AMANDA DAWN WELTER Petitioner - v. -, 2023 SKKB 33

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 33 Date: 2023 02 13 Docket: FLD-BF-00050-2022 Judicial Centre: Battleford ___________________________________________________________________________ BETWEEN: AMANDA DAWN WELTER Petitioner - and - QUANITA KEQUAHTOOWAY and YASSER KHAMIS FDL EL MULLA Respondents Appearances: Amanda Welter on her own behalf Carolyn Leblanc for the respondent, Quanita Kequahtooway Yasser Khamis Fdl El Mulla on his own behalf ___________________________________________________________________________ FIAT GOEBEL J.

February 13, 2023 ___________________________________________________________________________ OVERVIEW [ 1 ] This proceeding involves the care and best interests of one child – six-year-old Hiba. Hiba has many people in her life who love her and want to participate in her care. [ 2 ] Hiba was born in January 2017. She has a mixed ancestry. Her mother, Quanita Kequahtooway, is a member of the Zagime Anishinabek First Nations [Zagime Anishinabek], located southeast of Regina, Saskatchewan. Her father, Yasser Fdl El Mulla, immigrated to Canada from Sudan with his extended family.

They were engaged in a romantic relationship from 2015 to the fall of 2017 and separated when Hiba was only a few months of age. They resided in Regina during their relationship, and for a portion of that time, the mother’s three older children also resided with them. [ 3 ] In the spring of 2018, due to her personal circumstances, the mother made the difficult decision to place her children with extended family members. Her three older children returned to the care of the maternal grandparents on Zagime Anishinabek.

As the mother was residing in Saskatoon, she asked Hiba’s paternal aunt and uncle who resided in a small community north of Saskatoon, Saskatchewan, if they would care for Hiba. They agreed, and Hiba was placed in their care. A few months later, on September 6, 2018, and again on April 28, 2019, a written agreement was signed by the mother and the caregivers. These were difficult but voluntary decisions made by the mother.

Child protection services was not involved at that time or since. [ 4 ] For the next few years, the mother had regular contact with Hiba – sometimes staying at the aunt and uncle’s residence and sometimes taking the child with her to Zagime Anishinabek. In April 2021, the aunt and uncle separated. The aunt, Amanda Welter, relocated to Kerrobert, Saskatchewan, with Hiba to reside with extended family. [ 5 ] Hiba’s father says that he tried, with limited success, to maintain contact with Hiba immediately after the separation.

He says that he was unaware of the private arrangement made between the mother and aunt and believes that the mother instructed the aunt to restrict his contact. More recently, the father and the aunt have worked cooperatively to ensure that he has regular contact with Hiba. He says that he has been providing financial assistance to the aunt as well as providing clothing and other items that Hiba requires. [ 6 ] In June 2022, the mother moved back to Zagime Anishinabek to reside with her parents and her three older children.

At that time, she advised the aunt that she wanted Hiba to move to Zagime Anishinabek as well. [ 7 ] The aunt was opposed to the move. She initiated this proceeding pursuant to The Children’s Law Act, 2020 , SS 2020, c 2 [ CLA ] or [ Act ], naming the mother as the sole respondent. In her claim, the aunt seeks an order designating her as “a person of sufficient interest” to Hiba, as well as an order providing her with sole guardianship and decision-making authority. She also filed an application for interim relief to ensure that Hiba would not be unilaterally removed from her care.

[ 8 ] In response, the mother filed an Answer and Counter-petition seeking primary care of Hiba. She also filed an application asking that the father and Zagime Anishinabek be added as parties to the proceeding, and that the proceeding be transferred from the Judicial Centre of Battleford to the Judicial Centre of Regina.

That application was initially filed as a “without notice application”; however, the court directed that it proceed on notice to the aunt, Zagime Anishinabek and the father. (Notwithstanding that a notice of application was never filed, that procedural irregularity was waived at the hearing so that the preliminary issues could proceed without further delay.) [ 9 ] Shortly thereafter, the father filed his own Answer and Counter-petition, also seeking primary care and sole decision-making responsibility for Hiba. [ 10 ] In the meantime, the mother filed a second application seeking a ruling that An Act Respecting First Nations, Inuit and Metis Children, Youth and Families , SC 2019, c 24 [ Federal legislation ], governs in this situation and informs the substantive determination of Hiba’s best interests and care arrangements given her Indigenous heritage and membership in Zagime Anishinabek.

That application was served on the attorneys general for the province and for Canada. [ 11 ] Each of these applications came before the court at different stages of readiness. At the initial court hearing, an order was made designating the aunt as a person of sufficient interest to the child.

Also at that appearance and each court appearance since, the court made “stopgap” orders respecting care arrangements for Hiba to create some structure around parental contact – the primary complicating factor being the significant distance between the residences of the parties. [ 12 ] At the conclusion of the last court date, the aunt’s application for substantive interim relief and the mother’s application relating to the substantive impact of the Federal legislation were adjourned sine die pending the parties’ participation in mandatory dispute resolution pursuant to s. 44.01 of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , s 22 .

The procedural issues raised by the mother’s application were directed to proceed on January 19, 2023. [ 13 ] When the hearing commenced on January 19, 2023, the parties confirmed that they had all received the significant volume of materials recently filed with the court and were ready to proceed with the application. [ 14 ] In addition, with consent of the parties, the style of cause was amended to add the father as a respondent to the proceeding and to amend his Counter-petition to correct an error respecting the legislation governing his claim. [ 15 ] The issues in dispute are as follows: 1.

Should Zagime Anishinabek be added as a party to this proceeding? 2. Should the proceeding be transferred to another judicial centre? 3. What, if any, changes should be made to the interim care arrangement to ensure that Hiba’s best interests are being met pending further agreement of the parties or court order? ANALYSIS 1. Should Zagime Anishinabek be added as a party to this proceeding? a. The positions being advanced by the parties [ 16 ] The mother applies for an order adding Zagime Anishinabek “as a party to this matter”.

