Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: M.E. v. K.M., 2017 NUCJ 18

Date: 20170908
Docket: 08-16-1185
Registry: Iqaluit

Applicant: M.E.
-and-

Respondent: K.M.

________________________________________________________________________

Before: The Honourable Madam Justice Susan Cooper

Counsel (Applicant): Caroline Pothemont

Counsel (Respondent): Nancy Hellyer

Location Heard: Iqaluit, Nunavut

Date Heard: July 27, 2017
Matters: Childrens Law Act, S.N.W.T. 1997, c. 14 (Nunavut)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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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.
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I. INTRODUCTION

[1] This is an application by the biological mother for interim custody of a

child. The child was custom adopted at birth and is currently in the
care of the Director of Child and Family Services [the Director]
following an apprehension. This application is not part of the child
protection proceedings, although the two proceedings are related.
The Respondent to the application is the adoptive mother.

II. BACKGROUND

[2] The seven-year-old child, A.M., is the biological daughter of M.E. and
O.O. M.E. and O.O. have been together for approximately 11 years.
At the time of A.M.s birth, M.E. was a young mother caring for two
children. A.M. was her third child. M.E. was going through a difficult
period in her life. She was homeless and unable to care for A.M.

[3] A decision was made that A.M. would be custom adopted to a

relative, K.M. This agreement was reached with the assistance of
family members and when A.M. was just a few days old she went into
the care of K.M. Although the custom adoption was not registered
pursuant to the Aboriginal Custom Adoption Recognition Act, SNWT
1994, c 26 (Nunavut) [ACARA], this does not affect the validity of the
adoption, which all parties agreed had occurred. At the time of the
custom adoption, K.M. had two biological children, both in her care.
These two older children are now teenagers. Since adopting A.M. she
has custom adopted another child and has had a child with P.P.

[4] M.E. maintained contact with A.M. for some period of time, the length
and nature of which is disputed. However, over time contact ended.
M.E. found it difficult and emotional to maintain contact. Further, she
had relocated to another community, making in-person contact
difficult.

[5] A.M.s life with K.M. has been fraught with difficulty. K.M. has had
significant trauma in her life that she has not dealt with. She struggles
with alcohol abuse. She finds herself in dysfunctional, abusive
relationships. With respect to her children she has a history of neglect
and failure to protect.
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[6] K.M. has a lengthy history of involvement with the Director,

commencing in 2002. This was before K.M. was born and was in
relation to her two oldest children. Had the adoption of A.M.
proceeded pursuant to the Adoption Act, SNWT 1998, c 9 (Nunavut)
[AA], with a home study and approval of the Director being a
requirement, one wonders if the adoption would have occurred.

[7] K.M.s involvement with the Director continued after A.M. came into
her care.

[8] In 2013, K.M.s oldest daughter was sexually assaulted by K.M.s

partner, A.Q., who was subsequently convicted of sexual assault and
is currently in jail serving a lengthy period of custody.

[9] In February 2014, K.M. was medevaced after having been assaulted
by a different partner, A.A. The children were placed with their
maternal grandmother and remained with her for a year, under a Plan
of Care.

[10] When the children were returned to K.M.s care in 2015, K.M. was
with a new partner, P.P.

[11] In March of 2015, the children were apprehended as they were alone
in the house while K.M. was in another community. The boy was
acting out and was a threat to the other two children. The children
were placed in the care of the maternal grandmother for a period of
time, the length of which is not clear.

[12] In June of 2015, P.P. was charged with sexually assaulting A.M.
Ultimately, P.P. was not convicted of any offence. However, while
the charge was pending, the court ordered P.P. to have no contact
with A.M, who was returned to the care of K.M. However, this proved
to be problematic as K.M. continued her relationship with P.P. and
placed A.M. in the presence of P.P., contrary to the court order.

[13] A.M. was apprehended on July 9, 2015. She remained in the care of
the Director until July 14, 2016, at which time she was returned to
K.M. under a six-month Supervision Order. One of the terms of the
Supervision Order was that A.M. was not to have any contact with
P.P. This term was breached, resulting in A.M. being apprehended
again on August 13, 2016.
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[14] It is clear that A.M. has spent a significant amount of time in the care
of the Director. For most of this time she has been in the care of her
maternal grandmother, who lives in the same community as K.M.

[15] The biological mother, M.E., became concerned about the welfare of
the child in December of 2015, when she began to hear about
difficulties in the adoptive home. She had visits with the child in
December of 2015, while A.M. was under the care of the Director.
She has maintained contact with A.M. with the use of technology
since she lives in a different community.

