither the mother, nor M'Chigeeng First Nation, took immediate steps to advance their constitutional claims, until they were directed by the Court to do so. The Court imposed a deadline for them to commence those claims, when it became apparent that they, while not being formally advanced, were nevertheless being raised as an impediment to the Court dealing with the custody and access issues on an interim basis.

[38] More particularly, October 2, 2019 was the first return date after this Court granted the ex parte Order of September 17, 2019. It was on that date that the Court was orally told, for the first time that M'Chigeeng First Nation, intended to seek party status and to assert jurisdiction over Bella and Lionel.

[39] On the next date, October 7, 2019, a mere 20 days after this case began, the Court indicated it was prepared to case manage the constitutional issues, if advanced. In response, counsel for M'Chigeeng First Nation said that M'Chigeeng may or may not be proceeding with constitutional claims at all, depending on the outcome of the custody and access motion. However, arguments relating to this Court's jurisdiction to address interim issues continued to be raised over the next two to three months, while the mother remained on M'Chigeeng First Nation with the children, contrary to the ex parte Order.

[40] On December 5, 2019, after the Court gave additional directions, including that the Attorneys General for Canada and Ontario were to be notified, M'Chigeeng First Nation committed to bringing a motion to be added as a party to this proceeding. The history of how this all unfolded is more fully set out in Neshkiwe v. Hare, 2019 ONCJ 946, Neshkiwe v. Hare, 2020 ONCJ 42, and Neshkiwe v. Hare, 2020 ONCJ 149.

(2) Neither the Mother's Answer, Nor Her Amended Answer, Claim Declarations

[41] As indicated earlier and in the prior Endorsements of this Court, the mother initially launched a proceeding in the Ontario Court of Justice in Gore Bay, Ontario on September 13, 2019. In that Application, she claimed custody, child support and a restraining order. While that proceeding was withdrawn after this one began, I note that she was the first of the two parents who chose to launch a proceeding in the Ontario Court of Justice, not in the Superior Court, and initially, she made no reference to the constitution.

[42] In her initial Answer dated September 23, 2019 filed in this proceeding, the mother again claimed custody in this Court, an order that the father would have access as agreed upon, and child support and a restraining order. She also asked that this case be transferred to the Ontario Court of Justice in Gore Bay, not the Superior Court. There is no mention of the constitution in her initial Answer in this case, either.

[43] I acknowledge that the mother was not represented when she prepared those documents. The constitutional issues, raised after the mother obtained legal advice about how she wished to pursue her case, are complex. A litigant is generally entitled to amend a pleading, and a party is free to raise constitutional issues. So I do not place much weight on the omission of any reference to the constitution in the initial documents of an unrepresented litigant. But the scope of her constitutional claims, once she obtained counsel and legal advice, is worthy of mention.

[44] The first reference to possible constitutional issues in the written material was actually made, not by the mother, but in Ms. Debassige's affidavit of September 23, 2019. That affidavit was filed in support of the mother's case in this Court. The reference to those constitutional issues is by no means explicit. Although M'Chigeeng First Nation referenced its jurisdiction over the children in that affidavit, at that point, Ms. Debassige indicated that M'Chigeeng was supporting the mother's custody application, in Court, but in the case which was then still pending in the Ontario Court of Justice in Gore Bay, Ontario.

[45] The mother amended her Answer to claim a constitutional remedy in early November, 2019. The mother's Amended Answer dated November 7, 2019 mostly contains facts relating to her relationship with the father, and about the children. However, at paragraph 62 of that Amended Answer, the mother states:

I respect this court and His Honour, however, M'Chigeeng First Nation has its own law to decide on child custody proceedings concerning children of the First nation as it has a legal fiduciary duty owed to them and cannot neglect that duty. I ask His Honour to transfer this proceeding to [the Ontario Court of Justice in] Gore Bay so that a legal challenge as to jurisdiction can be held in a court closest to my First Nation and where such matters may be more familiar.

[46] In her affidavit of November 6, 2019, Ms. Debassige states that the [Ontario Court of Justice] in Gore Bay may "render efficiency as it is accustomed to handling court cases involving First Nations and First nations peoples and has handled Notices of Constitutional Questions under section 35 of the Constitution Act, 1982 …".

[47] The precise relief pleaded in the Amended Answer deletes the mother's claims for custody, child support and a restraining order and asks for orders "transferring jurisdiction of this child custody proceeding to M'Chigeeng First Nation pursuant to " A By-Law For the Care of Children of the Members of M'Chigeeng First nation #001/01 " and/or "An Order for the Challenge to Ontario and Canada on the issue of the Constitutional Question that M'Chigeeng has jurisdiction over the children be heard in Gore Bay Ontario."

[48] There is no claim for declaratory relief in the mother's Amended Answer. Nor is there any mention of the Superior Court. To the contrary, she wanted these questions about her children adjudicated in a different Ontario Court of Justice elsewhere in Ontario.

(3) The Initial Notices of Constitutional Question

[49] The manner in which the mother and M'Chigeeng First Nation launched their constitutional questions was somewhat unusual. As counsel for Ontario submitted during at least one of the court attendances, normally a party ought to have moved to be added as a party first, and then deliver a Notice of Constitutional Question once added as a party. But again, between late September, 2019 and January, 2020, both the mother and M'Chigeeng First Nation had raised constitutional arguments without formally launching them, fully. In order to ensure that the return of the father's ex parte motion (and the other motions) could move forward, the Court prepared two Endorsements and gave a number of directions, which included imposing a timetable for the mother and M'Chigeeng First Nation to act.

[50] By its Endorsement of December 2, 2019, the Court notified both Attorneys General of Canada and Ontario of the constitutional issues that were then being raised orally at various attendances, in the absence of any Notices of Constitutional Question. In its Endorsement of December 5, 2019, following appearances in Court by counsel for the Attorneys General of Canada and Ontario, the Court then imposed a timetable for any other Notices of Constitutional Question to be served and filed. It was on that date that the Court also scheduled M'Chigeeng First Nation's motion to be added as a party to this proceeding.

[51] Following the December 5, 2019 Endorsement, both the mother and M'Chigeeng First Nation filed Notices of Constitutional Question on December 17, 2019. At that point, M'Chigeeng First Nation had still not been added as a party to the proceeding. The initial Notices of Constitutional Question are identical in their substance. They differ from what was subsequently put before the Court, after M'Chigeeng First Nation's party status motion was argued and granted.

[52] Neither of the first Notices mention declaratory relief, nor at that point, had any mention been made by counsel of the need to transfer this case to the Superior Court. To the contrary, the preambles say that the mother and M'Chigeeng First Nation intended to question the constitutional validity of this Court's jurisdiction over Bella and Lionel, only. The Notices say that question is to be argued in this Court. Paragraphs 22 of those first two Notices say that the Ontario Court of Justice lacks jurisdiction to make orders relating to the particular children before the Court. Those paragraphs also say that this Court's Order of September 17, 2019 ought to be set aside, and that this Court is unable to make a variety of other orders under provincial legislation.

[53] As I explained in prior the Endorsements, the initial Notices of Constitutional Question not only raised constitutional claims based on section 35 of the Constitution Act, 1982, but also division of powers arguments, based on sections 91 and 92 of the Constitution Act, 1867. The latter were legal questions that could have been argued in this Court as a threshold issue, when the February, 2020 motions were argued. The Court was prepared to hear those arguments.

[54] But following the delivery of the first Notices, I was told that counsel for both Attorneys General were in discussions with counsel for the mother and M'Chigeeng First Nation, in an effort to narrow the scope of, and to clarify whether the constitutional questions would involve those divisions of powers arguments, or just be based on section 35 of the Constitution Act, 1982. Once the Attorneys General were told by counsel that neither M'Chigeeng First Nation nor the mother would be relying on sections 91 and 92 of the Constitution Act, 1867, both Attorneys General made the decision not to intervene in this case.

[55] Following those decisions, M'Chigeeng First Nation and the mother each served revised Notices of Constitutional Question. Those revised Notices were filed on January 22, 2020. They broaden the scope of the constitutional litigation.

[56] I find the timing of the delivery to the Court of those revised Notices to be significant. They were not filed until after the day after I granted M'Chigeeng First Nation's party status motion and added it as a party to this proceeding.

(4) M'Chigeeng First Nation's Motion to Be Added As A Party to this Proceeding

[57] I heard M'Chigeeng First Nation's motion for party status dated December 31, 2019, on January 16, 2020. This history of how it unfolded is more fully set out in Neshkiwe v. Hare, 2019 ONCJ 946, Neshkiwe v. Hare, 2020 ONCJ 42, and Neshkiwe v. Hare, 2020 ONCJ 149.

[58] No mention was made in it of M'Chigeeng First Nation claiming declaratory relief, nor that if M'Chigeeng First Nation was added, it would be adding claims in a pleading that would make this Court the "wrong court".

[59] In the party status motion itself, M'Chigeeng First Nation merely asked that it be added as a party pursuant to Rule 7(5) of the Family Law Rules. M'Chigeeng First Nation did not file a draft Answer with its motion. In addition to Ms. Debassige's affidavit in support of the motion sworn December 29, 2019, M'Chigeeng First Nation's Notice of Motion for party status states that the documents being relied upon included past affidavits of Ms. Debassige, the mother's Amended Answer, and the two initial Notices of Constitutional Question. M'Chigeeng First Nation also filed a factum.

[60] At paragraph 14 of her affidavit of December 29, 2019, Ms. Debassige asked that M'Chigeeng First Nation be granted party status, "for the purposes of a just determination of the proceedings involving Ms. Hare and Mr. Neshkiwe that involve a determination of their children's best interests". In its factum, M'Chigeeng First Nation argued (and the Court agreed), that among other things, M'Chigeeng First Nation had a legal interest in the case, meaning that an order could be made in its favour and/or that any order of this Court would affect the First Nation. See also Neshkiwe v. Hare, 2020 ONCJ 42 at ¶ 96.

[61] None of the documents upon which the motion was based referred to declaratory relief. Had the Court been told that M'Chigeeng First Nation would be asking for declaratory relief, there may have been different arguments respecting the test to add a party (ie. specifically, whether M'Chigeeng First Nation could have a legal interest in this case, since it would seek declaratory relief, a remedy which cannot be awarded by this Court).

(5) M'Chigeeng First Nation Claims Declaratory Relief in its Answer

[62] At page 6 of its Answer of January 27, 2020, filed on January 31, 2020, M'Chigeeng First Nation now claims a "declaration pursuant to section 35(1) of the Constitution Act, 1982 … that [it] has an aboriginal right in accordance the customary law as it pertains to child custody proceedings and family well-being concerning M'Chigeeng First Nation children and that Ontario Provincial and Canadian Federal legislation is of no force or effect as they pertain to child custody proceedings and family well-being concerning M'Chigeeng First Nation children".

[63] But elsewhere, and more specifically on page 2 the Answer, M'Chigeeng First Nation continues to "assert an aboriginal right in accordance with customary law to jurisdiction over the parties' children". M'Chigeeng First Nation says it relies on the by-law it enacted, section 35(1) of the Constitution Act, 1982, and it claims that the "affirmation and recognition of an aboriginal right to address family well being matters in accordance with customary law under section 35(1) of the Constitution Act, 1982", renders various provisions of the Children's Law Act, the Family Law Rules and the Courts of Justice Act inapplicable (ie. sections 18(1), 21(1), 28(1), 36, 38 and 69 of the Children's Law Reform Act, sections 21.11(2), 38(2) and 89(3.1) of the Courts of Justice Act, and all of the Family Law Rules).

[64] Apart from the curious reference to section 21.11(2) of the Courts of Justice Act, there is no mention of the Superior Court in its Answer. To the contrary, the pleading references the inapplicability of section 38(2) of the Courts of Justice Act. That sets out the jurisdiction of the Ontario Court of Justice. So while in one respect, M'Chigeeng First Nation's Answer claims declaratory relief and a reference to the inapplicability of all Ontario provincial and federal legislation to all M'Chigeeng children, in another respect, there continues to be a more tailored challenge to particular legislation pertaining to Bella and Lionel, and to the statutory jurisdiction of this Court.

(6) The Revised Notices of Constitutional Question

[65] Prior to receiving the mother's and M'Chigeeng First Nation's revised Notices of Constitutional Question on January 22, 2020, I understood the purpose of their serving revised Notices to be to narrow the scope of the constitutional claims, by deleting division of powers arguments.

[66] Although she mentioned declaratory relief in her revised Notice of Constitutional Question (filed with the Court only after the party status motion was granted), the mother took no steps to seek permission to amend her Answer further. So in the mother' case, there is no actual claim for declaratory relief in her Amended Answer of November 7, 2019.

PART IV: SUMMARY OF THIS COURT'S RULING RESPECTING THE TRANSFER MOTION

[67] The transfer motion was argued by M'Chigeeng First Nation as though the fact that this Court cannot grant declaratory relief is determinative that the case should be transferred. In my view, that does not mean that this Court is unable to deal with this case in a fair and effective way, nor that it lacks the ability to grant a meaningful constitutional remedy to both the mother and to M'Chigeeng First Nation.

[68] This Court is able to effectively grant the mother and M'Chigeeng First Nation the very remedy that they are actually seeking as it pertains to the two children before the Court. Although this Court is unable to declare the existence of an aboriginal right or strike down legislation as invalid, were this Court to recognize the existence of such a right, that is nevertheless meaningful. Just because the effect of such a finding at first instance may not be as broad as M'Chigeeng First Nation otherwise wants, does not make this the wrong forum for the resolution of the dispute.

[69] I agree with the Children's Lawyer that this transfer motion must be viewed through the lens of the best interests of the children before the Court. The delay to be occasioned, were this Court to transfer this case to another Court, would be unacceptable. The litigation is already well underway in this Court, and the parties should be able to be trial ready soon.

[70] And finally, I find the submission respecting appeal routes, the alleged corresponding delay in getting to a higher level of court on appeal were the case to remain in this Court at first instance, and the fact that there is another case in Belleville, Ontario before the Family Court of the Superior Court of Justice, to be irrelevant to the questions I must decide on this transfer motion. If I am wrong in my characterization of the irrelevancy of those arguments, then they still do not tip the scale in favour of a transfer.