Her counsel, who also appeared as agent for Zagime Anishinabek on the hearing date, confirmed that Zagime Anishinabek consents to this relief. [ 17 ] Counsel concedes that there is no specific legislative provision that entitles Zagime Anishinabek to party status in this otherwise private dispute but argues that the case law, the CLA and the purpose and intent of the Federal legislation , along with increasing recognition of the inherent rights of Indigenous people to self-government in Canadian law, support Zagime Anishinabek’s participatory rights in this matter. [ 18 ] In that regard, it is not disputed that the mother and Hiba are members of Zagime Anishinabek, as well as the maternal grandparents and Hiba’s three older siblings.

In addition, Hiba’s maternal grandmother is an elected member of Zagime Anishinabek Band Council. Counsel for the mother argues that Zagime Anishinabek’s participation is necessary for the court to adjudicate effectively and completely on Hiba’s best interests. [ 19 ] In addition, she argues that the unique facts of this case, including the financial and cultural support that Zagime Anishinabek provides to the family, alongside the grandmother’s involvement in Zagime Anishinabek governance, support Zagime Anishinabek’s party status. [ 20 ] The aunt opposes the application.

She argues that there is no legal basis to add Zagime Anishinabek as a party and fears that their presence will unnecessarily complicate the proceeding. She is also concerned that it will be more challenging to achieve a resolution if Zagime Anishinabek is allowed to advance its own “distinct agenda”. [ 21 ] The father also opposes the application but for different reasons. He appears to view the application as a veiled attempt by the maternal grandparents to take control of the proceeding.

He says that they should not be given an opportunity to interfere in proceedings about Hiba’s best interests when they have taken no interest in her care or well-being over the last five years. (Those allegations are contested.) b. The rules and legislation [ 22 ] The court has broad discretion to add a party to a family law proceeding, although that discretion must be

exercised judicially and with care. Party status confers wide-ranging entitlements and obligations that can significantly impact the rights of all parties and the outcome of a proceeding. [ 23 ] Guidance in the exercise of this discretion can be found in The Queen’s Bench Rules . The mother cites and relies on Rule 15-10(5) in support of her application. That Rule provides as follows: 15-10

(5) The Court at any time may: (

a) order that a person who may have an interest in the matters in issue be served with notice of the family law proceeding with or without adding that person as a party; (

b) give directions respecting the manner of service on that person and the conduct of the family law proceeding; and (

c) add a party on application in accordance with these rules or in accordance with any enactment. [ 24 ] Rule 3-84 also informs the issue, providing as follows: 3-84

(1) At any stage of the action, the Court may order that any person be added as a party if: (

a) that person ought to have been joined as a party; or (

b) the person’s presence as a party is necessary to enable the Court to adjudicate effectively and completely on the issues in the action.

(2) At any stage of the action, the Court may grant leave to add, delete or substitute a party, or to correct the name of a party, and that leave shall be given, on any terms that the Court considers just, unless prejudice will result that cannot be compensated for by costs or an adjournment. … [ 25 ] The burden of persuasion lies on the applicant and must be supported by admissible evidence. c. The legislation governing this proceeding [ 26 ] This matter is governed by The Children’s Law Act, 2020 .

That Act allows parents and any “other person having, in the court’s opinion, a sufficient interest” to seek relief from the court: CLA , s. 8(1) . A determination as to whether a non-parent meets this test engages its own set of principles and debate: D.L.C. v G.E.S. , 2006 SKCA 79 , 270 DLR (4th) 597 . [ 27 ] The Act also provides the court with discretion to direct that an application for parenting be served on “any person who has, in the court’s opinion, a sufficient interest in the child, and that person may be heard at the hearing of the application”: CLA , s 9(2).

No cases were identified that have considered this

section or its predecessor (formerly s 7(2)). That said, the subsection does not speak to party status, but a more limited right to notice and to make representations. [ 28 ] Nowhere in the Act does it speak directly to the right of a First Nation to participate in a proceeding involving an Indigenous child. In contrast, The Child and Family Services Act , SS 1989-90, c C-7.2 [ CFSA ], provides the court with discretion to designate the chief of a band or the chief’s designate as a “person of sufficient interest”, with full participatory rights, where the child is a member: CFSA , s 23(1)(b). This

section has been held to enable the court, “when faced with the task of having to decide what is in the best interests of a First Nation’s child in need of protection, to add the chief of the First Nation, or the chief’s designate, as a party to the proceedings to the end of assisting the court in making a more informed and sensitive decision”: L.(M.S.D.) (Re) , 2008 SKCA 48 at para 27 , [2008] 8 WWR 280 . In that case, the Court of Appeal further speculated that it might also be argued that participatory status could be afforded to a chief pursuant to s. 23(1) (

c) of the CFSA , if the evidence supported a clear connection between the First Nation and the child. In that regard the court held: [29] Here, for example, had the child been resident with her maternal grandmother on the Ochapowace First Nation Reserve, and been generally regarded as a member of the First Nation, participating in its events, attending its school, and so on, the Court might have assumed that Chief George had the requisite connection with the child, given the relationship between subsections 23(1) (

b) and 23(1) (c), coupled with the customary indicia pointing to the requisite connection, as in D.L.C. v. G.E.S . , 2006 SKCA 79 , 270 D.L.R. (4th) 597 ; [2006] 11 W.W.R. 101. But that was not the case. The child resided elsewhere with others, and had done so for virtually the whole of her young life, a fact that was capable of undermining what might otherwise have been assumed to be a close connection between Chief George and the child. [ 29 ] Of course, that legislation is not operative in this instance.

There is no claim relating to Hiba pursuant to the CFSA nor any child protection proceeding or involvement. [ 30 ] Counsel for the mother also refers to the Federal legislation ( An Act Respecting First Nations, Inuit and Metis Children, Youth and Families ), in support of her application.

Section 13(

b) of the Federal legislation grants the right to make representations to an Indigenous governing body [IGB] acting on behalf of the Indigenous group, community or people to which a child belongs within the context of a child and family services proceeding. [ 31 ] Counsel conceded that the Federal legislation does not provide Zagime Anishinabek with standing per se but argued that it informs whether a First Nation has a sufficient legal interest to warrant party status under the common-law test.

In that regard, she submits that the purpose and intent of the Federal legislation , along with increasing recognition of the inherent rights of Indigenous people to self-government in Canadian law, support Zagime Anishinabek’s participatory rights in a matter involving an Indigenous child who is a member. [ 32 ] There is little debate that the law is evolving to recognize First Nation participation and right to governance in

child protection matters involving Indigenous children.

