J.I. v. Nunavut (Director of Child and Family Services), 2012 NUCJ 05

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: J.I. v. Nunavut (Director of Child and Family Services), 2012 NUCJ 05 Date of Judgment: 20120423 Docket Number: 11-08-474-CHW Registry: Iqaluit Applicant: J.I. (mother) -and- Interested party: N.A. (father) -and- Respondent: Director of Child and Family Services _____________________________________________________________________________________ Before: The Honourable Mr. Justice N. Sharkey Counsel (Applicant): Jack Squire Counsel (Respondent): Michael Chandler Self-represented: N.A.

Location Heard: Pond Inlet, Nunavut Date Heard: January 30 and 31, 2012 Matters: Child and Family Services Act (Nunavut) , S.N.W.T. 1998, c. 34, as amended by Statutes Enacted Under

Section 76.05 of the Nunavut Act s. 28(1) (d). REASONS FOR JUDGMENT (NOTE: This document has been edited for publication) I. THE APPLICATION [ 1 ] Counsel for the applicant, mother J.I. ("J.I."), brings an application to vary the access terms of the permanent custody order made pursuant to s. 28(1) (

d) of the Child and Family Services Act, S.N.W.T. 1997, c. 13 , as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 . [ 2 ] The order was made on February 28, 2011, by Justice Johnson of this Court. The order provided for access twice per year - one week in the summer and one week in the winter, both at Pond Inlet. Justice Johnson also considered the following term to be appropriate - namely, "access not to commence until the parents have made sufficient progress, at the discretion of the Director, in dealing with their issues, through the assistance they are being provided by the Director."

[ 3 ] Counsel for J.I. asks this Court to vary the order by removing this access clause and replacing it with a clause that requires his client (as well as the father) to abstain from alcohol for specified periods before and during the access visits, and to allow the child protection workers access to their home for the purpose of policing this new requirement in the order. [ 4 ] Counsel submits that the present term in the order, specifically the phrase "sufficient progress," has proved problematic. He argues that the term is vague, indefinite, and subject to

interpretation. Counsel says that the order has been proven to not be in the best interests of the children, because the result has been that no access has been provided since the order was made. [ 5 ] Counsel does not allege any bad faith on the part of the Director's agents, nor any attempt to alienate the children from the parents. Quite to the contrary, Counsel says, it is common ground between J.I. and the child protection workers that it is important for the children to maintain the cultural connection with family and community.

The problem, as Counsel articulates it, has been the way in which these terms of access have been interpreted and the implementation of the order that followed from that

interpretation. [ 6 ] Counsel alleges that in addition to the vagueness of the term "sufficient progress," the order delegates – improperly - the question of whether there will be access to the Director. [ 7 ] Counsel suggests that the Child and Family Services Act contains what he terms are 'competing values.' Counsel says that the 'tug of war' between the 'child focused' parts of the Act which emphasize protection of children, and the 'community and family' focused parts of the Act which emphasize the value of cultural connections has played out in his client's case such that no visits have taken place. [ 8 ] This is, Counsel suggests, because the balancing act between these competing values has been delegated to the child protection workers when it more properly should be determined by the Court. [ 9 ] I would pause to make the following observation: I am not so sure that the Act does in fact contain what counsel says are 'competing values.'

Section 2(

a) simply says that the Act shall be interpreted such that "the paramount objective of [the] Act is to promote the best interests, protection, and well being of children." [ 10 ] Ultimately, the issue is always, "what is in the best interests of the children." The so-called competing values have, at their core, the same aim - the best interests of children.

As a practical matter, this involves risk assessment and risk management. [ 11 ] Counsel's position, however, respecting the order as presently worded is twofold: first, he says it is vague, and second that it amounts to an improper delegation of access. [ 12 ] Counsel for the Director takes the position that the present order is a good and workable order. Counsel notes that the order was made on consent and was clear to parties, the parents and the Director, when it was made. Further, Counsel says, the order has remained clear to the parties throughout in terms of what is expected of them.

