ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-20-00000432-0000 (Kitchener)

DATE: 2023/06/06

BETWEEN:

C.N.L.

Applicant

– and –

G.A.M.

Respondent

E.M. Carroll and C. Wu,

Counsel for the Applicant

D. J. Lang, Counsel for the Respondent

HEARD: April 11, 12, 13, 14 and May 4, 2023

GORDON J.

REASONS FOR DECISION

[1] The parties have agreed to joint decision making for their four-year-old child and an order was granted to this effect at the commencement of trial. The primary issue requiring determination is with respect to parenting time, having regard to the distance between residences and the requirement for the child to attend school beginning in September 2023. There is a secondary issue as to child support.

[2] To protect the privacy rights of the child, all family members are identified by their initials.

Introduction

[3] D.M.L. was born in 2018. The parties shared parenting responsibility during cohabitation and since separation. Each is a devoted and caring parent. They have been able to reasonably communicate and make decisions together. Parenting time has been shared, for the most part on a two-week rotating schedule. Extended family members are also involved with the child in terms of childcare and other activities.

[4] Unfortunately, C.N.L. and G.A.M. reside in different communities. Travel between their residences requires approximately three hours. D.M.L. will commence school in September 2023. In result, the current parenting schedule cannot continue. The child must have a principal residence with one of his parents.

[5] Both parties have an Indigenous ancestry and are involved in events pertaining to their culture and in discovering their language. Each presents a parenting plan that would allow D.M.L. to actively participate in the same matters, the differences reflecting services available in their respective communities.

The Parties

[6] C.N.L. is 30 years of age. She resides in the City of Kitchener, Region of Waterloo. G.A.M. is 32 years of age. He resides in Lion’s Head, County of Bruce. The parties were in a common law relationship from December 2017 to August 2019. They resided in Toronto. D.M.L. was born in 2018.

[7] Both parties are status members of Neyaashiinigmiing First Nation, known as the Chippewas of Nawash (“Nawash”) and commonly referred to as the Cape Crooker Reserve. Each party has family members residing at Nawash and in other communities in Ontario.

[8] As a child, C.N.L. resided with her mother and sister, initially at Nawash and then Orillia, attending school in each community. Her mother was a single parent. C.N.L. returned to Nawash to complete her final year of high school in Wiarton as she wanted to graduate with her best friend. She moved to Toronto to pursue education, successfully completing a three-year program in social work at George Brown College, thereafter, obtaining employment in her field.

[9] G.A.M., as a young child, resided with his parents and one sister in Toronto. He has an older sister, from a prior marriage of their mother, who was living independantly. At the age of two, G.A.M. and his family moved to Nawash, his mother’s original community. He attended elementary school at Nawash and high school in Wiarton. Thereafter, G.A.M. lived in different communities, ultimately settling in Toronto where he obtained employment.

[10] The ancestry of C.N.L. is Ojibwe, from Nawash, and Mohawk, from Six Nations. G.A.M.’s ancestry is Ojibwe, from Nawash, and European.

Relationship

[11] The parties knew each other when both resided at Nawash, a community of approximately 400 to 500 people according to G.A.M. There was a brief dating relationship during C.N.L.’s last year in high school or shortly thereafter. They went their separate ways until renewing the relationship in 2014. C.N.L. was then living in Toronto. G.A.M. moved to that community in 2015. They cohabited for nine months, separated and then resumed cohabitation from 2017 to 2019.

[12] C.N.L. was employed in social work prior to the birth of D.M.L. G.A.M. had two positions, at a children’s arts group and for and for a youth exchange program. He was also attempting to establish a career as a musician.

Parenting During Cohabitation

[13] D.M.L. was born in 2018. He is described as a healthy and intelligent child, with a close bond with each parent and all extended family members.

[14] C.N.L. was on maternity leave following birth. G.A.M. had a one-month paternity leave prior to returning to his employment described above. Given his work commitments, C.N.L. and D.M.L. would spend several days each month at her mother’s residence in Orillia. Both parties were equally involved in providing childcare for D.M.L. when G.A.M. was home. Otherwise, C.N.L. would have greater responsibility as she was with the child full-time. C.N.L. arranged regular medical appointments for D.M.L.

Separation

[15] The parties’ relationship started to decline. Verbal arguments were occurring. They decided to separate in 2019.

Parenting After Separation

[16] In August 2019, C.N.L., and D.M.L. moved to Kitchener. They resided with C.N.L.’s sister. C.N.L. enrolled in a course for a personal support worker and, upon successfully completing same, obtained employment at a local long term care facility.

