ONTARIO COURT OF JUSTICE
DATE: 2025-06-10
COURT FILE No.: Sault Ste Marie 115/24
BETWEEN:
ROXANNE ROBINSON and RICHARD ALTON
Applicants
— AND —
NICOLE LAFORTUNE, JARRET KRAUTER-MAKI, CRYSTAL KRAUTER and WAYNE MAKI
Respondents
Before Justice Heather-Ann Mendes
Motion Heard on April 22, 2025
Decision on Motion released on June 10, 2025
M. Perron — counsel for the applicants Roxanne Robinson and Richard Alton
Nicole Lafortune — self-represented and not present
A. Weekes — counsel for the respondent Jarret Krauter-Maki
R. Simpson agent for J. Beaton — counsel for the respondents Crystal Krauter and Wayne Maki
L. Tegosh — counsel for Batchewana First Nation
Overview
[1] The applicants filed a motion on March 18, 2025 seeking disclosure of all Batchewana First Nation band representative records involving the child Asher Krauter-Maki born […], 2024 and the respondent parents as well as the paternal grandparents.
[2] Batchewana First Nation filed a motion on March 31, 2025 seeking that the motion for disclosure for records from the First Nation and band representative be dismissed with costs.
[3] The respondents, Jarret Krauter-Maki, Crystal Krauter and Wayne Maki take no position with respect to the motions.
[4] The respondent Nicole Lafortune has not attended at court, has not filed an answer nor participated in these court proceedings. She was noted in default on May 28, 2025.
Background
[5] By way of background, the application was commenced by the maternal great-grandparents of the child, Roxanne Robinson and Richard Alton, regarding the child Asher Krauter-Maki born February 26, 2024.
[6] The parents of Asher are the respondents Nicole Lafortune and Jarret Krauter-Maki. The respondents Crystal Krauter and Wayne Maki are the paternal grandparents of Asher and the parents of Jarret Krauter-Maki.
[7] Asher was placed in the care of the maternal great-grandparents pursuant to a Voluntary Service Agreement (“VSA”) effective March 27, 2024. The agreement expired on September 27, 2024. The child protection agency, Nogdawindamin Family and Community Services attempted to extend the VSA with amendments so that the maternal great-grandparents and paternal grandparents share time with the child, however this was not agreed upon and the VSA expired.
[8] Despite the VSA expiring and the child not being returned to either parent, Nogdawindamin took no steps to commence a child protection application as they were obligated to do, pursuant to section 76(4) of the Child, Youth and Family Services Act.
[9] Rather, Nogdawindamin directed the maternal great-grandparents to commence a Children’s Law Reform Act application seeking decision-making responsibility for the child, which they did on October 24, 2024. The application only seeks decision-making responsibility and primary residence for the child Asher, and “access” to the parents at the discretion of the maternal great-grandparents.
Position of the Parties
[10] The applicants seek the records from the band representative from Batchewana First Nation in relation to all parties for the purpose of depicting independent conversations with the parties as well as Nogdawindamin, regarding how the placement of Asher came to be with the maternal great-grandparents.
[11] It is the applicants’ position that the band representative records are necessary in order to drill down the concerns regarding the parents, to corroborate the child protection concerns and to assist with the development of supervision terms and conditions for the respective parties.
[12] Batchewana First Nation opposes the motion for the notes of the band representative on the basis that while the First Nation is a party to the child protection file, it is not mandated nor trained to assess risk regarding child protection issues, nor do they have powers to investigate child protection concerns or take any action like a child welfare agency.
[13] The First Nation further submits that the file held by the band representative is that of the child’s, given that the First Nation is only involved by virtue of the child, otherwise they would not be involved. As such, in their view, it is not their file to disclose.
Law
[14] Rule 19 of the Family Law Rules addresses Document Disclosure.
Rule 19(11) Document in non-party’s control - If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original.
[15] This subrule contemplates that a motion judge must come to an independent determination and be satisfied by the party seeking access to the documents that it would be unfair to the party to go on with the case without the document. Marcoccia v. Marcoccia, 2009 ONCA 162.
Analysis
[16] In the case at hand, I am not satisfied that it would be unfair for the applicants to proceed with this matter without the records from the band representative of Batchewana First Nation.
