Court File and Parties

Court File No.: Toronto DFO-19-15894 Date: 2020-01-21 Ontario Court of Justice

Between:

Buck Neshkiwe Applicant

— And —

Nicole Hare Respondent

Before: Justice Alex Finlayson

Heard on: January 16, 2020

Endorsement Released on: January 21, 2020

Counsel

Matthew Pike — counsel for the applicant

Andrew Sudano — counsel for the respondent

Robert Shawyer — counsel for the M'Chigeeng First Nation

Owen Young & Tanya Muthusamipillai — counsel for the Attorney General for Canada

Mark Crow, Estée Garfin & Manizeh Fancy — counsel for the Attorney General for Ontario

Christopher Diana — counsel for the Ontario Provincial Police

Rachael Paquette — counsel for the U.C.C.M. Anishnaabe Police Service

Ian Ross — counsel for the Office of the Children's Lawyer, legal representative for the children

PART I: OVERVIEW

[1] An ex parte motion, a cross-motion, a motion asking that M'Chigeeng First Nation be added as a party to this proceeding, and now a contempt motion returned before me on the morning of January 16, 2020 to be spoken to and scheduled. At the conclusion of the hearing, I indicated that I would release an Endorsement shortly.

[2] In this Endorsement, I provide directions for the conduct of the next steps of this case, other than the party status motion. M'Chigeeng First Nation's motion to be added as a party to this proceeding is dealt with on its merits at this time, and that motion is granted.

[3] This Endorsement should be read in conjunction with the Court's Endorsements of December 2 and 5, 2019. While I will not repeat the entire history of this case here, a brief background is warranted for context.

PART II: BACKGROUND AND CONTEXT

[4] Following the parents' separation, the mother left Toronto with the parties' two children, Bella Spring Hare, born […], 2015 and Lionel Taylor Neshkiwe, born […], 2017 and went to a home that she has on Manitoulin Island on the territory of M'Chigeeng First Nation. She, and Bella, are members of M'Chigeeng First Nation. Lionel is not, but is entitled to be registered as such.

[5] The father is also an Indigenous person, but he is a member of the Wikwemikong First Nation.

[6] Since her departure for Manitoulin Island, the mother has given birth to a new child.

[7] Back in September 2019, shortly after the mother's departure from Toronto with the children, the father launched an ex parte motion in this Court for temporary custody of the two children, for their return to Toronto and for police assistance from various named police forces, including the U.C.C.M. Anishnaabe Police Service ("U.C.C.M.") and the Ontario Provincial Police ("O.P.P.").

[8] On September 17, 2019, I granted the father's ex parte motion and I directed that his motion was to return before me on October 2, 2019 at 10:00 am. At the father's request, the police enforcement term would expire in 3 months, on December 17, 2019.

[9] I was told that after I granted the motion on September 17, 2019, the father or his counsel contacted the OPP, but based on that conversation, the father initially only served the Order for enforcement upon U.C.C.M.

[10] In most circumstances, ex parte motions are supposed to return to Court very quickly. Rule 14(14) of the Family Law Rules specifies that an order made without notice shall require the matter to come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the Court. Despite that, and despite that there have been numerous subsequent Court dates, this motion has yet to be heard.

[11] In the mean time, the Court's ex parte Order has not been followed. U.C.C.M. refused to enforce the Order, saying that it was not required to do so for a number of reasons.

[12] It was only in or about December 2019 that the father served the OPP with the Order, and that was done just before the term for police enforcement was set to expire.

[13] What has transpired since September 17, 2019, in a nutshell, is the mother and M'Chigeeng First Nation have advised the Court that they intend to challenge the Court's jurisdiction to make any orders for custody or access. M'Chigeeng First Nation is asserting exclusive jurisdiction of the children.

[14] During the course of these proceedings, the Court was told that the mother and/or M'Chigeeng First Nation were contemplating launching a claim under section 35 of the Constitution Act, 1982. They anticipated advancing this argument based on an existing aboriginal and treaty right. However, over the course of the appearances up to November 2019, this had neither been pleaded, nor had any Notices of Constitutional Question been served or filed. And, the decision as to whether either would actually proceed with any such constitutional question wavered.

[15] Nevertheless, the mother also took the position that the Court lacked jurisdiction based on the application of an existing By-Law and a Band Council Resolution, both of which had been passed by M'Chigeeng First Nation. Until January 16, 2020, this was presented as an alternative legal basis from the anticipated section 35 claims.

[16] By the time of the appearance before this Court on December 2, 2019, the positions being taken were that the relevant By-Law(s) and Band Council Resolution(s) had been enacted pursuant to the Indian Act. This engaged questions about the authority to enact such By-Law(s) and Resolution(s), whether under the Indian Act or otherwise, and it raised issues about the division of powers under the Constitution Act, 1867 and the validity of provincial laws regarding custody, access and perhaps child support, quite apart from section 35 of the Constitution Act, 1982.