[17] G.A.M. initially remained in their apartment in Toronto, continuing with his employment. When the COVID-19 pandemic was announced in March 2020, G.A.M. began working remotely. He decided to relocate, moving to South Bruce Peninsula and residing with a sister. In November 2020, he moved to his parent’s residence at Nawash until obtaining his own apartment in July 2022 at Lion’s Head. G.A.M. obtained employment with the environmental office for the Chippewas of Nawash and the Chippewas of Saugeen.

[18] From August 2019 to March 2020, G.A.M. would travel to Kitchener every weekend to spend time with D.M.L., sometimes taking him back to the apartment in Toronto. After re-locating in March 2020, the parties agreed on an equal parenting schedule, exchanges occurring every two weeks to minimize travel.

[19] In September 2020, G.A.M. returned to Toronto to close out the apartment and move their possessions, completing same in November 2020. In this time period, the parties returned to the weekend schedule. Since November 2020 and to the present, they have followed the two-week rotating schedule with some adjustments.

Family Support Network

(i) Applicant

[20] Each party has family members who are involved with D.M.L., many testifying at trial. Of some interest, the family members know each other, and, to their credit, no critical comments were presented. Each family member has a close, loving bond with D.M.L. and, while supporting the parenting plan of one party, speaks well about both parents. The relationships with D.M.L. go beyond simply providing childcare, when needed, by participation in other matters, particularly related to Indigenous heritage, culture and language.

[21] N.L. is the mother of C.N.L. She was born and raised at Nawash, her father being Ojibwe while her mother is Mohawk. Her mother still resides at Nawash and N.L. visits with her on a regular basis. N.L. moved to Orillia in 1999. Other family members live in that community. She intends on moving to Kitchener if her daughter is awarded primary residence for D.M.L.

[22] N.L. has been traveling to Kitchener for the two-week periods D.M.L. is in the care of C.N.L. She assists with childcare, shopping and meal preparation, including Indigenous dishes enjoyed by D.M.L. N.L. has also attended Pow Wows with C.N.L. and D.M.L. at various communities, including Nawash, Saugeen, Rama and Thames.

[23] N.L. does not speak Ojibwe, although her late father did, adding there are only a few elders remaining who are fluent in the language. She is supportive of D.M.L. taking Ojibwe and Mohawk language lessons and made reference to the revival in recent years regarding language, heritage and culture.

[24] S.L. is the sister of C.N.L. She grew up with C.N.L. in Orillia and Nawash, moving to London after school was completed and later re-locating to Kitchener for college. Several cousins live in this community. C.N.L. moved to her apartment, along with D.M.L., after separation in 2019. S.L. moved to Owen Sound in late 2022, residing with her partner and being employed at a local school.

[25] S.L. had assisted with childcare of D.M.L. when C.N.L. was working. She also participated with them for Indigenous events, including local gatherings in Kitchener and Pow Wows in several communities. S.L. spoke of daily Indigenous practices with D.M.L. such as smudging. S.L. reported D.M.L. to enjoy being involved in traditional dancing. She is actively involved in traditional dancing. She is actively involved in Indigenous practices and events and supports D.M.L.’s participation.

[26] Since moving to Owen Sound, her residence has been used for exchanges of D.M.L. and, in result, S.L. has regularly spent time with her nephew.

[27] A.S. is a cousin of C.N.L. He resides in Kitchener with his partner, J.D. They have an apartment in the same building as C.N.L. and visit with her and D.M.L. regularly.

[28] A.S. is Ojibwe, growing up in Owen Sound but visiting family at Nawash. He moved to Kitchener in 2012. J.D. is French Canadian but is supportive of the Indigenous community.

[29] A.S. and J.D. provided support for C.N.L. in establishing a place in the community, obtaining services and finding employment. They have been involved in Indigenous events with C.N.L. and D.M.L. throughout Ontario. A.S. and J.D. have a summer trailer near Owen Sound and are able to visit family at Nawash regularly.

(ii) Respondent

[30] L.K. is the mother of G.A.M. She resides at Nawash with her spouse and her oldest daughter, from a prior marriage, P.K.T., and her granddaughter. L.K. and her husband are the parents of G.A.M. and another daughter, E.M. L.K. is Ojibwe. Her husband’s ancestry is European.