[71] For those and other elaborated reasons that follow, the request to transfer this case to the Superior Court of Justice is therefore dismissed.

PART V: ISSUES AND ANALYSIS RESPECTING THE TRANSFER MOTION

A. The Statutory Jurisdiction To Transfer A Case From The Ontario Court Of Justice To The Superior Court Of Justice

[72] Section 138 of the Courts of Justice Act specifies that as far as possible, a multiplicity of legal proceedings is to be avoided.

[73] There are a number of statutory provisions in the Children's Law Reform Act, in the Courts of Justice Act, and in the Family Law Act, that provide for the transfer or consolidation of family law cases, or which allow for directions to be given, to avoid or reduce multiplicities from occurring. To analyse the transfer issue, I begin by setting out this Court's own jurisdiction, and the limits of that jurisdiction. The Court at first instance best suited to assess the limits of jurisdiction is the very court whose jurisdiction is challenged. See Deronov v. Agathocli, 1994 CarswellOnt 385 (Gen. Div.) ¶ 21.

(1) The Statutory Jurisdiction Of The Ontario Court Of Justice

[74] Section 38(2) of the Courts of Justice Act specifies that the Ontario Court of Justice shall perform any function assigned to it under the Provincial Offences Act, the Family Law Act, the Children's Law Reform Act, the Child Youth and Family Services Act, 2017 or any other Act.

[75] In the absence of the constitutional claim challenging jurisdiction, there is no question that both parents properly claimed relief in the Ontario Court of Justice under the Children's Law Reform Act, the Family Law Act, and the Courts of Justice Act: see the definition of "court" in section 18(1) of the Children's Law Reform Act, section 1(1) of the Family Law Act, and various sections of the Courts of Justice Act, specifically sections 1.1, 10, 34 and 38. And as I will further explain, there is also no question that this Court, even though it is a provincial court having statutory as opposed to inherent jurisdiction, may nevertheless hear and determine constitutional questions that arise during the course of a proceeding, that is properly before it.

[76] Initially, both parents individually chose to resolve his and her affairs before this Court; not the Superior Court. Neither party was married to the other, such that either might want or need to make claims under the Divorce Act. The way that this case began was that each parent individually, unbeknownst to the other, went to a different Ontario Court of Justice in the province, to launch his and her own separate applications under provincial legislation.

(2) The Transfer Sections Of The Children's Law Reform Act And The Family Law Act

[77] Section 66 of the Children's Law Reform Act reads:

All proceedings in one court – Except as otherwise provided, where an application is made to a court under this Part, no person who is a party to the proceeding shall make an application under this part to any other court in respect of a matter in issue in the proceeding, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the opinion of the court, the court having other jurisdiction is more appropriate to determine the matters in issue that should be determined at the same time.

[78] Section 2(2) of the Family Law Act reads:

All proceedings in one court – Except as this Act provides otherwise, no person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the first court's opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time.

[79] These sections operate to prevent a party to a proceeding under either Act from bringing another application in another court, for claims under that same piece of legislation. This prohibition applies irrespective of whether the second application would be to a court of coordinate jurisdiction in the same location (for example, a subsequent application to the Superior Court in Toronto that also makes claims under provincial legislation, where there is already an application pending before the Ontario Court of Justice), or to another Court elsewhere within the province.

[80] The sections go on to specify that the first proceeding may nevertheless be transferred to the other court, where the first court is of the opinion that the second court is more appropriate. The court having jurisdiction to make that transfer decision is the original court, not the receiving court. See Deronov v. Agathocli ¶ 17-21.

[81] Although M'Chigeeng First Nation relies in part on section 2(2) of the Family Law Act in support of its request to transfer this case to the Superior Court, section 2(2) is not an answer to M'Chigeeng First Nation's motion.

[82] Deronov v. Agathocli involved a request to transfer claims under the Family Law Act from this Court the Superior Court, to allow one party to advance a claim for security for support under the Family Law Act. The motion ultimately failed because it was brought in the Superior Court, whereas it ought to have been brought in the Ontario Court of Justice. But in obiter, at ¶ 15, Epstein J., as she then was, also stated when explaining the parameters of the section, that section 2(2) does not provide for the transfer of claims, made under other legislation, from one court to the other, either.

[83] Each of sections 66 and 2(2) of the Children's Law Reform Act and the Family Law Act contemplate that the transfer would be occurring to permit additional claims to be made under the Children's Law Reform Act or the Family Law Act, as the case may be, in the new Court. That is not the reason for the transfer request in this case. Rather here, there are already claims made under the Family Law Act, the Children's Law Reform Act, the Courts of Justice Act, and the Constitution Act, 1982, and this Court has authority to deal with those claims. M'Chigeeng First Nation seeks the transfer to pursue a particular, additional constitutional remedy. Neither sections 66 or 2(2) authorize the transfer of a case for that purpose.

(3) The Transfer Sections Of The Courts Of Justice Act

[84] Section 107 of the Courts of Justice Act provides for the transfer or consolidation of, or for an order for directions regarding how two or more cases will be heard. M'Chigeeng First Nation does not rely on this section, but in advance of argument, the Court nevertheless requested submissions about its applicability, in light of the analysis in one of the cases provided to the Court by counsel. Having now heard the submissions, all counsel agree that this provision has no application on this motion. That is because there must be two or more proceedings already pending in two or more different courts for this provision to apply, and one of three enumerated factors listed in the section must be engaged. Notably, a motion for the transfer or consolidation of multiple cases under this section would have to be sought in the Superior Court, not in this Court. See section 107(4) of the Courts of Justice Act; see also Dobert v. McCulloch, 2008 ONCJ 673 ¶ 57; and Turner v. Martin, 1996 CarswellOnt 223 (Prov. Div.) ¶ 4.

[85] M'Chigeeng First Nation does rely on section 110 of the Courts of Justice Act, however. Section 110 provides that where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer. In general, this section requires a two-step analysis.

[86] Given that the family law claims are properly before this Court, and given that the Court may grant individual constitutional remedies to the parties, the first question to decide is whether M'Chigeeng First Nation, by claiming additional declaratory relief, has in effect made this Court the "wrong court" within the meaning of section 110 of the Courts of Justice Act. And second, the use of the word "may" in section 110 signals that even if this Court determines it is now the "wrong court", the decision to transfer the case is discretionary, not mandatory. Therefore, even if I find that this case is now in the "wrong court" because M'Chigeeng First Nation wishes to claim declaratory relief, I must still consider whether this Court should either transfer the whole of the case, or alternatively the constitutional claims only, based on the exercise of discretion.

B. Whether The Ontario Court Of Justice Is The "Wrong Court"

(1) The Jurisdiction To Grant Declaratory Relief

[87] There is no debate that this Court may not grant declaratory relief. But does the fact that M'Chigeeng First Nation claimed declaratory relief after seeking an Order adding it as a party now make this Court the "wrong court"? For the reasons that follow, my answer to that question is no.

[88] Section 11(2) of the Courts of Justice Act states that the Superior Court has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario. Section 97 of the Courts of Justice Act states that the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make binding declarations of right whether or not any consequential relief is or could be claimed. There is no statutory provision (nor any inherent jurisdiction) that authorizes the Ontario Court of Justice to grant declaratory relief.

[89] Declarations are made pursuant to a four-part test:

(a) First, the Court must have jurisdiction to hear the issue;

(b) Second, the dispute must be real and not theoretical;

(c) Third, the party raising the issue must have a genuine interest in its resolution; and

(d) Fourth, the responding party should have an interest in opposing the declaration being sought.

See S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4 ¶ 60.

[90] Since the first branch of the test requires the Court hearing the case to have the jurisdiction to grant a declaration, obviously, if this case remains in the Ontario Court of Justice, the test cannot be satisfied.

(2) The Meaning of "Wrong Court" In Section 110 Of The Courts Of Justice Act

[91] Nevertheless, the Children's Lawyer submits that section 110 still has no application to the circumstances of this case. This Court's inability to grant declaratory relief does not make it the "wrong court".

[92] Section 110 of the Courts of Justice Act has been applied in other contexts. For example, there are decisions that consider whether cases in the Small Claims Court should be transferred to the Superior Court, and there are decisions transferring cases between appellate courts, where an appeal had been taken in the wrong court, among other kinds of cases. While I am also aware of reported decisions in which constitutional claims have been transferred between branches of the Superior Court (for example between the Divisional Court and the Superior Court, based on the Judicial Review Procedure Act versus the Superior Court's inherent jurisdiction to grant a constitutional remedy), no counsel drew to my attention to any decision in which a provincial court was asked to transfer a case so that a party, or an added party in particular, could pursue an additional claim for declaratory relief in constitutional litigation.

[93] I begin with some of the cases decided in other contexts. In Tawfik v. Baker, 1992 Carswell Ont 333 (Gen. Div.), a party had made a claim in the Small Claims Court that exceeded the monetary limits of the Court. Sheard J. held that where a party chooses to bring a proceeding in a Court, and then makes a claim for a remedy that the Court lacks the jurisdiction to grant, that does not necessarily make the chosen Court the "wrong court". Making the wrong choice is not tantamount to the chosen court being the "wrong court". See Tawfik v. Baker ¶ 3.

[94] In Alexandrov v. Csanyi, another case about the monetary limits of the Small Claims Court, Low J. dismissed a motion for leave to appeal the decision of O'Marra J., who dismissed a motion to transfer and consolidate Small Claims Court proceedings in the Superior Court. At ¶ 9, Low J. held that the fact that the defendants made a claim for $10,000 in the prayer for relief of a pleading, while alleging damages of $1,000,000 in the body of the pleading, did not make the Small Claims Court the "wrong court". Section 110 is a "remedial provision which preserves the rights of litigants who may have lost them due to the lapse of limitation periods or other time deadlines by reason of having taken proceedings in a court without jurisdiction".

[95] At ¶ 10 and 13, Low J. went on to hold that the Small Claims Court is "not a court without jurisdiction". The Small Claims Court had jurisdiction over the personal injury dispute. Litigants may elect to forgo certain claims for relief in excess of the Court's monetary jurisdiction, in exchange for speed and economy of that Court's processes. I also note that in dismissing the motion for leave to appeal, Low J. said that as no limitation period had elapsed, it was still open to the defendants to discontinue their claim and commence a new action in the Superior Court.

[96] In Colonnade Development Inc. v. National Capital Commission, the unsuccessful party moved for a stay of an order pending an appeal, pursuant to Rule 63 of the Rules of Civil Procedure. The motion was taken before the judge in the Court below, who had rendered the decision now being appealed.

[97] Rule 63.02(1) of the Rules of Civil Procedure allows for a stay motion to be brought in the court of first instance, or in the appellate court. Having chosen to proceed in the court below, the moving party then complained that the Court of Appeal would be a more "appropriate forum" for the stay motion, and sought a transfer there instead. At ¶14 of the decision, Power J. said, "[i]n my opinion, [section 110] is directed to motions or proceedings that have been launched in a court that lacks jurisdiction. It does not apply to the situation where a party has the right to chose one or another court. Surely, a party who elects to apply in one of the court's having jurisdiction, should sink or swim in that court".

[98] And although not a transfer motion per se, in Doherty-Mulder v. Mrowietz (2003), 43 R.F.L. (5th) 313 (S.C.J.), one of the parties brought an application in the Superior Court to vary an order of this Court. Kruzick J. declined jurisdiction. First, the Superior Court cannot vary an order of this Court; only this Court may do so. But also at ¶ 7 he wrote, "The parties had a choice with respect to how they would proceed when this matter was commenced. They chose the Ontario Court to govern their affairs".

[99] Each of these decisions focuses somewhat on a litigant's choice to pursue a case in one Court or another. In the former three cases, the fact that the litigants were aware of the limits of the first Courts' jurisdiction but chose to go there, weighed heavily in the outcomes that the initial Courts were not the "wrong court[s]". And there are other possible advantages and disadvantages of proceeding in that Court versus another will be taken into account.

(3) Whether M'Chigeeng First Nation's "Choice" To Proceed In This Court Is Dispositive Of The Transfer Motion

[100] In this case before me, a number of choices were made. M'Chigeeng First Nation chose to attend before this Court from the outset, and to orally challenge the jurisdiction of the Court to have made the ex parte Order. It issued a trespass notice relating to the father, passed a Band Council Resolution relating to these children, and it issued instructions to U.C.C.M. respecting police enforcement for this case, all of which enabled the mother's non-compliance with the ex parte Order. It served the first Notice of Constitutional Question, and then brought a motion to be added as a party for the express purpose of supporting the mother's position in this litigation and to challenge the jurisdiction of this Court over these children. Then, only after the Court granted M'Chigeeng First Nation party status in this case to allow it to pursue just that, it claimed broader relief going beyond the jurisdiction of this Court.

[101] I appreciate that section 35 rights are sui generis, and that constitutional litigation often unfolds in a new, or developing legal landscape. And I am sensitive to the fact that the scope of, or direction of any litigation, never mind constitutional litigation, may change as the case moves forward over time. Generally speaking, pleadings may be amended.

[102] But it is also well established that this Court lacks the jurisdiction to grant declaratory relief. Knowing that, M'Chigeeng First Nation chose to take steps to intervene in a case pending before this Court.

[103] The decisions taken in this litigation could be a sufficient basis to dismiss this transfer motion. Regardless, I still would not decide the motion based on choice alone. Instead, I turn to several cases from the Supreme Court of Canada, which consider the jurisdiction of provincial and superior courts to grant constitutional remedies, and the effect of rulings of provincial courts.

(4) Kourtessis v. Minister of National Revenue

[104] Kourtessis v. Minister of National Revenue, 1993 CarswellBC 1213 (S.C.C.), concerned a challenge to the validity of search warrants issued pursuant to the Income Tax Act, as well as a challenge to the constitutionality of a provision of the Income Tax Act. In Kourtessis v. Minister of National Revenue, no trial court had been constituted, as charges had not been laid. So Mr. Kourtessis had no other option but to launch a stand alone application for declaratory relief before the British Columbia Supreme Court to challenge the warrants.

