Veenstra v. McCabe

Custody and access - Best interests of child - First Nation seeking to be added as party or intervener

The Ontario Superior Court of Justice released a decision on November 26, 2014 in Veenstra v. McCabe, dismissing a motion brought by the Batchewana First Nation for a Court order that would add them as a party to this matter or, alternatively, for the Court to grant them intervener status in this proceeding.

In this case, the applicant is the biological aunt of three children whose mother was killed in a car accident. The respondent father and the applicant aunt both seek custody of the three children. Like the children’s mother, the applicant aunt is not of First Nation heritage but the respondent father is and lives on reserve. Relying on provisions of the Children’s Law Reform Act and the Family Law Rules the band argued that it was necessary to be added to the proceedings because it can provide a special perspective to assist the Court in determining the best interest of these children; and because being a part of the proceeding would be in the “collective interest of the [First Nation] community”.

The Court determined that the band’s participation as a party to this proceeding is neither necessary nor required when determining the custody and access of these children. The Court noted that the children’s First Nation heritage will certainly be a factor to consider when determining custody and access, but maintained that the outcome of this custody litigation would not directly affect the band’s rights. Although the band may have necessary evidence that would assist this court in determining custody and access, it does not mean the band therefore qualifies as a party as opposed to a witness. In this case, the respondent father could call evidence from the band without it being added as a party.

The Court noted that this proceeding was a private matter between two people; it carried no public issues; and law has established that any authority to add a party to a proceeding within which that party is not directly interested should be scarcely used. Accordingly, the Court held that it would neither add the band to the proceeding nor grant the band intervener status.

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