[31] L.K. was born in Toronto, moving with her parents to Nawash at the age of four. She attended elementary school at Nawash, high school in Wiarton and York University in Toronto where she obtained an undergraduate degree in Fine Arts. Thereafter, L.K. resided in Toronto for approximately 18 years, writing for the Ontario Indian magazine. L.K. and her spouse moved to Nawash in 1993. She is currently employed as the Program Manager for Cultural Experiences at Cape Crooker Park. Her spouse is retired, formerly employed in establishing the environmental office at Nawash. L.K. is also involved with the local elementary school, attending regularly as a storyteller, passing on Indigenous history and culture to the next generation.

[32] L.K. does not speak Ojibwe fluently but can communicate with some words and phrases. Her father spoke the language as a child. Of some interest, L.K. reported her father having attended a residential school but was punished whenever he spoke Ojibwe. In result, he did not want his children to suffer the same consequences and did not pass down their language.

[33] L.K. and her family have regularly spent time with D.M.L. since his birth. Since the parties’ separation, they assist G.A.M. with childcare in his two-week periods. They communicate with the child using some Ojibwe words and phrases and are involved with D.M.L. in Indigenous events and activities at Nawash. L.K. is supportive of the efforts to expose D.M.L. to his Indigenous heritage, culture and language.

[34] P.K.T. is the oldest sister to G.A.M. She and her teenage daughter reside with her mother and stepfather at Nawash. Her early years were at Nawash, moving with her mother to Toronto when she was about five years of age. She attended elementary and high school in Toronto and then Seneca College in Oakville. P.K.T. returned to Nawash at age twenty.

[35] P.K.T. is employed by the Nawash Board of Education as the coordinator of the Anishinaabe Language Nest program. Part of her role is to arrange language courses for members of the community. She is also involved in the delivery of language and cultural services at the daycare in Nawash. P.K.T. does not speak Ojibwe fluently, reporting there are only five or six elders in the community with that ability. However, she has studied the language and is able to communicate in it, improving her ability by spending time with elders and practising daily.

[36] P.K.T. spends time with D.M.L. when he is in his brother’s care. Such involves the usual family activities and, as well, assisting D.M.L. with his use of the Ojibwe language acquiring books for that purpose. P.K.T. also spoke of her daughter’s efforts in learning the Ojibwe language, earning an award for same in high school. They practice language together on a daily basis and involve D.M.L. in the activity. P.K.T. supports her nephew’s involvement in Indigenous activities and in exposure to heritage, language and culture. She said it is very important that the child learn about his ancestry, both Ojibwe and Mohawk.

[37] E.M. is a sister of G.A.M., being two years older. She resides in South Bruce Peninsula with her partner. E.M. was born in Toronto, moving with her family to Nawash at four years of age. She attended elementary school at Nawash and high school in Wiarton. E.M. has an undergraduate degree in biology from Wilfrid Laurier University. She then attended the University of Guelph for their equine management program. E.M. is active in Indigenous events and continues to learn the Ojibwe language through online courses and speaking with her sister, P.K.T.

[38] E.M. has visited with D.M.L. since his birth. From November 2020 to June 2022, G.A.M. resided with her and she would be involved with D.M.L. in her brother’s two-week parenting periods. E.M. referred to D.M.L. taking an interest in her horses and helping in the barn. E.M. also supports her nephew’s involvement in Indigenous activities and in learning his heritage, culture and language, both Ojibwe and Mohawk.

Education

(i) Applicant

[39] Both of the parties have enrolled D.M.L. in pre-school programs that emphasize Indigenous lessons. The child also participates in other educational activities as previously described. Future education for D.M.L. would include Indigenous teachings, as to heritage, culture and language regardless as to which parent has primary residence, although there are some differences given community resources.

[40] When in the care of his mother, D.M.L. attends the Early On program through the Healing of the Seventh Generation in Kitchener. This program focuses on applying science and other matters from an Indigenous perspective. It includes outdoor activities, such as traditional drumming. C.N.L. also takes D.M.L. to the Indigenous Sundance ceremony in Sarnia each summer where elders from many communities provide instruction, guidance and healing.

[41] C.N.L. is involved in the Indigenous community in Kitchener. The KW Urban Native Wigwam Project provides a multitude of services including accessing housing subsidies, cultural workshops, teachings of an onsite knowledge keeper, the pre-school referred to above and referrals for online language courses.

[42] Lee Ann Hundt is the Executive Director of this organization. She spoke of a large Indigenous population in the Region of Waterloo of approximately 40,000 to 50,000 persons. Ms. Hundt is Ojibwe from the Sudbury area. She speaks the language. Ms. Hundt reported on resources being provided to connect participants to their culture and heritage, with an emphasis on teaching children. Numerous traditional teachings and activities were identified. Ms. Hundt also advised that the online language courses occur weekly with a fluent speaker and are available in Ojibwe and Mohawk. Ms. Hundt is in regular communication with Indigenous communities to arrange for elders and other knowledgeable persons to participate in leading programs.