[105] A question that the Court had to decide was whether that application for declaratory relief, could even be brought before a superior court, in the absence of a yet to be constituted criminal proceeding. There was also a separate argument made about the propriety of bringing an action for declaratory relief, as the outcome might then create a new appeal route that did not otherwise exist according to statute.

[106] The question about whether there could be a separate proceeding for declaratory relief turned heavily on the lack of another process in which the warrants could be challenged. At ¶ 105, Sopinka J. wrote, "[t]his does not mean that an action for a declaration can be used as a substitution for an application to the trial judge in a criminal case in order to acquire a right of appeal…. "[t]he [Superior] Court is justified in refusing to entertain the action if there is another procedure available in which more effective relief can be obtained or the Court decides that the legislature intended the other procedure to be followed"… and "[a]s a general rule, this discretion should be exercised to refuse to entertain the action when declaratory relief is being sought as a substitute for obtaining a ruling in a criminal case".

[107] Likewise, in a concurring opinion on this point, at ¶49, La Forest J. held, "[t]he policy concern against allowing declarations, even of unconstitutionality, as a separate and overriding procedure is that they will, in many cases, result in the undesirable procedural overlap and delay. As long as a reasonable effective procedure exists for the consideration of constitutional challenges, I fail to see why another procedure must be provided."

[108] But in the result, at ¶ 50 and ¶ 106, La Forest J. and Sopinka J. each found that there was no adequate statutory provision for a constitutional review of the type of search warrant involved in that case, because of the absence of an already constituted criminal proceeding. That is specifically contrasted with a situation where an accused person had in fact been charged with an offence. When the trial process begins, there is a "competent court" and the trial judge can deal with Charter applications, La Forest J. said. In that scenario, "there must be few circumstances indeed when an accused should be permitted to pursue an action for a declaration, though it has proved useful as a tool by persons other than the accused whose constitutional rights are directly affected by a decision taken in the course of criminal proceedings."

[109] It might have been argued, when this case began, that M'Chigeeng First Nation as a third party did not have recourse to a remedy from this Court and therefore could seek declaratory relief in the Superior Court. Perhaps M'Chigeeng First Nation was the type of third party La Forest J. was referring to in Kourtessis v. Minister of National Revenue.

[110] But that is not how M'Chigeeng First Nation proceeded. Instead, M'Chigeeng First Nation sought party status in this case. Its ability to participate in this proceeding and to claim a remedy has already been addressed. M'Chigeeng First Nation has full rights to participate in this proceeding and to claim a remedy before this Court. It must do so within the limits of this Court's jurisdiction.

[111] Although the Supreme Court's comments in Kourtessis v. Minister of National Revenue were made in the context of claims for Charter relief in relation to criminal law issues, other cases, which I turn to next, lead me to conclude that those comments apply to claims made under section 35 of the Constitution Act, 1982, and not just in the criminal law context, too.

(5) Whether There Is An Effective Procedure Available In this Court

[112] In the written material, arguments have been made that there is, or that there should be, a distinction drawn because Charter relief is different from claiming a remedy as a result of a breach of section 35.

[113] Section 35 of the Constitution Act, 1982 reads:

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

35(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

35(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

35(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

[114] Part I of the Constitution Act, 1982 is the Canadian Charter of Rights and Freedoms. Section 24 is the Charter's remedial section. Section 24(1) reads:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[115] And section 24(2) provides for the exclusion of evidence in proceedings under section 24(1) in appropriate circumstances.

[116] It is true that the Charter consists of 34 sections. Section 35 is in Part II of the Constitution Act, 1982, not in the Charter. While the remedial section 24 of the Charter does not apply to remedy breaches of section 35 of the Constitution Act, 1982, section 52(1) does. Insofar as the availability of a process to assert a section 35 right and to claim a remedy are concerned, since there is already a process constituted in this Court in which to consider those, I disagree that there is any distinction to be drawn based on the particular nature of this constitutional litigation arising under section 35.

[117] More particularly, section 52(1) of the Constitution Act, 1982 reads:

52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[118] Although he was speaking, again in the criminal context, and also about what is a "court of competent jurisdiction" to order a remedy under section 24(1) of the Charter, at ¶ 10-11 of R. v. Mills, 1986 CarswellOnt 116 (S.C.C.), McIntyre J. held that a provincial court is a competent where it has jurisdiction conferred by statute over the offence and the person, and the power to make the orders sought. A claim for a remedy under section 24(1) arising in the course of a trial will fall within the Court's jurisdiction as a "necessary incident of the trial process".

[119] Likewise, in Ontario v. 974649 Ontario Inc., 2001 SCC 81, McLachlin J. considered whether this Court, and in particular a justice of the peace, sitting in a trial court under the Provincial Offences Act, was a "court of competent jurisdiction" in which a particular Charter remedy under section 24(1) could be obtained. In determining that it could, McLachlin J. held that a statutory court or tribunal's ability to grant a Charter remedy depends on its "function and structure".

[120] According to that "function and structure test", this Court has statutory jurisdiction over the family law issues and over the parties. This Court is a court, having an adjudicative function. This Court has all of the corresponding structures of a court in place. The proceedings in this Court are judicial in nature. The parties may be represented by counsel. The rules of evidence apply, and the decision that will be made will be that of a judge, with all of the usual training and experience that accompanies that role. Judges of this court enjoy judicial independence, and they are impartial. The Family Law Rules, which govern this proceeding, apply in both this Court and the Superior Court. There will be a proper record created in this court, capable of scrutiny on appellate review, should there be an appeal.

[121] So in sum, according to the "function and structure test" articulated in Ontario v. 974649 Ontario Inc., this Court would be empowered to grant a constitutional remedy under section 24(1) of the Charter. See Ontario v. 974649 Ontario Inc. ¶ 44, 45.

[122] And it is not that this Court may only grant Charter remedies. A provincial court judge may also consider and apply section 52(1), where there is a question about the constitutionality of legislation that forms part of the underlying case properly before the Court.

[123] In R v. Big M Drug Mart Ltd, 1985 CarswellAlta 316 (S.C.C.) a provincial court judge dismissed charges under the "Lord's Day Act" alleging that Big M Drug Mart offered items for sale on a Sunday. In so doing, the judge held that the law was not valid and declined to apply it.

[124] On appeal, the Attorney General for Alberta argued that the provincial court judge lacked jurisdiction to make any form of declaration under section 52(1), as only a superior court has the prerogative power to make a declaratory order under section 52. At ¶ 39, the Supreme Court held, "[s]ection 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law". At ¶ 48, the Court held that Big M did not come to court for the purposes of having the law declared unconstitutional. Rather, the provincial court judge was asked to prevent a violation of section 52(1) by dismissing the charges.

[125] A similar interpretation prevailed in R v. Lloyd, 2016 SCC 13. In R. v. Lloyd, a provincial court judge found a mandatory minimum sentence provision in the Criminal Code to be unconstitutional. In declining to apply it, he unfortunately used the word "declare". See ¶ 14. On appeal to the Supreme Court, arguments were once again raised about the provincial court's lack of declaratory power.

[126] McLachlin J. held at ¶ 15 that, "[p]rovincial court judges are not empowered to make formal declarations that a law is of no force or effect under section 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them."

[127] While R. v. Mills, Ontario v. 974649 Ontario Inc., R v. Big M Drug Mart Ltd., and R v. Lloyd were decided in criminal or quasi-criminal contexts, these principles have also been applied by the Supreme Court in the civil context, too. See Martin v. Nova Scotia (Worker's Compensation Board), 2003 SCC 54.

[128] Finally, if there was any doubt about the power of a statutory court (or some administrative tribunals) to apply section 52(1) of the Constitution Act, 1982 in cases where an aboriginal right is claimed under section 35, that was also considered and approved of by the Supreme Court too. The power exists, according to similar principles. See Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55. Incidentally, I note that some of the leading cases, which set out the test for making a claim under section 35 of the Constitution Act, 1982, originated as prosecutions in provincial courts. See R. v. Sparrow, 1990 CarswellBC 105 (S.C.C.); see also R. v. Van der Peet, 1996 CarswellBC 2309 (S.C.C.).

[129] It is true that a superior court always retains jurisdiction to grant a constitutional remedy, even where there is already a proceeding in another court. And none of the aforementioned decisions consider whether a case that is properly before a provincial court should be transferred to a superior court, based on a party, and to be more specific an added party, subsequently including a claim for declaratory relief into the mix. But the authority also reveals that, unless the superior court is also the trial court (ie. unless the main case was initially brought in a superior court in the first place), a superior court should generally decline to consider such a separate application for a constitutional remedy. The constitutional remedy will normally be sought in the court where the issues arise.

[130] There are exceptions to that rule. They would include where there is no effective trial process available, (such in Kourtessis v. Minister of National Revenue as no charges had been laid), or like in Rahey v. R., a case in which a remedy was sought under 11(b) of the Charter for delay, but where the court below contributed to the delay and the Charter violation. (See Rahey v. R., 1982 CarswellNS 38 (S.C.C.) ¶ 16. See also R. v. Smith, 1989 CarswellMan 13 (S.C.C.) ¶ 22-23).

[131] Neither of which is happening in this case. No other examples of exceptions that might apply here were brought to my attention by counsel. To the contrary, this Court has been actively engaged in case management, and has more than once offered to manage this case to its trial. Even counsel for M'Chigeeng First Nation admitted that M'Chigeeng First Nation did not launch such a separate proceeding for declaratory relief in the Superior Court, because M'Chigeeng First Nation did not want to be perceived as mounting a collateral attack on this Court's process.

(6) Whether This Court May Grant A Meaningful Constitutional Remedy

[132] Although aspects of some of the cases focus on the availability of a suitable process to decide the constitutional issues, as opposed to the jurisdiction to grant any particular constitutional remedy per se, I still asked counsel to address the relevance of this Court's inability to grant declaratory relief. It may be that the importance of a certain remedy in any particular case, could be such that it should influence a transfer analysis one way or the other.

[133] Counsel for M'Chigeeng First Nation submitted that I should place great weight on this Court's inability to grant a declaration as favouring the transfer, whereas counsel for the children suggested little to no weight should be placed on it. To answer that question, I am guided by the Court of Appeal's comments in Beaver v. Hill, 2018 ONCA 816 about the importance that pleadings play in framing the issues. So here, I return to M'Chigeeng First Nation's and the mother's pleadings, and to their Notices of Constitutional Question.

[134] At ¶ 4 of Beaver v. Hill, the Ontario Court of Appeal characterized Mr. Hill's claim as "a constitutional exemption from the application of Ontario family law and the jurisdiction of the Superior Court to determine the parties' dispute." Then at ¶ 39, the Court of Appeal also said, "Mr. Hill has no authority to pursue a constitutional claim on behalf of the Haudenosaunee or the people of Six Nations. He is not a "representative plaintiff". However this is not necessarily fatal to Mr. Hill's personal claim to have the parties' family law dispute decided through "Haudenosaunee governance processes and protocols and according to Haudenosaunee laws". In other words, the Court of Appeal opined that Mr. Hill may be able to individually advance a personal claim that has both individual and collective aspects to it.

[135] In its supplementary written submissions, M'Chigeeng First Nation now says that unlike the applicant in Beaver v. Hill, M'Chigeeng First Nation is not claiming an individual right. Rather, counsel says the First Nation is advancing a collective right on behalf of all of its members. While that may now be so, that is an inaccurate submission of what happened in this case and how these claims can move forward.

[136] Again, neither in her Amended Answer, nor in both initial Notices of Constitutional Question, did either the mother or M'Chigeeng First Nation claim declaratory relief nor any relief respecting any other M'Chigeeng children. Initially, both the mother and M'Chigeeng First Nation were essentially asking the Court to decline to apply various sections of provincial legislation, and thereby to decline jurisdiction over the parties and the children, just like how Mr. Hill sought a constitutional exemption for himself in Beaver v. Hill.

[137] Even in its original form, and regardless of where the claim is adjudicated, M'Chigeeng First Nation, as an added party, would be asserting the collective aspects of the right. But to be clear, it did not initially assert a collective right on behalf of all of its members, to be applied to all of its members in this case. It wanted to have both the individual and collective aspects of the right defined, and then applied to these particular children before the Court. That is something that this Court can do.

[138] Furthermore, the Court of Appeal's comments in Beaver v. Hill about the individual and collective aspects of the asserted right, and who could assert those, were made in the particular context of that case. The issue was whether Mr. Hill, not purporting or being able to speak on behalf of his First Nation, could nevertheless advance the collective aspects of the claimed right to prove its existence in the absence of the First Nation. And the answer to the question was not fully resolved by the Court of Appeal.

[139] One of the several reasons for which this Court added M'Chigeeng First Nation as a party to this proceeding, was to avoid any uncertainty as to who was responsible for advancing the individual versus the collective aspects of the right. In other words, by adding M'Chigeeng First Nation as a party to this proceeding, the interested stakeholders capable of asserting the entirety of the right would be entitled to participate.

[140] Precisely how M'Chigeeng First Nation said it wanted to proceed (ie. in this case, in this Court, and in relation to the children before this Court), was not in dispute. And this was already argued, considered and addressed in the Endorsement respecting the party status motion. See Neshkiwe v. Hare, 2020 ONCJ 42 ¶ 87-90. What M'Chigeeng First Nation now says in its most recent written submissions, reveals a new position, taken in light of the expanded pleading and its revised Notice of Constitutional Question.

[141] It is true that if, in this Court, the remedy claimed ends up being in effect, a constitutional exemption like in Beaver v. Hill, the Supreme Court has dissuaded against the use of that remedy in certain contexts. For example, R v. Ferguson, 2008 SCC 6 concerned a Charter challenge to a mandatory minimum sentencing provision in the criminal code. At ¶ 41, the Supreme Court held that the Court had not "definitively ruled whether constitutional exemptions are available as a remedy for mandatory minimum sentences that produce unconstitutional sentences". But then for various reasons, the Court discouraged its use as a remedy under section 52(1) of the Constitution Act.

