Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: C.L. v. J.M., 2017 NUCJ 21 Date: 20171211 Docket: 21-14-469 Registry: Iqaluit Plaintiff: C.L. -and- Defendant: J.M. -and- Third Party: J.L. & W.L. ________________________________________________________________________ Before: The Honourable Madam Justice Susan Cooper Counsel (Plaintiff): Nancy Hellyer Counsel (Defendant): Edward Hopkins Counsel (Third Party): Mark Christie Location Heard: Iqaluit, Nunavut Date Heard: December 11, 2017 Matters: Children’s Law Act, SNWT (Nu) 1997, c.14 REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) DISCLAIMER PAGE Anonymization Disclaimer: This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] This matter is a custody dispute between maternal great-grandparents and the biological father. The biological mother is not seeking custody. II. BACKGROUND [ 2 ] The child is now 3 1/2 years old. Her biological parents had a highly dysfunctional relationship.

During the relationship her father was charged criminally. He spent some time in remand as a result of outstanding charges. [ 3 ] The child came into the care of her maternal great-grandparents in January of 2015 under a fostering agreement. She was in their care under a fostering relationship until November 4, 2015, at which time the apprehension was abandoned and the Director of Children and Family Services was prepared to return the child to the father.

The great-grandparents then brought an “emergency” application for custody, which was granted on November 8, 2015. [ 4 ] It is clear from a review of the transcript of the November 8, 2015 court appearance that it was not anticipated that the issued Order would be anything more than short term.

[ 5 ] The child has been in their care now for over two years pursuant to the Court Order that was issued in November of 2015. [ 6 ] The delay in this matter is of concern. It operates very much to the advantage of the great-grandparents and to the prejudice of the father. This is particularly so as the child and the father are not in the same community and are unable to see each other regularly, which would be the best way of establishing bonds and an ongoing relationship.

Due to the child's age, it is difficult to have meaningful contact by telephone or Skype. [ 7 ] The relationship between the great-grandparents and the father is a difficult one. This tension does not lend itself to the fostering and nurturing of the child's relationships with her family on both her mother's and her father's sides. [ 8 ] The purpose of this decision is to determine short term access and to direct steps to move the matter to trial. [ 9 ] The great-grandparents are opposed to the child travelling to be with the father in Gjoa Haven.

They submit that the father should travel to Cambridge Bay and exercise access there until the child is more comfortable with him. They attest to negative changes in the child's behaviour following two trips to Gjoa Haven. The father attests that the visits with the child went well. He had previously travelled to Cambridge Bay to see his daughter and he submits that being with her in his home is a natural progression. [ 10 ] It is important to put these trips to Gjoa Haven in context. In September of 2016 a Settlement Conference was held.

Following the Settlement Conference an Order issued which directed that the child was to travel to Gjoa Haven for a two week period in October or November of 2016 and for a one month period in December of 2016 or January of 2017. Counsel were to contact the trial coordinator to

schedule a further Settlement Conference in February 2017. [ 11 ] For various reasons, some of which are in dispute, the two week visit did not occur until the end of December 2016 into early January 2017. [ 12 ] Following the two week visit, the maternal great-grandparents refused to send the child to Gjoa Haven for the one month visit as set out in the September 2016 Order. The great-grandparents were concerned that the trips were harmful to the child as she was exhibiting negative behaviours. [ 13 ] I make no findings or conclusions regarding the legitimacy of the concerns of the great-grandparents.

I do however take issue with how those concerns were responded to by the great-grandparents. Counsel for the great-grandparents did not bring the matter back before the court to seek a variation of the September 20, 2016 Order, as should have been done once the great-grandparents made it clear that they were not going to comply with the Order and arrange for a second trip.

Given the delay in arranging the first trip, it is disingenuous to say that the Order could not be complied with as the time for the second trip had passed. [ 14 ] Ultimately, the child travelled to Gjoa Haven a second time, from August 21 to September 17, 2017, eight to nine months later than set out in the September 20, 2016 Order. III. ISSUES [ 15 ] For the purposes of this decision the following matters are to be decided: • child’s time with the father over Christmas; • appointment of Counsel for the child; • disclosure of criminal records; • venue for trial; and • development of a litigation plan. IV.

ANALYSIS

A.

Child’s time with father over Christmas [ 16 ] The father shall have access to the child in Gjoa Haven from December 27, 2017 to January 27, 2018. [ 17 ] Costs of the access shall be shared equally by the father and the great- grandparents. [ 18 ] Access, by telephone or Skype, by the party who the child is not with shall continue as in the September 20, 2016, Order, that being: • by telephone or Skype on Sunday, Tuesday and Thursday at 7:30 p.m.; • by telephone at such other times as may be reasonable. [ 19 ] The great-grandparents shall prepare a notebook that contains information regarding the child's daily routine, nighttime routine, special care needs, etc.

That notebook shall accompany the child to Gjoa Haven. [ 20 ] While the child is in Gjoa Haven, the father shall make daily notes in the notebook setting out what the child did that day, the daily routine and nighttime routine followed, any special care needs adhered to, etc. A copy of this notebook shall be made and shall accompany the child back to Cambridge Bay. B. Appointment of counsel for the child [ 21 ] Counsel for the great-grandparents has requested that the Court appoint Counsel for the child. Counsel for the father is opposed.