Counsel objects to the notion that any subsequent

interpretation resulting in confusion between the parties is the reason why no access visits have taken place. [ 13 ] Counsel for the Director says that the reason there has been no access is because it would not have been in the best interests of the children, given J.I.’s behaviour. Further, Counsel suggests that to specify access as suggested by J.I.'s counsel would not be in the best interests of the children. [ 14 ] Therefore, the two issues before this Court are: (1) vagueness; and (2) delegation. II. BACKGROUND [ 15 ] This case has a long history before the Court.

The children, two boys, are now 17 and 8 years old. They have been in care under various placements since 2008. And there have been two previous temporary custody orders prior to the final (and permanent) order made by Justice Johnson on February 28, 2011.

[16] The mother, J.I., and the father, N.A., have had long standing issues with alcohol abuse. In addition, the home has been marked byepisodes of violence. The local Social Services office has been involved with the family for some 10 years. [17] J.I. and N.A.'s addiction is severe. J.I. went out for treatment in 2010; she relapsed en route. [18] The boys have been in Winnipeg in an extended care foster placement for the last few years. There was an attempt, in 2009, to havethe boys live in Pond Inlet under a plan of care - which was unsuccessful.

I pause to note that I know little of this plan, except that it didnot pan out. I also note that the details of this plan are not before me in the admitted facts, nor were they referred to in the evidence.Accordingly, this attempt at a community placement plays no

part in my analysis in this case. [19] In December of 2010, the boys were in care and back in Winnipeg. The foster mother brought the boys to Pond Inlet and an accessvisit for about 9 days took place. The visit was terminated because the father, N.A., became abusive and threatening to the hotel staff andfoster mother. [20] Shortly after the current order was made in February of 2011, N.A. was incarcerated (for offences unrelated to J.I.). He was releasedfrom jail in December of 2011, and has taken up residence once again with J.I.

They are back together. [21] There has been almost no contact between J.I. and the local child protection workers since the order of February 28, 2011, wasmade. [22] In March of 2011, J.I. got work at the Baffinland mine at Mary River. She has been able to obey her employer’s rules whichstipulate that she may not drink during her time at the camp, and she has been able as well to go for extended periods in the communitywithout drinking. [23] At the same time, however, J.I. was arrested for public drunkenness in June and July of 2011.

She has also, most notably in May of2011, been engaged in some disturbing telephone and Facebook contact with her children. [24] J.I. admits drinking with N.A. in December of 2011, shortly after he was released from jail and, again, shortly before the hearinginto this matter. [25] Both J.I. and N.A. have, however, recently sought out the services of a local counselor to address their addictions and family issues. III. THE VAGUENESS ISSUE [26] I will deal first with the question of whether the order is vague.

Counsel for J.I. suggests that the current order is vague on its face,and has been proven vague in practice. Counsel says that the phrase "sufficient progress" is a term of the order which is not capable ofclear

interpretation. [27] Counsel suggests that an access order must be clear enough so that both parties - the child protection worker(

s) and the parent -know exactly what is expected of them. In this regard, Counsel relies upon a proposition from the Quebec case of Zhang v Chau, (QC CA), [2003] JQ No 8071 (QL) at para 24, 229 DLR (4th) 298 (CA), where Baudouin J.C.A., writing for the courtsaid "an order must be precise for the persons against whom it is issued must know exactly what they can do and what they mustabsolutely refrain from doing. There is little room for

interpretation.” [28] Counsel notes that his client, J.I., had a troubled life in 2010. And he acknowledges her relapses in the early summer of 2011, andrecently prior to this hearing. Counsel suggests, however, that the real question of import is simply how much progress J.I. has to makenow in order to get over that hurdle and start having access.

[29] Counsel says that the term 'sufficient progress' is not defined with any precision anywhere in the order, and he attributes the lowlevel of communication between J.I. and the child protection workers to the order itself. Counsel suggests that the term 'sufficientprogress' is so vague that two experienced Social Workers cannot come up with the same

interpretation of what it means or what servicesare to be provided.

Accordingly, says Counsel, it is grossly unfair to have his client's access crippled by such a vague term in the order. [30] Again, Counsel says the term is not defined as it should be - so that, for example, a few years down the road when the judge whomade the order is retired, what he did is still clear to everyone concerned (the child protection workers and the mother). [31] And, Counsel says, the change in circumstances which give rise to his client's application to vary the order is quite simply thevesting of anticipation, at the time the order was made, that access would take place.