There have been a number of recent cases outside of Saskatchewan that have considered the scope of representative status that is available to First Nations in child protection matters involving Indigenous children. [ 33 ] For instance, there are a number of cases where the court has held that the legislated right of an IGB to make representations in child and family services matters involving Indigenous children must be meaningful and substantive ( i.e. , including the right to call and cross-examine a fixed number of witnesses): MSD v A.C. , 2021 NBQB 14 [ A.C. ] ; M.M. v Alberta (Child, Youth and Family Enhancement Act, Director) , 2021 ABPC 317 [ M.M. ] ; D.B. (Re) , 2021 ABPC 140 ; and R.A.B. (Re) , 2019 ABPC 178 . [ 34 ] In D.B. (Re) , a First Nation sought active representative status in a child protection matter that would include the right to call and cross-examine witnesses at an upcoming trial.

After a detailed review of jurisprudence on the issue, the court held: [22] I think that a distinction can be made regarding cases involving third parties, such as foster parents, grandparents, relatives, etcetera, and an Indigenous governing body. As the case law suggests, it is envisioned that the Indigenous community would have an important and meaningful role in providing information and recommendations to the Court about a child’s cultural heritage. I also believe that the case law is moving towards a more interactive participation for the Indigenous governing bodies than mere representations.

This does not mean a shift in all cases towards party or intervenor status, but instead will recognize a unique opportunity to assist and benefit the Court in appreciating the child’s Indigenous heritage.

As a result, an Order will issue as follows. [ 35 ] Likewise in M.M. , the court emphasized the need to consider the larger social context when determining intervenor status of a First Nation, including initiatives undertaken in Canada to better understand our history, to better understand the mistreatment of Indigenous Canadians by government authorities and to propose solutions for harms caused: M.M. , at paras 21-34 .

In granting intervenor status to the First Nation, the court summarized these considerations as follows: [30] The legislation, its history, the social context and other applicable laws can be summarized briefly as follows.

First, in creating a statutory right to notice, a right to appear before the court, to be represented by a lawyer and to make representations before the court, s. 53.1 creates a special status for an Indigenous band where a private guardianship application is brought for children who are members of the band and ensures that the court has the benefit of the perspective, views, and evidence of the child’s community. The bands are asked to the table and that is relevant to determining when they should be allowed to stay. [31] Second, it is clear that

section 53.1 and other sections of the CYFEA [ Child, Youth and Family Enhancement Act , RSA 2000, c A-18 ] including those added to or amended by Bill 22 create a new approach to considering applications that involve Indigenous children. The Guiding Principles connect the wellbeing of families and communities to the wellbeing of children. That

section also directs that “Indigenous people should be involved with respect to ... decisions respecting Indigenous families and their children.” And further, says that children benefit from placements “where the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.” [32] Further, the Inquiries, both formal and informal, undertaken in respect of the experience of Indigenous people in Canada describe the damage caused to Indigenous people and Indigenous community by the removal of the children.

In their detailed recommendations these various inquiries consistently urge that the healing of these harms must include and respect Indigenous people, communities, culture, tradition, and laws. [33] Finally, there are other laws that have application. Federal law has recently confirmed again that Indigenous people in Canada have inherent rights and has created minimum standards of care for Indigenous children involved in the child protection system.

Indigenous peoples also have rights by international convention and these rights are expressly recognized both as having application to Canadian law and as being a source of

interpretation of Canadian law. [34] All of this must inform the common law analysis applicable to determining whether leave should be given to the band to participate further in the proceedings. [ 36 ] This is similar to the finding of the Alberta Court of Queen’s Bench in S.M. v Alberta (Child, Youth and Family Enhancement Act , 2019 ABQB 972 [ S.M. ] . In that matter, the First Nation appealed a Provincial Court judge’s decision not to grant intervenor status ( U.R.M. (Re) , 2018 ABPC 96 ) and brought a separate application for leave to intervene in the appeal.

The court confirmed that neither the provisions of the provincial child protection legislation nor the Federal legislation granted party status to a First Nation but, rather, a right to make representations “if its exercise is consistent with the best interests of the child and is appropriate in the circumstances”: Federal legislation , ss 13(

b) and 33 ( S.M. , at paras 89-90 ). That said, the court was influenced by the changing legislative landscape, the policies behind those changes and the potential benefit of hearing additional Indigenous perspectives during the transition to the new statutory regime. With this in mind, and notwithstanding its finding that the First Nation failed to meet the common-law test for intervenor status, the court granted limited scope intervenor status to the First Nation.

In so doing, it held: [114] In conclusion and taking into consideration all the Pedersen factors, Siksika Nation fails to satisfy the test for intervenor status. First, it has not shown it is directly affected by the decision relating to the Children. Second, the narrow topics for which Siksika Nation may bring a unique or at least a broader perspective (including submissions on the pending legislative amendments) are not sufficiently material to overcome the potential prejudice to the parties if status is granted, and in particular, if fresh evidence is introduced.

Further, some of Siksika Nation’s submissions spoke to broader political issues. [115] Having so found, I nevertheless consider the recent legislative changes and the policy positions behind them.

In this context, given these provisions have not yet been considered, and the Court may benefit from considering additional Indigenous perspectives during the transition to the new statutory regime, particularly to the extent it can contribute to the specific issues raised in this appeal, and further given the highly discretionary nature of a decision to grant intervenor status ( Canadian Centre for Bio-Ethical Reform [2017 ABCA 280] at para 11), I exercise such discretion to grant Siksika Nation intervenor status on a limited basis. [116] I am not prepared to broaden the issue before me, which remains the best interests of the Children (including under the new legislation).

I grant Siksika Nation an opportunity to speak to the policy changes encompassed by the recent legislative amendments and the cultural plan for the Children. To the extent encompassed by these topics, it may also speak to the issues of what cultural identity

means to Indigenous children, and on the importance of preserving and encouraging cultural identity for children placed in non- Indigenous homes. Siksika Nation has made written and oral submissions on these issues. [ 37 ] Recently, in Métis Child, Family and Community Services v C.P.R. , 2022 MBCA 40 [ C.P.R. ] , the Manitoba Court of Appeal granted a First Nation’s application for leave to intervene in a guardianship dispute between private parties respecting a child under the care of a child protection body.

