H.I. v. E.I., 2011 NUCJ 32

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: H.I. v. E.I., 2011 NUCJ 32 Date: 20111201 Docket: 15-11-413-CHL Registry: Iqaluit Applicant: H.I. -and- Respondent: E.I. ________________________________________________________________________ Before: The Honourable Mr.

Justice Kilpatrick Counsel (Applicant): Susan Switch Counsel (Respondent): Jack Squire Location Heard: Iqaluit, Nunavut Date Heard: November 17, 2011 Matters: Children’s Law Act, S.N.W.T. 1998, c. 14, as duplicated for Nunavut by s. 29 of the Nunavut Act; Family Abuse Intervention Act, S.Nu. 2006, c. 18; Family Law Act, S.N.W.T. 1997, c. 18 , as duplicated for Nunavut by s. 29 of the Nunavut Act. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Amended decision: An amended decision was issued on December 12, 2011; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] In January of 2011, a nine year relationship came to an end. The feelings and emotions that once brought HI and EI together have long since been forgotten. There is now only anger and mistrust. [ 2 ] Three small children are now caught between warring parents in a legal tug of war. Both HI and EI press a claim for interim custody and interim child support.

The parents are unable to agree upon what custodial arrangement is now in the best interests of their children. Both parents claim to love these children. The parents advance their respective claims for custody on the proposition that they are best suited to be the custodial parent. [ 3 ] It is left up to the Court to structure a temporary arrangement pending trial that will best meet the needs and address the vulnerabilities of these unfortunate children. II. EVIDENCE A. The children [ 4 ] The three children of this relationship were born and raised in community X.

The maternal and paternal grandparents live in this community along with many members of their extended families. The children are 10, 6, and 2 years of age respectively. They are healthy, and have no special needs. [ 5 ] The ten year old is currently enrolled in Grade four. The six year old is enrolled in Grade one. [ 6 ] The children love both parents, and have enjoyed the benefits of a relationship with their extended family in community X. B. The marriage relationship [ 7 ] HI and EI have been in a relationship together for nine years. Three and half years ago the couple married.

The common law relationship was not without difficulty. In 2004, HI was convicted of assaulting his then common law partner. [ 8 ] EI is the primary caregiver to the children. Until recently, she has been a stay-at-home mom. She has been primarily responsible for meal preparation, feeding, bathing, changing diapers and other domestic responsibilities involving the children and the home. EI has carried out these domestic responsibilities well over the years. The children have benefited from the love, discipline, and nurturing lavished upon them by their mother.

[ 9 ] For many years, HI has been the breadwinner and sole provider for the family. He too has fulfilled this responsibility well, except for a period of unemployment precipitated by his dismissal for being in possession of drugs at a mine site. [ 10 ] The couple separated in January 2011. EI alleges that there has been both physical and emotional abuse in this relationship. In January 2011, EI applied for and obtained an Emergency Protection Order under the Family Abuse Intervention Act. HI was compelled to leave the family home, and took up residence with his parents.

The Emergency Protection Order was in effect for a period of 90 days. It conferred temporary custody of the three children and exclusive possession of the matrimonial home upon EI. Both parties were ordered to refrain from taking, converting, damaging or otherwise dealing with property in which the other spouse had an interest. [ 11 ] During this period of separation EI and HI communicated with each other by telephone. Both parents claim that they were being harassed by the other. The children were permitted access visits to HI at HI’s parents’ house.

At some point, however, the older child was not returned to EI’s care following an access visit. EI then discontinued further access visits by the other two children. [ 12 ] For a period of approximately two months the older child remained in the care of HI and his parents. EI was permitted little or no contact with the child during this time. [ 13 ] In May 2011, the older child returned to EI’s care when HI decided to take a brief holiday in Edmonton. In June 2011, EI suddenly relocated to Ottawa, Ontario and disappeared from community X with the three children.

She did so without notice to HI and without his consent. [ 14 ] EI had applied to the Legal Services Board in Nunavut for legal assistance. A lawyer had been assigned to provide the Board with a legal opinion on the merits of EI’s family law claim. No legal advice was made available to EI before she departed for Ontario with the children. [ 15 ] EI and the children have been resident in Ottawa, Ontario since the summer. The two older children have taken

part in summer camps. They are now in school. They are participating in Inuit after school cultural programs at the Inuit cultural center. EI and the older children are also engaged in counselling to address the emotional vulnerabilities caused by the marriage breakdown and separation. EI has secured her own three bedroom apartment. [ 16 ] EI has a cousin who lives in the Ottawa area. This cousin also has children. These two families are now actively socializing with one another. HI’s contact with the children has been restricted to telephone access since the children’s departure from community X.