[17] Simultaneously, until these arguments could be sorted out, a practical problem unfolded. This practical problem still exists today. Early on, the mother essentially indicated to the Court that she would not comply with the Court's Order. M'Chigeeng First Nation prohibited the father from coming onto its territory. U.C.C.M. refused to enforce the Order. And it was revealed that M'Chigeeng First Nation had instructed U.C.C.M. to act in that fashion.

[18] The Court put U.C.C.M. on notice that its counsel's attendance would be required before this Court. The Court has also already ordered costs against the mother on one occasion.

[19] For the reasons set out in the Court's Endorsement of December 2, 2019, the Court directed that notice be given to the Attorneys General of Canada and Ontario. In its Endorsement, the Court mapped out its view as to the constitutional questions as they were then being advanced, since neither the mother nor the First Nation had then prepared Notices of Constitutional Questions, while still raising a challenge the Court's jurisdiction and taking other steps outside the Court consistent with that position. (See paragraph 99(c) of the December 2, 2019 Endorsement.)

[20] And given the importance of the issues being raised, the Court also appointed the Children's Lawyer.

[21] Following the December 2, 2019 Endorsement, the Court had set a quick return date for December 5, 2019. It requested that counsel for both Attorneys General of Ontario and Canada, and the Children's Lawyer appear. A number of lawyers attended Court on December 5, 2019.

[22] As indicated above, at or around that time, the father served the Court's ex parte Order of September 17, 2019 upon the Ontario Provincial Police. On December 5, 2019, counsel for the OPP attended, too.

[23] The purpose of the December 5, 2019 court attendance was to organize this case, and more particularly to determine how and when the return of the ex parte motions could proceed in view of the various arguments before the Court.

[24] In the case of the OPP, counsel asked to make some preliminary submissions about the police enforcement term applying to the OPP. Mr. Diana advised the Court that the OPP would enforce the Order, now having been made aware of it, but drew to the Court's attention to what he referred to as certain potential negative consequences that the Court may wish to further consider. He suggested that the Court may wish to suspend the operation of the police enforcement term until the legal questions are resolved.

[25] At the conclusion of the attendance on December 5, 2019, the Court issued another Endorsement containing further directions for the conduct of this case. The Court directed that all Notices of Constitutional Question were to be served and filed on or before December 19, 2019. It granted leave to M'Chigeeng First Nation to bring a motion to be added as a party to this proceeding, to be heard on January 16, 2020. The Court directed that counsel for the Attorneys General were to advise the Court at the January 16, 2020 return date as to whether either government would be intervening in this case, and to set out their positions, to the extent possible, at that point. And finally, the Court also directed that all parties or other motion participants were to come to Court on January 16, 2020 with a litigation plan, "bearing in mind that it is essential that the return of the ex parte custody and access motion be heard in a timely fashion." This was the second time that the Court had directed that a litigation plan should be presented.

[26] Regarding the police enforcement term, the Court stayed enforcement, which was about to expire anyway, on a without prejudice basis. The Endorsement of December 5, 2019 respecting police enforcement reads as follows:

The police enforcement Order was made without notice. Counsel for the OPP is now here. Counsel for the OPP advised the Court that it will enforce the Court's Order. However, counsel also advised the Court it may wish to consider some adverse negative consequences that may flow from its enforcement. The Court needs to hear full submissions about this, once all notices have been served and all interested parties are at the table. On a strictly without prejudice basis, and also without prejudice to the father seeking a further police enforcement order, [and] as the current order expires in any event on December 17, 2019, the police enforcement order is stayed pending further argument. When that argument should occur should form part of the litigation plan.

[27] When this matter returned next on January 16, 2020, counsel for the father advised the Court that the father would no longer be asking U.C.C.M. to enforce any custody or access terms, and that he intended only to seek police enforcement via the OPP.

[28] As such, I indicated that the attendance of counsel for U.C.C.M. would no longer be required at future court dates. Upon further reflection, I am of the view that counsel for the U.C.C.M. should nevertheless attend the motions on February 20 and 21, 2020. I will explain why that is below.

PART III: THE NOTICES OF CONSTITUTIONAL QUESTION

[29] Pursuant to the Endorsement of December 5, 2020, both the mother and M'Chigeeng First Nation have served and filed Notices of Constitutional Question. The text of the both documents are essentially identical.

[30] The preamble to both Notices reads:

Pursuant to section 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 the Respondent [or in the case of the First Nation's Notice, the M'Chigeeng First Nation] intends to question the constitutional validity of the Ontario Provincial Court of Justice's jurisdiction over the parties' children, Bella Hare, born […], 2015 and Lionel Neshkiwe, born […], 2017, who are the subject of the Applicant's Application.

The question is to be argued as soon as practicable before the Ontario Court of Justice located at 311 Jarvis Street in Toronto, Ontario, Canada.

[31] While the preambles to both Notices of Constitutional Question now refer exclusively to section 35 of the Constitution Act, 1982, the bodies of the notices do not. The Notices also refer to divisions of powers arguments.

[32] The particular problems with the Notices of Constitutional Question were not fully explored at the January 16, 2020 appearance. That is because these issues may resolve on consent as a result of two out of court meetings amongst counsel that have occurred. Consequently, the mother and M'Chigeeng have promised to serve and file amended notices. That will occur by January 22, 2020.