Counsel suggests that the reason there has been noaccess is that, in hindsight, it could not be anticipated that nobody had a clear understanding of what 'sufficient progress' means or whatassistance the Director was to provide. [32] Counsel asks (rhetorically) "what does 'sufficient progress' mean: does it mean not drinking generally, or don't ever drink, or just notdrink when you have access?" [33] Counsel says that that J.I.'s case is similar to the Ontario case of C.A.M. v D.M., (ON CA), [2003] OJ No2707, 231 DLR (4th) 479 (CA) (QL), a family law matter. In C.A.M. v.

D.M., the trial court would only allow unsupervised access whenthe mother got a "clean bill of health" from a psychiatrist. On appeal, Rosenberg J. said at para 20, the term "clean bill of health" wassimply too vague to be enforceable: "I do not see how the mother or even a treating psychiatrist would know what the trial judge meantby a clean bill of health.” [34] Counsel suggests that J.I.'s case is similar as well to another Ontario case, G.N. v L.N., 2010 ONSC 340, [2010] OJ No 153 (Ont.S.Ct.) (QL), also a family law matter. The husband in G.N. v.

L.N. wanted a clause in an access order to stipulate that "the wife fullycooperate and promote counselling with the children" (para 20). The judge declined to include such a term. Kelly J. said the husband'sproposed clause was too vague to be enforceable, especially since the wife was already encouraging the children to take therapy. Kelly,J., queried what standard the wife would be held to by such a clause in the event the husband was not happy with her participation withthe children's counselling. The Court felt such an obvious vague term would only encourage further litigation (G.N. v.

L.N. at para 21). [35] Counsel's application to vary the order to include specified terms rests upon the proposition—as he puts it—that there is noevidence to show what 'everybody' understood sufficient progress to mean. [36] I pause to note, however, in terms of the onus of proof it is upon the Applicant (J.I.) to establish, at the civil standard required, thatthe evidence shows a lack of understanding. It is not up to the Director to establish what 'everybody' understood. [37] So, what does the evidence show that people did, or did not, understand? [38] Ms.

Joanne Henderson-White was a child protection worker in Pond Inlet for some 8 years, from 2003 until May of 2011, and isnow a program Director (Supervisor) for the Dept. of Health and Social Services. When Ms. Henderson-White left the community inMay of 2011, Ms. Connie MacIntosh became involved with J.I.'s file. Both Ms. Henderson-White and Ms. Macintosh are seasonedprofessional child protection workers. [39] Clause 5 of the order says that the Director is to provide treatment and/or counselling services to both parents.

And clause 6 (whichprovides for the winter and summer access visits) says that access is not to commence at the discretion of the Director until the parentshave made sufficient progress in dealing with their issues through the assistance they are being provided by the Director. [40] Counsel for J.I. put the question to Ms. Henderson-White as to what assistance, in the form of services, the Director has provided(or is able to provide). Ms.

Henderson-White's reply was to the effect, "...to what services are you referring, providing services to helpwith their issues, or providing services to arrange access ?" Counsel suggests that Ms. Henderson-White's response shows that even thechild protection workers cannot agree upon a clear

interpretation of the February 28 order. Respectfully, I disagree: Counsel asked a verybroad and open question and Ms. Henderson-White simply sought clarification before answering.

[ 41 ] Ms. Henderson-White put particular emphasis during her testimony upon two things: first, that the order which was made in February of 2011 was done so on consent and, second, that given the long history of the Department's involvement with the family (which included three child custody hearings), J.I. was well aware of what services are available and how to access them. [ 42 ] Ms.

Henderson-White was confident that J.I.'s lawyer at the time the order was made, whom I pause to note was experienced Nunavut family counsel, would have explained to his client what the terms of the order meant and what would be expected of her, and that "we would ensure that services were available." [ 43 ] And, Ms. Henderson-White's understanding of what likely transpired between J.I. and her lawyer at the time the order of February 28, was made was confirmed by J.I. in her testimony. J.I. was asked by her counsel about what she understood was expected of her as a result of the February 28 order.

