2018 NUCJ 23, 2018 NUCJ 23

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: M.T. v. D.I. , 201 8 NUCJ 2 3 Date: 20180911 Docket: 08-18-234 CHL, 09-15-314 CHL Registry: Iqaluit Applicant: M.T. -and- Respondent: D.I. ________________________________________________________________________ Before: The Honourable Justice Susan Cooper Counsel (Applicant): Stefanie Laurella Counsel (Respondent): Christine Knutson Location Heard: Iqaluit, Nunavut Date Heard: August 7, 2018 Matters: Guidance on use of ex parte applications made pursuant to the Children’s Law Act , SNWT (Nu) 1997, c 14. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment 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 is an application to set aside an ex parte Sole Custody Order which varied a Final Order of joint custody. Each of the parties also have applications before the Court for sole custody and child support. II. BACKGROUND [ 2 ] M.T. (the mother) and D.I. (the father) are the parents of two children. When the parties were first together they lived in Pond Inlet, which is the home community of the father. Their oldest son was born in October of 2010 and their youngest son was born in May of 2012. The parties separated in August of 2013.

Following the separation, both parents continued living in Pond Inlet until the mother moved to her home community in October of 2014, taking the children with her. There was some movement of the children between the parties in 2015. In February of 2016, the parties were living in different communities and consented to an Interim Order for joint custody of both children, with each child living with one of parents for half of the year. By January of 2017, the parties were both living in Iqaluit.

The parties consented to a Final Order which provided for joint custody of both children, with the oldest child having his primary residence with the father and the youngest child having his primary residence with the mother. Each parent had alternate weekends and Tuesday nights with both children. The Final Order also provided for flexibility in access, as agreed to by the parties. [ 3 ] On April 16, 2018, the mother applied ex parte for sole custody of the oldest child and for an Order directing the Royal Canadian Mounted Police [RCMP] to apprehend the child and to return the child to the mother.

In support of the application, the mother filed an affidavit attesting that in February of 2018 the father indicated he was taking the child to Pond Inlet. The mother attested that she had agreed that the child could go to Pond Inlet for two weeks. She stated that after three weeks the father returned to Iqaluit but the child remained in Pond Inlet. The father did not tell the mother when the child would be returning to Iqaluit. The child was being cared for by the grandparents, with the assistance of extended family. The mother determined that the child was registered in school in Pond Inlet.

This was understandably concerning to her. [ 4 ] The ex parte Sole Custody Order (the Order) was granted on April 16, 2018, as was the application to have the RCMP apprehend and deliver the child to the mother.

The Order also provided that the matter was to return to Court within one month of the child being returned and the father was granted leave to set aside the Order. [ 5 ] Although not in the affidavits filed, the Court was advised that the child was returned to Iqaluit with an RCMP escort in late May, 2018. [ 6 ] The matter was in Court in Iqaluit on June 11, 2018, at which time an “Interim Interim Order” was issued which continued the terms of the ex parte Order, with some variation to the terms of access by the father. The matter was put over to a special chambers date for a hearing on the merits. III.

PROCEDURAL ISSUE [ 7 ] Proceedings in relation to custody of the children were initially commenced by Originating Notice in June of 2015 (NCJ file no. 09-15-314 CHL). A number of Interim Orders were issued on that file, culminating in the Final Order of January, 2017. [ 8 ] When the ex parte application was filed it was commenced by way of Originating Notice and a new Court file was opened (NCJ file no. 08-18-234 CHL ). I understand that there was some confusion and discussion about the manner of proceeding.

My comments are not intended to be critical of anyone; it is simply clear that everyone will benefit by having some direction on the correct procedure. [ 9 ] An originating document is a statement of claim or other document by which an action is commenced. An “action” is defined in the Rules of the Supreme Court of the Northwest Territories , NWT Reg (Nu) 010-96 [ Rules of Court ] as “any issue directed to be tried”.

The issues which the Court was required to deal with in the ex parte application, those being custody and access, are the same issues as those addressed in the original file. [ 10 ] Further, there are practical reasons why an application to vary a Final Order should be brought on the original file. The history of

the file may be important in considering whether an application to vary should be granted. The best way to ensure that the history of the file is before the Court is to have the file itself before the Court. [ 11 ] This is particularly so in the context of ex parte applications, where, given the nature of the application, the Court hears from only one party to the litigation.

Under such circumstances the opportunity to review the original file may provide the Court with important contextual background that might impact the decision to be made. [ 12 ] The correct procedure was to proceed by way of Notice of Motion on the original file. IV. POSITIONS OF THE PARTIES ON THE SCOPE OF THIS HEARING [ 13 ] By the time the matter was before me for a special chambers application, each of the parties had filed motions seeking sole custody of both children and child support.