Acknowledging that the case raised important questions about the governing legal framework for Indigenous children and families in Manitoba, it held: [25] In terms of the nature of the case and the issues that it raises, while the appeal, at first blush, appears to be a purely private matter, it is not. The governing framework for Indigenous children and families in Manitoba is an important matter of public interest. The law as to the boundaries of federal, provincial and Indigenous jurisdiction and standards is not settled.

As Peguis CFS puts it in its memorandum, this area of law is “special, evolving, and expanding.” I am also mindful of the fact that Parliament has now implemented UNDRIP in areas of federal jurisdiction (see United Nations Declaration on the Rights of Indigenous Peoples Act , SC 2021, c 14 ).

The fact that there is disagreement in other provinces as to whether the Act applies to a private guardianship confirms that this appeal engages important questions not just to the parties, but to the public generally. [ 38 ] In so doing, the Court of Appeal held that the First Nation had a unique perspective relating to the subject matter of the appeal, being the application of the Federal legislation to matters of private guardianship, and a direct interest in the outcome of the appeal. [ 39 ] It is notable, however, that in none of these cases did the court grant the First Nation party status .

Even where intervenor status has been granted, limits on participation were carefully crafted, taking into account the specific nature of the dispute and the focus upon the best interests of the child(ren) involved. [ 40 ] In J.C. (Re) , 2022 ABPC 212 , even where a First Nation had intervenor status (by consent of all parties), the court declined to extend that status to include disclosure rights. The court held: [19] In coming to that conclusion, I am also mindful of their role in this proceeding. They are an intervenor who is to provide a unique perspective and not assist the party.

More specifically in this case, they are to raise issues regarding the child’s identity, culture, heritage, spirituality, language and traditions and make written and oral representations in relation to this. In other words, they are to explain how it is in the best interests of a child with an Indigenous background that he be placed with a First Nation member. They can do that without access to the records. [ 41 ] Likewise in MSD v A.C. , the court distinguished between representative status and the right to participate as a party.

The arguments advanced by the First Nation in support of party status were summarized as follows: [22] In the present matter, the Moving Party suggests that they are uniquely positioned to provide to the Court the necessary expertise and background in order to appropriately analyze the

interpretation of the “Act” and the determination of the best interest of these Indigenous children. The Moving Party asserts that they clearly have an interest in the subject matter of this proceeding. The Moving Party maintains that only by securing their participation as a party before the Court will this important evidence and perspective be considered. [ 42 ] While the court accepted that the Federal legislation applied to the proceeding before the court, it rejected the application for party status.

It held: [27] I share the Applicant and Respondent, A.C.’s, concerns regarding the Moving Party’s request to be added as a party pursuant to Rule 15.02 of the Rules of Court . The concerns raised by the Moving Party regarding the new federal legislation and the importance for the Court to obtain and appreciate evidence concerning the children’s heritage can be achieved without adding the Moving Party as a full party to the proceedings. Significantly, the “ Act ” itself speaks of the ability of an Indigenous community to make “representations” before the Court.

The Act does not speak to the addition of an Indigenous community as a full party. In my view, the Moving Party has not satisfied the criteria set out in Rule 15.02 of the Rules of Court and will therefore not be added as a party to these proceedings. [ 43 ] It is also notable that in the above cases, the application was grounded on child protection legislation and/or the child was a ward of the child welfare system pursuant to a previous court order.

There appear to be very few cases where the court has considered the involvement of an Indigenous governing body in a purely private parenting dispute – where the child is not in protective care and there are no protective care orders either in place or being pursued. [ 44 ] One such case is Veenstra v McCabe , 2014 ONSC 6844 [ Veenstra ] . In that case, a First Nation applied for party status in a private “custody” dispute involving its members.

The court rejected the First Nation’s submissions, finding that the First Nation’s participation was neither necessary nor required to determine the children’s best interests. It held: [23] Counsel for the Batchewana First Nation describes the approaches by the court in the aforementioned cases as “restrictive” and invites the court to take a more “expansive” approach to the request to add the Band as a party and the application of Rule 7 of the Family Law Rules and s. 62(3) of the Children’s Law Reform Act .

The basis for this is the Band can provide a unique perspective and input to assist the court in determining the best interest of Christopher, Kianna and Gracelyn against the competing custody claims given the First Nation heritage of the children.

It is argued by the Band that the care and upbringing of a First Nations child is in the collective interest of the community and accordingly, the Batchewana First Nation has an interest in the litigation and can provide a perspective which would assist the court in determining the issues of custody and access. [24] I am sympathetic to the Band’s collective community interest in where Christopher, Kianna and Gracelyn will reside.

In fact, the children’s background and their heritage will be one of the factors ultimately to be considered by the court in the application of s. 24(2) of the Children’s Law Reform Act . The Band obviously has an interest in the outcome of the custody proceeding, although my view is that it goes too far to suggest that the rights of the Band are directly affected by the outcome of this custody litigation.

[25] Having said that, is the Band’s participation as a party necessary to determine the matters in issue in these proceedings; necessary to determine what is in the best interest of Christopher, Kianna and Gracelyn with respect to the competing custody claims of the applicant aunt and the respondent father? In my view, the Band’s participation is not necessary, or even at the lower spectrum, required, to determine the issue of custody and access. [26] This is a private litigation matter between two individuals. It is not a matter where the state is involved, such as in a child protection proceeding. There is no statutory right for the Band to take

part in a private litigation matter as there is in a child protection matter. Section 39(1) of the Child and Family Services Act , R.S.O. 1990, c. 11 , provides that in a child protection proceeding, “where the child is an Indian or a native proceeding, a representative chosen by the child’s bank or native community” is, by statute, a party to the proceeding. There is no such provision in the Children’s Law Reform Act . It was clearly not the intention of the Legislature of Ontario to mandate that the Band be a party in every litigation matter involving the custody and access of a child of First Nation heritage.

If that was the intention of the Legislature, it would have been provided for in the Children’s Law Reform Act , as it is provided for in the Child and Family Services Act . The issue of whether the Band should be a party in custody and access disputes must be decided by the application of the provisions of the Children’s Law Reform Act , the Family Law Rules and the jurisprudence.