PART IV: THE CHANGES IN POSITION REGARDING THE CONSTITUTIONAL QUESTIONS AND OTHER MATTERS

[33] There is an inaccuracy at paragraph 40 of the Court's Endorsement of December 2, 2019.

[34] The last sentence of that paragraph of the Endorsement states that the By-Law reads that it was enacted pursuant to section 81(1) of the Indian Act. Upon hearing the submissions of counsel on January 16, 2020, reviewing the By-Law, another By-Law dealing with citizenship, and the Band Council Resolution that have been filed, and the affidavit material again, and upon a further review of the December 2, 2019 Endorsement, I note that the By-Laws do not actually refer to section 81(1) specifically.

[35] The last sentence of paragraph 40 of the Endorsement of December 2, 2019 ought to instead state that the By-Law may read as if it was passed pursuant to the Indian Act.

[36] I do not say this based just on the wording of the documents alone, although there is some guidance in the documents. Although there is no specific reference to section 81(1) in the documents, they nevertheless refer to other sections of the Indian Act.

[37] Separately, in his affidavit sworn November 25, 2019 (which was before the Court on December 2, 2019), Yves Forget, the appointed interim chief of police of U.C.C.M., provided evidence about the basis upon which these documents were passed. Mr. Forget's affidavit was filed to explain the basis upon which U.C.C.M. has declined to enforce this Court's Order of September 17, 2019.

[38] At ¶ 18 of the affidavit, Mr. Forget states that the police service is "empowered to enforce federal and provincial statutes and regulations enacted pursuant to the Indian Act, R.S.C. 1985 as set out in the U.C.C.M. Tripartite Agreement." And while at places in the affidavit he states that M'Chigeeng is exercising its exclusive jurisdiction over the children, at ¶ 30, Mr. Forget also states that the By-Law was made pursuant to section 81 of the Indian Act.

[39] As set out in the affidavit and in the Endorsement of December 2, 2019, part of the reason that U.C.C.M. declined to enforce the September 17, 2019 Order was that there is an apparent conflict between the By-Law, which it was empowered to enforce pursuant to the Indian Act, and provincial legislation.

[40] So while the Court continues to await full submissions about the nature of these documents (if statutory and division of powers arguments are going to be advanced), at first blush the By-Law appeared to the Court to have been enacted pursuant to the Indian Act.

[41] I would also add, again, that it had been presented to the Court that the By-Law, separately, ousts the Court's jurisdiction, quite apart from any yet to be brought section 35 claim.

[42] In fact, in passing at the attendance on October 2, 2019, counsel for the father had referred to the Indian Act as the authority for the enactment of these documents, and then in more detail, Mr. Sudano, whose firm represents both the mother and M'Chigeeng, orally told the Court twice on November 29, 2019 and again on December 5, 2019 that the By-Law was passed pursuant to section 81 of the Indian Act. Consequently, he submits, this would impact this Court's jurisdiction to deal with the issues before it.

[43] Despite this, and after the Court gave considerable direction in the December 2, 2019 Endorsement, I am now told that between the attendance on December 5, 2019 and January 16, 2020, there were two meetings amongst counsel. I am told that at these meetings, counsel for both Attorneys General offered their assistance to counsel for the mother and M'Chigeeng First Nation (and later to the Court) to help refine or clarify the Constitutional Questions.

[44] On January 16, 2020, counsel for Ontario submitted that the By-Law was "entirely based" based on section 35.

[45] Counsel for Canada made the following submissions, which were both helpful, but also more equivocal:

The term by-law has become – lost its meaning as a term of art in this context. So often a by-law is passed by First Nations Councils sometimes fit within the delegated authority of s. 81(1) of the Indian Act, which is exactly what you're thinking of Your Honour. There was a provision of the Indian Act that creates a delegated authority and the legal question is whether or not the subject of the by-law fits within the scope of s. 81(1) as being authorized by that section.

So, sometimes things called by-laws also are put forward as being based upon an inherent power or an inherent right of self-government, which is protected by s. 35 and has to be put forward as an aboriginal right because what s. 35 does is it protects aboriginal and treaty rights. So, it's put forward as being an expression of a s. 35 right, which is essentially a right of self-government.

So, the argument becomes we have a right of self-government that covers certain areas; one of the areas is child well being. This is the argument, I'm not talking about the merits of the argument, Your Honour, I'm just laying out the theory of it. This is – one of the subject matters is child well being and this law, which we've called a by-law, is – falls within the scope of that area. So, it is an expression of a right protected by s. 35. That's the theory.

And so, you see, one is statutorily based, on is constitutionally based. And so, what it appears to be, and we were seeking definition of this, that the argument being put forward to you is that it's s. 35 based, not statutorily based.

[46] Regarding the Band Council Resolution, counsel for Canada added:

It's the same, it's the same alternative problem…because what's happened, we're at a point in Indigenous government where things are done under both authorities and they tend to call it the same thing. The title doesn't really solve the problem. The fact that it's called Band Council Resolution may still mean that it's done pursuant to an inherent authority, particularly if it's done pursuant to a by-law that itself is done pursuant to an inherent authority. So it's the same – there's the same alternative questions.

