S.S. v. T.T., 2012 NUCJ 17

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: S.S. v. T.T., 2012 NUCJ 17 Date: 20120117 Docket: 10-12-0358-CHL Registry: Iqaluit Applicant: S.S. -and- Respondent: T.T. ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Applicant): Susan Switch Counsel (Respondent): Diana Fan Location Heard: Iqaluit, Nunavut Date Heard: September 5-6, 2012 Matters: Children’s Law Act, S.N.W.T. 1998, c. 14, s. 17, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Although paternity testing is pending in this matter, for the limited purposes of this application I will refer to S.S. as the father of J.T. I am convinced that he has demonstrated by his past and present conduct that this young boy is very important to him and, at this very early stage in the proceedings, it would be wrong to conclude that a father/son bond has not been established, irregardless of the pending test results. [ 2 ] S.S., through the able argument of his counsel Ms.

Switch, is asking me, on an interim basis, to stop the respondent mother, T.T., from relocating to Iqaluit with J.T. for the purpose of attending a one year educational program at Arctic College. He argues that it is in the best interest of this child to remain in Pangnirtung close to himself and the extended family of both T.T. and S.S. [ 3 ] Although the finality of custody, support and access will likely remain to be argued in the future, an interim order made by Justice Sharkey on July 13, 2012, gives the day-to-day care of J.T. to his mother, T.T.

Justice Sharkey made this decision based at least in part on the fact that T.T. has always been the child’s primary care giver. There is also a plan of access outlined in the interim order granting S.S. visits three times per week.

Finally, the interim order says that S.S. must pay child support in the amount of $251.28 per month commencing July 1, 2012. [ 4 ] S.S. is frightened that if the Court does allow T.T. to move to Iqaluit with J.T., even for this relatively short period of time, that the bond he has worked to establish between himself and the child will be damaged, if not broken. [ 5 ] He further worries that, if the move is permitted, the plan for access is not realistic given the distance between these communities and the cost of travel between Pangnirtung and Iqaluit. [ 6 ] As I indicated at the beginning of argument in this matter, I have very carefully reviewed the file in its entirety and the materials provided including the affidavits and case law submitted by both parties.

What follows is a brief

summary of my findings based on that review. II. ANALYSIS [ 7 ] First of all, it is clear to me that S.S. considers this young boy to be his son and it is in the child’s best interest at this time to have maximum contact, as much as is reasonably possible in all of the circumstances, with both S.S. and T.T. [ 8 ] T.T. is by all accounts a very good mother and has been the primary caregiver throughout the child’s life. J.T. is very young and his mother remains in the best position to provide for his daily needs.

I am therefore not prepared, on an interim basis, to grant custody to S.S. at this early stage in the proceedings. [ 9 ] The care will remain with T.T. and the question now becomes whether or not I will allow the child to be removed from Pangnirtung to facilitate T.T.’s plan to attend a one year course at Arctic College which requires her to set up residence immediately in Iqaluit until late May or early June of 2013. [ 10 ] I am very mindful of the fact that if I do grant this move, it will impact on S.S.’s access to the child. [ 11 ] From the applicable law, there is no doubt that any decision I make today must focus on the best interests of this child.

It is in fact the only consideration to be taken into account when making orders concerning children. The objective of promoting maximum contact with the non-custodial parent is also an important consideration.

[12] Both counsel agree that the SCC decision in Gorden v Goertz, (SCC), [1996] 2 SCR 27, 134 DLR (4th) 321, isthe leading authority on the principles governing an application for variation of a custody or access order linked to a change of residenceof the child by the custodial parent. [13] The test to be met is set out clearly in paragraph 50 of that decision and I quote it as follows: In the end, the importance of the child’s remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

The ultimatequestion in every case is this: What is in the best interests of the child in all the circumstances, old as well as new? [emphasis added] [14] In paragraph 49 of that decision, the court sets out a number of factors that the Judge must consider when making a decision onmobility. Ms. Fan, on behalf of the mother, took the opportunity during argument to go through each one of these considerationsseparately. She applied the present circumstances and asked me to find in favour of the mother. [15] Ms.

