Supreme Court

IN THE SUPREME COURT OF THE IJORTHIJES r T E R R I T O R I E S BETl/EEH REBECCA I I ; : J U Y A Q Q I T S U A L I K and -G I D E O M Q I T S U A L I K O R A L R E A S O N S FOR JUDGEi'ENT 'OF THE H O H O U R A B L E KR. J U S T I C E C.F. T A L L I S IN SUPREI'E C O U R T , AT THE H A M L E T OF

GJOA H A V E ; : , I IORTHWEST T E R R I T O R I E S ON JANUARY 2 3 , 1973 - - - U P O H C0.'-1!iE:JCIIIG AT 2:15 P.M. THE C O U R T : F i r s t of a l l , in this c a s e , I w o u l d liico to t h a n k M s . G r e e n and Vzc. Johtison for a p p e a r i n g h e r e as ccu'nsel and p u t t i n g f o r w a r d e v e r y p o s i t i o n that could be p r o p e r l y pi't f o r w a r d . • On the e v i d e n c e , I liave d e c i d e d tliat I oug[it r,ot to r e s e r v e judgeii;cnt in this c a s e , b e c a u s e it is ny view t h a t it is in c l~! e i n t e r e s t of all i-) e o p 1 e c o n c e r 11 e d t h a t j u d g e 'z e n t b c

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delivered orally and proinptly if possible. In some cases I reserve judgement but it seems to me that this matter has been pending for quite some time through no fault of any particular person or persons. Tlie Court, I think, has a responsibility to do what it can in expediting matters once they have been brought to tri al . As I indicated during the course of the arguments, this is indeed a very difficult case for a judge because both parties are basically good people and responsible people. 1 am inclined to feel that after li earing both the petitioner and the respondent that they are not the type of people who have loo Iced upon this case as a bitter fight between two of them. I think that both of them genuinely feel very badly that the case ever had to come to court. When you look at the age of these children it is quite obvious that the father and the mother are going to have to work together in a friendly way for many years, if they are sincere in their desire to do what is right by the children. Having heard both of them, I have no doubt that they sincerely desire to do what is best for the children. Turning ther-efore to the case itself, I would point out that this is Petition for Divorce based on the adultery of the Respondent, Gideon Qitsualik. I can deal with this aspect of the case very quickly, because tiiere is no doubt that the Respondent, Gideon, is living with another lady in a coi;imon-law relationship. This is not in

any way denied and under the circumstances, the_ evidence satisfies me that the Petitioner has established a case for divorce on the grounds of the aciultery of tlie Respondent. I need not belabour t li i s matter because this is a clear case for a divorce. The marriage cannot be redeemed. In other words, the people cannot get back together again. There is no point in them being unkind to one another any more or fighting over any matters that they probably fought over some years ago. In this particular case, the grounds for divorce having been proven, a Decree Nisi for dissolution of the marriage will Issue î 'ith the same to be made absolute upon the expiration of three months unless sufficient cause be shov/n to the contrary. In this particular case the question of custody of the children named in Paragragh 6 (a) of the Divorce Petition is really the basic issue. It is common ground between the parties and their respective counsel that each parent is basically a good parent. This, as I said earlier, makes it even more difficult for the Court to deal with a case involving the custody and welfare of children. I know that both counsel are quite familiar with the Authorities dealing with custody of children. I did have occasion to review those Authorities some time ago in Kupeuna versus J Kupeuna in the Supreme Court of the IJorthwest Territories,, ond more recently, in the case of Krenn versus Krenn, which was another Supreme Court case in this jurisdiction dealing with tlie ^

custody of the children. I do, however, want to reiterate what I have said on earlier occasions: That is that it is the law o.f the ilorthwest Territories that the welfare and happiness of the children is the paramount consideration in questions of custody. To this paramount consideration all others must yield. This means that I must endeavor to look not only at today but also at the future of these cliildren.I must decide as best I can what should be done in thisconnection. In addition to the oral evidence that I have heard here, I have carefully considered the affidavit evidence that was filed, and the home-study report which was tendered in evidence by agreement between counsel . I have already said that the main thing that I must concern myself with is the welfare of the children. In determining the answer to this question I am entitled to look at the conduct of the respective parents: the wishes of the mother as well as the father; the ages and sexes of the children; the proposal of each parent for the maintenance and education of these children; tlieir station and aptitudes and prospects in life; the pecuniary circumstances of the father and of the mother, and not for the purposes of giving the custody to the parent in the better financial position to maintain and educate the chi1dren "when but for the purpose of fixing the amout to be paid, if any, by one or both parents for the maintenance of the children. The religion in which the children are to be b)-ought up is also a matter for consideration. I mention those principles very briefly so that the parties involved v/ i 11 realize t li a t the Court must take into a c c o u p, t

quite a number of factors in arriving at a decision. Counsel, of course, are familiar with the cases that I have referred to, and in particular to the Kre.nn versus Krenn case. In it I reviewed at some lcnr;th a number of leading cases V-' h i c h have been guidelines for this court and a 11 y 01 h, c r court. I' In this particular case I have had the benefit of observing both parents. I have endeavored to weigh the attitude of each one of them, 10wa 1̂ ds their children. I have no doubt that each one of them dearly loves the children. I am sure that the f atiier , v;hen he said that the children would miss him, ger,era 11 y meant that. I am su 1̂e that when the mother told me how much she loved the children, Slie genuinely meant that. I lik.e to think that each one of these parents still has a great deal to offer to their children. Both of them show a deep affection and love for the children and I hope that continues. I hope the children have love and affection for their children. As I said earlier I was somewhat saddened to hear the older boy say that he did not particularly want to visit his mother even if he was living with his father under the terms of the custody order. I think that as he grows older he will probably think a little differently about it," and no doubt will be happy to visit with her as the years go by. Mow, in this particular case, I have taken into account all the factors that I have mentioned here, and all the matters ^ ^

