Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: C.L. v. J.M., 2017 NUCJ 21

Date: 20171211
Docket: 21-14-469
Registry: Iqaluit

Plaintiff: C.L.

-and-

Defendant: J.M.

-and-

Third Party: J.L. & W.L.

________________________________________________________________________

Before: The Honourable Madam Justice Susan Cooper

Counsel (Plaintiff): Nancy Hellyer

Counsel (Defendant): Edward Hopkins
Counsel (Third Party): Mark Christie

Location Heard: Iqaluit, Nunavut

Date Heard: December 11, 2017
Matters: Children’s Law Act, SNWT (Nu) 1997, c.14

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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DISCLAIMER PAGE

Anonymization Disclaimer:

This judgment has been anonymized to comply with legislative

requirements or at the discretion of the authoring Justice to protect
vulnerable parties. Letters have been assigned at random.
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I. INTRODUCTION

[1] This matter is a custody dispute between maternal great-

grandparents and the biological father. The biological mother is not
seeking custody.

II. BACKGROUND

[2] The child is now 3 1/2 years old. Her biological parents had a highly
dysfunctional relationship. During the relationship her father was
charged criminally. He spent some time in remand as a result of
outstanding charges.

[3] The child came into the care of her maternal great-grandparents in
January of 2015 under a fostering agreement. She was in their care
under a fostering relationship until November 4, 2015, at which time
the apprehension was abandoned and the Director of Children and
Family Services was prepared to return the child to the father. The
great-grandparents then brought an “emergency” application for
custody, which was granted on November 8, 2015.

[4] It is clear from a review of the transcript of the November 8, 2015

court appearance that it was not anticipated that the issued Order
would be anything more than short term.

[5] The child has been in their care now for over two years pursuant to
the Court Order that was issued in November of 2015.

[6] The delay in this matter is of concern. It operates very much to the
advantage of the great-grandparents and to the prejudice of the
father. This is particularly so as the child and the father are not in the
same community and are unable to see each other regularly, which
would be the best way of establishing bonds and an ongoing
relationship. Due to the child's age, it is difficult to have meaningful
contact by telephone or Skype.

[7] The relationship between the great-grandparents and the father is a

difficult one. This tension does not lend itself to the fostering and
nurturing of the child's relationships with her family on both her
mother's and her father's sides.
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[8] The purpose of this decision is to determine short term access and to
direct steps to move the matter to trial.

[9] The great-grandparents are opposed to the child travelling to be with

the father in Gjoa Haven. They submit that the father should travel to
Cambridge Bay and exercise access there until the child is more
comfortable with him. They attest to negative changes in the child's
behaviour following two trips to Gjoa Haven. The father attests that
the visits with the child went well. He had previously travelled to
Cambridge Bay to see his daughter and he submits that being with
her in his home is a natural progression.

[10] It is important to put these trips to Gjoa Haven in context. In

September of 2016 a Settlement Conference was held. Following the
Settlement Conference an Order issued which directed that the child
was to travel to Gjoa Haven for a two week period in October or
November of 2016 and for a one month period in December of 2016
or January of 2017. Counsel were to contact the trial coordinator to
schedule a further Settlement Conference in February 2017.

[11] For various reasons, some of which are in dispute, the two week visit
did not occur until the end of December 2016 into early January 2017.

[12] Following the two week visit, the maternal great-grandparents refused
to send the child to Gjoa Haven for the one month visit as set out in
the September 2016 Order. The great-grandparents were concerned
that the trips were harmful to the child as she was exhibiting negative
behaviours.

[13] I make no findings or conclusions regarding the legitimacy of the

concerns of the great-grandparents. I do however take issue with how
those concerns were responded to by the great-grandparents.
Counsel for the great-grandparents did not bring the matter back
before the court to seek a variation of the September 20, 2016 Order,
as should have been done once the great-grandparents made it clear
that they were not going to comply with the Order and arrange for a
second trip. Given the delay in arranging the first trip, it is
disingenuous to say that the Order could not be complied with as the
time for the second trip had passed.

[14] Ultimately, the child travelled to Gjoa Haven a second time, from
August 21 to September 17, 2017, eight to nine months later than set
out in the September 20, 2016 Order.
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III. ISSUES

[15] For the purposes of this decision the following matters are to be
decided:

• child’s time with the father over Christmas;

• appointment of Counsel for the child;

• disclosure of criminal records;

• venue for trial; and

• development of a litigation plan.

IV. ANALYSIS

A. Child’s time with father over Christmas

[16] The father shall have access to the child in Gjoa Haven from
December 27, 2017 to January 27, 2018.

[17] Costs of the access shall be shared equally by the father and the
great- grandparents.

[18] Access, by telephone or Skype, by the party who the child is not with
shall continue as in the September 20, 2016, Order, that being:

• by telephone or Skype on Sunday, Tuesday and Thursday at

7:30 p.m.;
• by telephone at such other times as may be reasonable.

[19] The great-grandparents shall prepare a notebook that contains

information regarding the child's daily routine, nighttime routine,
special care needs, etc. That notebook shall accompany the child to
Gjoa Haven.

[20] While the child is in Gjoa Haven, the father shall make daily notes in
the notebook setting out what the child did that day, the daily routine
and nighttime routine followed, any special care needs adhered to,
etc. A copy of this notebook shall be made and shall accompany the
child back to Cambridge Bay.
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B. Appointment of counsel for the child

[21] Counsel for the great-grandparents has requested that the Court
appoint Counsel for the child. Counsel for the father is opposed.
Counsel for the mother does not have a position as she has been
unable to get instructions.

