A.B. v. C.D., 2020 NUCJ 46

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: A.B. v. C.D., 2020 NUCJ 46 Date: 20201222 Docket: 08-20-359 Registry: Iqaluit Plaintiff: A.B. -and- Defendant: C.D. ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Plaintiff): E. Abara Counsel (Defendant): N. Hellyer Location Heard: Iqaluit, Nunavut Date Heard: September 23, 2020 Matters: Decision on application and cross-application for custody REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Anonymized Judgment Disclaimer : This judgment has been anonymized at the discretion of the authoring Justice. Letters have been assigned at random. I. INTRODUCTION [ 1 ] This is an application and cross-application for custody of a six-month-old infant. Throughout this decision people will be referred to in reference to their relationship with the child. [ 2 ] At the time the application was filed, the mother and child were in Quebec, having relocated without notice to the father. This triggered the custody application by the father. [ 3 ] I heard submissions on September 23, 2020.

The matter was adjourned so that the file from the Director of Child and Family Services could be provided to the court and counsel could provide written submissions upon receipt of that file. [ 4 ] Prior to giving my decision, the mother made plans to return to Nunavut, to the community of Kugluktuk to reside with her grandparents (the great-grandparents). [ 5 ] I provided my decision while the mother was in transit. These are my reasons for the decision. II. BACKGROUND [ 6 ] The facts leading to these applications are not in dispute. The child was born in Iqaluit on June 27, 2020.

The parents have not been in a relationship for long and the relationship is “on and off”. The parents began to live together in February 2020, at the home of the child's paternal grandfather (the “grandfather”) and continued to live together for a short while after the child was born. The mother was asked to leave the home by the grandfather because of an incident in the home. [ 7 ] The mother left the home with the child but remained in Iqaluit. The father continues to live at the grandfather’s home.

With the help of Child and Family services the mother applied for housing and was placed on a waitlist, which, she has been told, could be as short as six months. [ 8 ] After leaving the grandfather's home the mother “couch surfed” for a short time and then moved into her aunt's home. The child’s maternal grandmother (the “grandmother”) and his uncle also lived in the home. After a short time the grandmother relocated to Aylmer, Quebec, at which time the mother was told she could no longer continue living at the aunt’s home.

The mother was advised that the women’s shelters did not have space for her and the child.

[ 9 ] The grandmother told the mother that she and the child could come and live with her and her partner in Quebec. The aunt purchased a ticket and the mother and child flew to Quebec on September 11. The mother did not advise the father that she was going to be leaving Iqaluit. On September 14 she telephoned the father and told him where they were.

Shortly thereafter the father brought an application for custody or, alternatively, an order requiring the child to be returned to Iqaluit. [ 10 ] As previously indicated, the mother then arranged to move back to Nunavut, to live in Kugluktuk with the great grandparents. III. ISSUES [ 11 ] The issues to be determined are: • does this court have jurisdiction to hear the matter; • what is the impact, if any, of s. 18 of the Children’s Law Act , SNWT (Nu) 1997, c 14; • was this an unlawful removal of the child; and • what is in the best interests of the child. IV.

JURISDICTION [ 12 ] At the time the initial application was made the court needed to satisfy itself that it had jurisdiction to deal with the matter, as the child was outside of Nunavut. [ 13 ] The relevant provisions of the Children’s Law Act are: 25.

(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where (

a) the child is habitually resident in Nunavut at the commencement of the application for the order; or …

(2) A child is habitually resident in the place where he or she last resided with (

a) both parents; (

b) one parent, under a parental or separation agreement or a court order or with the consent, implied consent or acquiescence of the other, if the parents are living separate and apart; … [ 14 ] Iqaluit was the last place he lived with one parent with the implied consent or acquiescence of the other. The child has no connection with any other jurisdiction other than his physical presence. The parties agree that the child is habitually resident in Nunavut and that this court has jurisdiction to hear the matter. I agree with this position. V.

SECTION 18 OF THE CHILDREN’S LAW ACT [ 15 ] The Children’s Law Act provides:

(1) Except as otherwise provided in this Division, the parents of a child are equally entitled to custody. …

(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 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. [ 16 ] There are two criteria that must be met for s. 18(5) to apply and to essentially deprive the father of custodial rights or responsibilities. The first criterion, that the parents be living separate and apart, is met.