Initially, J.I. responded by saying that she was told she could not communicate with her children while under the influence of alcohol and was insistent that "that was what I agreed to." [ 44 ] However, when Counsel asked, more specifically, "Did Paul LeSarge [the lawyer] tell you what you would have to do, or not do, before the kids could come to visit?" J.I. replied, "He felt it best for me to go to treatment and start healing, and talk to people and [take] counselling." [ 45 ] J.I. went on to say that members of her own family told her that they felt she would need to stop drinking completely before the children would be allowed to visit. [ 46 ] Ms.

Henderson-White was not able to say whether the Department's expectations of what the term "sufficient progress at the discretion of the Director" was ever conveyed specifically to J.I.. But she - as well as Ms. Macintosh - was clear, however, that both N.A. and J.I. were well aware of what services were available to address their addictions and how to access these services. Ms. Henderson- White said "both parents had gone out [for treatment] before" and that as far as accessing services to address their addictions "they knew how things worked." [ 47 ] It was Ms.

Henderson-White's clear understanding that the reason no access was provided during the summer of 2011, had nothing to do with any misunderstanding about the order, on anyone's part, but rather because the order was not being complied with. [ 48 ] Quite simply, Ms. Henderson-White had received information that J.I. was engaging in the same type of behavior - by getting drunk - that resulted in her children being taken away in the first place. Ms.

Henderson-White testified that she is well aware of and embraces the concept that parental access is in the best interests of children in care; and she was clear that the department would never simply refuse access outright, for no good reason. [ 49 ] I pause to remind, of course, that J.I.'s counsel does not allege any bad faith on the part of the Department as far as providing services goes. [ 50 ] J.I., however, put the blame squarely on child protection services for denying her access and described the workers as "never co- operative." When asked by her lawyer, "If you want to see the children how do you go about arranging it?" J.I. replied, "I'm even scared to see them anymore or arrange... anymore because access is always denied." [ 51 ] Nowhere, however, in her evidence does J.I. say that she was unaware of what was expected of her - and is expected of her - in terms of addressing her addiction if she is to access her children. [ 52 ] Nor does J.I. even suggest in her evidence that because she was unaware of what standard she must meet, or what she must do, to satisfy the child protection workers that she has made progress with her addiction, that such ignorance has somehow impeded her from accessing her children. [ 53 ] More bluntly, J.I. does not say that she does not understand any of the terms of the February 28 order.

[ 54 ] Quite to the contrary, J.I. knows full well why no visits took place in the summer of 2011: When asked by her counsel, "Was any reason given to you why you cannot see your children?" J.I. replied, "Perhaps because I drank too much....I was not told this but because of my past drinking I just assumed they don't want me to have access." [ 55 ] Accordingly, what may - or may not - have been conveyed to J.I. by any child protection or social workers in Pond Inlet as to what was expected of her before she would be allowed access has nothing to do with why no access visits were set up in the summer of 2011. [ 56 ] Ms.

Connie Macintosh, again, who became involved in J.I.'s case in May of 2011, was asked by J.I.'s lawyer whether she would require N.A. and J.I. to complete a treatment program before allowing the children to visit. Ms. Macintosh replied that she would not require the full completion of a program, but would be prepared to allow visits if J.I. and N.A. could simply demonstrate "sobriety in their home." [ 57 ] Ms. Macintosh was clear that "sobriety and appropriate phone and Facebook contact" would, from her perspective, constitute "sufficient progress" so as to allow the children to visit. Ms. Macintosh (like Ms.

Henderson-White) gave detailed evidence about the long history, over many years, of the department's dealings with the family. [ 58 ] Ms. Macintosh noted that in May of 2011. J.I. was "warned" about inappropriate contact with the children, and reminded about the services which were available for her addictions - although, as Ms.

Macintosh added, "she [J.I.] knew about them anyway." [ 59 ] It is, to my mind, inconceivable that J.I. would not understand - as a matter of common sense and experience with the department over the years - that the order of February 28, 2011, required her to take steps toward sobriety by accessing the services available to address her addiction.

