nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: I.M. v. NUNAVUT (Child and Family Services), 2011 NUCJ 02 Date of Judgment (YMD): 2011-01-25 Docket Number: 11-10-252-CHW Registry: Iqaluit Applicant: I.M. -and- Respondent: Director of Child and Family Services ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Applicant): J. Rowsell Counsel (Respondent): M.

Chandler Location Heard: Iqaluit, Nunavut Date Heard: October 13, 2010 Matters: Aboriginal Custom Adoption Recognition Act, S.N.W.T. 1994, c. 26 , as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 ; Child and Family Services Act , S.N.W.T. 1998, c. 34, ss. 5, 7 and 25, as amended for Nunavut by s. 76.05 of the Nunavut Act, S.C. 1993, c. 28; Children’s Law Act, S.N.W.T. 1997, c. 14 , Nunavut Rules of Court, N.W.T. R-010,rr. 58(6) as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I.

INTRODUCTION

[ 1 ] A.K.1 was born in late 2004 in Community X in Nunavut. Her mother, A.K. 2, died on January 29, 2010. [ 2 ] The applicant is a cousin of A.K. 2. She is a mid-wife and assisted in A.K. 1‘s birth. After A.K. 1’s birth, A.K. 2 asked the applicant to custom adopt A.K. 1. She agreed and was the primary caregiver to A.K. 1, from her birth until the Director apprehended the child on January 11, 2009. However, the custom adoption was never formalized under the Aboriginal Custom Adoption Recognition Act [ACARA]. [ 3 ] On March 22, 2006, the applicant surrendered A.K. 1 to the Director because she was homeless.

The Director placed the child in foster care under a Plan of Care agreement. [ 4 ] On May 15, 2006, the applicant resumed her care of A.K.1 and continued to care for the child until February 18, 2008, when she surrendered the child a second time to the Director because she was once again homeless. A.K. 1 was placed in a foster home.

At some time after the child was placed in foster care, the applicant resumed her care of the child. [ 5 ] On January 9, 2009, A.K. 2 alleged the applicant sexually assaulted A.K. 1 and the Director apprehended A.K. 1 from the applicant. [ 6 ] On January 14, 2009, the Director entered into a Plan of Care agreement with A.K. 2. [ 7 ] On April 8, 2010, the Director applied for an order giving the Director permanent custody of A.K. 1. [ 8 ] The applicant seeks an order, giving her standing in order to contest the Director’s application for permanent custody. II.

ISSUE [ 9 ] The affidavits filed by the Social Worker, Constance MacIntosh, were unclear as to whether or not A.K.1 was apprehended from the applicant. Counsel for the Director opposed the application for standing because it was his understanding that A.K. 1 had not been apprehended from the applicant. During the course of argument, Ms. MacIntosh was sworn as a witness over the telephone and she clarified that the child had been apprehended from the applicant.

When this fact was established, counsel for the Director withdrew the objection and I ruled that the applicant be added as a party to the litigation. [ 10 ] Despite this change of position, counsel for the Director urged the Court to issue a judgment on the basis of the facts as he originally understood them, as guidance to the bar in the future. [ 11 ] I agreed it was an important issue to clarify, and this judgment, while moot, will hopefully be of some guidance to the bar in the future. III. ARGUMENTS A.

Applicant [ 12 ] The applicant argues that being a relative of the child and caring for her for three years gives her standing to be added as a party to the litigation. [ 13 ] Pursuant to

section 5 of the Child and Family Services Act [Act], the applicant entered into two Plan of Care agreements with the

Director. By entering into the agreements, the Director dealt with the applicant as if she had lawful custody of the child. [14] As a person who had lawful custody of the child, the applicant comes within the definition of “parent” in the Act. Thisinterpretation is reinforced by the direction in subsection 7(2)(

a) that subsection 7(3) is to be interpreted “with a recognition thatdifferent cultural values and practices must be respected.” The failure to register the adoption under ACARA does not detract from thefact that one took place. [15] Because the applicant comes within that definition of parent, the applicant has a right to be served with the originating notice undersection 25 of the Act, even if the child was not apprehended from her. [16] Finally, the applicant urged the Court to follow the reasoning of Campbell J. in Children’s Aid Society of London and Middlesex v.H(S) [Middlesex] (2002), (ON SC), 118 ACWS (3d) 672, 16 OFLR 126 (Ont Sup Ct).