[47] Following these two out of court meetings, counsel for M'Chigeeng and for the mother now advise the Court that they are seeking instructions to further amend the Notices of Constitutional Questions, and to clarify that the jurisdictional question will be advanced solely on the basis of section 35. However, counsel for M'Chigeeng also used the words "at this point" during his submissions, as if to suggest that the position could change, again at some point, even if the current instructions being sought are obtained.

[48] Separately, counsel for the mother raised another impediment to the ex parte motion proceeding. Although the mother first commenced a proceeding in the Ontario Court of Justice in Gore Bay, then consented to its withdrawal, and then filed a pleading in this Court asking for the transfer of this proceeding back to the Ontario Court of Justice in Gore Bay (at which point she will ask the Court to decline jurisdiction altogether), the mother may now wish to ask that this case be transferred to the Superior Court of Justice instead.

PART V: ANALYSIS

A. Timing Issues and Procedure

[49] First and foremost, it is important that the immediate issues concerning the children be dealt with in a timely way. This concern has been at the forefront of all of the appearances in this Court thus far. In tandem, the Court has also taken a number of steps to ensure that there will be a fair hearing, where all interested parties will be present and heard.

[50] For a timely and fair hearing to occur, it is essential that there be a final roadmap that the parties will now follow, for these important interrelated issues be adjudicated properly. And for that to occur, there must now be clarity as to what is in issue, once and for all.

[51] Insofar as the issues advanced pursuant to section 35(1) are concerned, there is a timing and procedural issue. Fortunately, that was addressed recently by the Ontario Court of Appeal.

[52] As the Ontario Court of Appeal said in Beaver v. Hill, 2018 ONCA 816, citing other authorities of the Supreme Court, aboriginal and treaty claims are complex. The existence and scope claims under section 35(1) of the Constitution Act, 1982, "must be determined after a full hearing that is fair to all stakeholders." See ¶ 28-31.

[53] That raises a practical problem this case, as it did in Beaver v. Hill: what if an interim order must be made prior to trial?

[54] At ¶ 72 and 73 of Beaver v. Hill, the Court of Appeal said:

[72] The Superior Court of justice clearly has jurisdiction to grant interim relief incidental to its plenary inherent jurisdiction to decide questions of law in private and constitutional matters while the s. 35 claim is being determined.

[73] If Mr. Hill wishes to pursue his constitutional claim, he will have to do so while at all times abiding fully with the terms of any and all interim orders. Ms. Beaver and B. are entitled to enforceable support pending the determination of the constitutional claim.

[55] Although this Court is not a superior court, all counsel agree that a similar principle applies here.

[56] Until the section 35(1) claim is determined at a full hearing and the Court rules otherwise, there remains statutory jurisdiction in this Court over the parties and the child pursuant to the Children's Law Reform Act, the Family Law Act, the Courts of Justice Act, and the rules and regulations enacted pursuant to those statutes.

[57] I would add that this Court may decide constitutional questions about the validity of legislation, raised within the context of a proceeding brought properly under one or more of the aforementioned statutes.

[58] Despite this, until now, the impediment that has been raised to the motion proceeding flows from the mother's and M'Chigeeng's arguments about this Court's lack of jurisdiction based on alternative, or perhaps additional statutory and division of powers grounds.

[59] Although the Court has expressed this previously, all parties now agree that the adjudication of these other statutory and division of powers arguments, if they are pursued, are largely questions of law and do not require a hearing by way of a trial. In other words, these are questions of law that can be decided as part of the hearing of the ex parte motion.

[60] Now that this issue about the form of the hearing that is required has been resolved, it seems as though these arguments will be abandoned. However, even by January 16, 2020, that remained unclear, and that is not satisfactory to the Court. If they are not in fact abandoned, then the questions set out in the Endorsement of December 2, 2019 will need to be argued and answered, when this matter returns. But in light of the developments of January 16, 2020, the questions require some minor modification.

[61] Therefore, to the questions in the December 2, 2019 Endorsement, I would add the following caveat and likely delete question # 6. But otherwise, the questions remain substantially unchanged:

If either the mother or M'Chigeeng First Nation are taking the position that any By-Law(s) or Band Council Resolution(s), relevant to the issues in this case, were passed pursuant to a delegated authority under the Indian Act, whether this is pursued in the alternative or in addition to arguments based on section 35(1) of the Constitution Act, 1982, and if the Court finds that to be the case, then:

(1) Is the subject matter of any such By-Law(s) or Band Council Resolution(s), either in whole or in part, properly within the jurisdiction of the M'Chigeeng First Nation to pass, pursuant to the applicable provisions of the Indian Act and the wording of the statute;

(2) If so, are either ultra vires as matters that fall within provincial jurisdiction pursuant to section 92 of the Constitution Act, 1867;

(3) If not and they are intra vires, then is there an inconsistency between such By-Law(s) and/or Band Council Resolution(s) and provincial legislation? What is the extent of the inconsistency?