In my view, she did understand this and did little or nothing about it; her bouts of abstinence notwithstanding. [ 60 ] In my view, J.I.'s attitude toward the order of February 28 was one of indifference: she said that she took the order home and simply "threw it on the table, but didn't look at it." [ 61 ] Further, and in my view, J.I.'s pattern of behaviour after February 28, has been one of defiance towards the restorative and rehabilitative intent of the order; again, her bouts of abstinence notwithstanding. [ 62 ] With respect, Counsel's assertion that his client somehow did not understand what was expected of her as a result of the order made on February 28, 2011, is not credible. [ 63 ] In my view, the order of February 28 is not vague in any respect.

The order cannot be viewed in the abstract - in a vacuum. The order must be viewed within the context of the historic and lengthy dealings between the department and the family. And J.I.'s understanding of what was required of her by the order must also be viewed through this same lens.

It is this historic context which, in my view, establishes that J.I. has always known full well that active steps toward a sober life are the pathway to visits from her children. [ 64 ] In my view as well, it is also because of this historic context that the Ontario case precedents relied upon by J.I.'s counsel are distinguishable. In C.A.M. v. D.M., above, the mother took objection to a term in her access order which required a psychiatrist to give her a "clean bill of health," before she could see her children.

It is important to note, however, that at trial the mother had disputed the evidentiary basis for such a clause and the Court of Appeal found that none had been established. [ 65 ] In our case, J.I. does not dispute the fact that she needs to address her alcohol problem in order to have her boys come home for a visit - she agrees that her own rehabilitation is in her children's best interest. Counsel's concern has to do with 'what' and 'how much' J.I. has to do before she gets to see her children. [ 66 ] The appeal court in C.A.M. v.

D.M. also found that the trial judge had - by requiring the mother to get a "clean bill of health" from a psychiatrist - improperly delegated the decision on access itself to a third party. Such, as we shall see, below, is not the case respecting the order of February 28, 2011.

[ 67 ] In the case of G.N. v. L.N., above, the husband wanted a clause in an access order requiring that "the wife fully co-operate and promote counselling with the children." The court ruled that such a clause was simply too vague to ever be enforceable because it would hold the wife to an unknown standard tied to the subjective view of the husband.

It is also important to note, however, that the court viewed the proposed clause as redundant, since the wife was already involved with or encouraging the children's therapy. [ 68 ] In our case, for the reasons I have already set out, the order of February 28, 2011, does not subject J.I. to an unknown standard of compliance. She knows she has to take steps towards sobriety.

She knows what to do and what help is available. [ 69 ] Most importantly, J.I. does not say that the requirement that she make "sufficient progress" with her addiction before she can see her boys is a mystery to her such that she is confused about what to do, and that because of this, rather than her behaviour, no access has taken place. [ 70 ] In this latter regard it is, in my view, significant that the order of February 28, 2011, was made on consent. Ms. Henderson-White and Ms.

Macintosh were charged with monitoring the order; they also felt it significant that J.I. agreed to the terms of the order because it meant that she understood that she had to take steps towards a sober life. [ 71 ] In this regard the case of Zhang v Chau, above, is instructive. In Zhang, the Appellants brought an action in civil contempt against the Respondent newspaper alleging that the paper had breached the terms of an injunction order. Both parties had agreed to the terms of the order, in fact, the parties had actually participated in the drafting of the order.

The Respondent newspaper had argued that they should not be held in contempt because the order was too vague to be enforceable.

The court had little patience with such a position. [ 72 ] Baudoin J.C.A., writing for the majority, emphasized that the wording of the order should be viewed in context and evaluated according to the specific and particular circumstances of the case, and the court should ask whether the Respondent newspaper could have reasonably been aware of what was expected of them in complying with the order. [ 73 ] The court in Zhang was of the view that the Respondent newspaper could not hide behind a restrictive and literal

interpretation to circumvent the order and make a mockery of it and the administration of justice. Baudoin J.C.A., stressed that since the Respondent newspaper had actually participated in the drafting of the order it can be presumed that they had a good understanding of precisely what was expected of them. [ 74 ] Similarly, in our case and in context - the context of years of dealings between J.I. and the department - I find that J.I. had a good understanding of what the order of February 28 required of her. Namely that she take steps toward a sober life.

