2015 NUCJ 11, 2015 NUCJ 11

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Child and Family Services v.

E.T. & T.T, 2015 NUCJ 11 Date: 20150408 Docket: 03-12-553-CHW Registry: Iqaluit Applicant: Child and Family Services (Director) -and- Respondents: E.T and T.T. ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Applicant, Director): Sheila MacPherson Counsel (Respondent, Mother): Susan Switch Counsel (for the Child): Jack Squire Location Heard: Iqaluit, Nunavut Date Heard: March 31, 2015 Matters: Child and Family Services Act , SNWT, 1998, c.34 (Nunavut) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer: This judgment has been anonymized at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random to indicate a community. I. INTRODUCTION [ 1 ] The Director of Child and Family Services [Director] is seeking permanent custody of a 15 year old girl. The matter is set to be heard in Community X.

The preliminary issues to be decided are whether the child should be in Community X during the hearing, whether the hearing should be moved to Iqaluit and the child brought to Iqaluit, or whether the child should not be brought to the community for the hearing. II. BACKGROUND [ 2 ] The child has been in the continuous care of the Director since her apprehension on September 14, 2012. She is not in her home community, where the trial of this matter is scheduled to be held. The child has been represented by Mr. Squire since December of 2012.

A six month Temporary Custody Order was issued on December 12, 2013, with the consent of all parties. As the expiry date of the Temporary Custody Order approached, the Director brought this application for permanent custody. The application is opposed by both the mother and the child. [ 3 ] Counsel has been working cooperatively towards a trial process that will be both fair and efficient. They have agreed that Counsel for the child may present the child's views and preferences to the Court by way of submissions.

The child will not be called as a witness at the trial nor does her counsel feel it necessary to have her with him in the courtroom. However, Counsel for the child would like the child present in the community so that he can review the Court proceedings with her at the conclusion of each day and take instructions from her. The trial judge may also want to interview the child. Counsel for the mother supports the child being in the community during the trial. [ 4 ] The Director has concerns about the child being in the community as she has behavioural issues and a history of “running”.

The Director is concerned that staff will not be able to ensure the child's safety in the community and that they will not be able to get her on a plane out of the community at the conclusion of the proceedings, should that be necessary. While moving the trial to the larger community of Iqaluit may address some of these concerns, counsel for the Director is of the position that it does not alleviate all of them. III. THE LAW [ 5 ] The Child and Family Services Act, SNWT 1997, c13 (Nunavut), s. 84, provides:

(1) All proceedings under this Act shall be heard by a court in private and no persons shall be present at the hearing other than

(

b) the officers of the court; (

c) the parties and their counsel; and (

d) any other person whom the court in its discretion expressly permits.

(2) A child who is the subject of the hearing and has attained the age of 12 years may be present at the hearing unless, in the opinion ofthe court, it is not in the best interests of the child to be present, in which case the court shall exclude the child from the room in whichthe hearing is being held.

(3) Except where, in the opinion of the court, it is necessary for a child who is the subject of a hearing and has not attained the age of 12years, or another child to be present at the hearing in order to be identified or to give evidence, the court shall exclude the child from theroom in which the hearing is being held.

(4) Where a child is brought before a court, the court shall hold the hearing in premises other than the ordinary Nunavut Court ofJustice premises unless it is impracticable to do so, in which case the court shall hold the hearing in the ordinary Nunavut Court ofJustice premises separate from the other business of the court. [6] Canada has signed and ratified the United Nations

(1989) Convention on the Rights of the Child [the Convention], in forceSeptember 2, 1990, which provides:

Article 3: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrativeauthorities or legislative bodies, the best interests of the child shall be a primary consideration. [7]

Article 12 of the Convention states: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in allmatters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedingsaffecting the child, either directly or indirectly, or through a representative or an appropriate body, in a manner consistent with theprocedural rules of national law. [8] The case of Strobridge v Strobridge, (ON CA), [1994] OJ No 1247, 4 RFL (4th) 169 OAC, stands for theproposition that counsel for the child is an advocate for the child and cannot simply state the child's views and preferences for the courtwithout the consent of the other parties.