(4) As a result of the answers to the above questions, which statutory provisions, whether provincial legislation, including the Children's Law Reform Act, the Courts of Justice Act or the Family Law Rules, and/or any By-Law(s) and/or the Band Council Resolution(s) enacted pursuant to federal legislation, apply to the Court's decision on the motions in this case, and how should the relevant legal principles be applied; and

(5) In particular, how, if at all, do any By-Law(s) and/or Band Council Resolution(s) impact the application of the Children's Law Reform Act, the Courts of Justice Act and the Family Law Rules upon the children in this case.

[62] Question # 6 set out in the Endorsement of December 2, 2019 concerned police enforcement by U.C.C.M. But now, the father no longer seeks the assistance of U.C.C.M. Question # 6 may be moot. However, any impact on enforcement by the OPP would still have to be considered as the father is pursuing relief against the OPP and there remain questions about the involvement of U.C.C.M. in that, if at all.

[63] To the extent that any evidence is required to answer these questions, such as additional evidence about the basis or bases upon which any By-Law(s) or Band Council Resolution(s) were passed, all of the parties and the other counsel in attendance on January 16, 2020 now agree that any such evidence may be presented by way of affidavit from M'Chigeeng. No other counsel expressed the need to file any responding affidavit evidence on this point. In particular, counsel for the father, and both Attorneys General indicated that they do not anticipate filing any responding evidence on these points.

[64] Regarding the timing issue about when these various arguments may be advanced, counsel for Canada submitted, "if it's statutorily-based, that's heavily legal and [this Court] can decide that question. That's within [this Court's] authority to decide, the question. If it's evidence-based, we would argue that's also within [this Court's] authority to decide the s. 35 question but there's a practicality associated with that because it's evidence-based. But – so, you can make an interim order in the sense of the statutory part because you can rule on the applicability of the [legal issue]."

[65] And finally, in addition to the Court of Appeal's comments in Beaver v. Hill about the Court's ability to make interim orders pending trial in the face of a claim based on section 35, I would direct the parents and M'Chigeeng to ¶ 82 of the decision about how the section 35 claim might be dealt with.

[66] At ¶ 82, Lauwers J.A. writes, "I would also observe that this might well be an appropriate case to consider the trial of an issue regarding the appellant's constitutional claim [meaning a s. 35 claim], which could proceed independently of the support and custody issues."

B. Intervention

[67] In a previous Endorsement, the Court indicated that there are important, broader issues engaged in this case, that may impact other Indigenous persons, their families and their children. Nevertheless, at this point, neither Canada nor Ontario have instructions to intervene.

[68] If the arguments based on statutory and division of powers grounds are pursued, then counsel for Canada advised that he will seek instructions to intervene on those issues and he expects to receive such instructions.

[69] Counsel for Ontario indicated that Ontario will not likely take a position on the validity of Canada's laws. The Court finds this position to be somewhat surprising, as a ruling on the validity of a federal law, or a By-Law passed pursuant to a federal law, may impact the validity of provincial family laws.

[70] Ontario says that the government does not normally intervene at first instance. I do note that Ontario did intervene in Beaver v. Hill on a different conflict of laws issue, albeit that was at the appellate level. Regardless, to the extent that this has not already been done, the Court wishes to make it abundantly clear to Ontario (and Canada) that it would find submissions from them to be helpful on all of the issues that are pursued.

[71] Regarding the Children's Lawyer, at ¶ 86-92 of the December 2, 2019 Endorsement, I indicated that important questions about how, and according to what legal principles the custody and access issues should, or will be decided for these children, are in issue, among other things. For those reasons, the Court asked the Children's Lawyer to seriously consider accepting the referral.

[72] While the Children's Lawyer has accepted the Court's referral, she has also instructed her counsel, Mr. Ross to take no position. The Court finds this to be somewhat surprising too. The Court wishes to make it abundantly clear to the Office of the Children's Lawyer that it would find submissions from her to be helpful on these issues, if they are pursued.

[73] The Court appreciates both counsel for both Attorneys General's efforts and assistance thus far in helping to focus the issues, and the Court appreciates that Canada will likely intervene and make submissions about the statutory and division of powers issues, if they are pursued.

[74] However, I would echo the Court of Appeal's comments at ¶ 81 of Beaver v. Hill here. If neither government (nor the Children's Lawyer) ends up intervening beyond that, this may be an appropriate case for amicus. That will have to be addressed in due course, but it will be dealt with soon after the motions are heard in February.

C. M'Chigeeng First Nation's Request for Party Status

[75] Pursuant to rule 7(1) of the Family Law Rules, a person who makes a claim in a case or against whom a claim is made in a case is a party.

[76] Pursuant to rule 7(2), a person who is affected by a motion is a party.

[77] In addition, pursuant to rule 7(5), the court may order that any person, who should be added as a party, shall be added as a party, and the Court may give directions for service on that person.

[78] Although the following cases were decisions made in the child protection context, there are generally 5 criteria that a court will consider when asked to add a party to a proceeding. The criteria are summarized in Children's Aid Society of London and Middlesex v. H.(S.) ¶ 22-24; see also A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 ¶ 22-24.