I also find that she was aware that child protection services would be monitoring her progress. I find as well that J.I. was well aware that the child protection workers were in the best position to determine whether her progress was such that visitation and access would take place. [ 75 ] I also find that there were not, in hindsight, any misunderstandings by or between the parties (J.I. and the department) about what was expected of J.I. or what services would be or could be provided. I think Ms.

Macintosh put it best when she said she only wants an order "which works for the family". [ 76 ] There is, in my view, no reason why the order of February 28, 2011, cannot work for J.I. and N.A. - if they want it to. The order is simple. Its requirements are not onerous. Both J.I. and N.A. know why their children were taken from them and what they have to demonstrate to child protection services in order to see their children again. IV.

THE DELEGATION ISSUE [ 77 ] Counsel for J.I. suggests that the order of February 28, 2011, improperly delegates to the Director the decision making about whether access will take place. [ 78 ] Counsel advocates the traditional view - supported by many of the authorities - that in child welfare cases the question of whether

there will be access (and how much) is the mandate of the court and that the 'management' of the access (such things as frequency,duration, and whether it is supervised or unsupervised) should be left to the Director (the child protection workers). [79] Counsel suggests that in the case of shorter term temporary orders - where not so much is known about circumstances of the family- that it may be appropriate to allow for access "in the discretion of the Director." [80] However, Counsel says, where, as here, within the context of a permanent order - and where the Court has an abundance ofinformation about the family - the court should not 'delegate' the question of whether access will or will not occur, to the Director. [81] There is much to be said for this view, and it finds support in some of the cases cited by both counsel in our case. [82] In our case, counsel for the Director takes an opposite view: He suggests that in a permanent order setting - where the Director hastaken the place of the parents - it should be entirely appropriate for the Director to determine access.

After all, Counsel says, "parents getto say who sees their kids." Counsel has also requested that this Court provide some direction in this area. [83] It is fair to say that the case law is somewhat "split" on this question of whether it is appropriate to delegate access to the Director. [84] In C.H. v Durham Children's Aid Society, (ON SCDC), [2003] OJ No 879, 64 OR (3d) 84 (Ont Div Ct), theProvincial Court trial judge made a protection order.

She also ordered that the father's access "shall be at the discretion of the Society." [85] The reviewing court in Durham upheld the order but said that since the Ontario Child and Family Services Act requires (as does ourNunavut legislation) the child protection service to supervise children in its care then the trial court had the authority to make an accessorder to be supervised in the discretion of the society. The trial court's order was arguably much broader than simply 'supervision,' but itwas upheld nonetheless. [86] The court in Durham referenced the Ontario "debate" concerning the issue of delegation.

On the one hand, Granger J., in Middlesexv G.C., (ON SC), [2001] OJ No. 5660 (Ont Sup. Ct J), held that the court did not have power to delegate the makingof an access order and that "access in the discretion of the Society" is in effect delegating that power; the contrary view is expressed inKawartha-Haliburton Children's Aid Society v V.C. and C.A., (ON SC), [2003] OJ No 140, 119 ACWS (3d) 785 (OntSup Ct), where Olah J., found that the court did have jurisdiction to require access at the discretion of the Society because the Society isstatutorily mandated to supervise children in its care.

The Durham court accepted this latter view. [87] The position taken by counsel for J.I. - and the argument in favor of specifying access - is based on the notion that if childprotection workers are given a free reign over access then little access will occur, or no access will occur.

This is so, Counsel says,because of the natural inclination of the workers to favor safety. [88] In another Ontario case, Children's Aid Society of Algoma v C.B., [2003] OJ No 4735, 129 ACWS (3d) 467 (Ont Ct J), Kurkin J.,said there is more than a semantic difference in ordering that a parent have access "in the discretion of the Society," and ordering that aparent have access, "the time, frequency, duration, and other details of which are left to the society." The former, Kurkin J., suggests thatwhether the parent will have access or not is something that the society can decide; not so the latter, which is a positive order for accessby a parent with the society limited in deciding the details of that access (para 26). [89] Kurkin J. notes at para 26, that the practical utility in allowing child protection services discretion to decide aspects of parentalaccess such as location, frequency, duration, time, and whether it is supervised, and says that "this is particularly so in circumstancesinvolving interim or temporary orders as opposed to final orders." [90] In our case, I have already ruled that the order of February 28, 2011, is not vague.