Pending the hearing of this application, HI has voluntarily provided child support and country food to EI in Ottawa. C. EI’s perspective on her relationship with HI and the children [ 17 ] EI claims that HI is physically and emotionally abusive. She claims that he is controlling and jealous. [ 18 ] EI claims that HI has been resistant to her leaving the home to secure employment. She says that she has been socially isolated. [ 19 ] EI suggests that HI abuses alcohol and drugs, and that this has been a cause of great friction in the relationship.

EI claims that as a consequence of heart problems, she neither smokes nor drinks alcohol. [ 20 ] EI claims that HI is quick to make promises, but these promises are frequently not kept. EI says that the children are often disappointed because their Dad does not follow through with a commitment to spend time with them.

[ 21 ] EI’s rationale for her abrupt and secretive departure from community X is twofold: it is said that the move was necessary to escape the harassment of HI and to better ensure that the children were insulated from the abusive relationship.

The move to Ottawa also facilitated better access to both counselling services for EI and the children and the health services that EI needs to address her heart condition. [ 22 ] EI suspects that HI’s present claim for custody of the children and an order compelling the children’s return to community X is a veiled attempt on HI’s part to force EI to return to the relationship. D. HI’s perspective on his relationship with EI and the children [ 23 ] HI denies that he is physically and emotionally abusive to EI. He claims that he has actively encouraged EI to seek employment.

He suggests that it is EI who is jealous, controlling and manipulative. HI denies that he has a drug or alcohol problem. It is said that his occasional use of alcohol does not in any way interfere with his ability to effectively parent the children of the marriage.

HI insists that he has not consumed any soft drugs for a year. [ 24 ] HI claims that EI controlled the family finances and frequently frustrated or obstructed his personal involvement with the children by limiting their activities together. [ 25 ] HI points to EI’s secretive departure from community X and attempted sale of the family vehicle and furniture as being illustrative of EI’s deception and manipulation. [ 26 ] HI says that he does follow through with his commitments to the children. [ 27 ] HI presses a claim to custody, or in the alternative, an access order forcing the children’s return to their home community, as a means of ensuring that he will remain a part of the children’s lives.

It is argued that a continuing connection by the children with their Inuit culture, and with their extended family in community X is in the children’s best interests. It is said that these needs are better preserved and protected by the children’s return to their home community. III. ANALYSIS A. The legal focus on an interim application for custody of a child [ 28 ] There are many irreconcilable conflicts in the affidavit evidence that cannot be properly resolved without full cross-examination of the parties.

It is only in the trial environment that a judge will have the benefit of hearing directly from the witnesses and be able to distinguish truth from fiction. [ 29 ] On an application for interim custody, the Court is not called upon to determine what is in the best long term interests of the children. An interim order is just that. It is an order that addresses the short term needs of the children pending a final resolution of the issues in the trial proper.

The Court does not focus on either the interests or the rights of the parents except insofar as these interests or rights might bear on what order is now in the best interests of the children. [ 30 ] In structuring a temporary solution, the Court must consider the age, present circumstances and needs of the children. The law ordinarily favors preservation of the status quo pending trial. It does so in an effort to minimize the disruption and emotional turmoil caused by a sudden change in the child’s environment.

[ 31 ] A child is emotionally vulnerable following a separation of his or her parents. A change in the day to day care of a child is traumatic, particularly where this is accompanied by a change of routine, a loss of contact with a loved one, or a loss of contact with friends, family and familiar surroundings of home, school and community. [ 32 ] A child needs continuity, consistency and predictability in their day to day care.

Some structure is needed for a child, particularly a very young child, in order to thrive. [ 33 ] It is the child’s right to have access to both parents, and to maximize this contact where appropriate. It is the child’s right to maintain bonds with extended family and culture. It is the child’s right to be protected from any drastic reduction in their level of support following a breakdown in a marriage. B. Interim custody [ 34 ] HI has not been the primary care giver to these children. For many years, this responsibility has fallen upon EI.