[142] However, the specific ruling, set out in ¶ 74 of R v. Ferguson was that "constitutional exemptions should not be recognized as a remedy for cruel and unusual punishment imposed by a law prescribing a minimum sentence". Elsewhere in the decision, the Court referred to its use in other contexts. In at least one other Supreme Court case, L'Heureux-Dubé J. opined that it may be an available remedy under section 24(1) of the Charter. See R v. Ferguson ¶ 44.

[143] So it remains to be argued whether a constitutional exemption is an available remedy in an appropriate case involving an aboriginal right under section 35 of the Constitution Act, 1982. Indeed at ¶ 29 of Beaver v. Hill, the Court of Appeal cautioned courts against making definitive pronouncements on a case in its early stages and where the applicable law is yet in the early stage of development. See also Yancy v. British Columbia, 2020 BCSC 278 ¶62-72, in which the British Columbia Supreme Court distinguished the limiting comments in R v. Ferguson as they pertain to constitutional exemptions in section 35 cases.

[144] The availability of this remedy, among others, will have to be argued in due course. But if it exists, it is not disputed that this Court may grant that remedy. A constitutional exemption is not a particular remedy that falls within the exclusive domain of the Superior Court, necessitating a transfer.

[145] Even if a constitutional exemption is not an available remedy under section 52(1) in section 35 cases, the effect of a constitutional ruling from this Court may serve to offer M'Chigeeng First Nation very similar, if not identical relief. At ¶ 19 of R. v. Lloyd, McLachlin J. held that the effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it pursuant to section 52(1) in the case.

[146] I accept that M'Chigeeng First Nation may not be satisfied with a constitutional exemption, or other type of constitutional remedy, alone, and that it wants a declaration. As M'Chigeeng First Nation argues, declarations are an important, and even a primary remedy used in the pursuit of aboriginal rights. See Newfoundland and Labrador (Attorney General) v. Uashaunnaut (Innu of Uashat and of Mani-Utenam), 2020 SCC 4 ¶247-249. In "Constitutional Remedies in Canada", 2nd ed., Toronto: Canada Law Book, pages 15-62 and 15-63, Professor Roach writes, declarations are significant because they "…may be able to establish legal entitlements in a manner that facilitates negotiation and consensual resolution of disputes between governments and Aboriginal peoples, but in a manner that counteracts Aboriginal people's unequal bargaining power with governments".

[147] Yet, the declaration, while an important one, is still not the only constitutional remedy that will be available. I have already discussed constitutional exemptions. And in Schachter v. Canada, 1992 CarswellNat 1006 (and in other cases), the Supreme Court sets out several other remedies available in under section 52 of the Constitution Act, 1982, including reading into the legislation, and reading it down.

[148] There are a number of cases in which statutory courts, including this Court have granted such remedies. See for example Coates v. Watson, 2017 ONCJ 454; Esquega v. Canada (Attorney General), 2008 FCA 182; Nishri v. R., 1997 CarswellNat 2586 (F.C.A.); Re K.. In fact, counsel for M'Chigeeng First Nation was unable to point the Court to a single other constitutional remedy that it might pursue, which this Court may not grant in this case, and which only a Superior Court may.

[149] Nor do I find, circling back to the earlier argument about the nature of this litigation, that because this case involves a section 35 claim, as opposed to a Charter claim, that somehow calls into question this Court's ability to grant these other constitutional remedies. The remedies of reading in, reading down, and perhaps the constitutional exemption, are all available under section 52 of the Constitution Act, 1982. They do not depend on either the assertion of a Charter right, or the remedy section 24(1) of the Charter.

[150] While aboriginal rights are sui generis, and section 35 litigation will have unique considerations, distinct from Charter litigation and with reconciliation being an important principle, counsel did not explain how this Court is either prohibited from considering and applying those unique features in this case, or how it is otherwise limited in its ability to grant a remedy (apart from the declaration).

[151] Counsel for M'Chigeeng First Nation also told the Court that he may also be arguing for new, or novel remedies flowing from section 35 itself, in addition to those available under section 52 of the Constitution Act, 1982. But similarly, at no point did he submit that such would not be within the purview of the Ontario Court of Justice to consider, either.

(7) Whether the Principle Of Judicial Restraint Is Relevant To The Court's Decision In This Transfer Motion

[152] M'Chigeeng First Nation submits that a finding from this Court defining the scope of the section 35 right, and a finding that a particular law pertaining to Bella and Lionel (and presumably Lincoln) is of no force or effect, will not be binding in other cases. M'Chigeeng First Nation's real argument is about the breadth of application of any finding of this Court on its section 35 claims, and on any impugned legislation, as opposed to the effect of a superior court declaration. Simply put, a superior court declaration will have broader application.

[153] A constitutional claim should be decided based on the factual record before a Court. See Beaver v. Hill ¶ 61. As the Children's Lawyer submits, M'Chigeeng First Nation's broader claims for declaratory relief could involve other children in varied circumstances. For example, this might include children whom are members of M'Chigeeng First Nation, living with their parents on its territory, children with mixed heritages, living either on, or off its territory, or even other M'Chigeeng children living outside Ontario.

[154] The facts of this case involve parents from different First Nations, living away from M'Chigeeng First Nation, in Toronto. At ¶ 68 of Beaver v. Hill, the Ontario Court of Appeal said, "…it is not clear whether the Aboriginal law would bind Ms. Beaver and B., who do not live on the reserve, if they do not consent to its application to them."

[155] In broadening the scope of the legislation it wishes to challenge to include federal legislation, all provincial legislation, and also family "well-being matters", and by including other children who are the subjects of that challenge, many other interests are engaged. The broadened scope appears to include a challenge to the Divorce Act. The Children's Lawyer suggests that M'Chigeeng First Nation, in referring to family "well-being matters", means child welfare legislation. Does M'Chigeeng First Nation intend to challenge the federal Bill C-92, the "Act respecting First Nations, Inuit and Métis children, youth and families", as well as Ontario's child welfare legislation? That engages both levels of government in Ontario, but in a different context.

[156] What about other families, children, and other First Nations? What about other intervenors? Would they be interested in this case, in its broadened form? For example, what about children's aid societies and associations of various child protection groups? Would they be interested, if child welfare legislation is being challenged?

[157] And what about other provincial attorneys general since, for example, M'Chigeeng children might be living elsewhere in Canada? Would they wish to participate? A declaration may impact the laws of other provinces. There is a recent, Supreme Court pronouncement on that very issue. See Newfoundland and Labrador (Attorney General) v. Uashaunnaut (Innu of Uashat and of Mani-Utenam). Even in the Newfoundland decision, the Attorney General of Newfoundland and Labrador, on behalf of the other affected province, was given the right to participate and to make submissions in the proceeding in Quebec for declaratory relief that had cross border implications.

[158] Many of these other interested persons, groups, First Nations, other families and children, and even non-Indigenous parents and children might have an interest in such a case. While it is true that a determination of the issues in this case, initially more narrowly framed as pertaining to only the children before this Court, might affect other children (see Beaver v. Hill ¶ 62), that is quite a different thing than making specific claims directed at those very other children, families, First Nations, governments and other legislation.

[159] At ¶ 12 of Lax Kw'alaama Indian Band v. Canada (Attorney General), 2011 SCC 56, the Supreme Court held, "Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic well-being of both. The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders."

[160] I agree with the Children's Lawyer that the expanded scope of M'Chigeeng First Nation's pleading makes this a different case. Even the Attorneys General of Canada and Ontario, who have already declined to intervene in this particular case (which has led this Court to go to some lengths to secure amicus curiae for this proceeding), would require fresh notice, and might wish to reconsider their position in a broadened case.

[161] At ¶ 75-82 of Vivian v. Courtney, 2012 ONSC 6585, and in particular, at ¶ 75, Penny J. said the following:

In Constitutional Law of Canada, 5th Ed., Prof. Hogg addresses the issue of alternative grounds of decision. He makes the point that the course of judicial restraint is to decide the case, where possible, on the non-constitutional ground. He writes, at pp. 791-792:

A case that is properly before a court may be capable of decision on a non-constitutional ground or a constitutional ground or both. The course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided.

For the same reason, if a case can be decided on a narrow constitutional ground or a wide ground, the narrow ground is to be preferred. If a case can be decided either on a rule of federalism or under the Charter, the federalism ground is the narrow one, because it leaves the other level of government free to act, whereas a Charter decision striking down a law does not. The general idea is that a proper deference to the other branches of government makes it wise for the courts, as far as possible, to frame their decisions in ways that do not intrude gratuitously on the powers of the other branches.

[162] M'Chigeeng First Nation submits that this principle of restraint does not apply to the Court's transfer decision for three reasons. I disagree with its submissions on this point.

[163] First, it says that in Vivian v. Courtney, the constitutional issue was raised for the first time on appeal. In this case, the section 35 issue is being raised in a court at first instance.

[164] I do not really see the relevance of that distinction. The timing of raising the Charter argument played no role in the exercise of judicial restraint in Vivian v. Courtney. In advance, on a pre-appeal motion, Czutrin J. allowed the Charter argument to be advanced in the appeal. At the hearing of the appeal proper, the principle of restraint was then applied, not based on the timing of raising the Charter issues, but because Penny J. was able to decide the appeal on non-constitutional grounds. He did not need to consider the constitutional arguments. See Vivian v. Courtney ¶ 65-82.

[165] Second, M'Chigeeng First Nation argues that the constitutional issue in Vivian v. Courtney was a Charter issue, as opposed to the assertion of a section 35(1) right, as in this case. This is another argument, similar to those above, that Charter litigation and section 35 litigation should be differently treated in various respects. In my view, that is a distinction without a difference in so far as the applicability of the principle of judicial restraint is concerned. Professor Hogg's comments about judicial restraint were made about constitutional issues generally, not about Charter issues only.

[166] Third, while I do tend to agree (at this stage) with counsel for M'Chigeeng First Nation that this Court may be unable to provide a remedy on a non-constitutional ground in this case, since it must decide the section 35 constitutional issue as a threshold question relating to the Court's jurisdiction, that does not mean that the principle of judicial restraint is in no way relevant to this transfer motion. Again, Professor Hogg's comments also refer to restraint as between several constitutional claims themselves, some of which may be broader than others.

[167] At a trial of the constitutional issue in this court, M'Chigeeng First Nation will be fully able to assert its section 35 right in a broad and generous way, constrained by the pleadings, the rules, the factual record before the Court and the applicable rules of evidence. This Court can define the scope of the right if proven, and apply it to the children before the Court and the governing legislation. But should the case be transferred, so the case can broaden in scope, and potentially require the participation of others, so that M'Chigeeng First Nation can pursue a ruling that will have binding, as opposed to merely persuasive value? In my view, the answer to that question must be no.

[168] Which brings me back to the meaningfulness of a remedy from this Court. It is true that a finding of this Court will have the more limited impact that a ruling of a provincial court has, as opposed to a declaration of a superior court. But that is not to say that a decision of this Court is without precedential value in subsequent cases. At ¶ 19 of R. v. Lloyd, McLachlin J. held that it is open to provincial court judges (and presumably superior court judges) in subsequent cases to either apply, or to decline to apply the law, for reasons already given, or for their own. See also Martin v. Nova Scotia (Worker's Compensation Board) ¶ 31.

[169] Although R v. Scarlett, 2013 ONSC 562 concerned the precedential value of a prior declaration of constitutional invalidity in a subsequent case, Strathy J. (as he then was) also discussed the concept of judicial comity more broadly. At ¶ 43, Strathy J. said:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration

[170] It is by no means a foregone conclusion that, despite a ruling from this Court, M'Chigeeng First Nation will still have to go on to litigate in other every other case concerning M'Chigeeng children as it says, just because this Court's ruling will not be a declaratory one.

[171] First, M'Chigeeng First Nation's submission that a declaration, as opposed to a finding, is preferable because the declaration would prevent subsequent courts from deciding similar cases differently, does not pay sufficient attention to this principle of comity. A subsequent court may still decide a subsequent case differently, if it is distinguishable on the facts, or on the law. Even in the context of declaratory relief from a superior court, different facts may lead to different results in subsequent cases.

[172] Second, I have been told that M'Chigeeng First Nation has been engaging in some level of negotiations with the government. Of course, I am not privy to those discussions. Nevertheless, even if the negotiations fail, a constitutional ruling of this Court is not useless in those negotiations, as compared to a declaration. I find it hard to believe that a ruling of this Court, particularly if it is not appealed, or if it is appealed but upheld on appeal, will carry such little weight in any subsequent negotiations.

[173] In that vein, I also note that constitutional rulings of this Court have led to legislative reform. Examples in the family law context include the legislative reform that followed Coates v. Watson and Re K.

[174] And Re. K. is also an example of the principle of comity at play pending that legislative reform. In Re K., Nevins J. held that the definition of spouse in section 136 of the Child and Family Services Act violated section 15(1) of the Charter and it was not saved by section 1. He read in spouses of the same sex to the definition of spouse in the legislation.

[175] Adoptions by same-sex parents were granted for years after the decision Re. K. based on Nevins J.'s reasoning, until the legislation was amended. Incidentally, this included adoptions granted by judges of the Superior Court. For example, in the very short decisions of Re C.E.G. and L.K.G. (No. 1) and Re C.E.G. and L.K.G. (No. 2). Aston J. merely endorsed:

I agree with the conclusion of Provincial Judge James P. Nevins on 24 May 1995 on the constitutional law issue in Re K. Adoption, 23 O.R. (3d) 679, 125 D.L.R. (4th) 653, 31 C.R.R. (2d) 151, 15 R.F.L. (4th) 129, [1995] O.J. No. 1425, 1995 CarswellOnt 483 (Ont. Prov. Div.). I adopt his reasons to modify the definition of "spouse" for the purposes of subsection 136(1) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended. Adoption order has been signed by me.

