Court File and Parties
Ontario Court of Justice
Date: 2020-08-11
Court File No.: Toronto DFO-19-15894
Between:
Buck Neshkiwe Applicant
— And —
Nicole Hare Respondent
Before: Justice Alex Finlayson
Matter Heard on: August 10, 2020
Endorsement Released on: August 11, 2020
Counsel and Parties
Matthew Pike — counsel for the applicant
Peter Smith — counsel for the respondent
Robert Shawyer — for the M'Chigeeng First Nation, although not in attendance
Ian Ross — counsel for the Office of the Children's Lawyer, legal representative for the children
Nader Hasan — Amicus Curiae
Tanya Muthusamipillai — counsel for the Attorney General for Canada (observing only)
Endorsement
ALEX FINLAYSON J.:
[1] Trial Management Conference
[1] This matter was scheduled for a Trial Management Conference on August 10, 2020.
[2] The prior proceedings in this case are substantially described in several written decisions of this Court: see Neshkiwe v. Hare, 2019 ONCJ 946; Neshkiwe v. Hare, 2020 ONCJ 42; Neshkiwe v. Hare, 2020 ONCJ 149; and Neshkiwe v. Hare, 2020 ONCJ 285. I need not repeat the prior proceedings here.
[3] The Trial Management Conference did not proceed on August 10, 2020, for the reasons that follow. This Endorsement instead addresses five procedural issues.
A. The Constitutional Claims Have Been Abandoned
[4] As the prior written decisions of this Court describe, both the mother and her First Nation, M'Chigeeng First Nation (an added party to this proceeding), had challenged the jurisdiction of this Court to decide various family law issues concerning this family, initially on multiple constitutional grounds, and then narrowed down to be based exclusively on section 35 of the Constitution Act, 1982. How those constitutional claims impacted these proceedings on an interim basis has been extensively litigated over the past several months. There was going to be a trial, at least respecting the constitutional issues, and possibly on all issues, in December, 2020. Whether the constitutional issues were to be bifurcated from the other issues was an issue to be discussed at the Trial Management Conference.
[5] However, on July 13, 2020, following the release of this Court's most recent written decision addressing whether this case should be transferred to the Superior Court of Justice, the costs of various prior motions, and the appointment of amicus curiae, M'Chigeeng First Nation served a Notice of Withdrawal dated July 10, 2020, to withdraw its Answer and its Notice of Constitutional Question. Then, on August 10, 2020, the mother filed an Amended Amended Amended Answer, deleting the constitutional claims she too had previously advanced. The most recent amendments were filed on consent.
[6] At the appearance before me on August 10, 2020, counsel for the mother confirmed, on the record, that the mother now accepts the jurisdiction of this Court over the parties, and over the children in relation to the custody, access, child support and other related claims. Counsel for the mother confirmed that the Ontario Court of Justice would also have jurisdiction, for example, over future Motions to Change. Since neither the father, nor the Children's Lawyer had previously challenged this Court's jurisdiction, there are no longer any constitutional issues/jurisdictional challenges being pursued in this case.
[7] Unfortunately, counsel for M'Chigeeng First Nation did not appear today. Mr. Smith, who is counsel for the mother (he is in the same firm as counsel for M'Chigeeng First Nation), advised that he understood that M'Chigeeng First Nation would be removed as a party, and as such M'Chigeeng's counsel, Mr. Shawyer, would not be in attendance. However, the father is seeking costs against both the mother and M'Chigeeng First Nation in relation to the issues being withdrawn, for work done in relation to the Court's amicus appointment, for work done on these issues since February 2020, and perhaps in relation to other matters not otherwise addressed in previous costs decisions of this Court.
[8] At a minimum, until costs are addressed, M'Chigeeng First Nation has a right to participate. By this Endorsement, the Court is ensuring that M'Chigeeng First Nation has an opportunity to make submissions respecting costs. And out of an abundance of caution, the Court requires Mr. Shawyer to also confirm that an Order should be made removing M'Chigeeng First Nation as a party, after completion of the costs submissions. This should be done with all interested parties/counsel present to ensure that no one is prejudiced.
B. Removal of Amicus Curiae
[9] By Order dated June 12, 2020, this Court appointed Nader Hasan as amicus curiae. See Neshkiwe v. Hare, 2020 ONCJ 285 ¶ 248-263; 347 (b)-(d). By handwritten Endorsement (which is not reported) dated June 23, 2020, the Court set out the role of amicus, in consultation with the parties and Mr. Hasan. In a nutshell, the role of amicus was to be in relation to the constitutional issues, only. As those issues are no longer being pursued, at Mr. Hasan's suggestion and not opposed by either parent or the Children's Lawyer, the Court indicated to Mr. Hasan that amicus is no longer required.
