Supreme Court

Sorensen v.O Keefe, 2000 NWTSC 76
Date:
Docket:

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

LONE SORENSEN
Petitioner
-and-

KEVIN O KEEFE

Respondent

Memorandum of Judgment

[1] The issue on this application is whether the Court should allow the Petitioner to take the parties  two children to Denmark over the Christmas holidays.  The Respondent objects to the trip and says that it is not in the best interests of the children.

[2] The children are a daughter, age 7 and a son, age 5.  The parties have, by agreement, shared custody of them since their separation in February of this year.  The children spend alternating weeks with each parent.  There is no custody order in place.

[3] The Petitioner was born and raised in Denmark and her family still resides there.  In September of this year, she purchased non-refundable airline tickets so that she and the children can go to Denmark from December 8, 2000 to January 5, 2001.  The Respondent would not agree, but she apparently hoped to change his mind.  He continues to object and will not provide her with the children s passports.  Hence, the Petitioner brought this application.

[4] The Petitioner says that it is important to her that she and the children be able to visit her family.  Her parents are 62 years old and her mother is in poor health.  She has not spent Christmas with her family for fifteen years and she expects that this may be the last opportunity for the children to spend time with their grandparents.  In her affidavit, the Petitioner says that the Respondent objects to the trip because of an incident which occurred on a previous trip to Denmark two and a half years ago.  Her description of the incident, which occurred when neither she nor the Respondent were present, is that her sister was trying to put the 7 year old to bed, the child was being difficult, the sister lost her patience and raised her voice and threatened to smack the child on the bottom unless she settled down.  The Petitioner says she was assured by her sister that in fact she did not hit the child.  However, I infer from the Petitioner s statement that the child  experienced it as if she had been smacked  that the child said she was hit.  The child was very upset and on return to Canada, at the Respondent s insistence, had two counseling sessions.  The Petitioner says that the child has not mentioned the incident again and that both children are excited about the possibility of going to Denmark.  The Petitioner says she will take steps to ensure that no further incidents occur.

[5] The Respondent says that the incident involving the sister is not his only concern and that the Petitioner is aware of this.  He says that the Petitioner has disclosed to him and others that as a child she was sexually abused by her father.  He says that based on his experience of the family environment when he was in Denmark on the last occasion as well as related events that occurred then, he is not willing to put the daughter in a situation of risk.  He does not say what it was in the family environment that is of concern or whether it was anything apart from the specified incidents.  Based on what the daughter has told him, he believes that the Petitioner s sister struck the girl and threatened to kill her.  He says that the child was very traumatized and continues to speak to him about this.

[6] The Respondent also refers to an incident that occurred during the last trip to Denmark where the Petitioner s father struck their son.  No further detail is provided in his affidavit.  The Respondent states that he feels that the family environment in Denmark is not healthy or safe for the children and is likely to be dangerous and damaging.  He feels that the Petitioner has marginalized these concerns. It is not clear from the material before me whether the Respondent knew about the sexual abuse before the last trip to Denmark.

[7] The Petitioner has not filed an affidavit in response to the Respondent s affidavit.  Her counsel suggested in argument that the Petitioner disputes the truth of what the Respondent says and points to the fact that in her affidavit, the Petitioner said that the only concern the Respondent raised with her was the incident between her sister and their daughter.  However, the other allegations raised by the Respondent are very serious ones and bear directly on the issue of the children s well-being, so without any response to them by the Petitioner, I am left in a position where they stand and I must take them into account.

[8] When this matter was before me in Chambers on November 24, 2000, I asked counsel whether the input of the counselor who dealt with the daughter might be helpful.  They agreed to look into that and on November 27 I received correspondence which indicates that the counselor is not prepared to give evidence in this matter and would not be able to give an opinion about whether the trip should take place.

[9] Another aspect of the material before me is this.  In her affidavit, the Petitioner says that when she learned of the Respondent s objections to the trip, she provided him with a written undertaking to follow certain rules while in Denmark.  She asserts that she is prepared to commit to these rules.  One of the rules is really quite extraordinary, in my view, considering that on her evidence the only issue is the incident between the sister and the daughter.   That rule is as follows:  During our stay in Denmark the kids will be with me at all times.  They will not be left alone with either my Dad, my Mom or my sister .

[10] Another of the rules is:  While staying with my sister and her husband, if at any time there is tension or harshness towards the kids, I will step in and remove the kids from the situation .