In that case, he exercised thebroad discretion granted to a judge under the rules of court to add as parties, the grandparents of a child who had been surrendered foradoption by the mother. B. Director [17] The Act defines a “parent” as a person who has lawful custody or actual care of a child, but does not further define these phrases. [18] The Director argues that the Act only gives standing, and the right to be served with process, to a person who has lawful custody ofa child.

In this context, lawful custody means a person who has been granted custody by an order of this court. [19] In the absence of a court order, a non-parent like the applicant has no standing to contest an apprehension unless the child wasapprehended from her possession. [20] The remedy for the applicant is to apply for a court order under the Children’s Law Act. [CLA] That Act grants rights to thenatural mother and father of a child to custody or access.

Section 20 of the CLA authorizes a person, other than a parent, to apply forcustody with leave of the court. If the applicant were granted custody under

section 20, she would then qualify as a parent under the Act,and would have standing to contest an apprehension. [21] It is not uncommon for an apprehension to trigger an application under the CLA where the parents are separated. When a courtmakes a custody award the status flowing from that determination will impact decisions of the Director on returning the child. This typeof proceeding is not available in the case at bar because the father is unknown and the mother is deceased. [22] As a result, the applicant should resort to the CLA first in order to ultimately seek relief under the Act. IV. ANALYSIS A.

Plan of Care Agreements [23] The affidavit evidence of Constance MacIntosh indicates that the Director did not enter into a Plan of Care agreement with theapplicant. She voluntarily surrendered the child on March 22, 2006 and a Plan of Care agreement was entered into with the foster parent.The applicant resumed her care of the child on May 15, 2006 and it continued until she again surrendered the child to the Director onMay 18, 2008. Another agreement was entered into with the foster parent. [24] At some time between May 18, 2008 and January 11, 2009, the applicant again resumed her care of the child. Ms.

Macintosh didnot explain how the child ended up back in the care of the applicant, but testified that the child was apprehended from her on January 11,

2009. A Plan of Care agreement was executed with A.K. 2 on January 14, 2009 and remained in effect until January 29, 2010 when A.K.2 died. [25] As a result, the Director did not enter Plan of Care agreements with the applicant and the applicant’s argument fails. B. Custom Adoption [26] Aboriginal custom adoption was a practice or custom practiced by the aboriginal people in the Northwest Territories and Nunavutfrom time immemorial.

Inuit custom adoption was first recognized by Sissons J. in 1961, in Re Adoption of Katie E7-1807, (NWT TC), [1961] NWTJ No 2, 32 DLR (2d) 686, while Indian adoptions were first recognized in 1969 by Morrow J. in ReBeaulieu’s Adoption Petition, (NWT TC), [1969] NWTJ No. 4, 3 DLR (3d) 479. The custom was more recentlyaffirmed in Nunavut by Browne J. in K(SK) v. S(J), (NU C.J.), [2002] Nu.J. No.3. [27] The recognition of aboriginal custom adoption by the Supreme Court of the Northwest Territories resulted in a dual system ofadoption.

The Superintendant of Child Welfare responded by setting up an informal system to document the fact that a custom adoptionhad occurred, so that the adoption was recorded in all Vital Statistics records in the same way that a regular adoption would be recorded.As noted in Re Wah-Shee, (NWT SC), [1975] NWTJ No. 10, 57 DLR (3d) 743, the adoption information was thenpresented to the Supreme Court and the Court issued a declaratory order recognizing the adoption. [28] This informal system continued until a formal system was instituted with the passage of ACARA in 1994.

Under this legislation,the Custom Adoption Commissioner investigates and determines if a custom adoption has occurred. If the commissioner is satisfied thatan adoption has occurred, he or she issues and files a certificate in the Supreme Court that is deemed to be an order of the court. On filingthe certificate, the adoption is formally recognized in law.

The certificate is then filed with the Registrar General under the VitalStatistics Act and with the Registrar of the Adoption Registry under the Adoption Act. [29] ACARA became the law of Nunavut when it became a territory in April 1999. [30] In the case at bar, since the Commissioner never formally recognized the alleged custom adoption by the applicant by filing anorder with this Court, the applicant never acquired the same status as a natural parent, as set out in section 37(1) of the Adoption Act.That

section states: “37.

(1) For all purposes, as of the date of the making of an adoption order, (

a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of theadopted child as if he or she were the natural parent; and (

b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was madeand that person ceases to be the parent of the adopted child.” C. “Parent”, as Defined in the Act [31] “Parent” is defined in

section 7 of the Act as: “7.

(1) In this section, "parent" includes (

a) a person who has lawful custody of a child, other than the Director; and (

b) except in paragraph (3)(m), a person having charge of a child.”