[22] The Children’s Law Act, SNWT (Nu) 1997, c.14, does not specifically
provide for the appointment of Counsel for the child. However, it is
clear that the Court can make such an appointment pursuant to its
parens patriae jurisdiction (Lafferty v Angiers, 2013 NWTSC 3 at para
13, 2013 CarswellNWT 1).

[23] It is generally accepted that Counsel for the child should only be
appointed if there is no alternate way of putting the child’s wishes and
preferences before the court. Further, appointment of Counsel for the
child should be the exception rather than the norm (Lafferty at para
20).

[24] The role of Counsel for the child is one that should be clearly defined
prior to the appointment being made. A practice has developed in this
jurisdiction of Counsel for the child participating in the proceedings by
presenting to the court the wishes and preferences of the child. This is
in accordance with the Children’s Law Act, SNWT (Nu) 1997, c 14, s
17(2)(b) and with Article 12 of the Convention on the Rights of the
Child, 20 November 1989, 1577 UNTS 3, art 12 (entered into force 2
September 1990).

[25] This is done by interviewing the child, preparing a report which is

provided to all Counsel and the Court, and by questioning witnesses
at trial. This practice has developed as this is the process that
Counsel have agreed to.

[26] The case law generally speaks of three approaches to the role of
Counsel for the child: a traditional advocacy role, a “best interests”
approach, and an amicus curiae role.

[27] For children’s Counsel to take a traditional advocacy role, the child
must be capable of not only communicating their preferences and
wishes, but must understand the nature of the legal proceedings and
the consequences, both short and long term, of their decisions (BLS
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(Re), 2013 ABPC 132, 2013 CarswellAlta 607). Clearly, a three year
old does not have the necessary level of comprehension to engage in
a traditional lawyer-client relationship.

[28] The “best interests” approach contemplates Counsel determining the

wishes and preferences of the child but potentially taking a position in
court that does not accord with those wishes or preferences, as they
are not in the best interests of the child. I have two concerns with this
approach. Firstly, what is in the best interests of the child is the
ultimate decision the court must make, having heard all of the
evidence. Secondly, it is not clear to me what qualifications Counsel
for the child may have to determine what is in the best interests of the
child. It seems to me that this type of assessment requires information
regarding the child’s physical, emotional and mental health, as well as
an assessment as to the parenting abilities of the parties. There are
professionals who are qualified to gather such information and make
such assessments. And these professionals should be retained if that
information is being sought.

[29] Counsel acting in an amicus curiae role will not take a position in the
litigation but will provide information to the court regarding the
circumstances of the child, the services available, etc.

[30] As previously stated, given the young age of the child, I am not
satisfied that it is appropriate that Counsel be appointed. The
application to appoint Counsel for the child is denied.

[31] However, pursuant to section 29 of the Children’s Law Act, the Court
may:

(a) appoint a person who has the technical or professional skill necessary to
assess and report to the Court on:

(i) the needs of the child and the ability and willingness of the parties or
any of them to satisfy the needs of the child, or

(ii) any particular issue respecting the needs of the child and the ability
and willingness of the parties or any of them to satisfy the needs of the
child specified by the court;

(b) give directions on the methods to be used for the assessment; and
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(c) require the parties, the child or any other person who has been given notice
of the proposed order to attend for assessment by the person appointed by
the order.

[32] I would be willing to consider ordering an assessment pursuant to this

section but for the fact that there do not seem to be the resources in
Nunavut to do such an assessment.

[33] I have requested our Executive Legal Officer to make inquiries with
the Representative for Children and Youth to determine if that office
can provide such a service.

C. Disclosure of criminal records

[34] Counsel for the great grand-parents is seeking disclosure of the

criminal record, if any, of the father. Such an Order cannot be one-
sided. If one party is required to disclose such information, so should
all parties be required.

[35] I note that this Order was actually made on December 15, 2015. It is
in paragraph four of the Order issued on that date. It is not clear why
none of the parties have complied. All of the parties will request a
criminal record check with the RCMP and will disclose the results of
that request to the other parties.

D. Venue

[36] There was discussion as to whether the trial should proceed in

Cambridge Bay or Gjoa Haven. Regardless of where the trial is held,
there will be inconvenience to one or more of the parties. Since three
of the litigants live in Cambridge Bay and one litigant lives in Gjoa
Haven, the inconvenience and expense overall will be minimized if the
matter proceeds in Cambridge Bay.

E. Litigation plan

[37] In consultation with counsel, the following deadlines are set for
completion of certain steps in the litigation.
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[38] All examinations for discovery shall be completed by April 13, 2018.

[39] The trial of this matter shall proceed in Cambridge Bay commencing
Monday, June 25, 2018, at 9:30 a.m.

[40] Counsel for the father will prepare and circulate a draft Order in
accordance with this decision.

V. CONCLUSION

[41] This matter raises some complex issues which will have to be
determined at trial. One of those issues is the role of foster parents in
custody disputes, particularly if the foster parents are extended family
members. It seems to me that the Director of Children and Family
Services, Nunavut Tunngavik Incorporated and the Regional Inuit
Associations may have a role to play in assisting the Court on this
issue. I am directing that a copy of this decision be provided to each
of those agencies. If they wish to participate, they can bring an
application to intervene, keeping in mind the impending trial date.

Dated at the City of Iqaluit this 11th day of December, 2017

___________________
Justice S. Cooper
Nunavut Court of Justice