It follows, therefore, that the term of the orderwhich says "access not to commence until the parents have made sufficient progress, at the discretion of the Director, in dealing withtheir issues..." is a term that allows the Director to manage the details of when the access visits will occur.

[ 91 ] In our case, I find that the parent's access to their children under the order of February has not been delegated to the Director. Rather, it has - as Counsel for the Director suggests - already been specified and ordered by Justice Johnson as "supervised access twice yearly, one week in the winter at Pond Inlet and one week in the summer at Pond Inlet”. [ 92 ] Given this finding, it is not necessary for this Court to rule on the question of whether access per se - as opposed to the 'management' of access - may be ordered to be "in the discretion of the Director." [ 93 ] Counsel for J.I. has pointed out that s. 28(1) (

d) makes no allowance for an order of access "at the discretion of the Director." I would note, however, that the question of parental access is entirely a discretionary matter.

Section 28 says that the court "may" specify that the parents be granted access, "on terms and conditions that the court considers appropriate" [ s. 28(1) (d)(ii)].

There is no prohibition against granting access with a condition that it be "at the discretion of the Director," if the "court considers it appropriate." [ 94 ] There may be a case, especially when dealing with a permanent custody application, where the evidence establishes that in terms of both the children's emotional and physical safety it is in their best interests that the decision about whether the parents should be granted access should be left to the Director.

In most permanent custody scenarios we are 'past the point' of family re-unification, and the Director, effectively, as Counsel suggests, is the 'new' parent. [ 95 ] Accordingly, I would say, in obiter, and respecting permanent custody orders only, that I favor the view of counsel for the Director: namely that the Court does have jurisdiction to order that the question of access per se - not just the detailed management of the access - be left entirely "at the discretion of the Director." [ 96 ] In this case, however, I would simply refer to my ruling, above: access has not been delegated to the Director. V.

CONCLUDING REMARKS [ 97 ] Counsel for the respondent's cross-examination of J.I. was rigorous. But it was also fair - and because of this I found it enlightening. In my view, J.I. is only now coming to the awareness that what she does (how she behaves) may have a traumatic impact upon the emotional health of her children. [ 98 ] J.I. is full of vigorous promise to be strong and believes she can abstain from alcohol under any rules I set for a visit. Well, maybe she can. And frankly, her Counsel offers up not much more.

He suggests only that if I put rules in place then "maybe" J.I. will be better able to remain sober - after all she did not drink during the December 2010 visit and is able to go for extended periods without a drink (weeks, perhaps even a month or more). [ 99 ] However, before I would even consider varying this order (and substitute specific sobriety periods for the present term), I would have to be convinced that J.I. probably would remain alcohol free during the pre-visitation and visitation periods. [ 100 ] Absent such probability, I would not be prepared to essentially "gamble" that J.I. would not drink.

If she did, then of course the visitation would be terminated - a punishment for J.I. Much more important, however, in the event of such relapse, would be the trauma inflicted upon the children in the course of being hauled back to Winnipeg because of their mother's behaviour. [ 101 ] It is my view that for this Court to accede to the request to specify access would increase the risk to the children's mental health - it would not be a responsible management of the risk. [ 102 ] J.I.'s recent history undermines her previous bouts of abstinence.

In December of 2011, just a month or so before this hearing, she was drinking. She admits that in times of stress she turns to drink, but promises instead to turn to her sister. When asked, however, why she didn't turn to her sister in December, she said simply, "I don't know." [ 103 ] In addition, J.I.'s potential for relapse is 'complicated' now that N.A. is back in the picture: Counsel for J.I. probed, with her, how it was that she apparently did so well recently, between August and December, but in December things fell apart; J.I. said that "he [N.A.] came home....we were drinking."

[ 104 ] It is of course, well settled law that a mother should not be denied access because of the misbehaviour of the father. The point, however, is that with the resumption of this relationship, J.I. has made her road to recovery more difficult. N.A. exhibited considerable maturity by admitting that he would not be ready to receive visits from the children until he had actually completed a treatment program. At the same time, he made the rather stunning revelation under cross-examination that he wasn't sure if he really wanted to quit drinking, or not.

