First nation vs family law case: Part two

woman's hand holding a child's hand

Neshkiwe v Hare 2020 CarswellOnt 8295 (C.J.): Please see our earlier post for a summary of the first stage of this case.

Initially, the First Nation indicated it would be challenging the constitutionality of some aspects of Ontario’s family law legislation. It has now stated its intention to seek “a declaration that all Ontario Provincial and Canadian Federal legislation is of no force and effect as they pertain to all M’Chigeeng children.” It brought a motion to have the case transferred to the Superior Court of Justice on the basis that the Ontario Court of Justice had no authority to grant the relief it sought.

Justice Finalyson dismissed the motion, relying on the Courts of Justice Act, the Children’s Law Reform Act and the Family Law Act, concluding that he did not have the jurisdiction to transfer the case. He suggested that “an inherent power in the Provincial Court to transfer a case to the Superior Court does not exist.”

He also considered the fact that the motion to transfer the case was brought some time (nine months) after the case began and after there had been a number (10) of court appearances and that there would be significant delays and additional costs if the case were transferred, which would prejudice the children as well as the parents.

Justice Finlayson indicated that, despite the ongoing impact of the pandemic on court proceedings, the parties should be prepared to go to trial in December 2020 and ordered the mother and the First Nation to pay the father just over $20,000 in costs.