C. The Role of the Children's Lawyer
[10] On December 5, 2019, the Court appointed the Office of the Children's Lawyer. I am told that the Children's Lawyer accepted the Court's referral, pursuant to section 89(3.1) of the Courts of Justice Act, notwithstanding the young ages of the children (they are now 5, 3 and 8 months old). I am told this was because of the constitutional issues being raised.
[11] Mr. Ross today asks that the Children's Lawyer's mandate be "converted" to an investigation and report under section 112 of the Courts of Justice Act, as opposed to representation under section 89(3.1). He advises that he has been working with a clinical assistant on this case in any event. I am also told she has already done some of the leg work that would be part of an investigation and a report, and that she requires an additional 60 days to complete a report.
[12] Both parents consent to the Children's Lawyer's role changing. Given that the Assignment Court is on October 20, 2020 for the December sittings, the Court asks the clinical agent from the Office of the Children's Lawyer to try to complete the investigation and to prepare the report within 45 days.
[13] Although there will no longer be representation, Mr. Ross did offer to be present on the next date in any case, to address any procedural issues that may arise in connection with this change of mandate, for example if there are any issues with the timing/delivery of the report.
D. Next Steps
[14] Because of the various challenges to this Court's jurisdiction, which are now withdrawn, and the significant motions that were case managed and then argued in this case, there has yet to be a substantive Settlement Conference on the custody, access and support issues. In discussion with the parties, there should be a Settlement Conference.
[15] I had arranged for other judges to hear conferences in this case previously, as I was going to hear the trial of at least the constitutional issues in December. As the constitutional issues are no longer being pursued, there is no longer an impediment to me presiding over the settlement conference. Both parents and the Children's Lawyer agree that I should now conduct the Settlement Conference given my familiarity with the prior proceedings and the evidence filed thus far in this case.
[16] There is time for the Settlement Conference to occur, still with a view to being trial ready for the December trial sittings. Once I conduct the Settlement Conference, the trial of the custody, access and child support orders will have to proceed before a different judge, if this case does not settle.
E. Orders
[17] I make the following procedural orders:
(a) Nader Hasan is removed as amicus curiae. The Court thanks him for his assistance;
(b) There shall be a combined Settlement Conference/Trial Management Conference before me on September 29, 2020. This will be scheduled for a full day, although the full day may not be required. The parties should be fully prepared to discuss all issues with a view to settlement, and with a view to completing the Trial Management Conference if the case does not resolve;
(c) The father claims costs against the mother and M'Chigeeng First Nation, as set out above. On or before Tuesday, September 22, 2020, the father shall file a Bill of Costs, any Offers to Settle and any case law in relation to the issues for which costs are now claimed, in a Brief. It may be sent to my attention by courier c/o the Judicial Secretary. The father's Bill should only include costs in relation to the issues set out above. He should not include any costs that were already addressed in prior decisions of this Court;
(d) The mother and M'Chigeeng First Nation shall file a brief of their own containing any Bills of Costs, Offers to Settle and any case law by September 25, 2020, in the same fashion as set out in (c);
(e) Costs may be argued orally on September 29, 2020;
(f) On consent, the Children's Lawyer shall now conduct an investigation and prepare a report in this matter, pursuant to section 112 of the Courts of Justice Act. The Court requests that the clinical agent endeavour to file the report within 45 days of August 10, 2020. If that is not possible, then the Court requests that the clinical agent hold a disclosure meeting within those 45 days and communicate her recommendations to the parties, so that the parties may advise the Court. It would, however, be very helpful for the Court to have the report prior to the Settlement Conference;
(g) Mr. Ross agrees to be in attendance next time in the event that any procedural issues in connection with this change in the Children's Lawyer's role arise, or for example, if any issues in connection with the Report arise;
(h) The parties shall each file Settlement Conference Briefs, 7 days before the return date on September 29, 2020. The Settlement Conference Briefs should contain a summary of the Orders to be sought at trial, each side's position, and a summary of the anticipated evidence that each side intends to call that each side says supports his or her position;
(i) The parties have already filed a draft Trial Management Endorsement Form. No further materials are required for the Trial Management Conference;
(j) This matter is adjourned to September 29, 2020 at 10:00 am to proceed by teleconference, using the teleconference number and ID listed in the Endorsement of June 23, 2020, for a full day.
Released: August 11, 2020
Signed: Justice Alex Finlayson