N.A. freely admits to smoking drugs in violation of his current probation order. [ 105 ] N.A.'s attitude towards social services is disturbing: he describes the child protection workers as being on a "power trip." Frankly, as well, J.I.'s attitude towards the same workers is not much better. And none of this bodes well in terms of their collective potential for relapse. [ 106 ] For example, and by way of simple illustration: there was considerable evidence about how the problems with the December 2010 visit were caused by N.A.

J.I. described the visit as good - she was not drinking, and working in the hotel (where the boys were staying along with the foster mother). J.I. spent considerable time with the boys - the youngest was baptized and both boys were able to spend time with their extended family. [ 107 ] At the same time, however, she "covered up" the fact that N.A. had been sniffing propane since August (and was prone to unpredictable behaviour) because it might jeopardize the visit.

She played this down in her testimony by saying that she had “only seen him use it once” and told the foster mother the same thing once the boys arrived in Pond Inlet. [ 108 ] J.I. became argumentative when she was confronted with this admitted fact in the case and denied that she failed to alert child protection workers about N.A.'s propane use because it might jeopardize the visit, she said she did not tell them because "they never provided me with support and they were not going to provide me with support." [ 109 ] I agree with counsel for the Director when he says that J.I. demonstrates a lack of maturity by putting her own wants and needs ahead of the emotional well being of her children.

And this is another reason why I would not be inclined to simply vary the order to require a period of alcohol abstention. [ 110 ] Both J.I. and N.A. know that the road to sobriety is a long one and that there is no such thing as full recovery. A 17-year-old boy who has been taken into care because of his parent's addictions knows full well the difference between a parent who is not drinking because a judge ordered it, and a parent who is not drinking because they have taken - and are taking - active steps on the road to recovery.

In the latter scenario, the child has reason to be proud of their parent, and it is in the best interest of such a child to be with their parent. In the former scenario, it is not in the emotional best interests of a child to be with a parent who the child can see is not tackling the very problem that put him into care in the first place. [ 111 ] Respecting J.I.'s sister J.O., her testimony was compelling in terms of the support she would be able to provide during an access visit. J.O. detailed the extended family connections to [the boys].

It is clear that the two boys are welcomed and loved by a large extended family when they are in Pond Inlet, and would be involved in numerous family activities, including an important cultural component of activity on the land. [ 112 ] I am sure that J.O. would be a source of strength and support for J.I. if she were to take steps on the road to recover.

And J.O. is confident that N.A. would listen to her and heed any warnings she put to him. [ 113 ] I am also confident that the child protection workers in Pond Inlet share my view that J.O.'s involvement would help ensure a successful (and perhaps lengthy) access visit.

I am not convinced, however, given the larger context respecting J.I.'s history of addiction and avoidance of help, that J.O.'s involvement can operate so as to allow a variation of the order. [ 114 ] I would also note that I am not inclined to adopt the alternative position put forth by counsel for the Director: Quite simply, I do not think it necessary to specify 'graduated' periods of sobriety (accompanied by treatment). In addition, since I have been made aware that the Director would accede to any request by [the older child] not to visit, it is not necessary to vary the order by including such a term.

I also acknowledge the graceful concession that J.I. has made in this regard.

[ 115 ] Finally, and I will be blunt, but for J.I. (and N.A.'

s) most recent efforts at rehabilitation with [a counsellor], I would be inclined to vary the current order by simply terminating access. [ 116 ] J.I. and N.A. have taken an important small step by seeking out this counselling. And the Court should, I believe, let them know that these efforts count for something. There is always hope. VI. CONCLUSIONS [ 117 ] I find that the order of February 28 is not vague. I also find that the order does not improperly delegate the question of access. In my view the order is a good one, both in law and practice. It can work for J.I., if she wants it to.

It can work for the family, if they want it to. [ 118 ] Finally, I would be remiss, in this case, if I did not acknowledge the efforts of counsel: Their obvious extensive preparation and focused arguments have been of great assistance to this Court. Dated at the City of Iqaluit this 23rd day of April, 2012. _______________________ Mr. Justice N. Sharkey Nunavut Court of Justice