[43] Ms. Hundt addressed Indigenous education in the public school system. The Waterloo Region Board of Education, she says, provides funding to schools in the amount of $5,000.00 for each Indigenous student to promote Indigenous cultural learning.

[44] If D.M.L. primarily resides with his mother, he would attend a public school in the catchment area of C.N.L. C.N.L. has conducted research regarding the curriculum in the public school system and reported on a multitude of inclusive multicultural and Indigenous programs, including Treaty Day and Indigenous Recognition Day. Special events occur to recognize many cultural backgrounds of students allowing students to learn from each other. C.N.L. made reference to the curriculum honouring treaties and teaching truth and reconciliation. She also indicated there is an Indigenous group working with the School Board to improve education opportunities.

(ii) Respondent

[45] When in the care of his father, D.M.L. attends Nshiimi Daycare at Nawash. Their program includes cultural practices and Ojibwe language instruction, as previously described by P.K.T.

[46] There are other educational opportunities at Nawash. Elizabeth Dingler in the early childhood education coordinator, employed by the Nawash Board of Education. She is Ojibwe, originally from the Sarnia area. The program focuses on pre-school and elementary school children to promote language, traditions and culture. There are also family workshops for parents and children with a similar goal.

[47] Other child focused activities are available at Nawash. L.K. spoke of outdoor events hosted by Cape Crooker Parks where children learn about Indigenous attachment to the land. There are storytellers who pass on history and traditions to the next generation. Online Ojibwe language instruction can be arranged by P.K.T. to supplement training in the school system.

[48] If D.M.L. primarily resides with his father, he would attend elementary school at Nawash, operated by the Nawash Board of Education. In addition to the usual curriculum subjects, a teacher provides daily Ojibwe language instruction for every classroom as a compulsory course. The school also schedules elders and other members of the community to attend school to provide additional Indigenous instruction.

Parenting Plans

[49] The parenting plan presented by each party is similar in nature, the differences resulting from services available in their communities.

[50] Both parties seek primary residence of D.M.L. and enrolment in elementary school. For C.N.L., the school is nearby and in her catchment area. For G.A.M., the school is at Nawash, approximately a thirty-minute drive from his residence. He plans to move to Nawash if housing becomes available.

[51] D.M.L. would be involved in Indigenous activities, as previously described and as available in each community. He would also be able to participate in events when in the care of the other parent. Both parties have a family support network.

[52] Each party also proposes the other having parenting time on alternate weekends and one half of the school holiday or vacation periods. In response to my inquiry, counsel advised their clients would be receptive to adjusting holiday or vacation periods to provide additional parenting time for the other party.

Principles

[53] There is no dispute, each party is well able to parent D.M.L., either jointly or separately. They have shared parenting responsibilities and time with the child since separation. With the child attending school in September, the current regime must change, causing a disruption as to one of the parties parenting time. However, the focus of this decision is the best interests of the child, not the convenience of a parent. The best interests of the child is the only test to consider. See: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.); and Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) Section 24. Children’s Law Reform Act, provides a non-exhaustive list of human goods required for the well-being of any child. See: Ojeikere v. Ojeikere, 2018 ONCA 372.

[54] Those human goods, or factors, relevant to this case are set out in section 24(3)(a)-(i), namely:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

[55] Section 24(6) is also pertinent as to the change in parenting time that will occur in this case, as follows:

(6) ALLOCATION OF PARENTING TIME – In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[56] Much of the evidence focused on the child’s Indigenous heritage, culture and language, as addressed in section 24(3)(f), with other evidence presented regarding other factors in the section. While Indigenous matters are of considerable importance, it is only one of several factors. “All factors must be considered pragmatically.” as directed in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 (S.C.C.). See also, O’Connor v. Kenney, [2000] O.J. No. 3303 (Ont. S.C.J.)

[57] In M.L. v. Dilico Anishinabek Child and Family Care, 2022 ONCA 240, the panel has directed the trial courts, when considering the factors in section 24(3), including paragraph (f), to interpret these provisions to incorporate the national standards set out in the federal act, An Act respecting First Nations, Inuit and Métis children, youth and families, 2019, and in the Child, Youth and Family Services Act, 2017 “in a manner that harmonizes the legislation”.