There was discussion at the special chambers hearing as to the decisions that the Court was being called upon to make. [ 14 ] Counsel for the mother was of the view that the June 11, 2018, Interim Interim Custody Order established custody of the children and that a material change in circumstances needed to be established before the Court could vary the Order.

The mother sought to simply have the Interim Interim Order made an Interim Order and to continue pending a hearing on the parties’ respective applications for sole custody. [ 15 ] Counsel for the father took the position that the matter was before the Court to either confirm or set aside the ex parte Order and that the June 11, 2018, Interim Interim Order was simply a continuation of the ex parte Order, with a minor variance regarding access, until such time as continuation or vacating of the ex parte Order could be determined on its merits.

Counsel’s position was that if the ex parte Order (and by extension, the June 11, 2018, Interim Interim Order) was set aside then the Final Order of January 2017 would simply continue to be in effect. [ 16 ] I agree with counsel for the father. There are two reasons why. [ 17 ] The terms of the e x p arte Order must be considered. The Order states: 3. This matter shall be returned to Court within one month of the child, V.T., born October 17, 2010, returning to Iqaluit, Nunavut via RCMP escort. 4.

If the Respondent objects to this Order he may bring a motion on two days’ notice. [ 18 ] Clause 3 of the Order requires the matter be back in Court once the Order has been complied with. This leads to the inference that the Court contemplated that the terms of the Order would be revisited once the status quo of both children being in Iqaluit had been reestablished.

As stated by the Court in L.H. v A.H. , 2012 NWTSC 4 at para 6 , when dealing with a similar matter, “…when this type of relief is granted ex parte, it is imperative that issues of custody, access, and day to day care be reviewed by this Court in short order, once both parties have had an opportunity to be heard.” An opportunity to be heard means an opportunity to present evidence and make submissions. [ 19 ] Further, the respondent father filed an application to set aside the ex parte Order in accordance with Clause 4 of the ex parte Order. [ 20 ] The matter was before the Court on June 11, 2018, however, it could not be heard on its merits because the time required to hear the motion exceeded the time available on a regularly scheduled chambers date.

Nonetheless, even without a hearing on the merits, the

terms of the Order as they related to access were modified in favour of the father.

The matter was set over to a special chambers date for a hearing on the merits. [ 21 ] The review contemplated by Clause 3 of the ex parte Order and the father’s application to set aside the Order filed in accordance with Clause 4 of the ex parte Order have never been heard on their merits. [ 22 ] More importantly however, and regardless of the terms of the ex parte Order, the mother obtained an ex parte Order which significantly affected the parental rights of the father and the rights of the children to have access with their father. It is trite to say that notice is the foundation of our judicial system.

It is for that reason that ex parte orders are considered extraordinary and exceptional. To take the position that the June 11, 2018, Order somehow establishes a status quo which can be varied only upon the father showing a material change in circumstances despite the fact that he has never had a hearing on the merits, runs contrary to the fundamental principle of fairness. [ 23 ] The purpose of this hearing is to consider the ex parte Order of April 16, 2018, as extended by the June 11, 2018, Interim Interim Order, and determine if the ex parte Order should be set aside or confirmed.

Each of the parties’ applications for variance of the January 17, 2018, Final Order seeking sole custody and child support will be heard at a future date. V. THE LAW [ 24 ] The Children’s Law Act , SNWT (Nu) 1997, c 14 provides : Order where child unlawfully held 31.

(1) Where a court is satisfied on application by a person in whose favour an order has been made for custody of a child that there are reasonable grounds for believing that any person is unlawfully withholding the child from the applicant, the court may, by order, authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody. Order to locate and apprehend child

(2) On application, a court may, by order, direct a police force having jurisdiction in any area in Nunavut where it appears to the court the child may be to locate, apprehend and deliver a child to the person named in the order, where the court is satisfied that there are reasonable grounds for believing that (

a) a person is unlawfully withholding a child from a person entitled to custody of the child; (

b) a person who is prohibited by court order from removing a child from Nunavut, or who has, in a parental or separation agreement, agreed that he or she will not remove a child from Nunavut, proposes to remove the child or have the child removed from Nunavut; or (

c) a person who is entitled to access proposes to remove the child or to have the child removed from Nunavut and that the child is not likely to return. Ex parte application

(3) An order may be made under subsection (2) on an ex parte application where the court is satisfied that it is necessary that the order should be made without delay. Duty to act