HI continues to be employed two weeks in and two weeks out at a mine site that is some distance away from community X. During these absences, HI is unable to provide the continuity of care that is necessary for these young children. A change in the day to day care arrangements for the children is simply not warranted on an interim basis.

Such a change risks further trauma to the children. [ 35 ] In arriving at this decision on interim custody, the Court has directed itself to all of the criteria set out in section 17(2) of the Children’s Law Act. [ 36 ] The Court concludes that it is in the children’s best interests, at least on an interim basis, for El to continue to provide primary care to the children. EI is therefore awarded interim custody of the three children. [ 37 ] For the purpose of this application, the Court finds that there is a genuine issue for trial on the issue of custody. C.

Interim child support [ 38 ] HI remains legally and morally obligated to support the children he brought into the world. This obligation continues even in circumstances where HI is unable to live with the children. The additional expenses associated with separation, the need to maintain two households instead of one, often results in a net reduction in the level of support available to the child or children of a relationship. The law seeks to protect children from the financial consequences associated with marriage breakdown. It does so through an order of child support.

It is the right of every child to receive this support, though the law does notionally award the support to the custodial parent. [ 39 ] Based on an income of $48,000 per annum, HI shall pay interim child support to EI in the amount of $1,016 per month commencing on January 1, 2012, and continuing on the first day of each and every month thereafter until varied or confirmed at trial. D. Relocation as a self-help remedy [ 40 ] For sound policy reasons, the law has long discouraged self-help remedies by persons claiming the custody of children.

Part 3 of the Children’s Law Act expressly recognizes the importance of discouraging the unilateral removal of children as an alternative to the determination of custody through due process of law.

[ 41 ] Where a child’s habitual residence is changed unilaterally without the sanction of a Court order, the law ordinarily requires the child to be returned to the status quo as it is existed before their wrongful removal. To do otherwise would encourage warring parents to pursue self-help remedies at the expense of the child or children. Children would be abducted by a parent hoping to secure a tactical legal advantage in a custody dispute.

Any validation of the status quo resulting from an unlawful abduction not only risks undermining or devaluing the child’s right of access to the other parent, but potentially compromises the non-abducting parent’s claim for interim custody. Children’s interests would suffer under such a regime. [ 42 ] For sound policy reasons, the law does not generally recognize the status quo flowing from the unilateral removal of a child from his or her habitual residence by a parent claiming custody.

The common law does recognize an exception to this general rule, but this exception is a narrow one. [ 43 ] Clear and compelling circumstances must exist to warrant a unilateral change in the status quo. The circumstances must be such as would fairly justify removal as being “in the best interests of a child”. There must be some urgency associated with the need to act without notice to the other parent and without the sanction of a court order. It is the child’s needs that determine whether such a drastic process is to be accepted, not the parent’s.

The need to be addressed by such a move would have to be pressing: a need that if not addressed in a timely fashion would threaten the emotional or physical well-being of the child or children at issue. E. The children’s right of access to HI [ 44 ] Absent exceptional circumstances, it is ordinarily the child’s right to bond with both parents.

The focus, once again, is on the child’s needs and not on the parents’ rights, needs or interests. [ 45 ] The high costs associated with air travel between Ottawa and community X will impact the children’s ability to have access to their father, their maternal and paternal grandparents and the many other members of their extended family living in community X. The number of children involved, and the need to overnight between legs of a long journey by air means that physical access by HI will necessarily be limited.

The expenses referenced above can be expected to have a chilling effect on both the frequency and duration of this access. [ 46 ] The older child may be able to have some meaningful contact with HI by phone or Skype, but the two year old child’s ability to bond with Dad will be severely impaired. A telephone conversation with a young child is not the same experience qualitatively for the child as is play activity associated with personal contact.

It is extremely difficult to build or maintain an intimate personal relationship with an infant by telephone or any other electronic means when verbal communication skills of the infant are either non-existent or extremely limited. Physical contact remains critical for bonding with the very young. [ 47 ] On an interim basis, the Court concludes that the relocation to Ottawa in this case threatens to transform the quality of the relationship between the youngest children and HI. It threatens to severely impair HI’s ability to bond with both the two and six year old children.