[58] In so doing, the best interests test pertaining to Indigenous children is more expansive than as set out in section 24(3)(f). The federal Act includes the following provisions:

Purpose and Principles

Purpose

8 The purpose of this Act is to

(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;

(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and

(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

Principle – best interests of child

9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

Principle – cultural community

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

Principle – substantive equality

(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts:

(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs;

(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;

(d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and

(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.

Best Interests of Indigenous Child

10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be paramount consideration.

Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.

Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including

(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;

(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;

(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and

(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Consistency

(4) Subsections (1) and (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.

[59] Section 74(3), Child, Youth and Family Services Act provides as follows:

(3) BEST INTERESTS OF CHILD - Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[60] It is now necessary to consider all of these statutory provisions, as well as the United Nations Convention on the Rights of the Child and the United Nations Declaration on Rights of Indigenous Peoples, both being incorporated into legislation.

[61] The best interests test must address the rights of Indigenous children which include the recognition of equality and a unique heritage, culture and language that must be allowed to continue as well as a relationship within an Indigenous community. The Indigenous child is allowed and encouraged to learn and participate in his or her heritage, culture, traditions and language and to preserve the acquired identity of the community or nation to which he or she belongs. Accordingly, the best interests test takes into consideration the whole of the child in its many complex origins, all of which are important. The legislative changes reflect an attempt to overcome hundreds of years of oppression caused by colonialism, as well as the negative consequences from the residential school program, and work towards meaningful reconciliation.

Discussion and Analysis

(i) Credibility

[62] Credibility is often a relevant consideration in the evidence presented in many trials. But not in this case. The parties and all of their witnesses were credible, honest and sincere. The evidence presented was reliable. D.M.L. is fortunate to have loving and caring parents as well as extended family members who are most interested in his well-being and development.

(ii) Matters Raised That Are Not Factors

[63] There were a number of topics raised in the evidence, some referred to in submissions, that, in my view, are not relevant factors in the best interests test in this case.

(a) New Relationship

[64] Both parties are involved in recently established dating relationships. No complaints were made as to the involvement of these individuals with the child.

(b) Religion

[65] Religion, from a European perspective, is not an issue. Both parties identify with traditional Indigenous spirituality.

(c) Snow and Road Conditions at Nawash

[66] C.N.L. raised a concern regarding winter conditions in the Bruce Peninsula. There is no dispute there is a greater amount of snow than in Kitchener, due to the proximity to two large bodies of water. Roads would be more frequently closed as a result. The schools at Nawash and Wiarton may well be closed more often than Kitchener although no evidence was presented to make a comparison. The evidence was not clear as to the schools making up for lost class time. Regardless, it would be improper, in my view, to incorporate geography into the best interests test and thereby conclude certain areas in the province are better than others.

(d) Substance Abuse and Suicides at Nawash

[67] C.N.L. also raised concern regarding the high level of substance abuse and suicides at Nawash. Witnesses from both families reported the loss of friends and other members of that community from overdose or suicide. P.K.T. identified the cause being the negative consequences of colonialism and the residential school system. I agree.

[68] P.K.T., and other witnesses, described community efforts to address the problem, particularly reliance on their traditional culture. L.K. spoke of the strength within the family to protect children from exposure to such problems, adding that such matters are not in their lifestyle.

[69] It would be improper, I conclude, to use a community problem as a factor in a family issue. Such would lead to negative inferences regarding Indigenous communities. This is a strong family. There is no history that impacts parenting matters. I am satisfied there would be no greater risk to D.M.L. at Nawash than at Kitchener.

(e) Reserve vs. Urban

[70] The aforementioned topic leads to a further discussion regarding communities and lifestyle. While comparisons can be made, there can be no logical basis to conclude one is better than the other having regard to the best interests test. In my view, where a parent lives is a matter of choice and no community in Ontario can be said to cause negative consequences. Several witnesses spoke of a decision to live in an urban community for particular reasons, including employment opportunities, activities and services and to avoid the feeling of isolation from prior residency on the Reserve. Other witnesses made reference to the preferred lifestyle on the Reserve, a closeness to their Indigenous community, particularly culture and language and a connection to the land. I am satisfied D.M.L. would do well at either Nawash or Kitchener. The particular community is not a factor.

(f) School System

[71] C.N.L. and her sister spoke of a lesser quality education at the Nawash elementary school, discovered when they later attended school in urban centres. Assuming the comments to be accurate, such are historical. No evidence was tendered to demonstrate any difference in curriculum or opportunities at present. Elizabeth Dingler has some involvement in the school system at Nawash, reporting it to well prepare students for high school, referring, for example, to the success of her own children. Lee Ann Hundt is not directly involved in the school system in Kitchener, or elsewhere, but is aware that funding for Reserves can vary and opportunities may be limited. She has no knowledge of the situation in Nawash. I am not persuaded one school is better than the other and am satisfied D.M.L. would have equal educational opportunities at Nawash and Kitchener.

