J.I. Appellant (Respondent) v. The Director of Child and Family Services, 2013 NUCA 07

In the Court of Appeal of Nunavut Citation: J.I. v Nunavut (Child and Family Services, Director), 2013 NUCA 07 Date: 20131010 Docket: 11-12-4-CAC Registry: Iqaluit Between: J.I. Appellant (Respondent) -and- The Director of Child and Family Services Respondent (Applicant) - and - N.A. Respondent (Respondent) _______________________________________________________ The Court: The Honourable Madam Justice Constance Hunt The Honourable Mr. Justice Clifton O'Brien The Honourable Mr.

Justice Frans Slatter _______________________________________________________ Memorandum of Judgment Appeal from the Judgment and Order by The Honourable Mr. Justice N.C.J. Sharkey Dated the 13th day of April, 2012, Filed on the 23rd day of April, 2012 and Filed on the 27th day of April, 2012 (2012 NUCJ 5 , 2012 NUCJ 05, Docket: CHW 11-08-474) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [1] The appellant mother (with the support of the respondent father) applied unsuccessfully to vary a permanent custody order.

Thatorder gave guardianship of two children to the respondent Director, and provided for one week of access in the summer and the winter, “.. . access not to commence until the parents have made sufficient progress, at the discretion of the Director, in dealing with their issuesthrough the assistance they are being provided by the Director”. [2] The appellant argued that this access provision is unacceptably vague, and that it unlawfully delegates the right to determine access tothe Director.

After hearing two days of evidence, the chambers judge concluded that the provision in the order was not vague, that theorder had been consented to by the appellant, and that the appellant knew that her alcoholism was the issue that she had to deal with ifshe wanted to have access to her children: J.I. v Nunavut (Child and Family Services, Director), 2012 NUCJ 5. The chambers judge alsoheld that the order merely gave the Director the ability to decide aspects of parental access, which was a permissible provision in an

order. The order itself specified that there were to be two weeks of access, so the right to access was not delegated. In the alternative, the chambers judge was of the view that a court could order that access be in the discretion of the Director. [ 3 ] The Child and Family Services Act, SNWT (Nu) 1998, c. 34 provides that the paramount principle to be followed is in the best interests of the children. It further provides: 28(1) A court may make one of the following child protection orders that is, in the opinion of the court, in the best interests of the child who is the subject of the hearing: . . . (

d) the child be placed in the permanent custody of the Director, and the court may specify in the order . . . (ii) that the child’s parent or person having actual care of the child . . . be granted access to the child on the terms and conditions that the court considers appropriate. This empowering

section is very widely worded, referring both to the “opinion of the court” and conditions that the court “considers appropriate”. Given the flexibility that is desirable when it comes to enhancing the best interests of children, there is no reason to place a restrictive

interpretation on the section. The Director is a public official charged with the care of children in need of protection, and if it is the opinion of the court that it is appropriate for the Director to determine the access to the child, the court may so order. [ 4 ] To illustrate, the court could grant permanent custody to the Director, and make no provision for access. That would not prohibit access, and if the Director chose to allow access, Page: 2 that access would essentially be in his discretion.

Further, at some point the distinction between delegating the right to determine access, and determining the details of how access would be exercised, disappears. If one is lawfully permitted, it is difficult to see why the other is not. [ 5 ] While the court has the ultimate authority over access to the children, the reality is that the court cannot be in every community, monitoring the well-being of every child on a day-to-day basis.

The Director and his staff will often be in a better position to respond to the needs of the children as they arise, and there is no compelling reason why they should not be empowered to do so. If the Director makes inappropriate or unfair decisions about access, it is always possible for any affected parent to bring an application to vary the order, which effectively confirms that it is the court that has the ultimate say.

That is sufficient to address any concern about delegation of judicial power. [ 6 ] If it is lawful to put access in the discretion of the Director, then concerns about the vagueness of the order essentially disappear. If the offending words “sufficient progress in dealing with their issues” are removed, the balance of the order would then place access entirely in the Director’s discretion. The chambers judge was satisfied that the appellant knew what the Director (and the Court) expected of her if she wanted access.

The chambers judge was also satisfied that the Director was proceeding in good faith, and recognized the advantages to the children that would come from continued contact with their parents. If the chambers judge was not permitted to leave access in the hands of the Director, it is clear he would have ordered “no access” until the appellant could satisfy the Court that she had control of her addiction. [ 7 ] In the alternative, the appellant asks that the Court vary the order to specify fixed conditions that must be met before access is allowed.

She proposes set periods of sobriety at various stages before and during access, and other related conditions. The trial judge specifically considered and rejected this option (at paras. 101, 109), concluding that this “would not be a reasonable management of the risk.” This discretionary decision, by a judge who heard the witnesses first hand, discloses no error of principle that would warrant appellate interference. [ 8 ] In conclusion, there is no basis shown for appellate interference in the decision of the chambers judge, and the appeal is dismissed.

It is, of course, always open to the appellant to reapply to vary the order, should she be able to sufficiently overcome her addiction. Appeal heard on September 24, 2013 Memorandum filed at Iqaluit, Nunavut this day of October, 2013 Authorized to sign for: Hunt J.A. O'Brien J.A. Slatter J.A. Page: 3 Appearances: J. Squire for the Appellant S. MacPherson for the Respondent Director of Child and Family Services

J. Rowsell for the Respondent N.A.