(8) M'Chigeeng's Appeal Routes, And Other Pending Case Arguments

[176] I fail to see the relevance of M'Chigeeng First Nation's argument that if the case is sent to the Superior Court, there will be a more direct appeal route to the Ontario Court of Appeal (or higher), and that somehow militates in favour of transferring this case.

[177] The fact that there are different appeal routes is a policy choice of the legislature. See Kourtessis v. Minister of National Revenue ¶ 18.

[178] Writing in a completely different context, at ¶ 5 of Highland Shores Children's Aid Society v. K.Y., 2019 ONSC 5070, Tellier J. said this about the appeal routes in family law cases in Ontario:

This parallel but sometimes overlapping jurisdiction creates an access to justice concern for families who require a judicial remedy. It creates a legal maze the growing number of self-represented family law parties find hard to navigate. It entails somewhat confusing paths for appellate review, imposing the burden of an additional step for appellate family law litigants whose cases originate in the OCJ or UFC. The Court of Appeal for Ontario has repeatedly commented on this confusion and inequity and called for legislative reform. See for example: Christodoulou v. Christodoulou, 2010 ONCA 93; Marchildon v. Beitz, 2012 ONCA 668; Mattina v. Mattina, 2018 ONCA 867; and Preist v. Reilly, 2018 ONCA 389.

[179] But while judges have commented about the problems associated with the various appeal routes in family law, those routes are nevertheless the law, and any changes to them remain a matter for legislative reform.

[180] Meanwhile, counsel provided me with no authority demonstrating that in another case, a transfer has ever been granted between courts, for the reason, either in whole or in part, of securing a better appeal route. And many things will first have to happen, before there is an appeal in this case, including a trial of the constitutional issues. Decisions to appeal are usually made based on a variety of factors and after careful thought. That might include obtaining a legal opinion as to the correctness of a decision, engaging in a cost-benefit analysis, and even considering other strategic and tactical factors. It is somewhat cavalier to pronounce that there will absolutely be an appeal in this case at this point, when a trial has not even commenced.

[181] I find the appeal route argument not to be a relevant consideration on a transfer motion. If I am wrong, any economies achieved in M'Chigeeng First Nation securing a preferred appeal route for an eventual appeal, are outweighed by the economies lost through the transfer. I address the latter shortly.

[182] Likewise, I fail to see the relevance of the existence of another family law case, M.M.A. v. Kunuwanimano Child and Family Services, pending before the Family Court of Superior Court of Justice in Belleville, involving a different section 35 claim. I say this particularly in light of the fact that I was told almost nothing about that case, by the parties in this one.

[183] M'Chigeeng First Nation is not attempting to have this case transferred to Belleville and consolidated with that proceeding. In the absence of a consolidation motion (which would have to be brought in the Superior Court anyway) or some other argument based in law, I am aware of no authority for the transfer of a case from a provincial court to a superior court, just because apparently there happens to be a similar case, elsewhere in the province, pending before a superior court.

(9) Summary

[184] Based on the foregoing, I am unable to find that this case is in the "wrong court". I find that there is an effective and meaningful process available to both the mother and to M'Chigeeng First Nation to have their claims based on the assertion of a section 35 right heard in this Court, and if proven, recognized. This Court also has the power to grant meaningful constitutional remedies.

[185] I am not persuaded that the more limited effect of a finding, which this Court may grant, as opposed to a declaration, which this Court may not grant, means that this case is in the wrong court. I am not persuaded that this Court's inability to grant declaratory relief is entitled to the significant weight in the analysis that M'Chigeeng First Nation says it is, in the context of this case.

C. Whether There Is Inherent Jurisdiction To Transfer This Case To The Superior Court

[186] Alternatively, counsel for M'Chigeeng First Nation submits that this Court has the power to transfer as part of the control of its own process. The Children's Lawyer suggested that the Court would not be controlling its own process, but rather that of another court.

[187] A superior court has inherent power to transfer a case, even where statutory provisions like section 110 of the Courts of Justice Act do not apply: see Tawfiq v. Baker ¶ 4. However, as the Superior Court's inherent power to transfer is associated with its power of certiorari to move matters from a lower court into a superior court, it is doubtful that this Court has any such similar inherent power to transfer.

[188] Although I invited submissions on this point, neither counsel was able to provide me with any authority to suggest that this Court has inherent jurisdiction to transfer this case to the Superior Court as part of the control of its own process, or otherwise. It seems to me that a transfer would touch upon the processes of both Courts, not just this Court. And in light of the comments in Tawfiq v. Baker, I suggest, without the need to fully decide this issue, that an inherent power in this Court to transfer a case to the Superior Court does not exist.

[189] But assuming, without deciding that inherent power to transfer actually exists, that would still require the exercise of discretion, just like the second part of the test required by section 110 of the Courts of Justice Act does.

D. Whether The Court Should Exercise Discretion To Transfer The Case To The Superior Court

[190] If I am mistaken, and either this case, or part of it, is in the wrong court within the meaning of section 110 of the Courts of Justice Act, or assuming there is inherent power in this Court to transfer the case to another court, I will now consider the exercise of discretion.

[191] As explained earlier, I was only given reported decisions that considered whether to transfer a case in different contexts. Nevertheless, those other transfer decisions have considered several factors as relevant to the exercise of discretion. Based on those cases and the written and oral submissions of counsel, I have found it helpful to consider the exercise of discretion guided by eight clusters of factors.

[192] In addition, the Children's Lawyer submits that the children's best interests must weigh heavily in this analysis. It is a lens through which the exercise of discretion must be considered. At ¶ 58 of Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, Benotto J.A. writes, "[w]henever a child is affected by a court or government process, the primary consideration must be the child's best interests." See also Strobridge v. Strobridge (1991), 31 R.F.L. (3d) 45 ¶ 4.

[193] My analysis of the eight clusters of factors that follow, with the children's best interests in mind, overwhelmingly militates against the transfer of this case to the Superior Court.

(1) The Parties' Positions

[194] This is not a consent request to transfer this case to the Superior Court. To the contrary, it is opposed by the father and the Children's Lawyer.

[195] As far as the mother is concerned, she supports M'Chigeeng First Nation's request for the move. But as I have said, her position, until very recently, was that the case should be in the Ontario Court of Justice.

[196] That the transfer request is opposed militates against the transfer.

(2) The Timing Of The Transfer Motion

[197] The transfer motion was not brought promptly. This case is now in its 9th month, and is at its 13th court attendance.

[198] As already set out above, counsel for M'Chigeeng First Nation advised the Court at the second appearance in this matter, in October 2019, that M'Chigeeng First Nation might be raising constitutional issues. Counsel for M'Chigeeng First Nation only indicated to the Court that it likely would proceed with the transfer motion at the end of the 10th appearance in this Court, in late February, 2020, and only after a number of steps had already been taken in this case.

[199] To repeat, the parties chose this Court. M'Chigeeng First Nation, an added party, made choices and took steps to get involved in the proceeding before this Court, before seeking to broaden the scope of the litigation and to ask for the transfer. M'Chigeeng First Nation brought its motion to be added as a party, knowing that this Court cannot grant it declaratory relief.

[200] This militates against the transfer.

(3) Prima Facie Merit

[201] It is conceivable that the underlying merit to a claim being advanced as the basis for the transfer could be so dubious as to militate against the transfer. In Rein v. Muur, [1987] O.J. No. 1837 (Prov. Ct.), Nasmith J. declined to transfer a family law case about support to the Superior Court. Nasmith J. declined to do so, even though certain remedies under section 34 of the Family Law Act could only be ordered by a superior court. A read of Nasmith J.'s reasons reveals his view, that the relief which only the Superior Court could grant, was not really an important part of the case.

[202] In Turner v. Martin, Justice Cohen went further when considering the merits of a similar claim on a prima facie basis, referring to it as "tentative" and there being a questionable "reasonable basis" for it.

[203] In constitutional litigation such as this, yet to be heard on its merits, the Court is loathe to comment about the strength of the claims. It would not be prudent to do so. See Beaver v. Hill ¶ 29-30.

[204] For the purposes of the transfer motion, I am satisfied that there is prima facie merit to the constitutional claims that are properly before the Court. I am also satisfied that there is some merit to M'Chigeeng First Nation's desire to pursue declaratory relief as a general proposition.

[205] However, for the reasons already expressed, that desire cannot tip the scales in favour of the transfer, all things considered. So I would characterize this assessment of merit as a neutral factor in relation to the transfer issue.

(4) Complexity And Procedural Advantage

[206] This case is complex. To my knowledge, the precise section 35 issues before the Court have not yet been decided by any Court in Canada on their merits.

[207] However, this Court is equally equipped as the Superior Court to decide complex cases.

[208] While there may be some remedial advantage to the transfer in that a declaration is available in the Superior Court, there is no procedural advantage to the transfer. The same procedural rules apply in both courts.

[209] And to the contrary, I find there would be procedural disadvantage if the case were transferred. The procedural disadvantage relates to delay. This case in this Court is already well underway. A judge has been assigned to hear motions and the trial, and a judge has been assigned to hear settlement conferences. The Attorneys General have been notified and have already participated in the proceedings in this Court. Amicus has been sourced and is being appointed, below.

[210] Because in a transfer scenario, the case would be in a new court, it would have to start afresh in some respects. But that is also because of the expanded scope of the litigation that M'Chigeeng First Nation wishes to pursue. If transferred, the case would not be advanced as it is currently being advanced, and it would not be as advanced as it is in this Court, in the sense of it being closer to trial ready. It would certainly not be ready for a trial in the Superior Court sooner than would be the case in this Court.

[211] This militates against the transfer.

(5) Prejudice

[212] There would be prejudice caused by delay, and financial prejudice, were this case to be transferred.

[213] From the children's perspectives, they are entitled to finality. They are entitled to know what the parenting arrangements for them will be, whatever the outcome. As the Children's Lawyer submits, delay in any case impacts children's relationships with their parents, and with each other. A concrete example of that has already occurred in this case. After the case began, and while the impact of the constitutional claims upon the family law issues on an interim basis was sorted out, the children did not see their father for about four months.

[214] M'Chigeeng First Nation submits that to avoid further delay, the parents can enter into Minutes of Settlement regarding their children, while the constitutional issues proceed. The difficulty with that argument is this: what if they do not reach Minutes? So far in this case, apart from the visits between the father and Bella and Lionel that Pawagi J. brokered at a conference in January, 2020 (in the context of orders having already been made, and with the February, 2020 motions scheduled and looming in the background), and apart from some recent consensus about temporary access between Lionel and his father, the issues in this case have been heavily litigated. The police enforcement issue, for example, is now under appeal and I have been told by M'Chigeeng First Nation that there will be an appeal of the main decision once it is rendered.

[215] It is also unclear to me what the impact of a ruling on the constitutional issues would be upon any Minutes, if M'Chigeeng First Nation and the parents succeed in negotiating any. That might depend, in part, on their terms. For example, to avoid any future uncertainty, would the Minutes deal with the Court's future jurisdiction, for example respecting enforcement and future Motions to Change? I do not imagine that would be the case, in the face of ongoing Superior Court constitutional proceedings about jurisdiction.

[216] To the contrary, counsel for M'Chigeeng First Nation said that a future declaration would result in any Minutes being set aside. Whether that would be the legal effect of a future declaration aside, I do not find the prospect of the parents entering into Minutes to be a realistic answer to the problem of delay.

[217] There is also section 26 of the Children's Law Reform Act, which is relevant to this question of delay. Section 26 requires the Court to fix a date for the hearing of a custody application, if the application has not been heard within six months of its commencement. In this case, six months have already passed, and the threshold constitutional issues have yet to be determined. It is true that the timeline in section 26 is not always met in parenting cases, due to scheduling reasons, due to the consent of the parties, due to other choices or conduct in the litigation, and/or perhaps for other reasons. But nevertheless, I do not accept M'Chigeeng First Nation's argument that additional delay should be tolerated just because there are complex constitutional issues being advanced, at least to the extent that things can be put in place to continue to try to reduce delay.

[218] I was not given any evidence as to when this case might be ready to go to trial in the Superior Court. In this Court, I, as the judge who has been overseeing the management of the litigation, in consultation with the Local Administrative Judge about scheduling, retain a considerable amount of control over when the case may be heard. Subject to the discussions at the next Court date in this matter, I think at this point it is realistic to expect the parties will be ready for trial later this year.

[219] I will address the financial prejudice consequent upon a transfer below, when discussing access to justice concerns.

[220] All of these considerations strongly militate against the transfer.

(6) Bad Faith

[221] In his affidavit sworn March 16, 2020, the father argues that this transfer motion is brought in bad faith. In Neshkiwe v. Hare, 2020 ONCJ 149, I set out the extent to which the mother's and M'Chigeeng First Nation's positions delayed the hearing of the temporary custody and access issues, and I am finding that some of the mother's conduct in this case amounts to bad faith behaviour for the purposes of costs. I address that below. But that is bad faith conduct of a different nature.

[222] While I do not find this transfer motion to be meritorious, I would not say that this motion was brought by M'Chigeeng First Nation for some ulterior, or bad faith motive.

[223] Had the motion been brought in bad faith, that would have militated against the transfer. But the corollary to the absence of bad faith is not that the case should therefore be transferred, all other things considered.

(7) Access To Justice

[224] At ¶ 29 of Martin v. Nova Scotia (Worker's Compensation Board), the Court said, "[f]rom this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available without the need for parallel proceedings before the courts." At ¶ 44-52 of Newfoundland and Labrador (Attorney General) v. Uashaunnaut (Innu of Uashat and of Mani-Utenam), the Supreme Court specifically discussed the importance of access to justice in the context of section 35 litigation.

[225] Regarding access to justice, once again, I repeat that many steps have already been taken in this litigation. I find this Court to be the most accessible forum at this point.

[226] In its supplementary written submissions, M'Chigeeng First Nation says that it is unfair to it, and expensive for it, to have to litigate the same issue twice, which it says will be the result if declaratory relief cannot granted by a superior court. M'Chigeeng First Nation also says, again, that the scope of the litigation will not be expanded if the case is transferred to the Superior Court. These are two arguments which I have already dealt with to some considerable degree in this decision. But there are other, related arguments, that have been made in relation to access to justice considerations.