[79] They are:

(a) whether the addition of the party is in the best interests of the child;

(b) whether the addition of the party will delay or prolong proceedings unduly;

(c) whether the addition of the party is necessary to determine the issues;

(d) whether the additional party is capable of putting forward a plan that is in the best interests of the child; and

(e) whether the person seeking to be added has a legal interest in the proceedings (ie. whether an order can be made in their favour or against them).

[80] It is not necessary for all of these factors to be met for a person to be added as a party. The overarching consideration is the best interests of the children.

[81] Decisions in the domestic context have applied these factors from child protection cases. See for example Worral v. Worral, [2012] ONSC 4388.

[82] If the mother intends to make submissions about the validity of the First Nations' By-Law(s) and Band Council Resolution(s) at the return of this motion based on statutory and division of powers grounds, then at a minimum, M'Chigeeng First Nation is a necessary party for the purposes of the motion, pursuant to rule 7(2).

[83] However, regarding the case more broadly, it was not seriously disputed that M'Chigeeng First Nation should be added as a party. While the father sought to attach a number of conditions to M'Chigeeng being added, including that there should be an Order requiring M'Chigeeng First Nation to obey court orders, to have others obey court orders, and to indemnify the mother if any costs orders are made against her, counsel for the father was unable to point the Court to its jurisdiction to attach such conditions.

[84] Such terms would be redundant anyway. All persons are required to comply with court orders affecting them. The Court need not say this or attach this as a condition of an order adding a party. And 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.

[85] The Court is inclined to add Linda Debassige, Chief of M'Chigeeng First Nation, as a party to this proceeding in the capacity as a representative of M'Chigeeng First Nation. The Court would do so for a number of reasons.

[86] First, as I have said, this request is essentially on consent, or it is not opposed.

[87] Second, the section 35 claims being asserted have both individual and collective aspects to them. Indeed, one of the difficulties, albeit not a fatal one, which was identified in Beaver v. Hill, was that Mr. Hill is not a representative of the First Nation of which he is a member.

[88] While the mother may be individually asserting personal rights flowing from it, much of the claims before the Court are based on M'Chigeeng First Nation's collective assertion of jurisdiction over the children. Adding M'Chigeeng First Nation in this case will avoid any disputes or confusion as to standing to assert the section 35 claims going forward, and both parties will be present to advance the individual versus collective aspects of the claims.

[89] Further, as the Court has expressed more than once previously, it may also turn out to be that the mother's and M'Chigeeng's interests are not fully aligned, whether in the positions they take about the scope of the rights claimed, or about the outcome of the custody and access issues.

[90] In any event, and I refer to the Court's comments at ¶ 34-38 of Beaver v. Hill, particularly ¶34, "…how the individual and collective aspects of Aboriginal and treaty rights are to be reconciled practically in live litigation like this case is an unresolved issue". Given the Supreme Court's pronouncement, re-iterated at ¶ 31 of Beaver v. Hill, that the existence and scope of aboriginal rights protected under section 35(1) "must be determined after a full hearing that is fair to all the stakeholders", it would be unfair and inappropriate to deny M'Chigeeng the right to participate.

[91] Third, I find that adding the First Nation as a party to this proceeding is also in the children's best interests at this point. The First Nation has a position to take and evidence to offer about these particular children. While that evidence may have been put before the Court by the mother, it is still my view that the First Nation should be added. The lack of clarity to date surrounding M'Chigeeng's role in this case, and the failure of the mother and the First Nation to launch their constitutional claims with more haste, has contributed to the delay in this case. More delay, were there to be ongoing procedural uncertainty of this nature, is not in the children's best interests.

[92] There is also the issue that M'Chigeeng's instructions to U.C.C.M. have contributed to the enforcement difficulties in this case. If there continues to be enforcement issues after the Court rules on the interim motion one way or the other, having M'Chigeeng as an added party may be beneficial regarding the children's perspectives insofar as it pertains to enforcement. What enforcement orders, if any, should be made will have to be argued and addressed in due course, but the Court sees a benefit, from the children's perspectives, in adding the First Nation here as it may be made subject to such an order, if warranted.

[93] Fourth, on January 16, 2020, counsel for M'Chigeeng advised that at the return of the ex parte motion, unless M'Chigeeng intends to pursue arguments on statutory or division of powers grounds (which it will be confirming in the coming days), it will not be taking a position on the custody and access dispute between the parents. Its role will be limited to supporting the mother's position and offering evidence.

[94] In this context, I do not see how adding M'Chigeeng as a party risks delaying or prolonging the motion. Either way, as set out below, the Court has allocated a full two days for this motion to be heard, and that seems to be ample time, even with M'Chigeeng added as a party.

[95] Regarding the case more generally, there has already been some delay as should be evident from the Court's Endorsements. Going forward, this will be addressed through active case management. It is the Court's expectation that any further delay will be avoided now that there is a plan to move forward. All counsel are expected to come to Court with the objectives of Rule 2 at the forefront. To that end, the Court will continue to actively case manage this case and I intend to make further directions in this respect.