that I have discussed in the Krenn versus Kr. . case which Counsel are familiar with. I have carefully weighed the question of possible disruption of the family by granting custody of'some of the children to Mrs. Qitsualik. But as against that possible disruption, I have considered what has happened with respect to the youngster, Terry, who really was separated or parted from the family roots in this particular case. I have given very anxious consideration to all the children and particularly the youngest, Susanna and Sean. The question of Susanna, who is a young girl, has given me a great deal of concern. In my opinion it is highly desirable for children of tender age and, particularly a girl, to be under the wing of their mother at this particular time i n 1 i f e . . • Naturally, I am very concerned about the other children and in particularly the oldest two. But it does seem to me that niel, who is thirteen years of age, is entitled to have his v/1 :. hes taken into account. I am inclined to the v i e\7 that the two oldest youngsters will probably be happier with their father, because they have grown up with a background of hunting' I and sealing. I am sure that both of them genuinely enjoy this life.

There is certainly nothing wrong with it. They all appear to be » • bright, adaptable youngsters who, I think, will do well where ever ' they go. Mrs. Qitsualik has demonstrated the ability to accomodate

7 both cultures, if I may use that term. During the course of argument I pointed out that it was my assessment that she had bridged the gap (if I may use that term), but at the same time had not turned her back on her own people or her culture, but rather was endeavoring to help them, not only in her capacity as an interpreter and translator but also in other fields of r endeavor. Now, without going into detail and distractive discussion: of the evidence or any aspect of it, I am satisfied on the balance of probabilities in this particular case that the welfare of the children would be best served by the father having custody of th,e two oldest children, Daniel and James and the mother ' having custody of the three children, Susanna, Sean and Terry, who is already with her and over which there is no dispute. In making this order I want to emphasize that I hope that Mr. & Mrs. Qitsualik will not view this hearing as a fight or conflict between the two of them. This would be a tragic mistake. I hope that they will work together in the interest of all concerned to come up with a satisfactory arrangement on access. I am going to malce a general provision for access and' of course, a Custody or Access Order is never final. They can always come back to the Court with a further application. But ifr the Court has to make an Order that spells everything out' minutely as to the very day and hour, they may find that with the cost of travel and the weather, in this climate of ours, it doesn't make

8 good sense to have the Court do that if they can work out an arrangement that is satisfactory. I will, however, say that in my opinion this is a case that calls for access that will perhaps not be very frequent because of the cost but which will be for a longer period. You have the months of June, July and August which are school holiday montlis, and I have in mind that the parent who does not have custody of the children should, perhaps, have access for a period of six weeks or two months. In this / tli'e money that has been spent is not thrown away for a very short journey in point of time. Indeed, it seems to me that the parties might even work it out so that the visiting period may be two or three months. Now, having said that,I want to point out that this is not a case where they can afford to have the luxury of weekend visitS) but if one of them happens to be in town then it seems to me that the other one should have the courtesy to work it out pretty quickly and on short notice so that at least they could see the youngster. Having said that I will conclude this matter by delivering the judgement in oral terms as follows - there will be judgement as follows: • 1) There will be a Decree Nisi for dissolution of the marriage between the Petitioner and the Respondent, such to be made absolute at the expiration of three months unless sufficient cause be shown why it should not be made absolute.

2) •".•̂.•̂ It is furthei- ordered and adjudged that until further order of this Court, the custody of the persons of the infants Daniel Qitsualik and James Qitsualik and each of them be and the same is hereby committed to the Respondent, father. 3) It is hereby further ordered and adjudged that the Petitioner do have access to the said infants, Daniel Qitsualik and James Qitsualik and each of them at reasonable times and upon such conditions and terms as may from time to time by agreed upon by the Petitioner and the Respondent or in the absence of such an agreement, at such times and upon such terms and conditions that this Honourable Court may, from time to time, direct and order upon the application of eitlier the Petitioner or the Respondent with respect thereto. ^) And it is further ordered and adjudged that until further Order of this Honourable Court, the custody of the persons of the infants Susanna Qitsualik, Sean Qitsualik and Terry Qitsualik and each of them be and the same is hereby committed to the Petitioner. 5) It is hereby further ordered and adjudged that the Respondent Father do have access to the said infants, Susanna Qitsualik, Sean Qitsualik and Terry Qitsualik and each of them at reasonable times and upoii such terms and conditions as may from time to time be ^^

10 agreed upon by the Petitioner and the Respondent I or, in the absence of such agreement, at such time'.., ,iid upon such terms and conditi^on.s as this Honor le Court may from time to time direct and ' ordei ,on the application of either the Petitioner I or th Respondent with respect thereto. 6) It is further ordered and adjudged that each party will be responsible for payment of their own costs. That concludes the summary of my judgement and I would add that I have not made any Order for Maintenance because I t h i n 1( in this particular case it is only fair, having regards to ttie joint responsibilities that the parents have, in the sense that Mrs. Qitsualik has the custody of the children I have named and Mr. Qitsualik has the custody of the two older boys, that the burden has been equally distributed in those terms. Accordingly, I make no order against Mr. Qitsualik for the maintenance of the children that are living with Mrs. Qitsualik and vice versa. I s t h a t c l e a r ? MR. JOHNSON: Yes, my lord. MS. GREEN: Yes, sir. THE COURT: Thank you. , . ' •--COURT HEARING CONCLUDED AT 2:55 P.M Certified correct /' C.F. Tallis , J.S.C /

,.-John A.C. Knight / Yellowknife, N / . O.C.R. January 23, 19 '3