[227] M'Chigeeng First Nation says the evidence called by it will be the same if the case proceeds in this Court, or in the Superior Court. In submissions, counsel for M'Chigeeng said that he would be calling two experts and three elders.

[228] I need not make any comments about the evidence necessary to prove the claims, and whether the extent of the evidence would differ in expanded litigation in the Superior Court. That said, at a minimum, it is very likely that there would be other legal arguments. And even if M'Chigeeng First Nation chooses not to call its evidence differently in expanded litigation in the Superior Court, M'Chigeeng First Nation would not be the only party calling evidence. In expanded litigation, as I have already said, there may be other interested parties. Even if there are no other parties, the father, the Children's Lawyer and even amicus might call other evidence.

[229] The father is concerned he will be unable to afford the cost of this litigation, let alone the cost of expanded litigation in the Superior Court. During costs submissions, both parents advised the Court that they are in receipt of Legal Aid. It is well-known that Legal Aid Ontario attaches limits to the amount of time that may be spent on a case, and other conditions to the retainer. It would be very unfortunate, and potentially unfair to one or both parents (or the children), if either ends up unrepresented in a case like this, on account of the cost of this litigation. It really does not make sense to embark upon another process in a different Court in that context.

[230] And on that point, the mother's position supporting M'Chigeeng First Nation's transfer motion is very difficult to understand. As she too is in receipt of Legal Aid, I query why she has not articulated the same concerns about finances that the father raises in relation to the cost of ongoing constitutional litigation. While her revised Notice of Constitutional Question mirrors that of M'Chigeeng First Nation, her Amended Answer, which she did not amend, continues to only claim an individual remedy.

[231] The mother's constitutional claim, in the sense of the outcome she seeks, pertains to the parties' children, not other M'Chigeeng children. Nowhere in her materials does she express an interest in speaking for, nor does she purport to speak for, other members of M'Chigeeng First Nation or their children. From the mother's perspective, she does not need the case to be transferred. Yet she supported the transfer motion.

(8) Access To Justice In Relation To Multiplicity Of Proceedings

[232] I conclude by returning to section 138 of the Courts of Justice Act.

[233] In the result of Newfoundland and Labrador (Attorney General) v. Uashaunnaut (Innu of Uashat and of Mani-Utenam), the 5-4 decision of the Supreme Court I referenced earlier, the majority of the Court determined that the Innu should not have to bifurcate their case across the superior courts of two different provinces. However, it is important to examine more closely this decision, upon which M'Chigeeng First Nation relies, to understand the context of some of the statements in the majority's decision.

[234] At ¶ 50 of the decision, the majority described the specific context of the case as involving, "s.35 claims that straddle multiple provinces". Specifically, the case involved the Innu's claim over land that straddled Quebec's and Newfoundland's provincial borders.

[235] The claim was brought in Quebec, where the head office of a company mining on the land in question, is situated. The Innu claimed injunctive relief, damages and a declaration that a certain "megaproject" constituted a violation of aboriginal title and other rights.

[236] The mining company brought a motion to strike allegations from the Innu's pleading, arguing that portions of the claim concerned rights over property situated in Newfoundland and Labrador. Therefore, those claims fell under the jurisdiction of the courts of that province.

[237] One of the issues before the Court was whether Quebec courts had jurisdiction to embark upon the analysis regarding the whole claim for declaratory relief. See ¶ 43. The majority held that the Innu ought not be required to litigate the same issue twice, in both Quebec and Newfoundland, especially given that the rights claimed pre-dated the imposition of provincial borders on Indigenous peoples. See ¶ 49, 64.

[238] At ¶ 46, the majority held that, "requiring the claimant to litigate the same issues in separate courts multiple times erects gratuitous barriers to potentially valid claims". At ¶ 64, the majority held that section 35 operates uniformly across Canada. In the result, at ¶ 67, the majority held that the Quebec Superior Court had jurisdiction over the entire claim, notwithstanding the imposition of a provincial border.

[239] The strong dissent questioned the jurisdiction of a Quebec Court to grant declaratory and other relief that would be binding on another province. That aspect of the minority's decision is based in part on the court structure in Canada, and principles of federalism.

[240] In any event, the potential multiplicity to be avoided in the Newfoundland case is distinguishable from the multiplicity problem that M'Chigeeng First Nation says will ensue if this case is not transferred to the Superior Court. Following receipt of this ruling regarding its transfer motion, M'Chigeeng First Nation may very well choose to launch a separate Application for declaratory relief in the Superior Court to address other children and other legislation. But I am not convinced that such a case would be a multiplicity, in the same sense as in Newfoundland and Labrador (Attorney General) v. Uashaunnaut (Innu of Uashat and of Mani-Utenam).

[241] The claim in the Newfoundland case involved an assertion of the s. 35 right over one parcel of land that happened to span provincial borders. M'Chigeeng First Nation's separate application would concern other children and more legislation than in this case.

[242] While it may be that some of the issues in such a future case brought by M'Chigeeng First Nation would overlap with some of the issues in this case, at this point, it appears that separate application would still be very different litigation. Regardless, at ¶ 45 of Newfoundland and Labrador (Attorney General) v. Uashaunnaut (Innu of Uashat and of Mani-Utenam), the Supreme Court held it, "should not second-guess a litigant's strategic choice to sue in one jurisdiction rather than in another." This takes me back, again, to the concept of choice referred to earlier in this decision, and M'Chigeeng First Nation's choice to seek party status in this proceeding, knowing the parameters of this litigation and the limits of this Court's jurisdiction.

[243] Therefore, for all those reasons, I would decline to exercise any discretion to transfer this case to the Superior Court.

E. Alternatively, Whether This Court Should Transfer The Constitutional Claims Only, To The Superior Court

[244] It is very difficult to justify this alternative argument. A transfer of only part of the case would result in an automatic multiplicity of proceedings, within this case alone. The constitutional issues right now concerning these children only would then expand beyond them in one court, and the remaining family law issues regarding the parties and their children would remain in another. This Court might be required to apply any constitutional principles determined by the superior court to these two children, rather than determining both sets of issues itself. And most significantly, transferring only part of this case would automatically impact this Court's ability to case manage the remaining custody and access issues left behind.

[245] As the Court of Appeal held in Beaver v. Hill, this Court may deal with interim issues up to the trial. If the constitutional issues were sent to the Superior Court, then this Court would not be able to hear a trial of the custody and access on a final basis until the process in the Superior Court, and then potentially any appeals have run their course. Whereas in the case as currently constituted, the Court is able to impose timelines and ensure that the constitutional claim is dealt with in as timely a fashion as possible, either as a threshold issue to hearing any family law claims on a final basis, or at the same time.

[246] I am not saying that in the Superior Court, judges would not devote appropriate resources to case managing this case. But a partial transfer of this case to the Superior Court would necessarily mean that the case management of the constitutional issues and the remaining family law issues gets bifurcated. That result does not make sense from the perspective of the primary objective of the Family Law Rules, good case management, judicial economy, or access to justice principles.

[247] M'Chigeeng First Nation's alternative request to transfer only part of this case to the Superior Court is therefore also dismissed.

PART VI: ISSUES AND ANALYSIS RESPECTING APPOINTING AMICUS CURIAE

[248] Following both Attorneys General's decisions not to intervene in this case, the Court indicated that it was considering appointing amicus curiae. No one opposes the appointment of amicus. Ontario assisted the Court in the selection of amicus.

[249] The Court may appoint amicus curiae, a "friend of the court", to assist it in "exceptional circumstances". The Ontario Court of Justice has implied jurisdiction to appoint amicus in a family law matter, "in which the appointment is essential for the court to adequately discharge its judicial functions". See Morwald-Benevides v. Benevides, 2019 ONCA 1023 ¶ 21-24.

[250] At ¶ 25-40 of Morwald-Benevides v. Benevides, the Ontario Court of Appeal set out a number of principles governing, and in particular, limiting the circumstances in which amicus in private family law cases will be appropriate. Specifically at ¶ 30, the Court held, "… the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances."

[251] At ¶ 7 and 51 of Morwald-Benevides v. Benevides, speaking in the context of the particular appeal of an amicus appointment of two lawyers to assist two unrepresented litigants, the Court held that it "would be rare in a family law case to appoint one amicus", let alone two, and not in those circumstances. But the context of Morwald-Benevides v. Benevides is very different from the context of this case.

[252] This case involves complex constitutional issues of broader importance never before adjudicated, in circumstances where the Attorneys General of Canada and Ontario have declined to intervene. At ¶ 81 of Beaver v. Hill, the Court of Appeal said, "[t]he Attorney General of Ontario has intervened, thus far only on the conflicts of laws issue, which has now been resolved. If the Attorney General chooses not to become involved in the substantive constitutional issues, in my view it may well be an appropriate case for amicus to be considered to assist the court regarding the constitutionality of the impugned provincial legislation". See also ¶ 52 of Morwald-Benevides v. Benevides.

[253] I find this case is an appropriate one for the appointment of amicus.

[254] At the conclusion of argument of the February, 2020 motions, I canvassed a process with counsel for the selection of amicus. The process was agreed to.

[255] In my handwritten Endorsement of February 21, 2020, I invited counsel for both parents, M'Chigeeng First Nation and the Children's Lawyer to suggest potential amicus, along with a summary of his or her qualifications. Counsel for Ontario indicated that she would submit some names. I indicated that I would then contact the potential candidates, including the persons from the names submitted, and perhaps others known to the Court, to canvass their willingness to act. I specified that I would advise the candidates that this matter concerns issues arising under section 35 of the Constitution Act, 1982 in relation to a custody and access case brought under provincial legislation, that it involves questions about the Court's jurisdiction to decide those issues, and that the parents and the children are Indigenous. I indicated that I would refer the candidates to the Court's written decisions in this case for additional background information. I also indicated that I would hear further submissions about who should be appointed, once a short list of those willing to act was complied.

[256] I heard those submissions on May 25, 2020. Neither of the counsel for Ontario or Canada participated in making those submissions.

[257] To compile the short list of those agreeable to act, I contacted certain of the proposed lawyers by way of letter, copied to counsel. The Court did not write to each person who had been proposed, for reasons expressed on the record on May 25, 2020. I need not repeat those reasons here.

[258] The Court was fortunate to have received the consent of several impressive candidates, willing to assist. Submissions on May 25, 2020 focussed on which particular candidate should be selected, and whether this Court could or should appoint amicus, if this case were to be transferred to the Superior Court. In light of this Court's ruling respecting the transfer issue, I say nothing further about the latter.

[259] The Court selects Nader Hasan to act as amicus curiae in this case. Mr. Hasan's biography reveals that he is a graduate of Harvard University, the University of Cambridge and the University of Toronto, Faculty of Law. Upon graduation from law school, Mr. Hasan clerked for the Honourable Justice Marshall Rothstein of the Supreme Court of Canada.

[260] Mr. Hasan is a lawyer at Stockwoods, who practices criminal, regulatory and constitutional law at the trial and appellate levels. He has appeared in numerous cases at the Supreme Court of Canada, including as lead counsel to the successful appellants in Clyde River v. Petroleum Geo‑Services Inc., 2017 SCC 40, a decision involving section 35 issues.

[261] Mr. Hasan is an Adjunct Professor at the University of Toronto, Faculty of Law. He is the author of a number of publications, including about constitutional law. He also serves on the advisory board of the University of Toronto's David Asper Centre for Constitutional Rights.

[262] As set out in ¶ 39 of Morwald-Benevides v. Benevides, "… the order appointing amicus must be clear, detailed and precise in specifying the scope of amicus' duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits".

[263] This decision will be sent to Mr. Hasan. Counsel are to confer with each other, and with Mr. Hasan, ideally by way of a joint conference call, as to how the role of amicus should be defined, prior to the next date. I will hear submissions about that, including with Mr. Hasan's input, at the next date.

PART VII: ISSUES AND ANALYSIS RESPECTING COSTS

[264] The father seeks costs of the motions argued on February 20 and 21, 2020, in the amount of $33,300 plus HST and $535.00 in disbursements. He asks that the mother and M'Chigeeng First Nation be jointly and severally liable for these costs.

[265] The father does not seek costs against either police force, the Children's Lawyer nor either Canada nor Ontario (nor did any one else at this point). Ms. Pacquette, for U.C.C.M., was on the phone at the outset of this hearing on May 25, 2020. But because no further orders were being sought against U.C.C.M., Ms. Pacquette departed from the call. Similarly, while the Children's Lawyer and counsel for Canada were in attendance on May 25 and 28, 2020, neither attended on May 29, 2020, as by that date, it was only costs arguments that remained to be completed.

[266] The father says he was predominantly successful, he served a highly severable offer, aspects of which he achieved an order that was as favourable, and he says the mother engaged in bad faith, or at least "extraordinarily" unreasonable behaviour.

[267] The father's lawyer's Bill adds some additional time that counsel spent between February 22, 2020 and May 25, 2020. That updates the bill to the first day of the transfer motion. However, in oral argument, the father just claimed costs of the transfer motion against M'Chigeeng First Nation in the additional global amount of $2,000.

[268] The mother says there should be no costs of the February, 2020 motions. Her submissions are based primarily on her characterization of success being divided, and on her inability to pay costs.

[269] Insofar as its liability for costs of the February, 2020 motions is concerned, M'Chigeeng First Nation says that the concept of joint and several liability does not apply. Further, it argues there should be no costs of the transfer motion, as constitutional litigation raises novel issues, and access to justice considerations.

[270] I have been asked to address costs of the February, 2020 motions and of the transfer motion, separately.

A. Applicable Legal Principles

[271] Section 131 of the Courts of Justice Act provides that cost orders are in the discretion of the Court. The framework for awarding costs is set out in Rule 24 of the Family Law Rules.

[272] Pursuant to rule 24(10), the Court must deal with the costs of a step in a case, promptly after dealing with that step. The Court must either determine entitlement to costs and fix the amount, or expressly reserve costs to a later stage of the case.