[16] M.E.s circumstances have changed from when A.M. was born. M.E.
is in a long-term relationship, with employment and stable housing.
She attests that she is now in a position to provide A.M. with the care
and stability that she was not able to provide when A.M. was born.

III. ANALYSIS

A. Standing of M.E.

[17] Neither counsel raised the issue of the standing of M.E. to bring an
application for custody. Upon the issue being raised at the hearing,
counsel for K.M. conceded standing for M.E. Having said that, there
are some interesting issues in relation to the question of standing.

[18] The Childrens Law Act, SNWT 1997, c 14 (Nunavut) [CLA], provides:

2. (1) Subject to subsection (2), for all purposes a person is the child of his or
her natural parents and his or her status as their child is independent of whether
he or she is born within or outside of marriage.

(2) Where an adoption order has been made under the Adoption Act or any
predecessor Act, the child is the child of the adoptive parents as if they were the
natural parents.

20. (1) A parent of a child or any other person may apply to a court for an order
respecting custody of or access to the child or determining any aspect of the
incidents of custody of the child.

(2) A person other than a parent may not make an application under subsection (1)
for an order respecting custody of a child or determining any aspect of the
incidents of custody of the child without leave of the court.
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(3) On an application under subsection (1), the court may
(a) grant custody of or access to the child to one or
more persons;
(b) determine any aspect of the incidents of custody or the right to
access and make such order in respect of the determination as the
court considers appropriate; and
(c) make such additional order as the court considers necessary and
proper in the circumstances.

[19] It is unclear whether M.E.s standing to seek custody would flow from
her status as the biological mother of the child (s. 20(1) of the CLA) or
whether the court is required to exercise its jurisdiction under s. 20(2)
of the CLA to grant standing. The Court addressed a similar issue in
M(I) v Nunavut (Child and Family Services), 2011 NUCJ 2 [M(I)]. In
M(I), the child had been custom adopted to a relative. The adoption
was not registered pursuant to the ACARA. The child was
apprehended by Child and Family Services, who then entered into a
Plan of Care with the biological mother.

[20] The situation in M(I) was the converse of the situation before me. In
M(I), the issue was the standing of the custom adoptive mother to
apply for custody without being granted leave by the Court. In the
matter before me, the issue is the standing of the biological mother to
apply for custody without being granted leave by the Court.

[21] Pursuant to the Child and Family Services Act, SNWT 1997, c 13
(Nunavut) [CFSA], persons have standing in the proceedings if they
have lawful custody of the child or if they have actual care of the child.

[22] In M(I), the parties were under a misapprehension that the child had
been apprehended from the biological mother. Hence, an issue arose
as to whether the custom adoptive mother had standing in the child
protection proceedings, the issue being whether she was a parent
and, therefore, a person with lawful custody, for the purposes of the
legislation.

[23] Once this misapprehension was clarified, the issue of whether the
custom adoptive mother had standing in the child protection
proceedings became moot, as her standing flowed from her having
had actual care of the child. However, the Court proceeded to
address the issue for future proceedings.
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[24] M(I) first addressed the ability of a non-parent to participate in child

protection proceedings. The Court noted that the CFSA defines
parent as a person with lawful custody of a child or a person having
charge (actual care) of a child.

[25] In determining whether the custom adoptive mother was a person

with lawful custody of the child, the Court stated at paragraph 30:

since the Commissioner [Aboriginal Custom Adoption

Commissioner] never formally recognized the alleged custom adoption
by the [custom adoptive mother] by filing an order with this Court, the
[custom adoptive mother] never acquired the same status as a natural
parent, as set out in section 37(1) of the Adoption Act.

[26] M(I) suggests that registration pursuant to the ACARA is necessary

for parental rights and responsibilities to take effect in a custom
adoption. To the extent that it stands for this proposition, I disagree
with M(I). Registration of a custom adoption does not create or
authorize a custom adoption. It simply recognizes that a custom
adoption has taken place. Parental rights and responsibilities flow
from the fact of the custom adoption; not from it having been
registered.

[27] Further, to the extent that M(I) stands for the proposition that the
rights and responsibilities are identical in a custom adoption
registered pursuant to the ACARA and an adoption pursuant to the
AA, I disagree. The relationships, rights, and responsibilities that flow
from a custom adoption are determined by the aboriginal custom (RA,
as Guardian ad litem of her minor child, IA v SK and DK, 2017 NUCJ
15 at para 59, 2017 CarswellNun 6). In particular, custom adoption
leaves open the possibility of the child being returned to the biological
parent(s) (SKK v JS, 2002 NUCJ 2 at para 41, 2002 CanLII 53332
(NU CJ)

[28] In M(I), the Court also considered the issue of standing pursuant to
the CLA.

