First Nation vs family law case: Part three

woman holds childs hand

Neshkiwe v Hare: As you will know from previous posts, this custody and access case challenged the constitutionality of Ontario’s family law legislation with respect to whether the OCJ and SCJ can make custody and access orders when the child belongs to a First Nation that has its own rules for handling family law issues.

The parents have two young children and lived in Toronto for most of their relationship. The mother took the children, without the father’s consent, to the M’Chigeeng First Nation on Manitoulin Island at the end of the relationship in 2019. The mother and daughter are members of that First Nation, the son is entitled to be registered, but the father is neither a member nor entitled to be one.

The mother and the First Nation took the position that Ontario courts did not have jurisdiction over the children and so could not make orders with respect to custody or access or the return of the children to the father in Toronto.

After two court hearings, it appeared the case was likely headed to the Supreme Court of Canada for final resolution of the constitutional issues. However, the mother and the M’Chigeeng First Nation have withdrawn their constitutional claims, and the case will now proceed simply as a custody and access case.

Despite this decision by the mother and the First Nation, the constitutional issues initially raised in the case remain important and will have to be resolved by the courts at some point.