[ 32 ] The exception in paragraph 7(3)(

m) is: “

(3) A child needs protection where… (

m) the child's parents have died without making adequate provision for the child's care or custody and the child's extended family has not made adequate provision for the child's care or custody;” [ 33 ] Although the applicant never acquired the same status as a natural parent, the definition of “parent” is broad enough to potentially apply to her, depending on the

interpretation of the words “lawful custody” in 7(1)(a), or the words “a person having charge of a child” in 7(1)(b). While neither phrase is defined, they are referred to in a number of other sections. [ 34 ] While section 7(1) states that the definition of “parent” applies “in this section”, it is unclear if this refers only to the

section under the heading “Child Who Needs Protection” or to all other headings that follow, until the Act sets out the next

definitions at

section 30. I am satisfied that the intent was to refer to all sections where the words are used, until the next definition appears in

section 30. [ 35 ] Although not defined, section 7(1) is clearly directed at two types of persons who have a child in their care. The first type is a parent, and the second type is another person who has actual care of a child, even though the definition uses the words persons “having charge” as opposed to ‘actual care’. [ 36 ]

Section 25 of the Act requires the Director to serve the application on the person who had actual care of the child at the time of the apprehension. When Ms. Macintosh confirmed that the child was apprehended from the applicant, the counsel for the Director withdrew the objection to the applicant being added as a party. D. Parties to Application under Sections 24 to 29 of the Act [ 37 ] The question I will now address is whether other parties, that did not have actual care of the child at the time of the apprehension, have the right to be added as a party to an application.

The identical issue was considered in Middlesex. [ 38 ] In Middlesex, the children’s maternal grandparents sought to be added as parties in this proceeding, pursuant to sub- rule 7(5) of the Family Law Rules of Ontario . The proceeding was a child protection application where the Children’s Aid Society requested permanent custody of E.H., aged four years, and M.H., aged nine months, without access. The mother supported the plan of the Children’s Aid Society to put the children up for adoption.

There was no finding made that the children were in need of protection, with regard to either child. [ 39 ] Campbell J. granted the motion and added the grandparents as parties to the proceeding, although they did not come within the definition of the parties entitled to participate under

section 39 of the Ontario Child and Family Services Act [CFSA Ontario]. That

section is similar to

section 25 of the Act. However, it differed from the Act in that it permitted foster parents who had cared for a child in the previous six months to be given the right to participate. [ 40 ] Section 7(5) of the Ontario Family Law Rules states: “The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.” [ 41 ] Because this

section of the Rules was new at the time, Campbell J. considered cases that had been decided under the former Rule, which stated:

“[11]. The court may order that any person whose presence as a party is necessary to determine the matters in issue shall be added as aparty.” [42] Campbell J. concluded that he had the discretion to add the grandparents, stating: “Since the court’s discretion remains the same under the current rule, I am satisfied that the principles used to add grandparents under theformer rules continue to apply. In

summary, then, I find that I must consider the following principles before adding a party to a childprotection hearing: (

i) whether the addition of the party is in the best interests of the child, (ii) whether the addition of the party will delay or prolong proceedings unduly, (iii) whether the addition of the party is necessary to determine the issues, and (iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.” [43] He adopted one additional requirement from Children’s Aid Society of London and Middlesex v.

JP, (ON SC),[2000] OJ No 745, 95 ACWS (3d) 316 (Ont Fam Ct), namely, that the person to be added should have a legal interest in the proceeding. [44] A similar jurisdictional issue was considered by Vertes J. in GD v. GM (1999), 47 RFL (4th) 16 (NWT Sup Ct),(NWT S.C.), in the context of an application for access, under section 20(2) of the Children’s Law Act of the Northwest Territories[CLA NWT], by a person who had no biological connection to the child. The applicant had a relationship with the child’s father thatended after four years.

During that period, she had developed a relationship with the child that supported the claim for access. [45] In that case, Vertes J. noted that the CLA NWT, which became law in this Territory on April 1, 1999, did not address the questionof access by persons other than the parents, or by a person having actual care of the child at the time of apprehension. He held that thislegislative vacuum did not prevent him from granting the relief requested, stating: “It seems to me that this principle applies in this case as well.

Since it is the court that must exercise its authority based on the welfare ofthe child, if that criterion is satisfied, then there is no jurisdictional impediment to granting access whether it be to a parent or a non-parent. The statutory grant, in the Child and Family Services Act, of authority to order access to a parent cannot be interpreted as aprohibition to ordering access to anyone else.” [46] I agree with the reasoning of both of these cases.