[29] Section 20 of the CLA essentially defines parent as natural

(biological) parents or adopted parents where the adoption proceeded
under the AA.
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[30] Parents can apply for custody of their children. Non-parents require
leave of the court to apply for custody. In M(I), the Court determined
that the definition of parent under the CLA does not include custom
adoptive parents, at least in those instances where the custom
adoption was not registered pursuant to the ACARA.

[31] In M(I), the custom adoptive mother was found to fall within the other
person category and require leave of the court to apply for custody.

[32] In the matter before me, it is the biological mother who seeks leave of
the court for standing. In M(I), it was the custom adopted mother who
sought standing.

[33] This places custom adopted parents in an uncertain position. It gives

rise to the question as to whether custom adoptive parents can apply
for custody of their adopted children or whether they require leave of
the court.

[34] In this matter, this point was not argued so it is not necessary for me
to decide the issue. It is, however, an issue which requires further
clarification, as an absurd situation could arise where, upon the
separation of custom adoptive parents, both are required to apply for
leave for the issue of custody to be settled.

[35] In the context of the case before me, M(I) is relevant as it addresses
the procedure to be followed when a non-parent who does not have
lawful custody or de facto care of a child seeks custody of a child that
has been apprehended.

[36] Essentially, the procedure is for the person to file applications

pursuant to both the CLA and the CFSA. If the person is awarded
custody pursuant to the CLA, she becomes a person entitled to lawful
custody and can be made a party to the child protection proceedings.
M(I) sets out this procedure for the sake of simplicity and to minimize
multiplicity of proceedings.

[37] The practice is for the party seeking custody to file an application for
custody pursuant to the CLA and to seek disclosure of the Directors
file in the child protection proceedings. That is what was done in this
case. I have a concern, however, regarding the information available
to me in the context of this application. The Court is required to
consider the best interests of the child in making a decision. I question
whether the Court is able to do that if it does not have information
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regarding the position of the Director on the child protection matter.

Surely, the intention of the Director to either return the child to the
party from whom she was apprehended or to proceed with
apprehension proceedings is relevant information when the Court is
considering what is in the best interests of the child.

[38] This information was not before me by way of affidavit. However, I

was advised by counsel that upon the expiry of the Temporary
Custody Order the Director intends to return the child to K.M. under a
Supervision Order.

B. Best Interests

[39] This is an application for interim custody. The final decision on

custody will be made following a trial at a future date.

[40] In determining the issue of interim custody, the Court will attempt to
minimize the disruption to the child and provide stability over the short
term until the final issue of custody can be decided. Unfortunately,
A.M. has already experienced considerable instability and disruption
in her young life.

[41] Nonetheless, A.M. has lived her entire life in the same community.
Until recently, she has been either in the care of K.M. or the care of
her grandmother. K.M. is the mother that A.M. has known and K.M.s
extended family is A.M.s extended family. Even if she is not in the
care of K.M. or K.M.s mother, she has access to them while she is in
the community.

[42] This is not a situation where the Court is deciding custody between
parents who together were raising a child and are now living separate
and apart. In those circumstances, the child will have bonded with
each parent.

[43] M.E. has not had a parental role in A.M.s life. She has not bonded
with the child. Her children, A.M.s biological siblings, are not well
known to A.M. While M.E. has recently reestablished contact with
A.M., the ability to increase contact gradually is limited by the fact that
they live in different communities.
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[44] M.E.s concerns regarding the ability of K.M. to parent are

understandable and are shared by the Court. Undoubtedly, they are
also shared by the Director. The Director has an obligation to protect
children and ensure they are safe. At this point, the Director has more
information than the Court has regarding the circumstances of K.M.
and A.M. The goal of child protection proceedings is reunification of
the family, provided that doing so does not harm the child. It is
recognized that reunification is generally in the childs best interests.

[45] But for A.M.s having been the subject of child protection proceedings,
it is unlikely M.E. would have commenced a custody application. In
my view, an order for interim custody in favour of M.E. would usurp
the role of the Director and the child protection proceedings.

IV. CONCLUSION

[46] The application for interim custody by M.E. is denied. M.E. is granted
access to the child, A.M., at the discretion of the Director of Child and
Family Services during times the child is in the custody of the Director
or subject to a Supervision Order. Access is as agreed upon between
M.E. and K.M. at any other time. If the parties cannot agree upon
access, they may return to the Court for direction.

Dated at the City of Iqaluit this 8th day of September, 2017

___________________
Justice S. Cooper
Nunavut Court of Justice