J. F. Y. No. 99BG0019 IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA [Cite as: K. J. S. v. M.T., 2001 N.S.F.C. 8] RESPONDENT HEARD BEFORE: The Honorable Judge John D. Comeau, Chief Judge of the Family Court for the Province of Nova Scotia DATE HEARD: April 28, 2000 Evidence taken in Cape Dorset, Nunavut, September 27/00 Received January 23/01 Final arguments by Counsel received April 23/01. DECISION DATE: May 14, 2001 PLACE HEARD: Barrington, Shelburne Co., NS COUNSEL: Timothy D. Landry Esq. On behalf of the Applicant Celia J. Melanson Esq. On behalf of the Respondent THE APPLICATION: This is an application for custody of the child, David Douglas Tunnillie, born August 28, 1992 in Cape Dorset, Nunavut and the parties are the natural parents of the child. On November 24, 1999 following written decision the Court issued an Order that it would take jurisdiction and hear the application under S. 18 of the Family Maintenance Act. There has been what may appear to be an unreasonable period of time from the date of the application to the decision of the Court. The problem has been with translation services and obtaining translator in Inuktitut, in Nova Scotia. Due to the unavailability of this service the Respondent has given evidence in Nunavut and translated transcript has been received. This took considerable time to arrange and complete and during this period of time the child has remained in Nova Scotia and although this status quo is consideration it is only one of number of factors to be considered in arriving at what is in David’s best interest. THE FACTS: The child David was born August 28, 1992, and prior to this in 1991 the parties resided together in Iqualuit. The Applicant is the father of the child and moved away from Nunavut before he knew the Respondent was pregnant with their child. In February of 1999, it was arranged with the assistance of social worker in Cape Dorset that letter of understanding between the parties confirmed the Respondent mother was not giving up her parental rights, but the child was to be sent to Nova Scotia to reside with his father. The agreement stated that this temporary arrangement was not to exceed year unless agreed upon by the Respondent mother. The reason for this move appears to be new relationship and the desire of the mother to have David know his father better. At the time she was also having baby and had problems with her older son (drug use). The father did not return the child but made an application to Family Court for custody. His reasons for doing this are that David was experiencing academic and behavioural problems when he arrived in Nova Scotia. He has received help and the Applicant father believes that he could have better life in Nova Scotia based on his experience in the north. In support of this, counsel on behalf of the Applicant called number of witnesses. Lori LeBlanc reading recovery teacher has been working with David and noted that he has made very good progress. Her school principal described academic and behavioural problems when he first arrived, but there were items being addressed and much had been accomplished. This is also confirmed by his home room teacher, Pamela Smith. David has and continues to participate in Summer Day Camp program, T-Ball, minor hockey and other sporting activities (i.e. wrestling). Photos of David’s residence and the family situation with the Applicant provide picture of very positive life there. review of the evidence received from Cape Dorset, Nunavut, shows mother who misses her son very much. She has not had what some may describe as an easy life. At the time the evidence was taken she did not have permanent residence and was on the waiting list from housing. She resided with her mother and this amounted to household of between ten and eleven people. This results in number of people sleeping in one bedroom or in the livingroom. She resided with boyfriend and slept on the sofa with her child. There was evidence she may be back in hers mother’s residence. The Respondent does not have regular income but has started carving again and sells her art. INUIT CULTURE: The Respondent describes some of the Inuit culture and her concern over her son David losing his language (Inuktitut): FOOD: Inuit food consists of caribou and fish and very few vegetables. LANGUAGE: The Respondent finds that David is speaking more English now when she speaks to him on the phone. An example of this is when she said to him “Qannuipit” and he guessed she was asking him to go play outside when in fact it meant “How old are you?” ACTIVITIES: These include hunting, fishing and learning how to make hunting implements. There are also sporting events and camping in the summer. EXTENDED FAMILY: The extended family is very important in the Inuit culture and the Respondent describes many aunts, uncles and cousins of David who he would and did have regular contact with. The evidence from Cape Dorset describe some negative things concerning the Respondent mother. Suicides have taken her nephew and niece and she knows of other families that have lost children to suicide. Counsel for the Applicant refers to an incident confirmed by the Applicant where she became very angry at David, took him outside, placed him on the ground and started kicking him in the head and stomach and then punching him until friends intervened. The Respondent admits to alcohol, drug and gambling abuse as problems she had in the past. her mother testified that this past spring she found the Respondent not to be very good mother, not with her youngest all the time and no permanent place to stay. There is no evidence that the Respondent is child protection concern for the Department of Community Services. Counsel for the Respondent asks the Court in considering the best interest of the child to take into account, “That the Inuit culture is not that of the Nova Scotia, white community and that the standards used to judge the care, likewise should not be based on the standards of the Nova Scotia white community, but include the standard and accepted lifestyle of the Inuit brought out through the evidence on behalf of the Respondent.” With this, the Court agrees. ISSUE: Which parent should have custody considering the best interests of the child. THE LAW: The relevant section of the Family Maintenance Act conferring jurisdiction on the Court to grant custody in Section 18. The Court has always found helpful, Justice Goodfellow’s decision in Foley v. Foley, 1993 CanLII 3400 (NS SC), 124 N.S.R (2d)198, which sets out seventeen factors the Court should consider in arriving at custody decision and taking into account the child’s best interest at page 201 and 202. 1. Statutory direction Divorce Act, SS. 16(8) and 16(9), 17(5) and 176(6); (Family Maintenance Act). 2. Physical environment; 3. Discipline; 4. Role model; 5. Wishes of the children if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable and, to the extent they are ascertainable, such wishes are but one factor which may carry great deal of weight in some cases and little, if any, in others. The weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of preference; 6. Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologists, psychiatrists, etcetera; 8. Time availability of parent for child; 9. The cultural development of child; 10. The physical and character development of the child by such things as participation in sports; 11. The emotional support to assist in child developing self esteem and confidence; 12. The financial contribution to the welfare of child; 13. The support of an extended family, uncles, aunts, grandparents, etcetera; 14. The willingness of parent to facilitate contact with the other parent. This is recognition of the child’s entitlement to access to parents and each parent’s obligation to promote and encourage access to the other parent. The Divorce Act, S. 16(10) and S. 17(9); 15. The interim and long range plan for the welfare of the children. 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by member of the extended family, and other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child’s reasonable needs; and 17. Any other relevant factors. Counsel for the Applicant has referred the Court to Mercer v. Clark (1989) 90 N.S.R. (2d) p.4 decision of the late Judge Daley, which is particularly relevant to this case. One of the considerations, major consideration might add, is the question of moving the child from its present environment, which included removal from the current care giver. Briefly, if one accepts that child becomes attached to an environment with which the child fells comfortable and happy and with care giver who meets the needs of the child in nurturing, caring way, then it necessarily follows that to remove the child from such situation would be upsetting, at least initially and perhaps lastingly, for the child. Generally, the courts have taken the view that when everything is at least equal, the court will not risk change in custody and leave the child where it is. Sometimes the evidence is so overwhelming that in spite of the current upset which may be caused, the court may conclude that it is in the long-term interests of the child to change custody. CONCLUSION/DECISION: The application came before the Court in September of 1999, while the child David has resided with his father the Applicant since February of 1999. This delay is outside the control of either of the parties. Counsel for the Respondent submits that because of the problem the Court should not take this status quo existing over two years into account. The paramount consideration of what is in the best interest of the child would require the Court to consider this as one of the factors to determine custody. The Court is aware of the action of the Applicant in establishing and promoting this status quo. Considering those factors set out in Foley v. Foley supra, the Respondent’s physical environment does not compare to this of the Applicant, she does not have permanent residence (a concern of her mothers) nor does she have steady income, (means of support). These two items are necessities for parenting in the Inuit culture as well as the white Nova Scotia or any community (culture). On the other hand the Applicant has permanent residence and steady income. In answer to question concerning her wishes for David the Respondent mother indicated: “I want to see happen is to get David to be with me and to be with his father. To be with me sometime, to be with his father sometime. That’s what me and his father should have did long time. want to see David to come want wish for David to come home. wish for David to go to live with me and to share him with his father. That’s my wish.” There is no evidence concerning any problems at the Applicant’s home. There appears to be very positive atmosphere there with good and happy family environment. David is an Inuit and his long term parenting and life plan must include retaining his first language (Inuktitut) and the Inuit culture. This should be the duty of both parents. In the south as his mother describes Nova Scotia, he will be at times considered different and the consequences that flow from that. So far the community support, teachers and friends have helped him progress in the white Nova Scotian community, as counsel for the Respondent describes it. Particular help has come from his father and extended family and he has adapted well. His mother has reason for sending him to Nova Scotia, in additional to wanting him to know his father. She had her problems with her older child, with new male relationship and with housing and means of support. September 2000 evidence does not disclose any change. It may be without any Court application she may have had to agree to extend the parties original agreement beyond the agreed year. The Court has great sympathy for the Respondent mother and the situation she found herself in. She was concerned about her son’s welfare and sent him to Nova Scotia and her wish is that his parents share parenting of David which is always the ideal. The dilemma the Court finds itself is to balance environment, parenting and cultural considerations. Given the situation the solution is not perfect, the Applicant father can provide the financial and environmental factors more satisfactorily while the Respondent mother has the cultural aspects which include an Inuit extended family and physical environment to enhance this and the Inuktitut language. Considering all the evidence before the Court, it is in the best interests of the child David, that custody be granted to the Applicant, his father. He has to spend considerable time with his mother to retain ties with her and his Inuit culture. Access will be every summer from the second week in July until and including the third week in August which is seven full weeks. For the purpose of this Order week starts on Sunday and ends on Saturday and as further clarification access shall take place in the year 2001, starting July 8, 2001 (travel day) to August 25, 2001 (return travel day). Given the financial situation of the Respondent mother, it shall be the responsibility of the Applicant father to provide transportation costs both ways. Counsel for the Applicant shall prepare the Order and have counsel for the Respondent consent to it with form. Order accordingly, John D. Comeau Chief Judge of the Family Court For the Province of Nova Scotia
This was a hearing to determine the proper venue for a custody hearing. The parties resided together in 1991 and 1992 in the Territory of Nunavut. The first language of the respondent mother and the child is Inuktitut. The child, born in 1993, lived with the mother in Nunavut until 1999, when he moved to Nova Scotia to be with the father by agreement of both parties. This arrangement was not to exceed one year unless agreed to by the mother. Determining that the courts in both Nunavut and Nova Scotia have jurisdiction to deal with the issue of custody, that it was in the best interests of the child to remain in Nova Scotia and for the custody hearing to be held in Nova Scotia.