S. (J.) v. S. (S.), 2014 NUCJ 17

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: S. (J.) v. S. (S.), 2014 NUCJ 17 Date of Judgment (YMD): 201404 Docket Number: 21-13-304 CHL Registry: Iqaluit Applicant: S. (J.) -and- Respondents: S. (S.) ________________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicant): Susan Switch Counsel (Respondent): Albert Frank Location Heard: Iqaluit, Nunavut Date Heard: April 17, 2014 Matters: Children’s Law Act, S.N.W.T. 1997, c. 14, ss. 15 - 18 , 81 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 ] The Applicant father and the Respondent mother separated in August 2012 when the mother left the matrimonial home and returned to live with her parents in community X where she was born and raised. [ 2 ] The mother departed without her two-year old daughter S. because she could not afford to pay for her airfare. [ 3 ] The mother obtained access to S. in May 2013, with the consent of the father, on the understanding she would return the child to him in community Y in June. [ 4 ] At the end of the access period the mother refused to return S. to the father.

The father filed a notice of motion on June 20, 2013 returnable on July 24 in Iqaluit, requesting interim custody of S. and the assistance of the RCMP, if necessary, to regain custody of S. The motion was adjourned to August 21 in community Y. [ 5 ] The mother also filed a notice of motion returnable on August 21 in community Y requesting interim custody of S. [ 6 ] Counsel for the mother and father agreed to a “without prejudice” interim interim consent order [consent order] that was granted by Mahar J. on August 21.

The order provided that the mother would permit the father to pick up the child in community X and return with her to live with him in community Y, pending the hearing of an application for interim custody. The consent order also provided that S. was not to be removed from community Y and that the mother could have access in community Y. [ 7 ] The applications for interim custody were adjourned several times until I heard the motions on April 17 and reserved judgment. II.

EVIDENCE [ 8 ] The mother and father rely on numerous affidavits that were filed between June 20, 2013 and April 3, 2014. [ 9 ] The father is 31 years old and is an Inuvialuit beneficiary who has resided in community Y for 20 years. The mother is also an Inuvialuit beneficiary who was born and raised in community X. [ 10 ] The mother and father began living together in community Y in February 2009 and were married on October 6, 2009. S. was born on February 21, 2010. [ 11 ] The relationship struggled with a number of issues. Both husband and wife abused alcohol regularly.

The alcohol abuse fuelled the father’s suspicions that the mother had been unfaithful to him and led to arguments when they were drinking. [ 12 ] The mother alleges that the father assaulted her, from time to time, by pushing and slapping her. The father admits yelling at the mother but denies ever striking her. [ 13 ] The father alleges that the mother admitted her infidelity to him and the mother deposes that the husband admitted his infidelity to her. [ 14 ] The mother became concerned enough about her abuse of alcohol that she stopped drinking in April of 2013.

The father continued to drink and in August the mother left the matrimonial home and stayed at a local hotel for two days before departing for community X. Since the mother could not afford the airfare for both S. and herself she left S. with the father.

[ 15 ] The mother was S.’s fulltime caregiver from her birth until she departure to community X in August 2012, except for two brief periods totaling four or five months when her sister looked after S. while the mother was employed.

The sister’s involvement is S.’s care took place shortly before and after her second birthday. [ 16 ] The father was also involved in caring for S. but his involvement was much more limited because he worked in a full-time job while the mother resided in the matrimonial home. [ 17 ] The mother was unable to have access to S. after she left the matrimonial home, because she could not afford to pay for the travel costs.

The father had the financial capacity to pay for the access but did not facilitate it until May of 2013, when he agreed to and arranged for S. to travel to community X for a one-month visit. [ 18 ] The mother believed that she did not have to return S. to the father after the end of the one month access period. She had been S.’s primary caregiver for most of her life to that point, and S. had settled into a healthy routine at her parents’ home.