(4) The police force directed to act by an order under subsection (2) shall do all things that can reasonably be done to locate,

apprehend and deliver the child in accordance with the order. Entry and search

(5) For the purpose of locating and apprehending a child in accordance with an order under subsection (2), a member of the police force may, with such assistance and such force as is reasonable, enter and search any place where he or she has reasonable grounds for believing that the child may be. Time for entry and search

(6) An entry or a search referred to in subsection (5) may be made only between 6 a.m. and 9 p.m. unless the court, by order, authorizes entry and search at another time. Expiration of order

(7) The court shall include in an order made under subsection (2) a date on which the order expires, which date shall be not later than six months after the order is made unless the court is satisfied that a longer period of time is necessary in the circumstances. When application may be made

(8) An application under subsection (1) or (2) may be made in an application for custody or access or in a separate application. S.Nu. 2010,c.11,s.1(5).” [ 25 ] The Rules of Court applicable to ex parte applications are as follows: 398.

(1) The Court may make an order ex parte where it is satisfied no notice is necessary or that the delay caused by proceeding by notice of motion might entail serious mischief or injustice.

(2) A party who has obtained an ex parte order shall serve the order together with the affidavits on which it was granted on all parties of record and on such other persons as the Court may direct.

(3) On an ex parte application, a judge in chambers may : (

a) direct that notice be given to any person who should have notice; and (

b) limit the duration of the order and give leave to the applicant to apply for an extension by notice of motion to the opposite party.

(4) A person affected by an ex parte order may apply to set it aside on notice to the party to whom the order was granted.

(5) An ex parte application for an order, fiat, or consent order without personal appearance shall be accompanied by supporting affidavits or other supporting material and a memorandum to the judge containing the following: (

a) a reference to the specific relief sought, including the relevant rule or provision in any statute or regulation that is relied on;

(

b) a reference to the affidavit or other material filed in support of the application; (

c) a reference to the nature of the order sought with a draft of the proposed order annexed to the memorandum; (

d) any other particular point that the solicitor wishes to bring to the attention of the Court, including a reference to any particular case or cases that may be applicable to the application. 399.

(1) An order may be set aside, varied or discharged on notice by the judge who granted it.

(2) On consent of all interested parties, the Court may set aside, vary or discharge an order.

(3) Where an order specifically provides that a party may apply to set aside, vary or discharge the order, with or without conditions, any judge of the Court may set aside, vary or discharge it. [ 26 ] The duties on applicants who apply for relief without notice to opposing parties are well known. It is recognized that there is the potential for grave injustices when applications are made without notice. The usual checks and balances that come with hearing from all litigants are not in place. The Court is entirely reliant upon information provided only by the applicant.

Accordingly, there is a high onus on those who make ex parte applications. There is duty of full and frank disclosure, not only of those factors that work in the applicant’s favour but also of those that do not support the applicant’s position. It is acknowledged that such applications are generally made on an urgent basis and within limited time frames and as such, there may be inadvertent or innocent non-disclosure. However, whether unintentional or otherwise, if the non-disclosure goes to a material fact, then that is grounds for setting aside an ex parte order. VI.

EVIDENCE [ 27 ] In support of the ex parte application, the mother filed an affidavit in which she attested that the parties separated in 2013 and that she commenced proceedings for sole custody of both children in June of 2015. She did not provide the Court hearing the ex parte application with any information about the circumstances of the children from the date of separation to the date of the Final Order in January of 2017. [ 28 ] Materials filed subsequently state that at the time of the separation the family was living in Pond Inlet.

Following the separation , the mother remained in Pond Inlet, however, she left for her home community at some point , leaving both children in the care of the father. In June of 2015, the mother commenced an application for sole custody of both children.

There seems to have been movement of the children during this period which is not clear from the materials filed. [ 29 ] In February of 2016, an Interim Order was issued which gave the parties joint custody of both children with the oldest having his residence with the father in Pond Inlet and the youngest having his residence with the mother in a different community. [ 30 ] By January of 2017, the father had relocated to Iqaluit and the Final Order granting joint custody, with each parent having one of the children live with them and exercising access to the other, was issued. [ 31 ] The mother attested to the fact that the Final Order was problematic for the parties from the beginning.

She did not provide the Court with information as to the reasons why the Final Order was problematic. [ 32 ] Materials filed subsequently indicate that the mother had difficulty complying with the terms of the Order as she was struggling with housing.

As a consequence, both of the children lived with the father for an extended period (impliedly 9-12 months) in 2017. [ 33 ] I appreciate that the mother’s circumstances were to a large part beyond her control yet the fact remains that both children were living with the father for most of 2017 with, if the father’s affidavit is accurate, little contact with the mother, despite efforts by the father. This information may have been considered important in the context of an application where the mother’s success was reliant upon the Court finding that the father was denying access.