The lack of reference in the Act to the status of a person who does not have actualcustody of a child does not prevent this Court from giving standing to a person in the situation of the applicant, even if the child was notapprehended from her. Rule 58(6) of the Nunavut Rules of Court confers broad discretion on a judge of this Court to add parties, similarto the discretion of the Ontario Rules. It states:

(6) The Court may order a person who is not a party to an action to be added as a defendant and give all necessary directions where it issatisfied by the person that the person (

a) has an interest in the subject-matter or result of the action; and (

b) should be allowed to defend the action or any issue in the action. E. Application of Sections 18-20 of the CLA [47] The cases in the Northwest Territories and Nunavut that have interpreted

section 20 of the CLA are highly relevant and applicableto this Court, when considering an application under the Act to add a person who did not have actual custody of a child. [48]

Section 18 of the CLA provides that the father and mother of a child are equally entitled to custody. However, the entitlement doesnot crystallize until either one applies for, and is granted, a custody order from this court under

section 20. However, the drafting issomewhat confusing because the application is not restricted to the mother or father and states a “parent may apply” thereby revertingback to the wording of

section 7 of the Act and creating a circular situation.

“Application for order 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.” [ 49 ] Although there is no definition of mother or father there is further refinement of the meaning of “parent” in

section 2 that states: “Rule of parentage 2.

(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. Rule for adopted children

(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.” [ 50 ] The net result is that the biological mother or father, or adoptive mother or father, has the legal status to apply for a custody order as of right. Upon a court granting custody to a parent, that person obtains lawful custody of the child for the purposes of sections 7 - 29 of the Act . [ 51 ] The use of the words “or any other person” in

section 20 of the CLA , substantially enlarges those who may apply to include other family members such as grandparents or, in the case at bar, a cousin. It is even broad enough to include non-family members. However, these parties require the permission of the Court to apply, and must apply for leave to apply, pursuant to section 20(2) of the Act . [ 52 ] The rules for granting leave to these other persons were reviewed in J(

S) v. H(A), et al, 2005 NUCJ 28 , 144 ACWS (3d) 289. [ 53 ] A person similar to the applicant would fall into the category of “any other person”, and must apply for leave of the Court before filing an application for custody. As held in J(

S) v. H(A), standing will not be granted to anyone who simply has an interest in the child. A non-parent must demonstrate a connection to the child that can almost be equated to a parental one in the sense of care, nurture and support. I am satisfied that in the case at bar, the applicant would have met this test and would have been given leave to apply for custody, even if the child was not apprehended from her. F. Procedural Impact on Family Law Practice [ 54 ] Neither Middlesex nor GD v.

GM discusses what happens at the hearing of the merits of the child welfare application, after the non-parent is added as a party. [ 55 ] In Middlesex, the grandparents requested permission to file an answer and a Plan of Care as well an application for interim custody of the children.

Section 57 of the CFSA Ontario authorizes the court to place the child who has been apprehended in the care and custody of a “parent or other person” for a period of at least three months and not more than 12 months. [ 56 ] The Act is more restrictive about who can be awarded custody of a child. Sections 28(1) (

a) and (

b) authorize the Court to order the return of the child to the custody of a parent, or the person having actual care of the child, at the time of the apprehension. [ 57 ] Since the Court cannot make a custody order in favour of a non-parent under the Act , where it has added that person as a party to proceedings under the Act, the non-parent must apply for custody under section 20(1) of the CLA . If that person is awarded custody,

they then have lawful custody of the child and come within the definition of parent under

section 7 of the Act. V. CONCLUSION [ 58 ] The proper procedure for a non-parent seeking custody of a child that has been apprehended is to file an application requesting relief, under both the Act and the CLA, to avoid a multiplicity of proceedings. [ 59 ] The same procedure should be followed where the litigation concerns parents that have separated. The respondent frequently apprehends children from a parent that has de facto custody and serves notice on the non-custodial parent.

The respondent may be prepared to consent to the non-custodial parent having custody, but is reluctant to do so without a formal custody order to trigger the ‘lawful custody” requirement of the Act , as previously discussed. Counsel for the non-custodial parent should request relief under both the Act and the CLA again, to simplify the procedure. The judge will then be in a position to address all issues at one hearing. He or she can also address ancillary issues, such as the preparation of the home study and the costs of transferring custody to the non-custodial parent.

Dated at the City of Iqaluit this 25th day of January, 2011. _______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice