M.E. v. K.M., 2017 NUCJ 18

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: M.E. v. K.M., 2017 NUCJ 18 Date: 20170908 Docket: 08-16-1185 Registry: Iqaluit Applicant: M.E. -and- Respondent: K.M. ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Applicant): Caroline Pothemont Counsel (Respondent): Nancy Hellyer Location Heard: Iqaluit, Nunavut Date Heard: July 27, 2017 Matters: Children’s Law Act, S.N.W.T. 1997, c. 14 (Nunavut) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment 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. I. INTRODUCTION [ 1 ] This is an application by the biological mother for interim custody of a child. The child was custom adopted at birth and is currently in the care of the Director of Child and Family Services [the “Director”] following an apprehension. This application is not part of the child protection proceedings, although the two proceedings are related.

The Respondent to the application is the adoptive mother. II. BACKGROUND [ 2 ] The seven-year-old child, A.M., is the biological daughter of M.E. and O.O. M.E. and O.O. have been together for approximately 11 years. At the time of A.M.’s birth, M.E. was a young mother caring for two children. A.M. was her third child. M.E. was going through a difficult period in her life. She was homeless and unable to care for A.M. [ 3 ] A decision was made that A.M. would be custom adopted to a relative, K.M.

This agreement was reached with the assistance of family members and when A.M. was just a few days old she went into the care of K.M. Although the custom adoption was not registered pursuant to the Aboriginal Custom Adoption Recognition Act , SNWT 1994, c 26 (Nunavut) [ ACARA ], this does not affect the validity of the adoption, which all parties agreed had occurred. At the time of the custom adoption, K.M. had two biological children, both in her care. These two older children are now teenagers.

Since adopting A.M. she has custom adopted another child and has had a child with P.P. [ 4 ] M.E. maintained contact with A.M. for some period of time, the length and nature of which is disputed. However, over time contact ended. M.E. found it difficult and emotional to maintain contact. Further, she had relocated to another community, making in- person contact difficult. [ 5 ] A.M.’s life with K.M. has been fraught with difficulty. K.M. has had significant trauma in her life that she has not dealt with. She struggles with alcohol abuse. She finds herself in dysfunctional, abusive relationships.

With respect to her children she has a history of neglect and failure to protect.

[ 6 ] K.M. has a lengthy history of involvement with the Director, commencing in 2002. This was before K.M. was born and was in relation to her two oldest children.

Had the adoption of A.M. proceeded pursuant to the Adoption Act , SNWT 1998, c 9 (Nunavut) [AA], with a home study and approval of the Director being a requirement, one wonders if the adoption would have occurred. [ 7 ] K.M.’s involvement with the Director continued after A.M. came into her care. [ 8 ] In 2013, K.M.’s oldest daughter was sexually assaulted by K.M.’s partner, A.Q., who was subsequently convicted of sexual assault and is currently in jail serving a lengthy period of custody. [ 9 ] In February 2014, K.M. was medevaced after having been assaulted by a different partner, A.A.

The children were placed with their maternal grandmother and remained with her for a year, under a Plan of Care. [ 10 ] When the children were returned to K.M.’s care in 2015, K.M. was with a new partner, P.P. [ 11 ] In March of 2015, the children were apprehended as they were alone in the house while K.M. was in another community. The boy was acting out and was a threat to the other two children. The children were placed in the care of the maternal grandmother for a period of time, the length of which is not clear. [ 12 ] In June of 2015, P.P. was charged with sexually assaulting A.M.

Ultimately, P.P. was not convicted of any offence. However, while the charge was pending, the court ordered P.P. to have no contact with A.M, who was returned to the care of K.M. However, this proved to be problematic as K.M. continued her relationship with P.P. and placed A.M. in the presence of P.P., contrary to the court order. [ 13 ] A.M. was apprehended on July 9, 2015. She remained in the care of the Director until July 14, 2016, at which time she was returned to K.M. under a six-month Supervision Order. One of the terms of the Supervision Order was that A.M. was not to have any contact with P.P.

This term was breached, resulting in A.M. being apprehended again on August 13, 2016. [ 14 ] It is clear that A.M. has spent a significant amount of time in the care of the Director. For most of this time she has been in the care of her maternal grandmother, who lives in the same community as K.M. [ 15 ] The biological mother, M.E., became concerned about the welfare of the child in December of 2015, when she began to hear about difficulties in the adoptive home. She had visits with the child in December of 2015, while A.M. was under the care of the Director.