A consideration under the legislation, rules and jurisprudence reduces itself to the court being satisfied that the Band’s participation as a party in the litigation is necessary to determine the custody and access issue before the court. [ 45 ] More recently, in McDonald v Hawley , 2021 ABPC 98 [ McDonald ] , the court rejected a First Nation’s application to intervene in a private parenting matter where the issue before the court was territorial jurisdiction. In that instance, the First Nation wished to tender submissions respecting the child’s cultural connection to the First Nation.

Despite accepting that the child’s Indigenous heritage and culture is a critical factor to be considered when determining her best interests, the court found that it was not necessary nor appropriate to allow the First Nation to intervene. In so doing, the court distinguished between an application for private guardianship where there was child welfare involvement and those cases where the dispute is purely private and without any “child protection controversy”: McDonald , para 55 . d.

Application of the law to evidence: [ 46 ] At the end of the day, each case must turn on its own facts, circumstances and evidence.

Here, having considered the cases and statutes referred to the court by the mother, as well as the additional cases cited herein, and the evidence filed, I am not satisfied that it is appropriate or necessary to add Zagime Anishinabek as a party to this proceeding for a number of reasons. [ 47 ] Firstly, this is a purely private family law proceeding between the parents and a person of sufficient interest under the CLA and is distinguishable from family law proceedings that involve state action or have been brought pursuant to child and family services legislation: Dirk v Dirk , 2002 SKQB 292 .

In that regard, counsel for the mother conceded that it would be “bizarre” to suggest that a First Nation be granted standing in all private parenting disputes involving its members. [ 48 ] As I understand it, even the “private guardianship” proceedings referenced in some of the above cases fall under a child protection umbrella. For instance, in C.P.R. , the child had been in and out of state care her entire life, her father was deceased and her mother uninvolved.

The child had been apprehended and was under the care of child welfare services while competing guardianship applications brought by private individuals (a paternal aunt and a stepparent) proceeded through the court. [ 49 ] There is no similar type of proceeding in Saskatchewan. Moreover, there is not now, nor has there been, a child protection controversy involving Hiba, nor is this proceeding framed by child protection legislation. [ 50 ] Secondly, it is important to distinguish between a necessary witness and a necessary party.

The focus for determining the care arrangements for any child, including an Indigenous child, is the child’s best interests. While the mother’s application to determine whether the Federal legislation informs the best interest analysis in this dispute remains undecided, there is no debate that Hiba’s Indigenous upbringing and heritage, as well as her Sudanese upbringing and heritage, are relevant in determining her best interests: CLA , s 10(3)(f).

It is reasonable to expect that the mother will advance evidence respecting the importance of Hiba’s cultural connection in support of her claim with the cooperation and assistance of Zagime Anishinabek. But having information that is relevant and important to an issue in the proceeding does not require that the First Nation be given party status: Bear v Muskoday Convenience Store , 2013 SKQB 279 , and N.Q. (Re) , 2003 YKTC 35 , 39 RFL (5th) 171 . [ 51 ] Such was the finding of the Court of Appeal in L.(M.S.D.) (Re) .

In that case, the chief of the First Nation, where an Indigenous child’s mother, grandmother and sibling were registered members, applied to be added as a party to an application to vary a child protection order involving the child. The Court of Appeal recognized that First Nations are “unique communities with a deep seated collective ethic that extends to the children of the community and their well being” ( L.(M.S.D.) (Re) , at para 26 ), but held that party status was not required for relevant information and evidence to be available to the trier of fact.

It held: [49] In closing, we note that such of the child’s connection with the Ochapowace First Nation as continues to exist, exists primarily through her maternal grandmother, who, of course, has been added as a party to the proceedings. The grandmother is thus able to address the best interests of the child, including the child’s cultural and psychological needs seen from the perspective of her aboriginal ancestry.

Presumably, the grandmother could call Chief George as a witness to testify to the child’s cultural needs, let us say, and thus provide the court with his insights about where the best interests of the child lie. The point, albeit a pragmatic one, is that Ms [C.M.P.], with the prospective assistance of Chief George, is in a position to assist the court in arriving at an informed and sensitive decision regarding the best interests of the child.

In other words the purpose of subsection 23(1) has been met. ... [ 52 ] A similar issue was also considered by the court in N.P. v LDS Adoption Services , 2006 ABQB 78 , 24 RFL (6th) 41 , where a First Nation sought intervenor status in a matter involving an Indigenous child. The court held: [49] Turning to the question of intervenor status, I am satisfied based on the materials put before me by counsel that granting intervenor status to the Squamish Nation is not necessary for the determination of the issue in this case, namely, the guardianship of Baby Girl A.

In their submissions seeking party or intervenor status, the Squamish Nation raised the history and culture of the Squamish people, the importance of that culture, the social programs available to members of the Squamish nature and the assistance the Nation

could provide to N.P. if he were to parent Baby Girl A. I do not in any way underestimate the importance of this evidence. As I have already noted and will discuss in more detail further in these reasons, all of these things are of importance in taking into account Baby Girl A’s aboriginal heritage, as required by the Family Law Act .

Nevertheless, I am satisfied that this evidence can be put before the court by N.P. without the necessity of naming the Squamish Nation as intervenor. [ 53 ] This was also a significant factor in the reasoning expressed by the court in Veenstra , where the court distinguished between a necessary witness and a necessary party as follows: [27] In answering this question, it is important for the court to distinguish between the necessity of party status and the ability to provide the court with information as a witness in the proceeding. As noted in the case of Gonzalez v. Ross [2007] O.J.

No. 529 , “the fact that persons sought to be added as parties will have relevant evidence necessary to enable the court to make a final determination with respect to orders sought, does not elevate them to party status from that of potential witness.” [28] The Batchewana First Nation may very well have evidence to provide to the court as to the First Nations heritage of Christopher, Kianna and Gracelyn, the community interest in their care and community programs available through their Band for the children’s assistance, but this information can be brought before the court through witnesses called by the respondent father.

The Band’s participation in the litigation is not necessary or required for this information to be provided to the court. The court must not lose sight of the fact that the respondent father is a person of First Nation heritage and an active member of the Batchewana First Nation who resides on Reserve lands.