(iii) Views and Preferences

[72] D.M.L. is four years of age. No evidence was presented as to his views and preferences. Neither party had sought the involvement of the Children’s Lawyer. The child is described as intelligent, and I expect he would have provided some commentary if consulted. Nevertheless, the evidence clearly indicates D.M.L. has a close, loving bond with each of his parents and he enjoys time with them and with all extended family members. I would infer from that evidence that D.M.L. would like to spend equal time with each parent.

(iv) Best Interests of the Child

[73] Having regard to commentary preceding, the decision in this case ultimately comes down to consideration of the relevant factors as set out in section 24(3), Children’s Law Reform Act, as expanded by reference to other statutes and conventions. In large measure, the factors are essentially neutral as between the parties, necessitating taking into account the whole of the factors and the parenting plans as presented. This too becomes difficult as each party is well able to effectively parent D.M.L., preferably together but separately if needed or the circumstances in future require.

[74] To date, the parties have co-parented, working together in making decisions and equally sharing parenting time. That regime should continue as it is clearly in the child’s best interests. The distance between their residences and the need to enrol D.M.L. in school is now an obstacle going forward.

[75] This decision must be made on the current living arrangements of the parties in different communities. C.N.L. stated she has no intention on moving from Kitchener to Nawash or close thereto, such as Owen Sound. G.A.M. said he would consider moving to Kitchener if he was not successful in obtaining primary residence for D.M.L. His statement is not a factor in this decision. Indeed, in my view the question put to him in that regard was improper. But there was no objection. What would be important is the parties’ commitment to co-parenting if they were to reside in the same community or close enough to each other to make the regime effective and beneficial. But that is a matter for the future.

[76] There was some evidence regarding conflict or unreasonable commentary. Such, however, is minor in nature and certainly not unusual when parents are dealing with the stress of litigation. The parties do effectively communicate and do so frequently, often daily, regarding matters pertaining to their child. Thus far, they have always been able to ultimately make joint decisions.

[77] It would appear from the evidence that C.N.L. is more structured in planning for D.W.L., where G.A.M. lives more in the moment. Neither comment is meant to be a criticism, only an observation. It has an impact on communication. For example, D.M.L. participated in a traditional naming ceremony at Nawash in August 2022, an important event for Ojibwe children, with family members present. A problem occurred due to the last minute request from G.A.M. with the ceremony to occur during the parenting time of C.N.L. G.A.M. was upset when she did not immediately agree. C.N.L. simply needed time to consider the request and make arrangements. The parties, more importantly, were able to resolve the matter. Both attended the ceremony.

[78] I previously addressed principles regarding Indigenous heritage, culture and language in some detail, particularly due to recent developments and to provide some thoughts for future consideration. In reality, this is not a significant issue. There are differences in the parenting plans in this regard, as hereafter discussed. However, the parties concede that the other has complied with section 24(3)(f) by maximizing resources as available in their respective communities.

[79] A review of the relevant factors under section 24(3) involves the following:

(a) Both parties are well able to provide for the needs of D.M.L. Parenting has been and will be somewhat more stable with C.N.L. The child has been in her care since birth, slightly less in the care of G.A.M. The residence, employment, school and community services are closer in distance in Kitchener. C.N.L. has also been responsible for arranging medical care for D.M.L. The residence of G.A.M. is a thirty minute drive from school, his future employment is yet to be determined and community services are in Nawash and Owen Sound. It is unknown if or when G.A.M. will obtain housing at Nawash.

(b) D.M.L. has a close, loving bond with each parent. He also has a close relationship with every extended family member both at Nawash and Kitchener and also in other communities in Ontario. Both parents have a strong family support network in terms of providing care as well as guidance for D.M.L.

(c) The parties have been supporting each other in their shared parenting arrangement since separation. They communicate regularly and in a reasonable and appropriate manner and have supported the child’s relationship with the other parent and with all family members. C.N.L. has been more flexible in scheduling parenting time, including arranging for the child’s attendance at his naming ceremony during her time, and in accommodating requests from G.A.M. for extra time for other special events.

(d) The parties have shared care of D.M.L. since his birth. Initial care time was greater for C.N.L. as she was on maternity leave and G.A.M. was employed. C.N.L. arranged medical care and other services.