She has maintained contact with A.M. with the use of technology since she lives in a different community. [ 16 ] M.E.’s circumstances have changed from when A.M. was born. M.E. is in a long-term relationship, with employment and stable housing. She attests that she is now in a position to provide A.M. with the care and stability that she was not able to provide when A.M. was born. III. ANALYSIS A. Standing of M.E. [1] Neither counsel raised the issue of the standing of M.E. to bring an application for custody. Upon the issue being raised at the hearing, counsel for K.M. conceded standing for M.E.

Having said that, there are some interesting issues in relation to the question of standing. [2] The Children’s Law Act , SNWT 1997, c 14 (Nunavut) [CLA], provides:

(1) Subject to subsection (2), for all purposes a person is the child of his or her natural parents and his or her status as their child is independent of whether he or she is born within or outside of marriage. …

(2) Where an adoption order has been made under the Adoption Act or any predecessor Act, the child is the child of the adoptive parents as if they were the natural parents. … 20.

(1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. …

(2) A person other than a parent may not make an application under subsection (1) for an order respecting custody of a child or determining any aspect of the incidents of custody of the child without leave of the court. …

(3) On an application under subsection (1), the court may (

a) grant custody of or access to the child to one or more persons; (

a) determine any aspect of the incidents of custody or the right to access and make such order in respect of the determination as the court considers appropriate; and (

a) make such additional order as the court considers necessary and proper in the circumstances. [1] It is unclear whether M.E.’s standing to seek custody would flow from her status as the biological mother of the child (s. 20(1) of the CLA) or whether the court is required to exercise its jurisdiction under s. 20(2) of the CLA to grant standing. The Court addressed a similar issue in M(

I) v Nunavut (Child and Family Services), 2011 NUCJ 2 [ M(I) ]. In M(I) , the child had been custom adopted to a relative. The adoption was not registered pursuant to the ACARA . The child was apprehended by Child and Family Services, who then entered into a Plan of Care with the biological mother. [2] The situation in M(

I) was the converse of the situation before me. In M(I) , the issue was the standing of the custom adoptive mother to apply for custody without being granted leave by the Court.

In the matter before me, the issue is the standing of the biological mother to apply for custody without being granted leave by the Court. [3] Pursuant to the Child and Family Services Act , SNWT 1997, c 13 (Nunavut) [ CFSA ], persons have standing in the proceedings if they have lawful custody of the child or if they have actual care of the child. [4] In M(I) , the parties were under a misapprehension that the child had been apprehended from the biological mother.

Hence, an issue arose as to whether the custom adoptive mother had standing in the child protection proceedings, the issue being whether she was a parent and, therefore, a person with lawful custody, for the purposes of the legislation. [5] Once this misapprehension was clarified, the issue of whether the custom adoptive mother had standing in the child protection proceedings became moot, as her standing flowed from her having had actual care of the child. However, the Court proceeded to address the issue for future proceedings. [6] M(

I) first addressed the ability of a non-parent to participate in child protection proceedings. The Court noted that the CFSA defines “parent” as a person with lawful custody of a child or a person having charge (actual care) of a child. [7] In determining whether the custom adoptive mother was a person with lawful custody of the child, the Court stated at paragraph 30:

…since the Commissioner [Aboriginal Custom Adoption Commissioner] never formally recognized the alleged custom adoption by the[custom adoptive mother] by filing an order with this Court, the [custom adoptive mother] never acquired the same status as a naturalparent, as set out in section 37(1) of the Adoption Act. [8] M(

I) suggests that registration pursuant to the ACARA is necessary for parental rights and responsibilities to take effect in a customadoption. To the extent that it stands for this proposition, I disagree with M(I). Registration of a custom adoption does not create orauthorize a custom adoption. It simply recognizes that a custom adoption has taken place. Parental rights and responsibilities flow fromthe fact of the custom adoption; not from it having been registered. [9] Further, to the extent that M(

I) stands for the proposition that the rights and responsibilities are identical in a custom adoptionregistered pursuant to the ACARA and an adoption pursuant to the AA, I disagree. The relationships, rights, and responsibilities thatflow from a custom adoption are determined by the aboriginal custom (RA, as Guardian ad litem of her minor child, IA v SK and DK,2017 NUCJ 15 at para 59, 2017 CarswellNun 6). In particular, custom adoption leaves open the possibility of the child being returned tothe biological parent(s) (SKK v JS, 2002 NUCJ 2 at para 41, (NU CJ) [10] In M(I), the Court also considered the issue of standing pursuant to the CLA. [11]

Section 20 of the CLA essentially defines “parent” as natural (biological) parents or adopted parents where the adoption proceededunder the AA. [12] Parents can apply for custody of their children. Non-parents require leave of the court to apply for custody.