The father has a vested interest to see that the Native culture of his children is fully understood by the court and an important aspect to be considered by the court in the application of s. 24(2) of the Children’s Law Reform Act . [29] This is not a case where neither of the parties seeking custody of the children are of First Nation’s heritage.

Had this been a case where neither of the parties seeking custody were of First Nation’s heritage and the children were of First Nation’s heritage, this may have been a case where the discretion of the court, even when exercised sparingly, favoured adding the Band as a party to the litigation to ensure that all necessary evidence concerning the children’s First Nation heritage was before the court. [30] However, with respect to the case at bar, my view is that the respondent can call the evidence necessary on the issue of the children’s First Nation heritage without the necessity of adding the Batchewana First Nation as a party.

Mr. McCabe is able to call evidence to correct biases and misconceptions and to provide the point of view as to how the children would be raised as part of the Batchewana First Nation community living on the Reserve. Mr. McCabe does not need the Batchewana First Nation to be a party to do this or to adduce this evidence .

To add the Band as a party would only serve to unduly delay and complicate the proceedings before the court, as well as create added expense to the applicant and the respondent, which they both can ill-afford to bear. [31] For the Reasons set out above, the motion brought by the Batchewana First Nation at Tab 7 of the continuing record to be added as a party in these proceedings, is dismissed. [ 54 ] Here, the mother is free and able to call witnesses and lead evidence relevant to cultural factors in the determination of Hiba’s best interests.

She is also free to testify and lead evidence on how the child would be raised as part of the Zagime Anishinabek community if she were placed in the mother’s care. Zagime Anishinabek does not need to be a party in this proceeding to ensure that this relevant and important evidence is before the court. [ 55 ] Third, the mother is not asking that Zagime Anishinabek have the right to make representations or to intervene, but rather that it be added as a fully participating party with all of the rights and obligations such status entails. This is a meaningful distinction.

Party status would entitle Zagime Anishinabek to file pleadings and applications, call evidence, attend settlement conferences, obtain disclosure and apply for substantive and procedural relief. In addition, their consent would be required before any agreement could be reached or consent order filed. [ 56 ] There are also significant privacy interests at stake. Parties in parenting-related disputes have access to highly sensitive personal information respecting each of the parties and the child involved.

The Queen’s Bench Rules provide unique and special protection respecting access to family law files, recognizing the deeply personal and sensitive nature of the information that is exchanged and the vulnerabilities that the obligation to provide full disclosure entails: Rules 15-5 and 15-6. [ 57 ] There are also legitimate concerns that if Zagime Anishinabek is granted party status, the proceeding will become more complicated or a resolution derailed by issues that may go beyond Hiba’s best interests.

In McDonald , the court was alive to corollary issues raised by the evidence and arguments that had the potential to transform the best interests proceeding into a “complicated and unnecessary battle”. The judge held: [57] I wish to highlight that I take full judicial notice of the horrendous travesties that have been brought upon the people of AWN [Aseniwuche Winewak Nation of Canada] and that there is no question of the intergenerational trauma that has been suffered by them as Indigenous people. They rightly ought to seek redress for the harm that they have suffered and continue to suffer.

There are avenues and processes for achieving an amelioration of their conditions and sufferings. [58] The issue before me, however, is whether AWN’s intervention in this family law matter is one of those appropriate avenues. [59] The private law dispute between the Father and the Applicants in this action is about access to the child.

In no way does the current contention touch on Treaty 8 rights, government actors and policies, the Canadian government’s definition of family or a parent, the undeniable systemic issues that exist in society, nor on the indisputable historical injustices inflicted on First Nations peoples in Canada. [ 58 ] As previously indicated, party status would entitle Zagime Anishinabek with the right to participate in settlement discussions and, if they cannot agree, to force a matter to trial.

In that regard, counsel for the mother conceded that it is possible that Zagime Anishinabek could advance a position that is inconsistent with the mother’s position, potentially forcing the matter to trial even where the remaining parties have reached a consensus. She says her client is prepared to accept that risk. However, the other parties are not. It is not unreasonable to expect that the proceeding will become more complicated and prolonged if Zagime Anishinabek

is added as a party, thereby increasing the cost of litigation to the other parties, whose resources are modest. [ 59 ] Finally, I am not persuaded by the argument that this is a unique situation that demands Zagime Anishinabek’s participation in order to avoid conflict within the community.

As I understand this argument, the mother is concerned that because she relies on Zagime Anishinabek for financial, cultural and emotional support, and because the maternal grandmother is an integral part of her “care plan” for Hiba but also an elected member of Zagime Anishinabek Chief and Council, ongoing support from the community might be jeopardized if Zagime Anishinabek is not given “a say” in the conduct of this proceeding. [ 60 ] Not only is there little evidence to support these submissions, but the argument is not persuasive in the determination of the issue.

It is not uncommon for parties in private parenting disputes to rely on extended family, friends, cultural communities and support networks for financial, emotional, cultural and religious support as they navigate the legal process. That does not elevate those support groups and persons to party status nor does it lead to a finding that they have a sufficient legal interest in the outcome of the proceeding to meet the common law test for standing.

In N.Q. (Re) , the court described the distinction as follows: [9] A person has a legal interest in a proceeding when an order could be made in favour of, or against, that person. All other persons who may be affected indirectly or consequentially by the litigation are persons interested, but they are not parties. As already stated, the only persons who may be legally bound by an order under the Children’s Act are the Director, the parents or guardian and the child.

Where, as here, the child and his mother are members of a First Nation, the First Nation may have an interest in the proceedings, but it does not have a legal interest. [ 61 ] A general and sincere interest in matters involving its members does not translate into a legal interest that necessitates party status in litigation involving those members. There is no order that could be made pursuant to The Children’s Law Act, 2020 that would oblige Zagime Anishinabek to do or not do something respecting this child.

They may choose to provide support and funding but doing so does not provide them with legal standing in this matter. [ 62 ] In conclusion, for all of the reasons provided, the applicant has failed to satisfy me that granting party status to Zagime Anishinabek in this matter is necessary, appropriate or in the best interests of Hiba. Her application in that regard is dismissed. 2. Should the proceeding be transferred to another judicial centre? a.