(e) As previously stated, the child’s views and preferences are unknown although it is likely he would want to continue the current schedule given his close connection to each parent and all family members.

(f) Both parties are supportive of the Indigenous heritage and culture of D.M.L. The parenting plans in this regard are virtually the same. Both parties would involve their son in appropriate events and ceremonies and thereby ensure he discovers his roots, traditions, history and himself within his Indigenous community. Such exposure would be more frequent at Nawash but it must be recognized there are many Indigenous residents in Kitchener and a network of organizations and services that provide similar resources. Both parties will continue to have D.M.L. participate in activities at other Indigenous communities.

The ancestry of D.M.L. is Ojibwe, Mohawk and European. G.A.M., and his family, support D.M.L.’s involvement in discovering his Mohawk heritage. His maternal great grandmother is Mohawk from Six Nations. She has resided at Nawash since marriage. Mr. Lang, incorrectly in my view, connects the child’s Mohawk heritage to this great grandmother. Family connections are important but in terms of heritage, ancestry considers the community. Lee Ann Hundt, in discussing heritage, said “we identify ourselves as where we are from, not where we live now”. The Indigenous ancestors of D.M.L. are from Nawash and Six Nations. The Mohawk connection is through C.N.L., as she shares the same ancestry.

(g) Both parties also support D.M.L. discovering the Ojibwe and Mohawk languages. He receives language instruction in pre-school. Language instruction will continue, more intensive if attending elementary school at Nawash, as such would occur daily. I would not expect D.M.L. to become fluent in Ojibwe by the end of elementary school. In the family, only P.K.T. comes close to fluency and such results from many years of instruction and practice. At present, the Wiarton High School does not provide Ojibwe language courses due to the lack of a certified teacher. Mohawk language instruction would also be required, as arranged by C.N.L.

(h) By their agreement for joint decision making, one of the matters the parties will have to address in the future is with respect to the child’s extra-curricular activities. They support his involvement in a variety of activities to date, all occurring separately in each community. In this litigation, their focus was on the immediate need for school enrolment. In response to my inquiry, counsel were unable to articulate a plan for extracurricular activities that should be occurring regularly and during the parenting time of both parties. This, in my view, is a significant concern as the distance between the two residences means D.M.L. will be unable to commit to consistent participation. Without a commitment, he will be unable to be involved in many activities. This will become problematic.

(i) Regardless as to which parent has primary residence for D.M.L., I am satisfied the parties will continue to effectively communicate and in a reasonable manner and to co-operate in addressing matters affecting the child, limited only by distance. D.M.L. will continue to enjoy relationships with other family members although scheduling adjustments will be required.

(v) Conclusion - Parenting

[80] Two good parents, supported by caring extended family members, makes a determination on primary residence most difficult. Overall, the relevant factors are essentially neutral, some slightly favouring one party, others more favourable to the other party. But not in a significant manner. In result, the decision takes into account the totality of the factors. In so doing, I conclude it is in the best interests of D.M.L. to have his primary residence with his mother, C.N.L., with additional parenting time to that proposed for his father, G.A.M.

[81] C.N.L. has been involved in parenting of D.M.L. since birth, having greater time initially to do so than G.A.M. She has also taken the lead on arranging medical and other services. At the present time, the circumstances of C.N.L. are more stable and will result in a more straightforward routine for D.M.L. All of the child’s immediate needs, including school and medical, are close to her residence. As is her place of employment. There would be less travel required for regular activities for D.M.L. during the school week. C.N.L. has also demonstrated the ability to provide a structural setting for D.M.L. while being more flexible than G.A.M. regarding parenting time.

[82] While the Ojibwe language training would be more intensive at Nawash, such is not a determinative factor in the overall situation. Some training is available in Kitchener. As neither party is fluent in the language, it will require the participation of all family members to assist D.M.L. by practising the use of his language. It is comforting to see the parties and their extended family being active participants in the revival of their heritage, culture and language. The family of G.A.M. will be most helpful to D.M.L. in this regard, particularly as to the Ojibwe language.

[83] The child’s Mohawk heritage also requires consideration and C.N.L. provides that connection to the child’s other roots in Six Nations. This will also involve training in the Mohawk language, available in Kitchener.

[84] This decision is not meant to be critical of G.A.M. or of his parenting ability. He, like C.N.L., is a loving and caring parent and has had considerable involvement with his son. It will take additional effort on his part to make the new regime work in the best interests of D.M.L. and I am confident he will do so.