[96] Lastly, I find that M'Chigeeng has a legal interest in this case. If it establishes its position after a full hearing, then that may call into question the Court's jurisdiction. An order in its favour may be made if the claims are made out.

D. Case Management

[97] At paragraph ¶ 78-81 of Beaver v. Hill, the Court of Appeal discussed the "procedural morass" to which both sides have contributed and the "phalanx of lawyers" who appeared before it.

[98] To some extent, a procedural morass has begun to unfold in this case as well, although it was evident to the Court on January 16, 2020 that the counsel in this case before me are mostly, at this point, working together to streamline the procedural complexities of this case.

[99] The Court of Appeal discussed the importance of "active and determined case management" in Beaver v. Hill. Earlier in this proceeding, this Court had already identified the need for similar case management here. Further to that, on January 16, 2020, I directed that the parties and their counsel, also with some support persons if they liked, plus M'Chigeeng First Nation and its counsel, and counsel for the Children's Lawyer were to attend before Justice Pawagi on January 22, 2020 at 3:00 pm. Hopefully the parties will make some headway respecting the custody and access issues on a more consensual basis there, pending the return of the motion.

[100] It is the Court's understanding that over the past several months while issues regarding the conduct of the case have been sorted out, the father has either not seen, or has had very little contact with the children. That will have to be addressed at the return of the motion, but it is the Court's understanding that this will be the subject matter of the conference to proceed soon with Pawagi J.

[101] Likewise in regards to case management, on January 16, 2020, I set two days for argument of the motions in February, and I orally gave a number of other directions to ensure that the motion will proceed smoothly. Those directions will be set out below.

[102] Going forward, unless this case is transferred elsewhere, Justice Pawagi will preside over all case and settlement conferences, and I will hear any motions and any trials.

[103] After the motions are concluded, subject to the transfer issue, I will set a date for a Trial Management Conference, either regarding the case as a whole, or perhaps for a trial of the section 35 issue, after hearing from the parties about what they view to be the preferable procedure. The parties will be directed to get ready for the trial sittings in June 2020.

[104] It may be appropriate for there to be another attendance with Pawagi J. for a Settlement Conference, depending on the outcome of the motions, in between now and then.

E. The Father's Contempt Motion

[105] The father brought a contempt motion returnable on January 16, 2020. The mother has responded to it. The purpose of January 16, 2020 was to address the procedural issues and the party status motion, not to argue a contempt motion.

[106] Nor was there sufficient time allocated for it to be heard that day.

[107] The contempt motion will be argued during the February dates that have now been set.

F. The Mother's Counsel's Statement to the Court on January 16, 2020 that The Mother May Now Seek to Transfer this Case to the Superior Court

[108] On January 16, 2020, there was a brief mention by both counsel for the Attorneys General about the appropriate "forum" for this case. This was mentioned in passing, without much elaboration. Later though, counsel for Canada seemed to suggest that this Court had jurisdiction to decide all of the constitutional questions, including the section 35 claims.

[109] But counsel for the mother seemed to take a different position, expressing that she may be raising "forum" as an issue, meaning that she may now be seeking a transfer to the Superior Court.

[110] The mother may wish to do so at some point, but it will not be acceptable to the Court if the mother's intention is to raise, on February 20 and 21, 2020, a possible transfer to the Superior Court, as an obstacle to the motions proceeding.

[111] To be abundantly clear, the motions will be proceeding on the two days set in February.

[112] If there is going to be a request to transfer this file to the Superior Court, then that will have to be dealt with properly, on motion, with a proper record on the transfer issue, facta, case law and full argument. This can be scheduled, if necessary, after the motions are heard in February.

G. The Attendance of U.C.C.M.

[113] As I expressed earlier in this Endorsement, on January 16, 2020 the Court indicated that counsel for U.C.C.M.'s attendance would not be required at the return of the motions based on a revised position of the father that he is now only seeking enforcement by the OPP. Upon further reflection, counsel for U.C.C.M. should be present and the Court requests that counsel does attend. The Court apologizes to counsel for U.C.C.M. for any confusion that this may have caused.

[114] Counsel for the OPP had yet to make full submissions about various jurisdictional and operational issues. The Court has been told that the OPP will be drawing to the Court's attention various possible consequences flowing from enforcement.

[115] Until the Court hears complete submissions about who the relevant stakeholders are and their interrelation to one another, it was premature to release the U.C.C.M., notwithstanding the father's latest position about enforcement. It may be that if there is to be some form of enforcement, U.C.C.M., as the local police force, has some role to play.