[273] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly. See Mattina v. Mattina, 2018 ONCA 867 ¶ 10.

[274] A preeminent factor in the determination of costs is success. Rule 24(1) provides a presumption that the successful party is entitled to costs of a motion. The Court may apportion costs if success is divided pursuant to rule 24(6).

[275] Pursuant to rule 24(4), a successful party who has behaved unreasonably may be deprived of all or part of his or her costs, or even be ordered to pay the other side's costs. Rule 24(5) sets out the factors the Court is to examine in deciding whether a party behaved reasonably or unreasonably.

[276] If a party has acted in bad faith, the Court shall decide costs on a full recovery basis and order the party to pay them immediately. See rule 24(8).

[277] The quantum of costs is determined with reference to the factors in rule 24(12). It reads:

24(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[278] And finally, both the father and the mother served Rule 18 Offers to Settle the February, 2020 motions. As I will explain, the provisions of Rule 18(14) are engaged in relation to portions of the father's severable Offer, but not the mother's Offer.

B. Costs Of The February, 2020 Motions

(1) Entitlement

[279] I dealt with seven main issues in the February, 2020 motions: a finding about the children's residence, temporary custody, interim relocation, a temporary parenting schedule, the mother's request for a restraining order, contempt and police enforcement. Related to the residence issue was whether the case should be transferred to the Ontario Court of Justice in Gore Bay, Ontario, which the mother then abandoned.

[280] The father enjoyed clear success respecting four of those issues, namely that the children's residence is in Toronto, regarding his opposition to the mother's request to relocate the children, respecting his version of the parenting schedule, and he successfully resisted the restraining order. I also granted a non-removal order. The father achieved a result as favourable as his severable Offer in relation to the residence, relocation and the parenting schedule.

[281] I would not characterize the mother as being successful on the contempt motion, (or in relation to police enforcement), despite the submissions of counsel for the mother. At ¶ 7 of Lafazanidis v. Lafazanidis, 2018 ONSC 3403, although Kiteley J. had not found the Applicant in contempt, she nevertheless took into account the fact that she had made serious findings that the Applicant had deliberately and wilfully breached the orders in question, in deciding costs.

[282] The father pursued the motion for police enforcement and the contempt motion as a reaction to the mother's departure from Toronto with the children, and then in response to her repeated failure to return. I found that the elements of contempt had been made out, and that both contempt and police enforcement were available options that would remain on the table, if needed in the future in this case. In the result of these particular motions, I exercised my discretion not to find the mother in contempt or order police enforcement at this time, for the reasons set out in the ruling of March 19, 2020.

[283] I agree with the father that there should be costs in relation to these issues. The fact that the mother eventually took no position on the police enforcement motion when it was argued does not alter my analysis. It was her conduct that precipitated the father having to bring that motion in the first place.

[284] On the one hand, I agree with the mother that there was some divided success, as the father neither achieved the order for temporary sole custody that he claimed, nor did he succeed in obtaining an order that Bella and Lionel would reside with him primarily after their return to Toronto. However, I will not parse out an assessment of success on the various issues in the manner that the mother submits, and certainly it was not fully divided.

[285] The evidence before the Court for the motions was voluminous. As I have said, the motions were argued over two days. The effort invested into each of these issues was overlapping. During argument of the February, 2020 motions, counsel for the mother himself said that the evidence tendered in relation to several of the issues had relevance to others.

[286] In general, the father was substantially successful. That said, I would still reduce the costs claim somewhat based on his modest lack of success respecting the sole custody claim, and respecting his related claim for primary residence.

(2) Reasonableness Of The Successful Party's Behaviour

[287] In regards to rules 24(4) and (5), at ¶ 39 of Neshkiwe v. Hare, 2020 ONCJ 149, I did not find either parents', including the father's, "positions are entirely reasonable or in the children's best interests on an interim basis". At ¶251 and 275, I found that the father contributed to the trouble before the Court by kicking the mother out of the apartment, that both parents used poor language towards one another, and that both parents had at times withheld the children from one another. So there is some unreasonable behaviour on the part of the father, but again for context, some of it is conduct that both of the parents engaged in.

[288] Nevertheless, while I have found that the father was substantially the successful party, as there is some unreasonable behaviour on his part, rules 24(4) and (5) will factor into my determination about just how much costs the father should receive.

(3) Bad Faith

[289] The father seeks a finding that the mother engaged in bad faith behaviour. The father relies on Tulchinksy v. Shuster, a decision of Power J. in which he found that the mother's conduct in taking the child from home and relocating amounted to "bad faith". The father also relies on the mother's refusal to comply with the ex parte Order in this case to support a finding of bad faith.

[290] In her written submissions, the mother did not address the request for a finding of bad faith, but her counsel did make oral submissions about it. Counsel relies on D.D. and F.D. v. H.G., 2020 ONSC 1919. Counsel says that her behaviour did not amount to bad faith because there is no evidence of malice or intent to cause the father emotional harm.

[291] In D.D. and F.D. v. H.G., Pazaratz J. summarized the legal principles concerning bad faith in relation to costs. I have considered the established principles summarized in the case, and in particular at ¶ 34.

[292] The mother ought to have complied with the ex parte Order and then moved promptly to change it or set it aside. But that is not how she proceeded. Her unilateral departure from Toronto with the children, followed by her failure to comply with the ex parte Order contributed to the father not seeing the children for four months, and directly led to the police enforcement and contempt motions. The police enforcement motion ended up being more complex than usual given the resulting position then taken by U.C.C.M. I find these actions amount to bad faith on her part. Alternatively, I also agree with the father that this amounts to highly unreasonable behaviour.

(4) The Offers To Settle

[293] The mother's Offer was not severable. It included an access schedule, terms about the children's transportation for that access, and a restraining order, which I did not order. She did not achieve an order as, or more favourable than her offer in accordance with Rule 18(14)(5.), so it does not attract the full recovery cost consequences of Rule 18(14) from its date.

[294] The father did achieve an order, as favourable as certain severable components of his Offer. Below, I take that into account in determining the costs order.

(5) Time Spent And Hourly Rates

[295] Mr. Pike was called to the bar in 2017. He has claimed costs at the rate of $225 per hour.

[296] This case began by way of motion. Each of the subsequent attendances were appearances related to the return of that motion, although portions of those attendances were also devoted to organizing the constitutional issues.

[297] Mr. Pike invested 140 hours into this case as of February 22, 2020. Except in one minor respect, no one takes issue with the amounts claimed in the father's counsel's Bill. Given the amount of work involved, I find the time he spent is reasonable, as is the hourly rate charged. I also note that by comparison, Mr. Sudano spent about the same amount of time as Mr. Pike, plus Mr. Sudano had the assistance of an articling student. This is not a situation where the work undertaken by the lawyer claiming costs is disproportionate to the work required, particularly when the Court compares that to the time spent by opposing counsel.

[298] As I will explain, counsel for M'Chigeeng First Nation says that the time Mr. Pike spent in relation to the constitutional issues should not form part of the cost claim. Those constitutional issues have yet to be determined.

[299] I agree with this submission, but only in part. While the constitutional issues have yet to be dealt with on their merits, they were raised as an impediment to the Court addressing the interim issues. Some effort had to be expended to organize a way for the February, 2020 motions to proceed.

[300] Nevertheless, Mr. Pike essentially readily conceded that the Court could just back out from his Bill the specific time that he devoted to researching those issues, and perhaps some of the time he spent in court at various attendances that ended up getting adjourned due to the management of the constitutional issues. He says this time amounts to approximately 8 hours. A high-level review of Mr. Pike's dockets reveals that the time spent in Court on various attendance should increase that estimate, somewhat. But I would not back out all of the time spent in court during those attendances in October through January, as they did not all relate exclusively to the constitutional issues and some had relevance to these motions. It was necessary for Mr. Pike to be present at each event for his client.

[301] I would therefore increase the time to be backed out of Mr. Pike's Bill to 12 hours. For reasons that I will explain next, though, I am reserving a claim for costs of those 12 hours to the trial, pursuant to rule 24(10)(b), as opposed to making no order relating to that portion of the Bill. For that matter, M'Chigeeng First Nation and others involved in this case may also, in the future have a costs claim in relation to time spent so far (and to be spent) on the constitutional issues, too. That will have to be addressed after the trial.

(6) Ability To Pay

[302] The mother is a person of modest means. At the time of the February, 2020 motions, she was on maternity leave with Lincoln. Prior to her maternity leave, she earned about $57,000.00 per year at her job in Toronto. While Bella and Lionel currently live with her half of the time pursuant to this Court's Order of March 19, 2020, Lincoln is residing with her primarily. This is not a significant income for a person living in the City of Toronto with a family of that size, even if two of the children reside with her only half the time.

[303] But the father is also a person of modest means. He is a student relying on grants to make ends meet. He too has Bella and Lionel half of the time. Again, the father says he cannot afford the cost of the litigation.

[304] At ¶ 17 of Mohr v Sweeney, 2016 ONSC 3238, McGee J. stated, "[a]n inability to pay costs cannot be used as a shield against liability. The purposes of a costs award (set out above) are no less applicable to litigants of modest means. To the contrary, those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings."

[305] I have considered the mother's ability to pay costs. But I must balance the financial impact on the family (including the fact that the mother has children in her care), versus the principle referred to in Mohr v. Sweeney. I do so through the lens of the finding that the mother has engaged in unreasonable and bad faith behaviour.

(7) Public Interest Litigation

[306] M'Chigeeng First Nation submitted that there should be no costs in relation to the 12 hours because the case raises novel and access to justice considerations. Above, I said I preferred to reserve those costs to trial.

[307] There is a developed body of case law concerning costs of constitutional litigation and/or litigation that raises public interest issues. See Mark Orkin, "Orkin on the Law of Costs", 2nd ed., Vol 1, Toronto: September 2019, pp. 2-272 to 2-280. But no relevant authorities were placed before the Court by M'Chigeeng First Nation, and very few submissions were made about this, for the Court to fully consider the position taken by M'Chigeeng First Nation.

[308] In my view, it is premature to decide the applicability of that principle in relation to costs of the constitutional issues incurred thus far. After a trial, the Court will be better equipped to hear those arguments, with a fully developed record. When the time comes, if costs arguments about public interest litigation are to be made, then counsel should put relevant authorities before the Court.

[309] It is for those reasons that I have reserved Mr. Pike's 12 hours to trial. And to be clear again, no other party will be prejudiced from claiming costs after the trial either.

(8) Joint And Several Liability For Costs

[310] In asking that the costs award be against the mother and M'Chigeeng First Nation on a joint and several basis, the father relies on Boktor v. Reddy, 2016 ONSC 7503, a decision in which Stinson J. awarded costs on that basis against several plaintiffs. The father also says that the case law concerning costs against a non-party may have some relevance to the analysis in this case.

[311] At ¶ 14-15 of Boktor v. Reddy, Stinson J. held that unsuccessful plaintiffs are jointly and severally liable for costs unless the court, in the exercise of its discretion, orders otherwise. Stinson J. considered three categories where a Court might depart from this principle:

(a) if there is a marked absence of the plaintiffs having jointly acted;

(b) one plaintiff had minimal involvement in the litigation and there is an underlying public policy reason to avoid joint and several liability; and

(c) an order of joint and several liability would result in gross unfairness to a particular plaintiff given the circumstances of the case.

[312] I note that joint and several liability for costs may be ordered against defendants, too. See Orkin on the Law of Costs, pp. 2-118 to 2-119.

[313] Counsel for M'Chigeeng First Nation made a statement to the Court that joint and several liability is a "civil law rule that has only ever been applied in tort and negligence law". I received no authorities to this effect, either. I see nothing in section 131 of the Courts of Justice Act, nor the rules that would limit this Court's discretion to award costs on a joint and several basis, including in a family law case.

[314] To the contrary, section 131 of the Courts of Justice Act states, in part, that the Court "may determine by whom and to what extent the costs shall be paid". And there are family law cases in which orders for costs on a joint and several basis have been made. See for example A.A. v. Z.G. ¶ 29-34 (albeit the joint and several costs order was made in a related mortgage action); but see also Ahmed v. Ghuman, 2013 ONSC 5972 ¶ 26; and see LeBlanc v. LeBlanc, 2018 ONCJ 499 ¶ 33.

[315] M'Chigeeng First Nation submits that, like the mother, it eventually took no position respecting police enforcement and contempt, when the February, 2020 motions were argued. M'Chigeeng First Nation also submits that ultimately, it did not interfere with enforcement of the Order of March 19, 2020 after it was made. I do not view this as a defence to a joint and several costs award.

[316] Although an award of costs that is joint and several would really be to the prejudice of M'Chigeeng First Nation, it was counsel for the mother who made certain submissions against an order for joint and several liability. The mother submits that there is no evidence that she ever instructed, or even had conversations with anyone in M'Chigeeng First Nation about the steps they took.

[317] While M'Chigeeng First Nation formally took no position when the enforcement motions were argued in February, 2020, even before being added as a party, M'Chigeeng First Nation took steps, in part to intervene in this case in support of the mother's position by filing written material and making submissions to the Court. But that is not the extent of it. In Neshkiwe v. Hare, 2020 ONCJ 149, I made a number of other findings respecting M'Chigeeng First Nation's additional conduct. In particular:

(a) At ¶ 72-76, I found that M'Chigeeng First Nation passed a Band Council Resolution specific to Bella and Lionel. Paragraph 9 of the Band Council Resolution states, in part, that M'Chigeeng First Nation did not grant permission for Bella and Lionel to be removed from M'Chigeeng First Nation. That Resolution was passed on September 18, 2019, one day after this Court granted the ex parte Order for their return to Toronto, on September 17, 2019

(b) At ¶ 180 to 182, I found that M'Chigeeng First Nation created a trespass notice prohibiting the father from coming onto its territory. This document was signed on September 19, 2019, two days after this Court granted the ex parte Order for the children's return to Toronto, on September 17, 2019. Presumably the father would be going to M'Chigeeng First Nation in an attempt to enforce the order;

(c) At ¶ 187-188, I found that Ms. Debassige would not let the father visit with the children on December 26, 2019, because he had not signed a written document respecting the children. I found the father did not sign that document because he was concerned it might prejudice his claims in the litigation. I am not clear on what basis Ms. Debassige took the position that he was required to sign a document in order to see the children, especially since there was an ex parte Order in place granting him custody;

(d) At ¶ 190, I found that on January 11, 2020, the father was finally able to have a visit with the children at M'Chigeeng Youth Center, but it was only allowed to occur under the supervision of a representative M'Chigeeng First Nation;

(e) At ¶ 196, I found that M'Chigeeng First Nation specifically instructed U.C.C.M. not to enforce this Court's ex parte Order of September 17, 2019; and

(f) At ¶ 235, I found that the father was finally able to have two meaningful visits with the children in February and then in March, 2020, but the agreement regarding those visits were achieved on the cusp of the motion, and only after the mother and M'Chigeeng First Nation eventually abandoned their jurisdictional arguments about this Court's ability to address interim issues.