S. was exposed to a more traditional lifestyle and was happy to be back in her mother’s care. [ 19 ] After the mother obtained legal advice she agreed to return S. to the father to maintain the status quo on a without prejudice basis. [ 20 ] The father admitted that he struggled with being a single father after the mother’s departure in August 2012. He has a 10-year old son living with him and his girlfriend. He also has a 7-year old son, from a previous relationship, who lives with the mother in another community.

His girlfriend also has a child from another relationship who lives with them. [ 21 ] The father has utilized the local daycare centre for S. when he is working, but he and his girlfriend have days off during the week when they care for S.

The father is in the process of applying for S. to attend pre-school five days a week. [ 22 ] The mother has had regular communication with S. since August 2013, by telephone or Skype, and the father is prepared to allow S. to visit the mother in community X. [ 23 ] Since the separation the father has sobered up with the support of a local minister. [ 24 ] The father lost his employment with a local airline in March 2014 and is actively seeking employment. Because of the loss of employment the father no longer has access to low-cost airfares. III.

STATUTORY LAW [ 25 ] Section 20(1) of the Children’s Law Act, S.N.W.T. 1997, c. 14, ss. 15 - 18 , 81 as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C.1993, c. 28 [the Act], authorizes the parent of a child to apply to this court for an order respecting custody or access to the child.

Section 81 authorizes this court to make interim custody and access orders. [ 26 ] Section 18(5) of the Act provides some rules about the right to custody after separation in the absence of a court order. It states:

(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 or a court order 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. [ 27 ]

Section 17 specifies that a this court must consider the best interests of the child in making decisions on custody and take into account the appropriate factors from the following list: (

a) the love, affection and emotional ties between the child and (

i) each person entitled to or seeking custody or access, (ii) other members of the child's family, and (iii) persons involved in the care and upbringing of the child; (

b) the child's views and preferences if they can be reasonably ascertained; (

c) the child's cultural, linguistic and spiritual or religious upbringing and ties; (

d) the ability and willingness of each person seeking custody to, directly or indirectly, provide the child with guidance, education and necessities of life and provide for any special needs of the child; (

e) the ability of each person seeking custody or access to act as a parent; (

f) who, from among those persons entitled to custody or access, has been primarily responsible for the care of the child, including care of the child's daily physical and social needs, arrangements for alternative care for the child where it is required, arrangements for the child's health care and interaction with the child through, among other things, teaching, playing, conversation, reading and discipline; (

g) the effect a change of residence will have on the child; (

h) the permanence and stability of the family unit within which it is proposed that the child live; (

i) any plans proposed for the care and upbringing of the child; (

j) the relationship, by blood or through adoption, between the child and each person seeking custody or access; and (

k) the willingness of each person seeking custody to facilitate access between the child and a parent of the child who is seeking custody

or access. [28] Section 17 (3) requires a court to consider any evidence that a person seeking custody has committed

an act of violence against hisspouse. It states:

(3) In determining the best interests of a child for the purposes of an application under this Division in respect of custody of or access to achild, the court shall also consider any evidence that a person seeking custody or access has at any time committed

an act of violenceagainst his or her spouse, former spouse, child, child's parent or any other member of the person's household or family and any effect thatsuch conduct had, is having or may have on the child. IV. ARGUMENTS A. Father [29] Relying on A.B. v S.Q, 2011 NUCJ 29 [A.B.], the father argues that the mother acquiesced to the father having custody when sheleft S. in his care on her departure from community Y in August 2012. [30] The father argues that because of the findings of H.l. v E.I. 2011 NUCJ 32 [H.I.], the mother was compelled by law to return S. tothe father’s care.

When faced with father’s application for an order that the mother return S. to him the mother instructed her solicitor toconsent to the consent order of Mahar J. of August 21. [31] The consent order granted the father interim interim custody of S. pending further application to this court.