[11] Counsel for the Respondent argued that the fact that the Petitioner would agree to the rules, particularly the first one noted above, means she recognizes that the children need her protection while around her family.  Counsel for the Petitioner says that the fact that she would agree to the rules does not mean that she admits that they are needed.  In my view, however, the fact that the Petitioner would agree that the children not be left alone with her own parents and sister is sufficiently unusual to cause concern and it does suggest to me that she recognizes that there is a problem with her family.

[12] The governing principle on this application is the best interests of the children.  The Petitioner must demonstrate that it is in the best interests of the children for them to travel to Denmark with her.  The fact that she has already arranged the airline tickets cannot take precedence over or be allowed to determine the children s best interests.

[13] In my view, the first question is whether there are concerns about the well-being of the children if they go to Denmark.  The answer to that has to be yes.  While a smack on the bum, in some circumstances, and to some people, might not be a serious incident, the allegations made by the Respondent go beyond just that.  I have no way of knowing whether the daughter overreacted to a threat of a smack on the bum or whether she was actually smacked and threatened as she has led the Respondent to believe.  Although clearly on both parties  evidence she was very upset by the incident, if that were the only incident I might take a different view of the matter.  However, what in my view is of the most concern is the Respondent s evidence (which nothing before me contradicts) that the Petitioner has said that as a child she was sexually abused by her father.  That leads me to conclude that the Petitioner s father may also be a risk to these children.  The fact that the Petitioner is prepared to agree to the stringent conditions referred to above suggests to me that she does recognize that there is a risk.

[14] On the Respondent s affidavit, within the course of the last family visit the two small children were both struck by family members.  And although these could be isolated incidents, why is the Petitioner prepared to agree that the children not be left alone with her own mother, against whom no allegations are made?  And with the mother in poor health, is it not likely that the home situation will be even more stressful?

[15] I find it curious that, considering the allegations made and the unusual conditions the Petitioner has agreed to, she has provided no information at all about her family apart from what is referred to in this decision.

[16] The second question is whether the Petitioner can safeguard the children from any risk.  This is the most difficult issue.  There is no suggestion that the Petitioner is irresponsible or that she is unable to provide appropriate supervision for the children.  The Respondent does express the opinion that she has marginalized his concerns about her family and the daughter s reaction to the incident involving the Petitioner s sister.  On the other hand, as I have noted, the Petitioner seems to recognize that there is a risk.

[17] The Petitioner has agreed to a number of stringent conditions, a couple of which I have referred to above.  They also include keeping the Respondent advised at all times of the children s itinerary and allowing the children to call him and him to call the children at any time.  But if there is a problem, it seems unlikely that the Respondent will be able to deal with it from Canada.  Although the Petitioner does not specifically say so in her affidavit, I infer that while in Denmark she plans to stay with either her parents or her sister.  There is no indication whether she has any other resources there or anyplace she could go with the children if there is a problem.   And there is no way of determining whether the Petitioner s assertion that she will be with the children at all times and that they will never be left alone with her parents or sister is realistic.

[18] One way of looking at this case is to say why not let the Petitioner take the children to Denmark and leave it to her, as their mother, and in accordance with the conditions proposed, to deal with the family situation there and protect the children just as she surely has to protect them from other tough situations and dangers in life.  I have considered very carefully whether that is the approach I should take.

[19] However, the test is not  why not .  The test is the best interests of the children.  How can I say that it is in the children s best interests to spend time in a situation about which I have been told only negative things and nothing positive?  There is no evidence that the children have had any contact at all with the Petitioner s family apart from the one visit.  So while I might concede that generally it is in any child s best interests to know his or her extended family, here there is no compelling reason why a visit should take place and there are reasons to doubt whether it should.

[20] The anomaly of this situation is that if the parents were together and decided to visit the Petitioner s family in Denmark, the Court would not be called upon to intervene.  It would be left up to the judgment of the parents as to whether the visit should take place and to deal with any disagreements about that.  Now that the parents have separated, the Court is called upon to intervene.  One parent says the family situation in Denmark is not good for the children and cites reasons why.  The other says that the visit should take place despite those concerns.  All I can do as a Judge is look at the information before me and consider whether it has been shown that what is proposed is in the children s best interests.









[21] In all the circumstances, and considering the rather sparse information before me, I have come to the conclusion that the Petitioner has not shown that it is in the children s best interests that they go to Denmark and the application is therefore denied.





         V.A. Schuler
                J.S.C.

Dated at Yellowknife, Northwest Territories
this 28th day of November, 2000.


Counsel for the Petitioner:  Elaine Keenan-Bengts
Counsel for the Respondent:  Katherine Peterson, Q.C.