In this matter, counsel have agreed that the child's Counsel can put the child's views andpreferences before the Court by way of submissions, thereby doing away with the need to call evidence on the issue. [9] The rights accorded to children in

Article 12 of the Convention have been described as consisting of two parts; the right to expressviews and preferences and the right to have those views and preferences given due weight in decisions affecting them. It is alsorecognized that the Convention provides a flexible legal framework within which to work. [10] The Yukon Supreme Court in G(BJ) v G(DL), 2010 YKSC 44, 324 DLR (4th) 367, set out general principles to be applied inmatters involving children, stating that children should: 1) be informed, at the beginning of the process, of their legal rights to be heard;

2) be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials; 3) have a say in the manner in which they participate so that they do so in a way that works effectively for them; 4) have their views considered in a substantive way; and 5) be informed of both the result reached and the way in which their views have been taken into account. (at para 47) [ 11 ] This does not mean however, that the child must always be present in court.

The goal is to ensure that children’s views and preferences are heard, that they are accorded due weight in the decision making process and that children are aware that they are being heard and listened to. There are many ways in which these goals can be achieved. Courts have recognized that the appointment of independent legal representation for children is an effective way of ensuring meaningful participation (see G(BJ) v G(DL) above). IV. ANALYSIS [ 12 ] The child who is the subject of these proceedings is now 15 1/2 years old.

She has been in care for 2 1/2 years. [ 13 ] The Director of Child and Family Services has filed an affidavit which sets out concerns about bringing the child to the community for the trial. It is clear that the child has special needs that cannot be met in the North and, indeed, cannot be met in many placements in the South. She has been in her current placement for approximately one year and, although she has made progress, she still has far to go. [ 14 ] The child is currently in a placement that specializes in at-risk youth.

She has a tendency towards physical aggression which requires her to be restrained and she has a history of “running” and becoming involved in high-risk behaviour. The staff members at the facility are trained to deal with her special needs. [ 15 ] There are no materials before the Court which suggest any measures that address the Director's concerns. [ 16 ] The paramount consideration in determining whether the child should be present is the best interests of the child.

It is generally recognized that the best interests of the child are at least partially met by ensuring that the child has meaningful participation in decisions affecting her. The best way to achieve meaningful participation will depend on the child and the circumstances. Indeed there may be instances where having the child in the courtroom may actually undermine the goal of meaningful participation. [ 17 ] The evidence that is before the Court at this point suggests that the child often acts against her own best interests, even to the detriment of her own physical safety.

There can be no doubt that the prospect of a trial and a final determination on the issue of custody is going to be stressful for all involved, including the child. In addition to the stress of knowing that the trial is proceeding, having the child in the community would result in additional stress by disrupting her routine and her physical surroundings. All of this would be occurring with fewer supports than she has had for the past year. [ 18 ] The first step to ensuring the best interests of a child is to ensure his or her physical safety.

Emotional and mental well-being cannot even begin to be addressed until physical safety is no longer a concern. [ 19 ] While counsel for the Director is of the view that holding the trial in Iqaluit may address some of the concerns, the fact is that while there may be more professional supports available in Iqaluit, there are also more opportunities to engage in risky behaviour should issues arise. [ 20 ] The child has been represented by experienced counsel throughout these proceedings.

I understand that counsel and the child have met in person on several occasions, counsel has been able to provide reports on his client's views and preferences, and counsel will be meeting personally with the child in the weeks leading up to the trial. It seems that the solicitor/client relationship is one of trust and confidence. While I appreciate that it is always easier to meet with clients in person that is not always an option. I am satisfied that the views and preferences of the child will be made known to the Court regardless of whether the child is in the community or not.

[ 21 ] It may be that the trial judge will want to meet with the child. However, that is by no means certain. Should that issue arise it can be dealt with at the time. V. CONCLUSION [ 22 ] Based on the information before me, I am satisfied that the physical and emotional well-being of the child may be negatively impacted by bringing her into the community for the trial of this matter. I therefore direct that the child not be brought to the community for the trial. [ 23 ] However, the trial should be scheduled and processes put in place to ensure that Counsel for the child has regular and unlimited contact with his client throughout the trial. [ 24 ] Counsel for the child should propose a

schedule for daily contact with his client during the trial and the Court

schedule will accommodate it. Counsel for the Director must ensure that the child is readily accessible to her lawyer throughout the process. If Counsel feels that additional steps, such as a daily electronic copy of the proceedings, would assist in ensuring the child’s participation, they should advise the Court. Dated at the City of Iqaluit this 8th day of April, 2015 ___________________ Justice S. Cooper Nunavut Court of Justice