In other words, the orderreturned the parties to the status quo as it existed when the mother left community Y in August 2012. [32] Relying on Nyari v Velasco, 2008 ONCJ 272 [Nyari], the father argues that this court should focus on the status quo at the time ofthe separation in August 2012. [33] In Nyari, Sherr J. also noted the comments of the Supreme Court of Canada in Gordon v Goertz, (SCC), [1996] 2SCR 27, [1996] SCJ No 52 [Gordon], that an element of determining the best interest of the child in a case with mobility issues is tobalance the desirability of maximizing contact with the parents, the views of the child, and the disruption to the child consequent onremoval from family, schools and community the child has come to know. [34] Sherr J. adopted the comments of Marshman J. in Plumley v Plumley, [1999] OJ No 3234, (ONSC) [Plumley],to the effect that a court will be more reluctant to upset the status quo on an interim basis when there is a genuine issue for trial.

Theexception is where there is a strong probability that the custodial parent will be successful at trial. [35] Sherr J. also noted that courts are cautious before permitting temporary moves in mobility cases because they do not like to createdisruptions in the lives of children by making an order that, if later reversed, will result in further disruption when the child is returned. [36] The father also relies on Garside v Greenfield, [2002] OJ No 5529, (ONCJ).

In that case at paragraph 14, Judge Kurkin adopted the statement by Linhares de Sousa J. in Terris v Terris, [2002] OJ No 3018 at para 29, (ONSC), about the problems in dealing with a mobility issue on an interim motion without the benefit of the examination and cross-examination of witnesses.

[ 37 ] The father submits that when this case is heard at a trial it will be a mobility case because the mother is proposing to move S. far away from the place she has lived all her life, except for the few months in the summer of 2013 when she lived with the mother in community X. [ 38 ] The father has denied the alleged acts of violence made by the mother and he was never charged with any criminal offences. Section 17(3) of the Act talks about the effect of the violence on the child.

The mother admits, in her affidavit of August 5, 2013, that she was comfortable leaving S. with the father because he had never hit her and she felt S. would be safe with him. [ 39 ] The father submits that the mother shared custody with him when they were together. He has been the parent primarily responsible for S. since August 2012. [ 40 ] The father notes the reference made by Kilpatrick J., in an earlier court appearance in this case, regarding the possible application of the of the reasoning of the Alberta Court of Appeal in MacPhail v Karasek, 2006 ABCA 238 [MacPhail] .

In that case, the appeal court overturned the trial judge’s decision to change the mother’s sole custody to joint custody, and ordered that the 4-year old child returned to her original community to live with the father. The father argues MacPhail is highly distinguishable from the case at bar. In MacPhail the mother was the primary caregiver and the parents had lived together very briefly before separating during the pregnancy. The father had always been an access parent.

In this case the father was an active parent during the marriage and has been S.’s primary caretaker since August 2012. [ 41 ] The father submits that there is a genuine issue for trial and the father has an arguable case. There is no basis for a finding at this stage that the mother has a strong probability of success. There is nothing urgent or compelling that would require a change in custody at this time. The issue of final custody can only be decided after a judge has heard the live evidence of the parties that has been subjected to cross-examination. B.

Mother [ 42 ] The mother argues that the evidence proves she is a loving mother and has always wanted to have S. live with her. She denies that she consented or acquiesced to the father having sole custody. It is a serious matter, even on an interim basis, to keep a loving mother from a loving daughter. [ 43 ] The mother argues that the father’s living arrangements are not as good for S. as being with the mother because the father is living with his latest girlfriend and two other children. One of the children is his son, and the other is his girlfriend’s daughter by another relationship.

There are frequent visits by the girlfriend’s son’s father and his two other children. [ 44 ] The mother argues that the affidavit evidence favors the conclusion that the father did have an affair. [ 45 ] The mother argues that the father is seeking to exploit the interim order that was consented to by the mother to argue that because S. has been with him for 8 months she should stay with him until the trial.

If he succeeds in this motion he will no doubt argue that the time S. spent without her mother is all the more reason that the father should be granted sole custody at the trial. [ 46 ] The father smeared the mother in his affidavits with accusations of affairs. He based this on rumours and suggests he is hostile to the mother. His attitude does not bode well in facilitating a good relationship between S. and her mother. [ 47 ] The mother argues her evidence about the father’s repeated violence towards her should be accepted over the father’s simple denials.