The relocation also potentially damages the children’s relationship with their extended family in community X. F. Evidence of compelling circumstances [ 48 ] There is nothing in evidence in the form of compelling circumstances to suggest that EI’s relocation to Ottawa in the circumstances of this case was necessary to address the children’s immediate needs. If some form of counselling or play therapy was necessary for the two older children, there is nothing to suggest that this form of therapeutic intervention or its equivalent was not available in community X or in any other community within Nunavut.

There is no evidence to suggest that this need, the need for counselling, was a pressing one that could not wait for the sanction of a Court order. [ 49 ] If the older children’s counselling needs in this case were the primary reason for the relocation in this case, the Court would have expected to see evidence that there was no other reasonable alternative available to EI when the decision to relocate was made. This evidence is not before me.

[ 50 ] It is not clear on the evidence why relocation was necessary to protect the children from the damaging effects of an allegedly abusive relationship. EI failed to enforce the strict terms of the Emergency Protection Order that was granted in January. She chose not to reapply for a new order when the first order expired. The Emergency Protection Order was there to protect both EI and the children from the damaging effects of an allegedly abusive relationship. [ 51 ] The emergency protection order is readily available to all citizens in Nunavut. It is available quickly.

The application for an emergency protection order does not require the involvement of a lawyer. It confers exclusive possession of the matrimonial home. It confers interim custody of the children. It prohibits any contact or communication that is threatening or harassing. It restrains both parties from converting, damaging or disposing of matrimonial property. There were legal options available to EI short of relocation to Ottawa.

Having used the process once, EI cannot claim that she was not aware that this legal option was available to her. [ 52 ] Even if relocation was necessary to protect the children, which is not substantiated on the evidence, it is not clear why relocation to another community in Nunavut could not have achieved this same objective. [ 53 ] There are examples in the jurisprudence where a parent’s relocation has been sanctioned by a Court before trial, but evidence of a pressing need or compelling circumstances bearing on the best interests of a child must ordinarily be present before such a move can be said to be justified.

On the facts at issue in this case, the parent did not seek Court approval to permit the children’s relocation away from their habitual residence on notice to the other parent and before actually moving. [ 54 ] The Court is not satisfied on the evidence before it that compelling reasons existed to justify EI’s unilateral relocation of the children to Ottawa before any resolution of the issue of custody in the Courts. It cannot be said on all the evidence that the move was in the best short term interests of the children. The children’s right of access to HI and a large extended family has been impaired.

Absent compelling circumstances, the law ordinarily preserves and protects the child’s right of access to both parents pending trial. [ 55 ] In making this finding, the Court does not fault EI who did take steps to try and secure legal advice prior to leaving the Territory. [ 56 ] The Legal Services Board (Legal Aid) does not offer

summary advice to families in crisis through a family law duty counsel. The process of securing counsel through Legal Aid can be protracted. For families in crisis, the delay can seem interminable. Without legal advice, self-help remedies are unfortunately utilized as an option of last resort. Both litigants in this case have expressed frustration with the delay associated with securing assistance from the Legal Services Board of Nunavut. [ 57 ] The Court is not prepared to see either party’s legal position prejudiced by the systemic delays associated with securing legal assistance in Nunavut. IV. Rulings A.

Order to return the children to community X [ 58 ] Pending trial, and on an interim basis only, EI is ordered to return the children to community X no later than January 31, 2012. Some delay is necessary for EI to make the necessary travel arrangements and to conclude her affairs in Ottawa. Telephone access by HI will continue in the interim as previously ordered. [ 59 ] The Court emphasizes that a final decision with respect to EI’s intended relocation will be made at trial where different legal considerations may result in a different outcome. B.

Exclusive possession of the matrimonial home [ 60 ] Housing is in very short supply in community X.

[ 61 ] In order to accommodate both EI and the children in community X, the Court orders that upon EI’s return, on an interim basis, EI will have exclusive possession of the matrimonial home. HI has alternative housing available through his parents. [ 62 ] HI shall be bound by an order in the following terms: Pursuant to

section 55 of the Family Law Act, and on an interim basis only, this Court orders: A. That immediately upon EI’s return to community X, EI shall have exclusive possession of the family home (the exact house number to be set out in the order) B. That on an interim basis only, the contents of the family home (excluding HI’s personal effects) shall remain in the home for the exclusive use of EI and the children of the marriage. C. That this order shall be endorsed with notice to HI of the terms of section 55(4) and (5) of the Family Law Act. D.