PART VI: ORDER

[116] Therefore, I make the following orders for directions:

(a) Notwithstanding that no further police enforcement terms are sought against the U.C.C.M. Anishnaabe Police Service at this time, the Court requires counsel for U.C.C.M.'s attendance at the motions and counsel may wish to be prepared to make submissions about its role in enforcement and about the jurisdiction arguments that it had intended to make;

(b) Chief Linda Debassige, as representative of the M'Chigeeng First Nation, is added as a party to this proceeding pursuant to rule 7(5) of the Family Law Rules;

(c) The father's fresh Notice of Motion dated November 25, 2019, the mother's Amended Notice of Cross-Motion dated November 11, 2019, and the father's Notice of Contempt Motion dated January 7, 2020 shall be heard over two days on February 20 and 21, 2020. It may be that only one day will be required, if the statutory and division of powers arguments are no longer being pursued, but the Court is holding both dates out of an abundance of caution to ensure that there will be sufficient time for all issues raised on the motions to be argued;

(d) Confirmation forms from the parents and any other person making submissions are required for the motions. I would encourage each parent to attach to his and her Confirmation forms draft Orders containing the terms sought. The Confirmation Forms should be sent to the Court on or before Friday, February 14, 2020. For the purposes of this motion only, they shall be sent by email to the judicial secretary so that they will be brought to my immediate attention;

(e) On or before January 22, 2020, M'Chigeeng First Nation and the mother shall serve and file any Amended Notices of Constitutional Question. These must set out the basis or bases on which they say the By-Law and Band Council Resolution were passed;

(f) Separately, counsel for M'Chigeeng First Nation and the mother must advise all other counsel, clearly in writing by letter, whether either intends to pursue constitutional arguments exclusively under section 35(1) of the Constitution Act, 1982, or whether either is also pursuing arguments on statutory and division of powers grounds;

(g) If either intends to make arguments on statutory and division of powers grounds, then they must serve and file any evidence upon which either intends to rely on or before January 31, 2020;

(h) Neither government nor the father intends to file any evidence in response to this additional evidence. If that changes, then the Court shall be notified immediately and the parties or motion participants must ensure that any such evidence is filed well in advance of the return of this motion;

(i) In addition to its Amended Notice of Constitutional Question, which is due by January 22, 2020, M'Chigeeng First Nation shall serve and file an Answer in this proceeding, which shall set out the relief it seeks, on or before January 31, 2020;

(j) If neither M'Chigeeng First Nation nor the mother chooses to advance any other grounds apart from section 35(1) of the Constitution Act, 1982 by the new deadline of January 22, 2020, then no such arguments may be raised later in this case. Furthermore, there shall be no arguments at the return of the motions that either the By-Law(s) or the Band Council Resolution(s) affect this Court's jurisdiction to make any interim orders under the Courts of Justice Act, the Children's Law Reform Act, the Family Law Act, the Family Law Rules or under any other applicable provincial legislation. In this scenario, the question of the Court's jurisdiction will be dealt with at a later time according to section 35(1);

(k) If, however, those other arguments are being pursued, then the Court requires submissions to address the questions set out above in this Endorsement;

(l) Both the Attorney General for Ontario and Canada shall advise on or before January 31, 2020 as to their position respecting intervention. They shall do so by way of a letter to the Court, directed to my attention care of the judicial secretary. A copy of the letter should also be sent to all other counsel;

(m) Depending on the positions about intervention being taken, the Court may consider appointing amicus. That said, it is anticipated that Canada will take a position at this stage, if statutory and division of powers arguments are going to be made. As such, it is likely that the question of amicus will be restricted to the section 35 evidence and arguments, and this can be addressed at a later point, but in the near future. The Attorney General for Ontario has been notified that the Court will be considering appointing amicus and counsel should be prepared to address that, if it so chooses, on a date to be set after the hearing of the motions;

(n) The mother and M'Chigeeng shall serve and file a factum and book of authorities respecting any statutory and division of powers arguments, if pursued, by February 7, 2020;

(o) Facta and books of authorities are required from the father and Canada (on the assumption that it will obtain instructions to intervene), from Ontario if it chooses to intervene, and from the Children's Lawyer if she decides to take a position on those issues if pursued. That material shall be filed by February 14, 2020;

(p) Counsel for the Ontario Provincial Police advised that he may wish to file a short supplementary affidavit respecting the enforcement issues as they pertain to the OPP. That shall be served and filed by January 31, 2020;

(q) The father wishes to file a brief updating affidavit respecting the custody and access issues. He shall do so by February 11, 2020. The mother may respond to it by February 18, 2020. Either parent is free to respond to anything in the OPP's material in those affidavits as well;

(r) The costs of the attendance on January 16, 2020 are reserved to the motion; and

(s) Pending the return of the motion, the parents and their counsel (with the mother participating by telephone), one or two support persons, counsel for the First Nation, a representative of the First Nation (anticipated) and counsel from the Office of the Children's Lawyer shall attend at a case conference before Justice Pawagi on January 22, 2020 at 3:00 pm in Court Room # 10; and

(t) Going forward, unless this case is transferred elsewhere, Pawagi J. shall hear all case and settlement conferences and I will hear any motions, trial management conferences or appearances to deal with scheduling, and trials. I shall set a date for the next event at the conclusion of argument of the motions in February with a goal of getting this matter ready for a trial in June, 2020.

[117] I wish to thank all counsel for meeting in between December 5, 2019 and January 16, 2020, and for their assistance on January 16, 2020.

[118] I wish to particularly thank counsel for the Attorneys General for convening the meetings and for their assistance in focusing the constitutional questions before the Court, and I wish to thank counsel for both police agencies for the assistance thus far.

Released: January 21, 2020

Signed: Justice Alex Finlayson