The positions being advanced by the parties [ 63 ] The mother applies to transfer this legal proceeding from the Judicial Centre of Battleford to the Judicial Centre of Regina, primarily due to the significant distance between Battleford and Zagime Anishinabek where the mother has resided since June 2022 and where the child is a member. She also suggests that it would be more convenient for the father who works and resides in Regina and is self-represented.

In the alternative, the mother asks that the court transfer the proceeding to the Judicial Centre of Saskatoon where the mother used to reside, continues to have connections and where it would be more convenient and less costly for her to participate in the court proceedings. [ 64 ] The aunt opposes any transfer of the proceeding. She says that as a self-represented litigant, if the proceeding is transferred to Regina, she would be required to travel the night before any court appearance and incur hotel costs.

She would also be required to make alternate care arrangements for Hiba for an overnight, as well as arrangements for someone to get her to school. [ 65 ] The father does not take a strong position either way, and despite that he resides in Regina, he proposes that the proceeding be transferred to Saskatoon – a location that is more convenient for him and the mother and would not necessarily destabilize the child’s care or routine. b. The legal framework [ 66 ] A family law proceeding may be commenced at any judicial centre in the province: The Queen’s Bench Act, 1998 , and The Queen’s Bench Rules , Rule 15-11.

Once commenced, a family law proceeding cannot be transferred without the consent of the parties or an order of the court: The Queen’s Bench Act, 1998 , s 22(7). [ 67 ] Any party can apply for a change of venue.

Absent consent, the applicant must satisfy the court that “the balance of convenience” favours proceeding in another judicial centre: Rule 15-11(3)(b). [ 68 ] The court has a broad discretionary authority respecting the transfer of an action from one judicial centre to another, whether the action was commenced in the wrong judicial centre or not: Superior Construction Solutions Inc. v Hamilton Construction Corp. , 2016 SKCA 130 at para 12 , 403 DLR (4th) 428 . [ 69 ] In Hauser v Hauser , 2008 SKQB 51 , 312 Sask R 233 , a family property proceeding, the court identified a number of considerations that inform the balance of convenience and the exercise of the court’s discretion.

The court considered where the cause of action arose, the residences of the parties, the location where the parties carry on business or are employed, and the location of the key evidence relevant to the issues before the court, in particular the convenience to necessary witnesses and experts.

The court also held that that convenience to legal counsel was not a persuasive factor, stating as follows: [12] I am satisfied on a review of authorities that the location of counsel and their costs, their offices, and associated extra costs is irrelevant and not a factor to be considered by me in determining the balance of convenience as to where an action is to be tried. [ 70 ] This case was cited and followed in Potzus v Potzus , 2017 SKQB 105 at para 22 , and Klapak v Minty , 2015 SKQB 230 , 481 Sask R 162 [ Klapak ] .

In those cases, the court also considered the timing of the application – finding that the nature of relevant and necessary evidence, including expert witnesses, may become more clear as the matter progresses. Ultimately, in Klapak , the transfer application was adjourned with leave to revisit the issue in the event that a hearing or trial was contemplated.

[ 71 ] Counsel for the mother cites Toronto-Dominion Bank v Janzen , 2021 SKQB 38 , in support of her argument that the aunt’s choice of forum was deliberately made to gain an advantage in the proceeding and make defending the claim cost-prohibitive. In that case, the court looked at the “convenience factors” in the context of a lender/debtor proceeding.

While the court acknowledged that convenience to counsel was not a relevant factor, it held that the economic costs of litigation, access to justice and fairness to the defendant are appropriate considerations, particularly where there is an obvious power imbalance in play.

See also Wiebe v Intact Insurance Company , 2017 SKQB 368 , 22 CPC (8th) 408 . [ 72 ] Moreover, where parenting relief is the primary issue in the proceeding, the best interests of the child must remain the focal point in any procedural or substantive determination. [ 73 ] In this instance, there is no one venue that is clearly more appropriate or convenient than the other. That said, there is virtually no direct connection between the child, or the parties, to Battleford.

The petitioner says that she chose to commence the action in the Judicial Centre of Battleford simply because it is closer to her residence than Saskatoon and not because she wanted to deliberately inconvenience the mother. [ 74 ] According to the evidence filed, the aunt and Hiba have been residing in Kerrobert, Saskatchewan, since April 2021. Before that date, they were residing in a small community north of Saskatoon. Presently, Hiba is attending school and participating in dance at a centre in Kerrobert.

She is also participating in regular counselling sessions in the nearby town of Kindersley, Saskatchewan. [ 75 ] The mother resided in Saskatoon for some time before moving to Zagime Anishinabek in June 2022. The maternal grandparents, Ruth Whitehat and Darcy Whitehat, have been resident on Zagime Anishinabek for over ten years. The grandmother is an elected member of Band Council, and the grandfather is employed in the maintenance department.

Since 2017, they have had primary care of Hiba’s three older siblings (Mikiyah, age 14; Aayan, age 12; and Jhreycin, age 11), who attend school in a nearby community. [ 76 ] The mother currently resides with her parents and older children but is on a waiting list for independent housing. The mother deposed that she is currently working with a social worker from Zagime Anishinabek and is seeking support to address her addictions and mental health. She recently commenced employment as a receptionist at the nearby Goose Lake School and travels to Regina once a month to clean homes for two clients.

She is also enrolled in an online program at the Visual College of Art and Design. [ 77 ] Although not in evidence, counsel for the mother advised the court that the mother has family and friends in Saskatoon where she could stay if the matter was transferred to that judicial centre. [ 78 ] The father lives and works in Regina. He is originally from Sudan and immigrated to Canada with his extended family. He has lived in Regina for the last eight years.

At times, he has exercised parenting time at his sister’s home in Saskatoon, as well as at his apartment in Regina. [ 79 ] None of the parties appear to have significant financial resources. The aunt and the father are representing themselves. While the mother has out-of-province counsel who at times have appeared by phone and at times have appeared in person, the mother has also personally attended court proceedings to date. [ 80 ] Kerrobert, where the aunt and Hiba reside, is located approximately 190 km from Saskatoon, 140 km from Battleford and 425 km from Regina.