Given the father’s drinking pattern and belief in the rumours of the mother’s affairs to the point that he doubted S.’s paternity for

a time suggests that his evidence is not as reliable as the mother. As a result it the court should infer that he probably was violent towards her. [ 48 ] The mother argues that father has not provided much evidence about his other relationships and children. He has at least two prior relationships and then was married to the mother.

He now has a new girlfriend who has a child living with them from a previous relationship, and he has another child from another relationship who is living elsewhere. [ 49 ] Based on the father’s and his new girlfriend’s past record it is questionable whether the relationship will last and S. may have to adjust to other relationships in the future. [ 50 ] The longer S. stays in the father’s household the likelier she will feel she has to compete with the father’s other children or the current girlfriend’s children for time, attention, and love. [ 51 ] The living arrangements of the mother are far superior to those of the father.

When S. was with the mother in community X she had her own room and lived with the mother and her maternal grandparents. S. was happy living with her mother and grandparents and does not have to compete with other children for time, attention, and love. [ 52 ] When S. lived with the mother she was encouraged to eat country foods and to spend time outdoors. Her grandfather took her ice fishing.

The mother did and will provide support for S. to learn her mother’s native language and learning about their traditions and culture. [ 53 ] Interim custody depends largely on the judge’s conclusions on the affidavit evidence that is untested by cross-examination.

Since there are factual differences in each case the law relied on by the father is of limited use in compelling a decision either way. [ 54 ] At paragraph 23 of Nyari, Sherr J. stated that disruption was not as significant a factor with a younger child as it is with an older one. [ 55 ] The father relies on the statement, at paragraph 37 of MacPhail, that the status quo established by the interim consent order should not be regarded as establishing a new status quo. V.

ANALYSIS [ 56 ] The law on the general principles applicable to mobility issues is set out in paragraphs 49 and 50 of Gordon as follows: The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstancesof the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. In the end, the importance of the child 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? [57] This application is not an application to vary an existing custody order and there is no requirement to address the material change ofcircumstances issue. Without the benefit of legal advice the mother refused to return S. to the custody of the father, contrary to heragreement with the father and thereby changed the status quo that existed at the time of separation.

As stated at paragraph 16 of Nyariand at paras 40 to 43 of H.I., courts must discourage self-help remedies and encourage parties to put custody and access issues before ajudge if they cannot be resolved. To the mother’s credit she agreed to the consent order issued by Mahar J. after she obtained legaladvice, and permitted the father to resume custody of S. without the necessity of involving the RCMP or social services.

S. was returnedto the father’s custody on August 25, 2013 and the status quo that existed on the date of separation was re-established. [58] In B. (R.) v A. (O.), 2005 NUCJ 24 at para 15, I adopted the following statement of Vertes J. in Kalaserk v Nelson, (NWT SC), 2005 NWTSC 4 at para 3, [2005] NWTJ No 3, on the principles applicable to an application for interim custody: The focus on these applications is usually the short-term needs of the child. The purpose of an interim order is to cover the period of timebetween the making of the order and a trial of the question of permanent custody.

The test on an interim application is normally: Whattemporary living arrangements are the least disruptive, most supportive, and most protective for the children? In the words of Zuber J.A.of the Ontario Court of Appeal in Sypher v. Sypher, (1986) (ON CA), 2 R.F.L. (3d) 413: "... the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial." [59] As Kilpatrick J. noted, at paragraph 29 of H.I., a court does not focus on either the interests or rights of the parents except as theymight impact the decision on the best interests of the child.

The conflicts in the affidavits about the alleged infidelities and the husband’s

spousal are peripheral to the main issue of the best interest of the child. [ 60 ] As Kilpatrick J. further noted, at paragraph 30 of H.I., a court will usually favour preservation of the status quo pending trial so as to minimize the disruption to the life of the child. As noted at paragraph 22 of Nyari courts are more reluctant to change the status quo where there is a genuine issue for trial.