[85] The parties have agreed on joint decision making for their child, an appropriate arrangement. Primary residence, however, required determination so that D.M.L. could be enrolled in an elementary school. As a result of my decision to grant primary residence to C.N.L., she is now permitted to enrol D.M.L. in the public elementary school in her catchment area (identified by name in the evidence but deliberately omitted in this decision), or such other school as directed by the Region of Waterloo School Board.

[86] The parenting time regime must now change to accommodate the child attending elementary school on a full-time basis. This will impact regular time as enjoyed by G.A.M. and his family to date. It should not disrupt the quality of his parenting time given the close bond between D.M.L. and his father and also with his paternal extended family. Additional parenting time can be used to offset, as best possible, the reduction in regular time.

[87] In this regard, I do not accept the initial proposal of both parties to equalize non regular parenting time. Section 24(6) has codified the longstanding principle of maximum contact.

[88] The current parenting time regime, by agreement, shall continue until September 1, 2023. Thereafter, I direct the parenting time of G.A.M. as follows:

(a) alternate weekends from Friday after school until Sunday at 7:00 p.m., extended as required for professional development days and statutory holidays;

(b) every March school break week; and

(c) six weeks every summer, as arranged by the parties; failing agreement, D.M.L. shall be with G.A.M. the first three weeks after the end of the school year, with C.N.L. the next three weeks, with G.A.M. the following three weeks, and the remainder of the summer period, if any, with C.N.L.

[89] The parties shall equally share the Christmas School break, alternating the first and second weeks each year. The parties may agree on other periods of parenting time, the expectation being that they will be flexible and have regard for important family events, always acting in the best interests of D.M.L. Transportation is to be shared. There will be make-up time arranged as a result of cancellation of parenting time due to illness, inclement weather or other reasonable requirements.

[90] The parties have agreed that either may make application for the child’s Native Status Card. They have also agreed on international travel and other matters. C.N.L. is now permitted to obtain and renew a passport for D.M.L. and G.A.M. shall co-operate in that process by signing any necessary consents. C.N.L. shall be the librarian of the child’s passport and deliver same to G.A.M. when needed for international travel with D.M.L. The parties shall equally share in the cost of obtaining and renewing the child’s passport.

(vi) Child Support

[91] During final submissions, counsel reported an agreement regarding incomes for the purposes of child support, C.N.L. at $30,300.00 and G.A.M. at $40,000.00, both being per annum. The income for G.A.M. is imputed, based on his 2022 income, given his current unemployment, expected to be only temporary. The parties have agreed to share section 7 expenses equally.

[92] In result, commencing September 1, 2023, G.A.M. shall pay monthly child support in the amount of $359.00 in accordance with his imputed income and the Child Support Guidelines. In response to my inquiry, Ms. Carroll advised that her client was not seeking to impute a higher income for G.A.M., based on section 19(1), Child Support Guidelines, even though his 2022 income was exempt for having to pay income tax having regard to the nature of his prior employment.

[93] Further, C.N.L. shall be permitted to apply for or claim any provincial or federal income tax or other benefits and programs for D.M.L. and G.A.M. shall co-operate by signing any necessary consents required for same.

[94] Both parties shall enrol D.M.L. on any extended health and dental insurance programs as available to them through employment.

Summary

[95] D.M.L. has enjoyed equal time with his parents, essentially since separation. This regime has allowed him to benefit from regular time with extended family members. Attending school in September necessitates a change given the distance between the residences of the parties. This decision for primary residence accommodates the child’s education and establishes a new parenting time regime that is meant to cause the minimum disruption to the former pattern.

[96] A final order is granted on the terms set out in this decision above. I expect the parties will resolve the issue of costs, emphasizing that evidence demonstrated that each party acted reasonably in this litigation. In the circumstances of this case, particularly the distance between residences, it would have been difficult, perhaps impossible, for either party to compromise in their position.

[97] If they cannot agree on costs, counsel are directed to exchange brief written submissions, along with offers to settle and other relevant documents, delivering same to my chambers in Kitchener, in the following manner:

(a) by the applicant within 30 days;

(b) by the respondent within 15 days thereafter; and

(c) reply to the applicant within 7 days thereafter.

[98] Costs submissions shall be forwarded to my attention by email, care of Kitchener.SCJJA@ontario.ca If no written submissions are received within the prescribed time period, the issue of costs will be considered settled and the file will be closed.

Released: June 6, 2023 D.J. Gordon J.

COURT FILE NO.: FC-20-00000432-0000

DATE: 2023/06/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.N.L.

Applicant

– and –

G.A.M.

Respondent

REASONS FOR JUDGMENT

Gordon J.

Released: June 6, 2023

DJG/lr