Zagime Anishinabek, where the mother resides, is approximately 150 km from Regina, 400 km from Saskatoon and 540 km from Battleford. [ 81 ] Without having more clarity respecting whether this matter will need to proceed to a trial, and who the necessary witnesses will be should that occur, the balance of convenience at this time favours a transfer of the proceeding to Saskatoon. This would reduce some of the travel time and expenses for the parents with only a nominal increase in travel time and expense for the aunt.

It should not require that the aunt make alternate overnight care arrangements for Hiba that might unnecessarily destabilize the child. In addition, both parents appear to have family and friends available to provide them with support and/or accommodation in Saskatoon. [ 82 ] This order is without prejudice to a further application to transfer the proceeding in the event that the matter cannot be settled without a trial. That application can be brought subsequent to a pre-trial conference being concluded and before the trial is scheduled. 3.

What, if any, changes should be made to the interim care arrangement to ensure that Hiba’s best interests are being met pending further agreement of the parties or court order? [ 83 ] There have been a number of interim care orders made to date to specify Hiba’s contact with her parents. Each of those orders was made on a “without prejudice” basis. [ 84 ] To their credit, and with the assistance of counsel for the mother, the parties met during a brief adjournment on the hearing date to discuss interim care arrangements pending further agreement or court order.

When we reconvened, counsel for the mother advised the court that, during their discussions, they considered the distance between the parties’ homes, the fact that a varied

schedule could be confusing for the child and the child’s need for routine, the benefits of a fixed schedule, and the importance of providing Hiba with time with each of her parents. They also accounted for the father’s work

schedule (he works on alternate weekends), the mother’s work

schedule (she does not work on weekends) and the benefit of Hiba having contact with extended family and siblings. [ 85 ] They also agreed that it is in Hiba’s best interests for some of the visits to occur in Kindersley, which is near her home community, as well as in Saskatoon, to limit the amount of time she has to spend in transit. In that regard, they also agreed to take advantage of school days off, holidays and breaks. They also agreed that it is important for all parties to have clarity around the exchange times and arrangements. With those factors in mind, and on a “without prejudice” basis, the parties agreed to try an every weekend

parenting

schedule pending further agreement in mediation or court order. The specifics of their agreement are set out below. [ 86 ] That said, they were unable to agree on who should be responsible for the travel for these exchanges and who should bear the costs of transportation – a real and significant barrier that cannot be overlooked. According to counsel (not in evidence), the mother does not own a vehicle and must borrow a vehicle and pay for the cost of fuel.

The aunt also says (not in evidence) that the only vehicle available to her is old, large and hard on fuel – with fuel costs to drive back and forth from her home to Davidson twice each weekend in the range of $350. She says that even with the parties’ supplementing her fuel as previously ordered, she is out-of-pocket. She says that if they move to an every weekend schedule, she simply cannot afford to drive for all of the exchanges. There is no question that this is a challenging situation. While the details are best left for discussion at mediation, in the meantime, the costs must be addressed.

My specific order is set out below. ORDER [ 87 ] I make the following interim order: 1. The application to add Zagime Anishinabek as a party to this proceeding is dismissed. The aunt and the father are entitled to costs payable by the mother, fixed at $500.00 each. 2. This proceeding shall be transferred from the Judicial Centre of Battleford to the Judicial Centre of Saskatoon, without prejudice to any party reapplying for a further transfer in the event that the matters are not settled at a pre-trial conference. Costs of that application are in the cause. 3.

The parties agreed to amend the interim care order, without prejudice to further agreement or court order. With their consent, I order as follows: a.

Unless otherwise agreed or ordered by the court: i. the father shall have parenting time on alternating weekends that coincide with his days off from work commencing on Friday, January 20, 2023; ii. the mother shall have parenting time on alternating weekends commencing on Friday, January 27, 2023; iii. at all other times the child, Hiba, shall remain in the care of the aunt; iv. the aunt shall share Hiba’s school calendar with each of the parents, and the parties will endeavour to increase each parent’s weekend parenting time to incorporate statutory holidays and non-school days where possible; and v. the aunt will facilitate video and/or telephone communications with the parents upon request. b.

Unless otherwise agreed or ordered by the court: i. the parties shall exchange care of the child at a mutually agreed upon location in Davidson, Saskatchewan, unless alternate arrangements are made in advance; and ii. that said, it is expected that weekend parenting time will take place in Kindersley, Saskatchewan, or Saskatoon, Saskatchewan, on a regular basis in which event the exchange arrangement will be modified. 4. I also add the following provisions to the interim parenting order: a.

Unless otherwise agreed or ordered by the court: i. the parties shall continue to share responsibility for the travel required to facilitate the exchange; ii. for all exchanges in Davidson, Saskatchewan, the parent who is exercising his or her parenting time shall pay the travel stipend to the aunt in accordance with the interim order of Crooks J. dated November 23, 2022; iii. for all exchanges in Saskatoon, the parent who is exercising his or her parenting time shall pay a reduced travel stipend to the aunt in the sum of $75.00 per trip/$150.00 per weekend; and iv. for all exchanges in Kerrobert or Kindersley, Saskatchewan, there shall be no travel stipend payable by the parent who is exercising their parenting time. b.

Each of the parties shall commit to timely and respectful communications with one another to ensure that there is no confusion or miscommunication respecting the exchange place, date and time that could cause tension or conflict between them, or stress for the child. c. The child shall not be exposed to any incidents of conflict between the parties. d. The parties shall refrain from making any derogatory comments to or in front of the child respecting the other parties, nor shall they discuss this court proceeding with the child.

Likewise, the parties are each responsible to intervene in the event that a third party is making derogatory comments respecting the other parties to or in proximity to the child or attempting to engage the child in discussions about this court proceeding. [ 88 ] Despite the highly conflictual and accusatory sworn materials filed to date, it was evident to the court at this hearing that the parties want to find a solution to this matter. The parties appear eager to engage in mediation and are strongly

encouraged to use the mediation process as an opportunity to identify solutions to this challenging situation and to ensure that Hiba, who has so many people who love her and want to be part of her life, does not lose the benefit of those relationships because of adult conflict and miscommunication. “G.V. Goebel” J. G.V. GOEBEL