In M(I), the Courtdetermined that the definition of “parent” under the CLA does not include custom adoptive parents, at least in those instances where thecustom adoption was not registered pursuant to the ACARA. [13] In M(I), the custom adoptive mother was found to fall within the “other person” category and require leave of the court to apply forcustody. [14] In the matter before me, it is the biological mother who seeks leave of the court for standing. In M(I), it was the custom adoptedmother who sought standing. [15] This places custom adopted parents in an uncertain position.

It gives rise to the question as to whether custom adoptive parents canapply for custody of their adopted children or whether they require leave of the court. [16] In this matter, this point was not argued so it is not necessary for me to decide the issue. It is, however, an issue which requiresfurther clarification, as an absurd situation could arise where, upon the separation of custom adoptive parents, both are required to applyfor leave for the issue of custody to be settled. [17] In the context of the case before me, M(

I) is relevant as it addresses the procedure to be followed when a non-parent who does nothave lawful custody or de facto care of a child seeks custody of a child that has been apprehended. [18] Essentially, the procedure is for the person to file applications pursuant to both the CLA and the CFSA. If the person is awardedcustody pursuant to the CLA, she becomes a person entitled to lawful custody and can be made a party to the child protectionproceedings. M(

I) sets out this procedure for the sake of simplicity and to minimize multiplicity of proceedings. [19] The practice is for the party seeking custody to file an application for custody pursuant to the CLA and to seek disclosure of theDirector’s file in the child protection proceedings. That is what was done in this case. I have a concern, however, regarding theinformation available to me in the context of this application. The Court is required to consider the best interests of the child in making adecision.

I question whether the Court is able to do that if it does not have information regarding the position of the Director on the childprotection matter. Surely, the intention of the Director to either return the child to the party from whom she was apprehended or toproceed with apprehension proceedings is relevant information when the Court is considering what is in the best interests of the child. [20] This information was not before me by way of affidavit. However, I was advised by counsel that upon the expiry of the TemporaryCustody Order the Director intends to return the child to K.M. under a Supervision Order.

B. Best Interests [21] This is an application for interim custody. The final decision on custody will be made following a trial at a future date.

[ 22 ] In determining the issue of interim custody, the Court will attempt to minimize the disruption to the child and provide stability over the short term until the final issue of custody can be decided. Unfortunately, A.M. has already experienced considerable instability and disruption in her young life. [ 23 ] Nonetheless, A.M. has lived her entire life in the same community. Until recently, she has been either in the care of K.M. or the care of her grandmother. K.M. is the mother that A.M. has known and K.M.’s extended family is A.M.’s extended family.

Even if she is not in the care of K.M. or K.M.’s mother, she has access to them while she is in the community. [ 24 ] This is not a situation where the Court is deciding custody between parents who together were raising a child and are now living separate and apart. In those circumstances, the child will have bonded with each parent. [ 25 ] M.E. has not had a parental role in A.M.’s life. She has not bonded with the child. Her children, A.M.’s biological siblings, are not well known to A.M.

While M.E. has recently reestablished contact with A.M., the ability to increase contact gradually is limited by the fact that they live in different communities. [ 26 ] M.E.’s concerns regarding the ability of K.M. to parent are understandable and are shared by the Court. Undoubtedly, they are also shared by the Director. The Director has an obligation to protect children and ensure they are safe. At this point, the Director has more information than the Court has regarding the circumstances of K.M. and A.M.

The goal of child protection proceedings is reunification of the family, provided that doing so does not harm the child. It is recognized that reunification is generally in the child’s best interests. [ 27 ] But for A.M.’s having been the subject of child protection proceedings, it is unlikely M.E. would have commenced a custody application. In my view, an order for interim custody in favour of M.E. would usurp the role of the Director and the child protection proceedings. IV. CONCLUSION [ 28 ] The application for interim custody by M.E. is denied.

M.E. is granted access to the child, A.M., at the discretion of the Director of Child and Family Services during times the child is in the custody of the Director or subject to a Supervision Order. Access is as agreed upon between M.E. and K.M. at any other time. If the parties cannot agree upon access, they may return to the Court for direction. Dated at the City of Iqaluit this 8th day of September, 2017 ___________________ Justice S. Cooper Nunavut Court of Justice