Switch, on behalf of the father, took the position that it would not be in the child’s best interest to be moved to Iqaluit from hishome community. [16] I will go through these seven factors now with the argument of both counsel fresh in my mind: 1. Considering the existing custody arrangement and the relationship between the child and the custodial parent, I find that it is in thebest interests of the child for the day-to-day care to remain with the mother. There is an order to that effect and I do not plan to change it,given the fact that T.T. has been the primary caregiver since the birth of this child. 2.

Considering the existing access arrangement and the relationship between the child and the access parent, I find that it is in thechild`s best interest to maintain as much access as is reasonably possible with S.S. I also find that S.S. has made some very positive andhard changes in his life recently in order to be a better father to J.T. He must be given credit for his completion of counselling programsrelated to his admitted addiction to alcohol and drugs and to better control his anger. I find that he has demonstrated a very strong desireto strengthen the bond between himself and the child. 3.

I have already outlined the fact that in these types of situations the desirability of maximizing contact between the child and bothparents is a goal that must be pursued, particularly on an interim basis. In this case, the access to S.S. will be disrupted if I allow a moveto Iqaluit. Ms. Fan argues that the access visits have been too recent and too brief to establish a strong bond between S.S. and J.T. It isimpossible to make that determination and I decline to do so at this stage in the proceedings. Any order I make today must be mindful ofthe goal sought. 4. I agree with Ms.

Fan that due to the young age of this child, his views are not possible to ascertain. This factor then becomes neutral. 5. I must look at the custodial parent’s reason for moving. In this case, the move is focused on T.T. attending school and obtaining acollege diploma which may well enhance her ability to improve her financial situation. This will have the potential to improve her abilityto meet the needs of this child in the future. It could very well result in a financial benefit to the family unit. 6.

In considering whether a disruption to the child of a change in custody is appropriate, I have already indicated that I find this is not inthe child’s best interest at this time. 7. I must also consider the disruption to the child by removing him from family, schools, and the community that he has come to know.In this case we are dealing with a very young child. J.T. turned one this year. He will not be going to school for some time and therequest is for him to reside in Iqaluit for one year commencing next week.

J.T. has lived in Pangnirtung since his birth, his roots are thereand his extended family reside in the community. [17] Both counsel referred to the case of Plumley v Plumley, (ON SC), [1999] OJ No 3234, 90 ACWS (3d) 740,wherein the court outlined three important factors to be weighed when considering what is in the best interests of the child whendeciding issues of mobility on an interim basis. They are outlined as follows at paragraph 7 in the decision by Justice Marshman: 1.

A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial. 2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result ina financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that

they commence school at a new location. 3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent`s position will prevail at a trial. [ 18 ] Again Ms. Fan, counsel for the mother, argues that in applying the present circumstances to the factors outlined above in Plumley v Plumley , supra, the Court should grant the mother’s request to move the child temporarily to Iqaluit. [ 19 ] Although Ms.

Switch agrees that the wish to better one’s education is admirable, she is concerned on behalf of S.S. that the real reason for the move to Iqaluit may be so that T.T. can be close to her current boyfriend, who lives and works in Iqaluit. [ 20 ] I find that there is a genuine issue for trial in this matter but I agree with Ms.

Fan that there is a strong probability that the custodial parent’s position will prevail, given the child’s young age and the strong maternal bond that exists between mother and child. [ 21 ] It is also clear that on motions for temporary custody, serious consideration must be given to the status quo and compelling reasons are required to support any change with the best interests of the child being determinative.

The decision must ultimately be about the child’s best interests, not about parental rights. [ 22 ] At paragraph 23 of Nyari v Velasco, 2008 ONCJ 272 , [2008] OJ No 2383 , the court says the following which I believe is applicable to the case at hand: “Courts are cautious before they permit temporary moves in mobility cases because they do not like to create disruptions in the lives of children by making an order that, if later reversed, will result in further disruption to them.” [ 23 ] Justice Sherr goes on to say: This will not be as significant a consideration with infants since they will not suffer disruption from schools, friends and activities if ordered to return to the original jurisdiction after a trial.