Both EI and HI are restrained from taking, converting, damaging or disposing of any matrimonial property without further Court order. C. Travel costs associated with the return trip to community X [ 63 ] If the costs associated with the return trip of EI and the children cannot be accommodated by a government or any other public agency, the Court orders HI to pay for the costs associated with the return trip. Any monies paid by HI to EI for this purpose will be credited back to HI through an equitable charge upon EI’s share of the matrimonial property. D.

Terms of access [ 64 ] HI will have generous access to the children of the marriage upon terms to be agreed upon in advance and in writing by counsel. If the parties cannot agree upon the terms of access, counsel may return the matter to Court for an order of specified access. [ 65 ] Both parties must strictly adhere to any scheduled access arrangements. Any attempt by either party to obstruct or interfere with scheduled access may potentially damage their respective claim for custody at trial.

Custody will likely be awarded to a party who is prepared to respect and facilitate the children’s right of access. [ 66 ] HI is absolutely prohibited from possessing or consuming any intoxicants during any period of scheduled access. If there is any alleged violation by HI of the terms of this condition, any right of access conferred by this or any other order is suspended forthwith until further order of the Court. E. Restraining Order [ 67 ] In order to effectively address EI’s untested allegations of physical and emotional abuse, the Court orders that pending trial pursuant to

section 59 of the Family Law Act, and on an interim basis only:

A. That HI refrain absolutely from molesting, annoying or interfering with EI’s interim custody of the children; B. That HI not attend within 25 meters of the family home except in accordance with the terms of this order; C. That HI have no contact or communication with EI except: (

i) through a third party designated by EI for the purpose of arranging access to the children of the marriage; (ii) in the presence of a mediator for the purpose of addressing any of the issues related to this litigation; D. That HI immediately report any attempt by EI to contact him directly to the RCMP detachment of community X; E. That pursuant to section 59 (1)(

b) of the Family Law Act, the Respondent must, within seven days, enter into a recognizance in the amount of $1,000 without deposit and without surety in order to guarantee his compliance with the terms of this order. Counsel for EI is to draw up the recognizance and provide it to HI’s lawyer for execution by HI. The executed recognizance is then to be filed with the Court and a copy provided to Counsel for EI; F.

That this restraining order is to be endorsed with notice to HI of the terms of sections 59(3) and (4) of the Family Law Act. [ 68 ] The terms of the order consequent upon this judgment will be drawn by HI’s lawyer. Once the terms of the order are settled and the order is filed, both counsel are expected to carefully review the terms of this order with their respective clients. V. CONCLUSION [ 69 ] Neither litigant in this case can or should take comfort in the end result of this proceeding. There are no real winners in a custody dispute. It is the children who lose in the end.

A child’s heart cannot be divided between parents without doing damage to the child’s sense of belonging and attachment. The children have a profound need to love and respect both parents. [ 70 ] The adversarial system takes an emotional toll on a family in crisis. A public confrontation in the courtroom does little to enhance or encourage the open communication that is necessary to ultimately address the needs of the children. [ 71 ] Both parents are Inuit. They would do well to apply Inuit social values when considering what is in their children’s best interests. These values include: a.

Innuqatigiitsiarniq: “it is getting along with people, learning to count them in. It is learning to work on something together and to seek input from others” b. Tunnganarniq: “fostering a good spirit by being open, welcoming and inclusive of others” c. Aajiiqatigiiniq: “reaching or making a decision through discussion and consensus” d. Piliriqagiinniq/Ikajuqtigiiniq: “helping one

another/working together for a common cause” [ 72 ] The Court encourages the parents to put aside their bruised emotions and perceived grievances to consider how best to address their children’s needs in the future. In the event that the parents wish to avoid further litigation over the children, mediation services can be made available through the Court to assist the parents with the development of a Shared Parenting Agreement. Dated at the City of Iqaluit this 1st day of December, 2011 ___________________ Justice R.

Kilpatrick Nunavut Court of Justice Amendment of the Reasons for Judgment Reserved of The Honourable Justice Kilpatrick In the frontispiece of this judgment, the “Date Heard” has been changed from August 17, 2011 to November 17, 2011. Please replace the amended page in your hard copy of the judgment.