[318] Those actions, which are findings of this Court based on the record before it, went beyond the scope of just supporting the mother in the litigation, and then formally advancing constitutional arguments.

[319] M'Chigeeng First Nation had fair warning that by asking to be added as a party, it faced liability for a costs order. At ¶ 84 of Neshkiwe v. Hare, 2020 ONCJ 42, I said "[a]nd as a party, M'Chigeeng faces costs exposure. It will be open to the father to argue about liability and apportionment, if it is determined at some point in the future that an order for costs is appropriate".

[320] I do not find the mother's submission about the lack of evidence of conversations or knowledge by the mother of what M'Chigeeng would do, to be persuasive. It cannot be said that the mother was unaware of those. The steps taken were all detailed in the evidence filed with the Court. At a minimum, the mother relied on those actions.

[321] But it was not just that the mother relied on those steps. I find those actions amount to a dedicated effort by M'Chigeeng First Nation to enable the mother's non-compliance. I infer that the mother and M'Chigeeng First Nation acted jointly in the litigation respecting the mother's non-compliance with the ex parte Order of September 17, 2019. As I have summarized, M'Chigeeng First Nation's role in that was not minimal. No underlying public policy reason was brought to my attention such that a joint and several liability costs order should be avoided. Nor is there any unfairness to M'Chigeeng First Nation by the Court making this costs order.

[322] Regarding the father's submission that costs may be ordered against a non-party too, the Ontario Court of Appeal set out considerations relevant to that question in Hunt v. Worrod, 2019 ONCA 540. As M'Chigeeng First Nation has been added as a party to this proceeding, I need not consider that line of authority any further.

(9) Conclusions Respecting The Amount Of Costs And Apportionment

[323] Fixing the quantum of costs does not just require a mathematical exercise, calculated by multiplying the time spent by hourly rates.

[324] In the analysis, I have already considered both parties' unreasonable behaviour in different respects under rules 24(4) and (5) in the case of the father, and under rule 24(11) in the case of the mother. I have found that the mother engaged in bad faith behaviour in two respects. I have considered the Offers to Settle, finding that the father's is engaged, but only in part.

[325] Even where the full recovery provisions of the rules are triggered by a finding of bad faith, the quantification of costs still requires an overall sense of reasonableness and fairness. See D.D. and F.D. v. H.G. ¶ 34 (i) and (j). In my view, this applies to the full recovery costs consequences in rule 18(14) too. As the Ontario Court of Appeal held in Beaver v. Hill, 2018 ONCA 840 ¶ 12, "… proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs."

[326] No counsel went through the exercise of parsing out what the reduced quantum should be based on the father's modest lack of success and his unreasonable behaviour, nor by contrast what the enhanced quantum should be, based on the aspects of father's severable Offer referred to above, and the mother's bad faith behaviour in relation to the issues for which I have now made that finding.

[327] Only counsel for M'Chigeeng First Nation suggested that total costs should be no more than $5,000, but this was in response to questions about this from the Court about apportionment. That number was entirely arbitrary, and not based on any principled application of the legal principles, or a review of Mr. Pike's Bill.

[328] Therefore, I perform this analysis based on my review of the material filed, the submissions I heard, the findings I have made and the applicable legal principles. After backing out the 12 hours, which are being reserved to trial, I would discount the time spent by Mr. Pike by approximately 25%, to account for the father's modest lack of success respecting custody and primary residence, and the aspects of his unreasonable behaviour. That brings the time spent to 96 hours at Mr. Pike's claimed rate for costs of $225 per hour (ie. $21,600.00 before disbursements and tax).

[329] In light of the findings of bad faith and respecting the father's Offer, those remaining costs should approach full recovery. But to account for the fact that the findings of bad faith I have made relate only to some of the conduct, that the father only achieved a result as favourable as only portions of his severable Offer, but not all of it, and because there are some ability to pay concerns on the part of the mother, I will discount that amount a bit further.

[330] In the result, I find that an award of costs of $17,500.00 + disbursements of $535.08 + HST, for a total of $20,379.64 is proportional and reasonable.

[331] To further address the ability to pay concerns, I will hear submissions on the next date, if the mother wishes, about how the portion of costs that is not being ordered on a joint and several liability basis, might be paid on a payment schedule instead of all at once.

[332] The father wants the entire costs to be jointly and severally liable. In the alternative, Mr. Pike suggested that the portion of costs that should be joint and several, should be not less than $15,000.00, but he ultimately left this number for the Court to decide.

[333] I have found M'Chigeeng First Nation responsible only in relation to enforcement. No counsel, other than Mr. Pike, had any alternative submissions as to the amount of costs for which M'Chigeeng First Nation should be jointly and severally liable, were this Court inclined to order some costs, but not the whole amount, on that basis.

[334] I find that it is fair and reasonable to make M'Chigeeng First Nation jointly and severally liable for 25%. Therefore, of the $20,379.64 being ordered, the mother and M'Chigeeng First Nation shall be jointly and severally liable to pay $5,094.91.

[335] M'Chigeeng First Nation has not raised any ability to pay concerns, and so there will be no further submissions about a repayment schedule respecting the portion of the costs order that is jointly and severally liable. The father is able to pursue enforcement of this amount in full at this time as against M'Chigeeng First Nation, or the mother, or both.

C. Costs Of The Transfer Motion

[336] The father succeeded in opposing the transfer motion.

[337] M'Chigeeng First Nation again argues that the litigation raises novel and access to justice issues in relation to costs of the transfer motion. Unlike the costs that pertained to the constitutional issues addressed above, I would not give effect to these submissions in relation to the transfer issue.

[338] As I have said, the section 35 issues themselves do raise public interest issues. The transfer motion, however did not. The transfer motion centered around this Court's jurisdiction to grant declaratory relief, something which I have said, is well known.

[339] The quantum claimed of $2,000 is a modest amount. It is more than reasonable and proportionate, in light of the amount of time that argument of those issues consumed, and the work involved to defend the motion.

[340] While the volume of the initial motion materials in support of, and against the transfer, was relatively short, the issues raised engaged submissions about the prior steps that occurred in this case, and the positions taken along the way. The written submissions filed by M'Chigeeng First Nation and the Children's Lawyer were extensive. M'Chigeeng First Nation's materials included numerous cases that had to be reviewed and addressed in argument.

[341] And while the father did not initially file a factum, and only submitted more brief written materials in response to the Court's written questions, his counsel still had to review those questions, prepare answers to them, and be prepared to address M'Chigeeng First Nation's many arguments and cases.

[342] There were no offers in relation to the transfer motion. The failure to serve an offer can be a factor to consider when assessing reasonableness, in relation to both entitlement to, and the quantum of costs. However, the transfer motion was not the type of motion that is very amenable to Offers to Settle. Had the father made an Offer saying that the transfer motion shall be dismissed, for example, that would be little more than his litigation position. Perhaps he could have made an Offer respecting costs of this issue. But the costs he claimed in relation to this issue, as I have already said, are very modest in any event.

[343] Apart from M'Chigeeng First Nation's alternative position that the case be transferred in part, which I do not find to be reasonable, the transfer motion really raised an 'all or nothing' type issue. So the father's failure to serve an Offer in relation to the transfer motion plays no role in my analysis of costs of that issue. I note that M'Chigeeng First Nation did not serve an Offer either (nor did the mother or the Children's Lawyer).

[344] M'Chigeeng First Nation shall pay costs of $2,000 for the transfer motion to the father, forthwith.

PART VIII: NEXT STEPS

[345] It is now time to proceed with this case on its merits. The wheels are in motion for the involvement of amicus curiae, and hopefully Mr. Hasan will be up to speed soon.

[346] Below, I am issuing directions respecting the conduct of the next event in this case, at which I will then schedule a trial management conference. The parties should be prepared for a trial on the December, 2020 sittings.

PART IX: ORDERS

[347] I make the following orders:

(a) M'Chigeeng First Nation's motion to transfer this case to the Ontario Superior Court of Justice, either in whole or in part, is dismissed;

(b) Nader Hasan is appointed amicus curiae. A copy of this decision shall be sent to Mr. Hasan, and to Manizeh Fancy, counsel for the Attorney General for Ontario, as Ontario will have to address payment issues with Mr. Hasan;

(c) Counsel shall confer with each other, and with Mr. Hasan, ideally by way of a joint conference call, as to how the role of amicus should be defined before the next attendance in this matter. I will hear submissions about that, including with Mr. Hasan's input, at the next event in this case and render further directions;

(d) Counsel shall coordinate preparing a copy of the entire Continuing Record, any separate affidavit material (such as that filed by U.C.C.M. outside the Continuing Record), all 14B Motions, Endorsements, including lengthier reasons, Orders, and the initial and revised Notices of Constitutional Question, for Mr. Hasan. If Mr. Hasan requires any additional documentation, such as the facta and written submissions filed for this motion, then counsel shall cooperate in getting a copy of those documents to him also;

(e) Any future documents that are served and filed in this case shall also be served upon Mr. Hasan;

(f) 12 hours of Mr. Pike's time so far have related to the constitutional issues. Any costs relating to that time shall be reserved to the trial judge. Any other party shall be free to claim costs of the constitutional issues following a trial, including costs arising prior to the date of the release of this Endorsement. The father is also free to claim additional costs incurred after this date;

(g) Costs of the February 20 and 21, 2020 motions are fixed at $17,500.00 + disbursements of $535.08 + HST, for a total of $20,379.64. This amount is payable to the father in part by the mother, and in part on a joint and several basis by the mother and M'Chigeeng First Nation;

(h) Of the amount referred to in paragraph (g) above, the mother is solely responsible for payment of 75%, or $15,284.73. The mother and M'Chigeeng First Nation shall be jointly and severally liable for 25%, or $5,094.91;

(i) If the mother seeks a repayment schedule for the portion of costs for which she is solely responsible, then I will hear submissions at the next attendance in this case;

(j) The portion of $5,094.91 for which the mother and M'Chigeeng First Nation shall be jointly and severally liable, shall be paid forthwith;

(k) In addition, M'Chigeeng First Nation shall pay costs to the father in the amount of $2,000.00 for the transfer motion, forthwith;

(l) At the conclusion of submissions on May 25, 2020, I endorsed that the parents may amend their pleadings to include claims respecting Lincoln, by June 5, 2020. I also noted that Mr. Sudano may be seeking instructions to include, again, alternative claims, should the constitutional claims be unsuccessful. To be clear, neither parent is to claim any relief that goes beyond this Court's jurisdiction;

(m) M'Chigeeng First Nation may serve and file an Amended Answer if it wishes, to include only relief that is within the jurisdiction of this Court to grant. The Answer should specify all the sections of any governing legislation that otherwise would apply to the children in this case, which it seeks to challenge;

(n) Out of an abundance of caution and as a courtesy, any such amended pleadings should also be delivered to the Attorneys General for Canada and Ontario;

(o) Both the mother and M'Chigeeng First Nation may further revise their already revised Notices of Constitutional Question if they wish, so that each only refers to relief that is within the jurisdiction of this Court to grant. They should specify all the sections of the legislation that are being challenged. Out of an abundance of caution and as a courtesy, any such further notices should be delivered to the Attorneys General for Canada and Ontario;

(p) If there are any issues with any amended pleadings or Notices of Constitutional Question in the sense of them continuing to claim remedies not within the jurisdiction of this Court to grant (or other problems with them), then I should be contacted immediately;

(q) At the next date in this matter, I will hear submissions about the role of amicus and any repayment schedule for costs. I will then schedule a further date for a Trial Management Conference, to proceed on a date that will allow Mr. Hasan to get up to speed;

(r) That said, the parties should expect to be trial ready for the December 2020 sittings;

(s) To start preparing for the Trial Management Conference to be booked, counsel should consider whether any evidence at the trial may be admitted by way of a Statement of Agreed Facts. That might include background information about the parties and the children, their ages and dates of birth, their relationship dates, their residences and time periods of those residences, their children's statuses, and possibly the contents of any By-Laws and Resolutions of M'Chigeeng First Nation.

(t) Counsel should further consider what trial directions will be needed, including how the evidence might be introduced (affidavits for chief, or viva voce, or perhaps some combination), what documentary evidence and expert reports will be introduced, including any historical documents and treaties, whether any of that evidence will be introduced on consent, or whether the parties anticipate the need for voir dires;

(u) Counsel should endeavour to create a schedule for the exchange of that documentary evidence and expert reports, and case law, including case law for any anticipated voir dires. Counsel should also prepare draft witness lists, consider whether evidence from the father's First Nation will be procured, time estimates, and be prepared to identify any other anticipated evidentiary issues, and any other issues as counsel sees fit to raise;

(v) Finally, counsel should also consider, as the Ontario Court of Appeal said in Beaver v. Hill, whether the trial of the constitutional issues should be bifurcated and dealt with in December, 2020, with any trial of the family law issues (should they occur) to proceed at some point thereafter, or whether all issues will be heard at once; and

(w) The trial coordinator shall schedule a telephone conference as soon as possible before me, and no later than the end of June, 2020 to address the issues in (q) above.

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

Released: June 12, 2020

Signed: Justice Alex Finlayson