A.B. v. S.Q., 2011 NUCJ 29

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: A.B. v. S.Q., 2011 NUCJ 29 Date of Judgment: 20111005 Docket Number: 07-11-575-CHL Registry: Iqaluit Applicant: A.B. -and- Respondent: S.Q. ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Applicant): Diana Fan Counsel (Respondent): Susan Switch Location Heard: Iqaluit, Nunavut Date Heard: September 29, 2011 Matters: Children’s Law Act, S.N.W.T. 1997, c. 14 , s. 18 as enacted for Nunavut, pursuant to the Nunavut Act, S.C. 1993, c. 28 s. 18 REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The applicant (father) has applied for an order granting him interim custody of L.N. (child). He also seeks interim maintenance from the respondent (mother) as well as specified access and a restraining order. [ 2 ] When the application was heard in Chambers, the parties agreed to adjourn the custody and maintenance issues to a later date. The mother also agreed to the father having access to the child between October 17 and November 12, 2011, in Ottawa.

The only issues before me were how often the father should have the child speak to the mother on the phone and whether the father was entitled to have the child attend a physician for a checkup. [ 3 ] I made an order settling those issues. In the course of argument a legal issue arose over the

interpretation of

section 18 of the Children’s Law Act, S.N.W.T. 1997, c. 14 [the Act] as enacted for Nunavut, pursuant to the Nunavut Act, S.C. 1993, c. 28 . [ 4 ] I told counsel I would provide reasons setting out my assessment of the arguments on this issue. II.FACTS [ 5 ] The father and the mother resided in Qikitarjuak when the now ten-month old child was born. Shortly after the birth of the child the family moved to Igloolik. [ 6 ] The relationship was stressed as the young couple struggled with the demands of caring for the child. The mother was in a new community and missed the support of her family.

She found the care of the child in the new environment challenging. While the applicant did his best to support her while working at his full-time job there were issues about the respondent’s religion and sexual preferences. [ 7 ] There was an incident in March 2011, where the mother physically assaulted the father. She was charged with assault. She entered a guilty plea and was placed on probation for six months. [ 8 ] Later in March, the mother threatened to commit suicide but never intended to carry through with it.

She made the threat to get the father’s attention so he would understand the hardships she was going through. [ 9 ] The couple attended counseling to try to address the issues. However the counseling was not successful. At the end of March the mother had a confrontation with the father’s supervisor and was banned from the housing unit they occupied. The mother moved to a safe house with the child and told the father she wanted to leave Igloolik. She asked him for airfare to return to Qikitarjuak.

The respondent reluctantly paid the airfare to end the problems the mother caused with his supervisor. [ 10 ] At the same time he sought advice from social services and was advised he could file an application for an emergency protection order under the Family Abuse Intervention Act, S. Nu. 2006, c. 18 (FAIA). Although the father completed the paperwork the application was cancelled when the mother left the community. [ 11 ] The father stated in his affidavit that he went to the airport to see the child before she left.

He did not want her to go but did not want to cause a scene at the airport and was unsure how the mother would react if he prevented the mother from leaving and taking the child with her.

[ 12 ] Subsequent to the departure of the mother and child there have been ongoing disputes over access that were complicated by the fact that the mother does not speak English well. As a result of a number of problems during their telephone conversations, the mother was charged with harassment and is due to appear in court on November 22, 2011. She signed an undertaking agreeing to have no contact with the father pending the appearance in court. This term has complicated the terms of the access in Ottawa. III. ARGUMENTS [ 13 ] The arguments involve the

interpretation of the word “acquiesced” in section 18 (5) of the Act . The mother argues that pending a custody order being made by the court she has de facto custody of the child as a result of the father’s acquiescence to her taking the child when she left Igloolik. As a result, she has the right to make decisions about the care of the child and in particular whether the father can take the child to see a physician. [ 14 ] The father argues he did not acquiesce despite paying the airfare to the mother.

He did not want the child to leave and in fact applied for an emergency protection order. [ 15 ] The father further argues that section 18 (6) of the Act grants him the right to information about the health of the child. It is implicit that this

section also gives him the right to take the child to a physician while he is exercising access. IV. ANALYSIS [ 16 ]

Section 18 states: 18.

(1) Except as otherwise provided in this Division, the father and the mother of a child are equally entitled to custody. Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child. May act for child

(3) Without limiting the generality of subsection (2), a person entitled to custody of a child may act for and on behalf of the child, except where the person's authority is otherwise limited by the law of the Territories or court order. Authority of one to act

(4) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. Where parents live separate and apart

(5) The right of a parent to exercise the entitlement of custody of a child and the incidents of custody, but not the entitlement to access to the child, is suspended until a parental or separation agreement or a court order otherwise provides where (

a) the parents of the child live separate and apart and the child lives with the other parent; and (

b) the parent has consented, either expressly or by implication, or

acquiesced to the other parent having sole custody of the child. Access

(6) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. [ 17 ] There has been little judicial

interpretation of section 18 (5). The ordinary and grammatical

interpretation of these words suggests that the equal right to custody given by subsection (1) is suspended where the parties separate and one party has de facto custody with the acquiescence of the other party. Until a court order is made, the non-custodial party can only enforce a right of access.

As a result it is the custodial party who would have the right to make decisions concerning the health care of the child until the custody issue was decided by a judge. [ 18 ] The Oxford English Dictionary (2nd ed., vol. 1), defines acquiescence as: “Silent or passive assent to, or compliance with, proposals or measures.” [ 19 ] While I accept the father did not want the child to leave I am satisfied that he recognized it was best for both parties if the mother left Igloolik and returned to her home community. That is why he purchased the ticket for her.

He deposed in his affidavit that he did not know the mother was going to take the child from Igloolik when he bought the ticket. When he learned about the mother’s intentions he started an application under FAIA. He also deposes that he thought about stopping the mother from leaving but did not want to cause a scene at the airport. V. CONCLUSION [ 20 ] I am satisfied that the father did not consent expressly or by implication to the mother having the sole custody of the child. However, I am satisfied that his actions satisfied the definition of acquiescence.

Since the mother was still breast feeding the child, he had to know that it was best for all parties that the child go with the mother. When he realized that any physical attempt to stop the mother was futile he let her take the child with her. [ 21 ] Section 18 (6) entitles the non-custodial parent to obtain information about the health, education, or welfare of the child. In my opinion the wording of the subsection does not support the father’s

interpretation. Where a father or mother has de facto custody and there is no agreement or a court order in effect, the non-custodial parent does not step in the full shoes of the custodial parent during a period of access as might be the case where there was joint custody. The non-custodial parent may make day-to-day decisions on the care of the child during the access period but does not have the right to make any substantive decisions about the care of the child such as booking an appointment with a physician. Dated at the City of Iqaluit this 5th day of October, 2011 ____________________ Justice E. Johnson Nunavut Court of Justice