The major concern about granting temporary mobility requests in cases with infants is the disruption to the child’s ability to develop a meaningful relationship with the non-custodial parent. [ 24 ] I thank counsel for providing to me the case of B(

R) v A(O), 2005 NUCJ 24 , [2005] Nu J No 24 , which is one decided by this Court in October of 2005. In that case a form of joint custody had been in existence which worked well when both parties resided in Iqaluit. However, when one of the parties moved to Vancouver without the consent of the other, difficulties arose which had to be decided by the Court.

The child was just beginning to start school and the Court found that the status quo would no longer work in the best interests of the child. [ 25 ] In this case, the parties have done the right thing and brought the application before the Court prior to the mother moving with the child to Iqaluit from Pangnirtung. Although plans had been made, the mother waited until she was certain that she had appropriate housing for herself and J.T. before coming before the court. III.

CONCLUSION [ 26 ] I must now focus on J.T., what is best for him, and make a decision that reflects the fact that both parties are an important part of his young life. [ 27 ] I am going to allow T.T. to move to Iqaluit for purposes of attending the course that she has been formally accepted into at Arctic College. In making this decision I have carefully balanced the competing interests and the temporary nature of the move. I have thought

long and hard about the issue of meaningful access and I hope that the order I am about to make will go some way to addressing S.S.’s legitimate concerns about maintaining a positive relationship with J.T. [ 28 ] The order will go as follows: 1. The child J.T. is to remain in the care of his mother T.T. 2. The mother is permitted to move with the child to Iqaluit for the purpose of improving her education. Unless on consent or by further order of this Court, the mother and child will return to Pangnirtung when her studies are completed in late May or early June of 2013. 3.

During the period when the child is in Iqaluit, S.S. is to have telephone access with J.T. at least twice per week, to be arranged at a time convenient to the parties and at the expense of the mother. 4. Face to face access will be provided to S.S. at least once every two months when the child is visiting Pangnirtung. These visits will be the responsibility of the mother. 5.

Whenever the child is in the community of Pangnirtung, whether a scheduled visit or not, notice must be given to S.S. and arrangements must be made for reasonable and generous access to him during the period of time J.T. is in the community. 6. S.S. must be sober and drug free 12 hours before and during these visits. 7. Access must take place at a place where alcohol and drugs are not present and everyone at the place of access must be sober and drug free during the visits. 8.

Access of at least two hours is to be provided to S.S. at least three times per week when the child is in his home community of Pangnirtung. 9. Extended access is to be arranged by the parties during the Christmas season upon the same terms as set out above. 10. If S.S. wishes to visit Iqaluit at his own expense, he must provide written notice of his intention to exercise access and that access will be permitted on the same terms and conditions as set out above. 11. The mother will post photos on a weekly basis of J.T. on Facebook to be accessed by S.S. 12.

An order was made in July for the father to pay child support in the amount of $251.28 per month commencing July 1, 2012, and payable on the 1st day of each month thereafter until further order of the Court. That term will remain. This money is to be used for the benefit of the child and it is incumbent upon the mother to accept support. [ 29 ] I am not going to insist that the visits be supervised and I am not going to insist that they take place only at J.T.’s Aunt’s home.

I feel at this point that S.S. has demonstrated by past actions that he takes his fatherly obligations seriously and that he is able to care for the needs of J.T. when necessary. [ 30 ] I am not going to allow for overnight access given the child’s young age and the fact that he has never stayed anywhere overnight without his mother in attendance. [ 31 ] This matter shall be adjourned sini die, to be brought back at the request of the parties, no doubt following the results of the paternity testing. Dated at the City of Iqaluit this 17th day of September, 2012

___________________ Justice B. Tulloch Nunavut Court of Justice