Motion granted for the M’Chigeeng First Nation to be added as a party to the proceedings in keeping with the best interests of the child. This matter will eventually involve constitutional questions surrounding the children’s custody.
Following the parent’s separation, an Indigenous mother left Toronto with her two children. Shortly after the father, who is also Indigenous but from a different community than the mother, launched an ex parte motion for temporary custody, that was granted. The ex parte motion ordered the children’s return to Toronto and for police assistance from various police forces to enforce this Court’s order. The mother and M’Chigeeng First Nation [“MFN”] advised the Court they intended to challenge the Court’s jurisdiction to make any orders for custody or access, asserting exclusive jurisdiction of the children.
In the meantime, the Court’s ex parte Order had not been followed. The father initially only served the Order for enforcement on UCCM Anishnaabe Police Service [“UCCM”] and did not serve it on OPP until the term for police enforcement was about to expire. The mother nor the MFN had prepared Notices of Constitutional Questions, while still raising a challenge and taking steps outside the Court consistent with that position. On December 5, the Court directed all Constitutional Question were to be served and filed before December 19 and granted leave to MFN to bring a motion to be added as a party to this proceeding. The enforcement term was stayed on a without prejudice basis.
MFN is asserting exclusive jurisdiction of the children. Both the mother and the MFN have advised the Court that they intend to challenge the Court’s jurisdiction to make any orders for custody or access. They anticipated advancing this claim based on an existing Aboriginal and Treaty right under s 35 of the Constitution Act, 1982. However, neither has been pleaded, nor any Notices of Constitutional Question been served or filed. 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 the MFN, as an alternative legal basis from the anticipated section claims.
Until such arguments could be sorted out, a practical problem unfolded that still exists. The mother indicated to the Court that she would not comply with the Court’s Order. The MFN prohibited the father from coming onto its territory. UCCM refused to enforce the Order, as it had been instructed by the MFN to act in that fashion. The OPP, however, would enforce the Order, but brought the Court’s attention to certain potential negative consequences for the Court to consider. It was suggested to suspend the operation of the police enforcement term until the legal questions are resolved.
The Court has issued another Endorsement containing further directions for the conduct of this case and has asked that a litigation plan be presented. Regarding the police enforcement term, the Court stayed enforcement, which was about to expire anyway, on a without prejudice basis.
The overarching consideration in deciding to add the MFN as a party to the proceedings was in keeping with the best interests of the children. It was not seriously disputed that the First Nation should be added as a party. The s 35 claims have both individual and collective aspects to them. Adding the First Nation to the proceedings was also in the best interests of the children as they have a position to take and to offer evidence surrounding these particular children. Lastly, they have a legal interest. Once that position has been clarified after a full hearing, then they may call into question the Court’s jurisdiction.