H.I. v. E.I., 2012 NUCJ 18

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: H.I. v. E.I., 2012 NUCJ 18 Date: 20121024 Docket: 15-11-413-CHL Registry: Iqaluit Applicant: H.I. -and- Respondent: E.I. ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Applicant): Unrepresented Counsel (Respondent): J. Squire Location Heard: Iqaluit, Nunavut Date Heard: September 19, 2012 Matters: Children's Law Act, S.N.W.T. 1997, c. 14 as amended for Nunavut pursuant to the Nunavut Act, S.C. 1993, c. 28 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This is an application by the mother to vary an Interim Order with respect to the children's community of residency pending the trial of this matter. II. Background [ 2 ] The parties are the parents of three young children. The couple separated in January of 2011. There were difficulties between the parties following their separation, including difficulties with custody and access.

Each of the parties denied the other party contact with one or more of the children at various times. [ 3 ] In June of 2011, the mother left the community, taking four children with her, three of whom are the subject of this matter. She went first to Iqaluit and ultimately to Ottawa, where she is currently residing with the children. This was done without notice to the father. [ 4 ] The father brought an application for custody of the children and an order directing the children be returned to the community of origin.

The mother also applied for custody, prompting the father to seek, in the alternative, an order requiring the mother to return to the community of origin with the children and granting him generous access. [ 5 ] In December of 2011, the mother was granted interim custody of the three children, however, she was also ordered to return to the community of origin with the three children by January 31, 2012. The father was granted access. [ 6 ] The mother was also granted interim possession of the family home in the community of origin which, like all communities in Nunavut, is one in which housing is in short supply.

The family home is not a house which is owned by the parties. It is a house which was leased to the family through the local Housing Authority. [ 7 ] The intention of the December 1, 2011 Order (the “December Order”), was to return the situation to the status quo pending a trial and final determination of the matter. In that decision, the Court made comments regarding a parent's unilateral removal of a child from the jurisdiction and discussed the policy reasons why courts refuse to acknowledge a status quo established by such a removal.

Suffice it to say that I agree wholeheartedly with those comments and nothing in this decision is intended to detract from them. [ 8 ] In preparation for her move back to the community of origin, the mother was in contact with the local Housing Authority. She was advised that the father had left the house empty for an extended period of time and that, as a result, the house was damaged and uninhabitable. The local Housing Authority was doing the necessary repairs to the house. [ 9 ] The mother contacted the Housing Authority again in late January of 2012, to determine if the repairs were completed.

She was advised that although the repairs were completed and the house habitable, the Board of the local Housing Authority had deemed her as having abandoned the house as she had been absent from the community for more than three months. The Board intended to relocate the father to a one bedroom unit and to lease the house to the next family on the waiting list. The mother was told that she would have to move back to the community of origin and live there for three months before she could get her name back on the waiting list for housing. The mother made inquiries with family members.

However, no one was able to accommodate her and the four children without creating serious overcrowding. The mother also followed up with the Housing Authority with the assistance of counsel but the decision was not reversed, despite the December Order. [ 10 ] In light of the situation regarding housing, the mother brought this application to vary the December Order requiring her to return to the community of origin with the children. At the time the variation application was filed, each of the parties was represented by counsel.

Counsel appeared and the matter was adjourned to August 2012, for the hearing which was expected to be lengthy. [ 11 ] In July of 2012, counsel for the father served the father with a Notice of Ceasing to Act as well as a letter confirming the August hearing date, advising him to contact a lawyer and giving him a phone number to facilitate such contact, and advising him how he might go about participating in the proceedings without a lawyer. There can be no doubt that the father was well advised as to his options and

the steps he needed to take if he wanted to oppose the mother's application for a variation of the existing Order. [ 12 ] When the matter came before the court in August, the father did not appear in person or by counsel. There were difficulties with the telephone lines on that date so the matter was set over to a date in September 2012. Counsel for the mother was directed to serve the father with a letter advising him of the new date. Counsel has filed a copy of such a letter but has not filed an affidavit of service.

When the matter was heard in September, the father again failed to appear by counsel or in person. [ 13 ] The evidence lead on behalf of the mother indicates that the father has had little contact with the children since December, despite the December Order making clear provision for continuing contact. [ 14 ] The father's lack of contact with the children, in combination with his lack of participation in these proceedings, leads to the inference that he has lost the interest or the ability to pursue this matter. III.

ANALYSIS [ 15 ] The Children's Law Act, S.N.W.T. 1997, c. 14 as amended for Nunavut pursuant to the Nunavut Act, S.C. 1993, c. 28 , provides that decisions regarding custody or access to a child must be determined in accordance with the best interests of the child. This is so whether the decision is an interim decision pending trial or a permanent decision made at the conclusion of a trial. The test for variation of an interim order is not as stringent as the test for variation of a permanent order.

When dealing with interim orders, the Court is working with incomplete information which has not been tested by examination and cross-examination. The goal is to ensure an arrangement over the short term which stabilizes the circumstances of the child pending a final determination. The overriding determining factor is the best interests of the child. [ 16 ] The intent of the December Order was to maximize each parent's contact with the children and to ensure that the father's relationship with the children would be nurtured.

When the December Order was made, it was done so on the basis that the children would be returning to the family home, in the community in which they had spent all of their lives. The December Order maintained the mother as the primary caregiver while ensuring maximum contact with the father. The December Order would have returned the children to the status quo which had existed most of their lives. This was all in keeping with the best interests of the child. [ 17 ] Circumstances have changed since December 2011.

Given the father’s recent lack of contact with the children and lack of participation in these proceedings, it is questionable whether contact with the father would be maximized were the children to return. Further, if returned to the community of origin, the children would not be living in the family home. They would be forced into an uncertain, overcrowded living situation, which may even require that they be split up and live in different households.

This cannot be in the children's best interests. [ 18 ] The Order of December 1, 2011, is varied only to the extent that the mother is permitted to remain in the City of Ottawa with the three children of the marriage pending a final determination of this matter. The children are not to be removed from the City of Ottawa without further order of the Court. [ 19 ] A filed copy of this Order must be personally served on the father, who shall have 45 days from the date of service to bring an application to have this Order set aside. Dated at the City of Iqaluit this 24th day of October, 2012

___________________ Justice S. Cooper Nunavut Court of Justice