At the very least, it would have demonstrated that such denial is not part of an ongoing pattern on the part of the father. [ 34 ] In the affidavit in support of the ex parte application, the mother attests to one instance of the father sleeping with the children in

his car. Highlighting this incident without going on to inform the Court that the children were returned to his care after a brief investigation by child and family services and not referring at all to her own issues with respect to caring for the children during this time portrays the father as negligent in his care of the children. [ 35 ] With respect to the specific circumstances that led to the making of the ex parte application, the mother failed to disclose in the following areas: a.

The mother did not disclose that the oldest child was expecting to participate in the Nunavut Quest, a dog race which, to her knowledge, had not yet taken place at the time she made the application for his return. She was aware of this planned participation, as disclosed in her affidavit filed subsequently. b. The mother did not disclose that she was speaking with the oldest child and with the grandmother regularly. [ 36 ] In her affidavit in support of the ex parte Order , the mother stated that the child was being cared for by his elderly grandparents, assisted by extended family members.

The statement portrays the grandparents as being too old to properly care for the child when the contrary is true. The grandmother works full time and the grandfather is a hunter and dog musher. [ 37 ] I find the lack of candour in the mother’s affidavit troubling. It misrepresents the nature of the child’s relationship with his grandparents and his family in Pond Inlet. It tends to minimize the connections when in fact they are strong.

It implies that the mother was left with no information regarding plans for the child or his well-being when in fact she was in regular contact with both the child and the grandmother.

While on the one hand this strong connection may have exacerbated concerns that the child would not be returned, particularly since he was registered in school, it also speaks to concerns the Court might have about proceeding ex parte because it shows that the child is not at risk or even in an unfamiliar, uncomfortable situation. [ 38 ] The non-disclosure regarding the dog team race is concerning as this information goes some way to explaining why no return ticket had been booked for the child. [ 39 ] In my view , had this information been provided to the Court at the time the ex parte Order was applied for the outcome might well have been different.

The Court had other options available which it might well have chosen. One of those options would be to adjourn the application and require the father be given notice. The other option would have been to order that the child be returned to Iqaluit by a specific date. This would have placed the responsibility on the father to get the child to Iqaluit. The police would not have been involved. [ 40 ] In L.H. v A.H. , the Court was presented with an ex parte application for return of a child where the mother had unilaterally taken the child.

The mother had contacted the father, but she would not disclose the child’s location and the father had reason to believe she had left the jurisdiction. Further, there was some concerning evidence before the Court regarding the mother’s mental health.

Nonetheless , the Court declined to direct that the RCMP get involved in returning the child, noting that such extreme measures could be traumatic for a child. [ 41 ] While I agree with the comments in L.H. v A.H. that a court will intervene when one parent has unilaterally taken action regarding a child, such court intervention does not necessarily mean that there will not be notice to the other party.

It must be remembered that applications brought on notice can still be heard on short notice and on an urgent basis. [ 42 ] Exigent circumstances which might justify proceeding ex parte are instances where the child is in imminent danger or at risk, there are imminent plans to remove the child from the jurisdiction, or where notice to the other party has the potential to create a situation of risk to the child. VII. CONCLUSION [ 43 ] I am satisfied that the June 11, 2018, Order should be set aside. That Order having been vacated, the terms of the January 16 ,

2017, Order will be in place. In light of the circumstances that brought this matter to Court, I will add a condition that neither parent remove either child from the City of Iqaluit without the written consent of the other parent or Order of the Court. [ 44 ] The parties may contact the trial coordinator for a hearing date on their respective applications to vary the January 16 , 2017, Final Order. VIII.

COSTS [ 45 ] I have considered the matter of costs and am directing that no costs be payable. [ 46 ] The father has been successful in setting aside the ex parte Order, however, that is not the only factor which I must consider. [ 47 ] Had the mother brought the application on notice to the father, she would have been granted a remedy. The father would have incurred costs responding at that time and those costs would have been similar to his costs on this hearing.

He may also have had a cost order made against him. [ 48 ] While I have expressed concern about the ex parte nature of the proceedings, I am not prepared to award the father for his success at this stage of the proceedings when his actions would have led to an order against him had he been provided notice. [ 49 ] I am not awarding costs in favour of the mother as to do so would not reflect the concerns regarding the manner in which the mother initiated these proceedings. Dated at the City of Iqaluit this 11 th day of September , 20 18 ___________________ Justice S . Cooper Nunavut Court of Justice