Counsel for the mother does not have a position as she has been unable to get instructions. [ 22 ] The Children’s Law Act , SNWT (Nu) 1997, c.14, does not specifically provide for the appointment of Counsel for the child. However, it is clear that the Court can make such an appointment pursuant to its parens patriae jurisdiction ( Lafferty v Angiers , 2013 NWTSC 3 at para 13 , 2013 CarswellNWT 1 ). [ 23 ] It is generally accepted that Counsel for the child should only be appointed if there is no alternate way of putting the child’s wishes and preferences before the court.

Further, appointment of Counsel for the child should be the exception rather than the norm ( Lafferty at para 20 ). [ 24 ] The role of Counsel for the child is one that should be clearly defined prior to the appointment being made. A practice has developed in this jurisdiction of Counsel for the child participating in the proceedings by presenting to the court the wishes and preferences of the child. This is in accordance with the Children’s Law Act, SNWT (Nu) 1997, c 14, s 17(2)(

b) and with

Article 12 of the Convention on the Rights of the Child , 20 November 1989, 1577 UNTS 3, art 12 (entered into force 2 September 1990). [ 25 ] This is done by interviewing the child, preparing a report which is provided to all Counsel and the Court, and by questioning witnesses at trial.

This practice has developed as this is the process that Counsel have agreed to. [ 26 ] The case law generally speaks of three approaches to the role of Counsel for the child: a traditional advocacy role, a “best interests” approach, and an amicus curiae role. [ 27 ] For children’s Counsel to take a traditional advocacy role, the child must be capable of not only communicating their preferences and wishes, but must understand the nature of the legal proceedings and the consequences, both short and long term, of their decisions ( BLS (Re) , 2013 ABPC 132 , 2013 CarswellAlta 607 ).

Clearly, a three year old does not have the necessary level of comprehension to engage in a traditional lawyer-client relationship. [ 28 ] The “best interests” approach contemplates Counsel determining the wishes and preferences of the child but potentially taking a position in court that does not accord with those wishes or preferences, as they are not in the best interests of the child. I have two concerns with this approach. Firstly, what is in the best interests of the child is the ultimate decision the court must make, having heard all of the evidence.

Secondly, it is not clear to me what qualifications Counsel for the child may have to determine what is in the best

interests of the child. It seems to me that this type of assessment requires information regarding the child’s physical, emotional and mental health, as well as an assessment as to the parenting abilities of the parties. There are professionals who are qualified to gather such information and make such assessments.

And these professionals should be retained if that information is being sought. [ 29 ] Counsel acting in an amicus curiae role will not take a position in the litigation but will provide information to the court regarding the circumstances of the child, the services available, etc. [ 30 ] As previously stated, given the young age of the child, I am not satisfied that it is appropriate that Counsel be appointed. The application to appoint Counsel for the child is denied. [ 31 ] However, pursuant to

section 29 of the Children’s Law Act, the Court may: (

a) appoint a person who has the technical or professional skill necessary to assess and report to the Court on: (

i) the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child, or (ii) any particular issue respecting the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child specified by the court; (

b) give directions on the methods to be used for the assessment; and (

c) require the parties, the child or any other person who has been given notice of the proposed order to attend for assessment by the person appointed by the order. [ 32 ] I would be willing to consider ordering an assessment pursuant to this

section but for the fact that there do not seem to be the resources in Nunavut to do such an assessment. [ 33 ] I have requested our Executive Legal Officer to make inquiries with the Representative for Children and Youth to determine if that office can provide such a service. C. Disclosure of criminal records [ 34 ] Counsel for the great grand-parents is seeking disclosure of the criminal record, if any, of the father. Such an Order cannot be one- sided. If one party is required to disclose such information, so should all parties be required. [ 35 ] I note that this Order was actually made on December 15, 2015.

It is in paragraph four of the Order issued on that date. It is not clear why none of the parties have complied. All of the parties will request a criminal record check with the RCMP and will disclose the results of that request to the other parties. D. Venue [ 36 ] There was discussion as to whether the trial should proceed in Cambridge Bay or Gjoa Haven. Regardless of where the trial is held, there will be inconvenience to one or more of the parties.

Since three of the litigants live in Cambridge Bay and one litigant lives in Gjoa Haven, the inconvenience and expense overall will be minimized if the matter proceeds in Cambridge Bay. E. Litigation plan [ 37 ] In consultation with counsel, the following deadlines are set for completion of certain steps in the litigation. [ 38 ] All examinations for discovery shall be completed by April 13, 2018.

[ 39 ] The trial of this matter shall proceed in Cambridge Bay commencing Monday, June 25, 2018, at 9:30 a.m. [ 40 ] Counsel for the father will prepare and circulate a draft Order in accordance with this decision. V. CONCLUSION [ 41 ] This matter raises some complex issues which will have to be determined at trial. One of those issues is the role of foster parents in custody disputes, particularly if the foster parents are extended family members.

It seems to me that the Director of Children and Family Services, Nunavut Tunngavik Incorporated and the Regional Inuit Associations may have a role to play in assisting the Court on this issue. I am directing that a copy of this decision be provided to each of those agencies. If they wish to participate, they can bring an application to intervene, keeping in mind the impending trial date. Dated at the City of Iqaluit this 11th day of December, 2017 ___________________ Justice S. Cooper Nunavut Court of Justice