The second criterion requires the court to find that the father has consented, either expressly or by implication, to the mother having sole custody of the child. [ 17 ] Sole custody requires much more than a child living with one parent and the other parent exercising access. The terms sole custody and joint custody refer to who bears the responsibility of making major decisions in relation to a child, such as decisions related to education, spiritual upbringing, and health.

If parents are to make major decisions together, they will have joint custody of a child, even though the child may live predominantly with one parent. If only one parent is to make major decisions in relation to a child, then that parent will have sole custody of the child.

The other parent may be entitled to receive information about the child but he or she does not have any input into the decision-making process. [ 18 ] In my view, depriving a parent of custodial rights and responsibilities is significant and should occur when it is clear the parent has abdicated parental responsibilities or when sole custody rather than joint custody is clearly in the best interests of the child.

Such is not the case in the matter before me. [ 19 ] The information I have indicates that the father has been involved in the child’s life from birth and has continued to be involved even though the parties no longer live together. During the short time the parents have not been living together the father has had the child with him during the day on some weekends and has also had the child overnight.

The father works so clearly he cannot spend as much time with the child as the mother can, however he has been active in the child’s life and has been described by the mother as a “loving dad”. [ 20 ] There is nothing to suggest that the father has consented or acquiesced to the mother having sole custody of the child and, in fact, the evidence is to the contrary. [ 21 ] Section 18(5) of the Children’s Law Act does not operate to deprive the father of a role in making major decisions in relation to the child. Which province and community the child will live in is such a decision. VI.

UNLAWFUL REMOVAL [ 22 ] The father relies on s. 31 of the Children’s Law Act , which states: 31(1) Where a court is satisfied on application by a person in whose favour an order has been made for custody of a child that there are reasonable grounds for believing that any person is lawfully withholding the child from the applicant, the court may, by order, authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to

custody. [ 23 ] The father’s reliance on this

section fails as there has not been an order for custody in anyone’s favour. The

section is not applicable to the circumstances before the court. VII. ANALYSIS [ 24 ] In determining custody of a child, including interim custody, the court must always be governed by the best interests of the child. However, the principles which apply in a determination of interim custody may be different than those which apply in the final determination of custody. [ 25 ] In determining interim custody, the court is focused on providing an appropriate, short-term living arrangement for the child.

In doing so, the court will attempt to minimize the disruption that might arise from a change in the child’s living situation. Absent the risk of harm to the child or some other compelling reason the court should be cautious about disrupting the status quo on an interim custody application. In particular, the court should be cautious about attempting to predict which parent will be the custodial parent following a final hearing. [ 26 ] The court must also discourage parents from resorting to “self-help” in matters of custody and access.

A parent who unilaterally relocates with a child, thereby negating the child’s time and relationship with the other parent, should not expect condonation from the court. As stated in HI v EI , 2011 NUCJ 32 at para 41 : Where a child’s habitual residence is changed unilaterally without the sanction of a Court order, the law ordinarily requires the child to be returned to the status quo as it is existed before their wrongful removal. To do otherwise would encourage warring parents to pursue self-help remedies at the expense of the child or children.

Children would be abducted by a parent hoping to secure a tactical legal advantage in a custody dispute. Any validation of the status quo resulting from an unlawful abduction not only risks undermining or devaluing the child’s right of access to the other parent, but potentially compromises the non-abducting parent’s claim for interim custody. Children’s interests would suffer under such a regime. [ 27 ] However, the circumstances of this case are somewhat unique in that the mother was essentially forced to relocate because of the lack of available housing.

The mother did not relocate after having made a choice between two viable options; living in Iqaluit or living in Quebec. She cannot be described as having relocated so to gain an advantage in custody proceedings or to deprive the father of access to the child. [ 28 ] The infant in this matter is very young.

Unlike an older child who, in addition to having both parents in a community will also have friends, school, and other activities which are part of their lives, an infant’s primary and most important connection is with the main caregiver. [ 29 ] In the circumstances of this case, unless the mother can obtain housing in Iqaluit, the child will be deprived of time with one or the other parent. Given such a stark choice, it is preferable that the connection with the primary caregiver remain intact. [ 30 ] I say this while acknowledging that the mother struggles.

The mother has mental health issues that quite legitimately raised concerns about her ability to care for the child. The mother reached out to Child and Family Services and to counsellors while in Iqaluit. It is hoped that she will make similar connections in Kugluktuk. VIII. CONCLUSION [ 31 ] There will be an order for joint custody of the child, with the child to reside with the mother.

Dated at the City of Iqaluit this 22nd day of December, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice