TA v CD, 2021 SKQB 52

An Indigenous mother has been granted custody of her six year old son. She voluntarily placed him with her great aunt when he was a few days old due to her addictions and incapacity to care for him. The aunt will continue to have specified access to the child, as she has bonded with him. The mother has worked hard over the last three years to remain sober and is now in a good position to care for her son along with his two siblings.

Indigenous Law Centre – CaseWatch Blog

CD, has been the primary care giver of a six year old child and her home has been his primary residence since he was only a few days old. He was placed with CD by his mother, TA, voluntarily, as she was struggling with addictions and knew she could not care for him. The mother is currently caring for two of her other children now that her addictions have been behind her now for almost three years. During this time that she has remained sober, TA went on to get two degrees from First Nations University in Regina and is confident she is capable to have her six year old son now stay with her.

CD, who is TA’s great aunt, has been cooperative with access to the mother, but feels that the boy should continue to live with her as it would be in his best interests. He is very sensitive to disruptions and requires special care and structured routine. CD has informed the Court that it is common both within their family and in First Nation circles to care for mothers who are struggling with raising their children.

TA acknowledges her previous addictions difficulties that included use of crystal meth and alcohol. However, this was due to unresolved trauma. She has worked very hard and has made long term, meaningful recovery and is prepared to become sole parent of her son. TA has put forth the effort to minimize conflict with her aunt over this custody issue, but remains adamant she can now provide for him with her place being primary residence.

The Court finds that a transition, if properly planned and executed will, in the short, medium and long run, to be in the best interests of TA’s son. The connection a child has to his biological parents is of great significance. It is not in his interests to have only a half time relationship with his mother. He will benefit most from living primarily with his mother and maintaining a relationship with his loving auntie. He needs access to both his Catholic roots and his Aboriginal culture. This is who he is at present and who he needs to continue to be until he makes choices himself as to where that leads. A transition period is important and counselling is recommended for the aunt and mother to repair the conflict this custody battle has inflicted on their relationship.

Neshkiwe v Hare, 2020 ONCJ 42

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.

Native Law Centre
CaseWatch Blog

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.

FB v RB, 2019 ABPC 204

Application denied. Considering the history of the family, the grandparents of child are granted daily care. The child’s mother has restricted parenting time. The father is allowed no contact unless via a safe visitation facility.

Native Law Centre CaseWatch Blog

This action involved the guardianship and parenting of a child. The grandparents of the child obtained court orders for guardianship. The parents were granted a Parenting Order in 2016, giving them daily care of their child, all decision-making powers, and gave the mother parenting time with the child at the discretion of the grandparents. The mother, however, applied under s 34(2) of the Family Law Act [“Act”], to vary the 2016 Parenting Order, asking that the child be transitioned to her day to day care.

The issues before this Court was whether it had the jurisdiction to make a variation order of the 2016 Parenting Order. If so, what allocation of parenting time, guardianship powers, entitlements, and responsibilities were in the best interests of this child. S 34(3) of the Act determines that the Court can only make a variation order if there has been a material change in the needs or circumstances of a child since the making of a Parenting Order. Additionally, the Court can only consider the best interests of a child as set out in s 18 of the Act, as determined by reference to any change in a child’s needs or circumstances. An existing custody order may be varied on an interim basis in emergent circumstances, but it should not be lightly disturbed as stability and certainty are primary considerations for a child’s best interests (Carey v Hanlon, 2007 ABCA 391).

S 18(2)(b) provides a non-exhaustive list of the needs and circumstances of a child that the Court must consider. Accordingly, for s 34(3) of the Act, a change in the needs or circumstances of a child has occurred if there has been a material change in any of the needs or circumstances listed in s 18(2)(b). The Court determined that there was a material change in the needs or circumstances of the child in this matter concerning the ability and willingness of the mother to care and meet the needs of the child. There was, however, a pending criminal proceeding regarding an allegation of sexual assault against the father, which is a circumstance affecting the safety and well-being of the child, which was afforded greater weight.