[17] First, the motion filed by the applicants, seeks records involving the child, his parents and the paternal grandparents. However, in submissions at the motion hearing, the maternal great-grandparents clarified that the records sought were in relation to all the parties in the proceeding.
[18] I raise this issue as a caution regarding the drafting of pleadings and motions. Drafting is an extremely vital aspect of family law proceedings and should be done so thoughtfully and attentively. Judges rely on counsel as officers of the court and they are bound by the Rules of Professional Conduct to conduct themselves with integrity, as they have a duty to not only their clients, but the court and the administration of justice.
[19] Further, the pleadings filed do not seek any claims in relation to contact with the paternal grandparents that warrant or support the necessity for disclosure of these records given the lack of claims advanced against them.
[20] At the case conference on January 30, 2025, the applicants were granted an extension of time to file a reply to the paternal grandparents’ answer once served. The answer by the paternal grandparents was served and filed on February 3, 2025. No reply was filed in response to the claims advanced by the paternal grandparents, either at the time of argument of the motion nor the release of this decision.
[21] This matter is a domestic case, not a child protection case. As such, the First Nation is not a party to this proceeding. Even if this was a child protection proceeding, the First Nation’s and the band representative’s role is to support their community members and the First Nation child by promoting cultural continuity, preserving and fostering language, culture, practices, customs, traditions, ceremonies and knowledge of indigenous peoples. It is not to assess risk. The First Nation is not mandated to assess risk or designated to do so, nor do they have any powers to investigate child protection concerns or take any action, except a duty to report.
[22] In determining whether it would be unfair for the applicants to proceed without the band representative’s records, it appears what is actually being sought, so the applicants may assess their case moving forward, is the records from Nogdawindamin, in order to determine how and why specific terms and conditions were implemented regarding parenting-time with the child for the parents.
[23] The records from Nogdawindamin are to be produced, on consent of all parties, including Nogdawindamin, by way of order dated May 28, 2025. The records from Nogdawindamin will also contain information about the paternal grandparents given that they too were in contact and involved with Nogdawindamin as contemplated by the VSA extension that was not agreed upon in September 2024.
[24] I am uncertain how the records from the band representative will assist the court in determining if parenting-time or contact-time terms and conditions are appropriate in this proceeding. Respectfully, the band representative’s records or opinions in this regard are of similar assistance to the court like any other witness called to give evidence by a party as neither the First Nation nor the band representative are designated or trained to assess risk or child protection concerns.
[25] While the applicants believe that the records from the band representative may corroborate Nogdawindamin’s previous position as well as support terms and conditions they believe to be appropriate for the parents’ time with the child, again, this too is of limited assistance to the court given that Nogdawindamin has an obligation to continually assess their involvement with a family. In this particular case, Nogdawindamin is presently not involved with the family and they have closed their file.
[26] Although the band representative’s records were not sought for the purpose of being called as participatory expert, I remind the parties that the court is the ultimate trier of fact and has a gatekeeper function to determine if the records sought to be produced are relevant and necessary in this regard.
[27] In this case, given that the First Nation and band representative do not assess risk or child protection concerns, I do not find that their notes are relevant. This does not mean that the First Nation or band representative could not file an affidavit in support of the applicants’ position or provide relevant evidence to the court at a future stage.
[28] Furthermore, given the purpose for which the applicants seek the records from the band representative, namely to corroborate the risk and protection concerns in relation to the parents, I do not find that the band representative’s records are necessary, as this information will be forthcoming from the Nogdawindamin records and they are the agency who is tasked with assessing risk and child protection concerns. Nogdawindamin is specifically designated to provide both protection and prevention services, as well as community supports, to the specifically designated First Nation communities along the North Shore of Lake Huron.
Decision
[29] As such, the motion for disclosure of all Batchewana First Nation band representative records involving the child Asher Krauter-Maki born […], 2024 is dismissed.
[30] Parties are invited to make written submissions regarding the issue of costs limited to 5 pages, exclusive of exhibits, to be served and filed by no later than June 30, 2025.
Released: June 10, 2025
Signed: Justice H. A. Mendes
Ontario Court of Justice