The exception to maintaining the status quo because there is a genuine issue for trial is when there is a strong probability that the party awarded interim custody will prevail at trial. [ 61 ] Although Sherr J. noted, at paragraph 23 of Nyari, courts were cautious about permitting temporary moves in mobility cases because of the disruption to the life of the child, he recognized that the disruption was not as significant with younger children. [ 62 ] The affidavit evidence satisfies me that the mother has been S.’s primary care giver from her birth until the mother left the matrimonial home in August 2012.

I accept her evidence that the father’s role was secondary and that there is a strong bond between S. and her mother. But for the lack of money I am satisfied that the mother would have taken S. with her when she departed. As the father recognized in his affidavit, he found caring for S. after the mother’s departure was a demanding job. [ 63 ] Despite the 8-month interruption in the mother’s custody after her departure, the mother and S. were still strongly bonded when the mother regained temporary custody in May 2013.

As indicated in the mother’s affidavit, sworn on January 14, 2014, S. quickly adapted to a regular routine and was exposed to a healthy, stable and traditional lifestyle. She established a relationship with her grandparents and flourished in her new home. [ 64 ] I am satisfied that the mother did not consent or acquiesce in the father having custody of S. when she left. I accept what she says in her affidavit of August 15, 2013 that she left the matrimonial home because the father was on a two-day drinking party with his family.

She went to a local hotel for the two days with S. and the father’s two boys and then spoke with the father on the phone after he sobered up. She deposed that the father sent his sister to pick up S. and the boys and the father did not know about her intention to leave community Y until she told him. She did not take S. with her because she did not have the money to pay for her ticket. These facts can be distinguished from what occurred in A.B.

In that case the mother was breast-feeding the child and I found the father had to know it was best for all parties if the child went with the mother and decided not to create a disturbance at the airport by trying to prevent her from leaving. In this case the mother had no choice but to leave S. with the father. [ 65 ] The father also has bonded with S. and has been much more involved in her care since the mother left. S. has spent most of her life in community Y and has developed a routine with friends and relatives.

The father relies on the support of day care and his girlfriend to care for S. and the other children in the household. I accept the father’s evidence that he has addressed his alcohol issues and is now more responsible than he was in the past. [ 66 ] The status quo clearly favours the father because there is a genuine issue about which party should be granted custody. [ 67 ] It is critical that this matter proceed to a trial as soon as possible. I am satisfied from my conversation with the Senior Judge and the Trial Coordinator that a two-day trial can take place on the August circuit to community Y.

I strongly recommend that legal aid make arrangements to pay for the travel costs for the mother and any witnesses she wishes to call to travel to community Y for the trial.

[ 68 ] I believe there are compelling circumstances to warrant a change in the status quo at this time because the mother has not had access since S. returned to the father’s care last August. Given high access costs it is not feasible to order a short visit between now and the trial date. The child is only four and has visited the mother before. I am satisfied that the child’s routine will be minimally affected by a change in custody at this time. [ 69 ] As a result I have to assess the relative arguments of both parties and determine on the evidence before me which parent has the best chance of being successful at the trial. [ 70 ] Taking into account the factors listed in

section 17 of the Act I believe there is a good chance that the mother will be awarded custody. The mother has the best plan of care for S. She will be her full-time caretaker and she has no other children to care for. She has strong support from her parents who are in their early fifties. S. will have her own room and will not have to compete with other children for time, love, and affection. On the other hand the father has a poor track record in his relationships and has many other competing obligations including working when he finds another job.

While his current relationship may work out, his girlfriend will be primarily focused on her own child’s care and S. will not get the same quality care she will receive from her mother. VI. Conclusion [ 71 ] The mother is awarded interim custody of S. and the trial date is set for August 13, 2014 in community Y. The costs to send S. to community X will be paid by the father. Costs shall be in the cause and will be determined by the trial judge. Dated at the City of Iqaluit this 29th day of April, 2014 ______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice