Supreme Court

Carter et al v. Vachon et al, 2005 NWTSC 81

       Date: 20050926
Docket: S-001-CV-2005000240

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

BRIAN CARTER and INGRID CARTER

Applicants

- and-


LINDA VACHON, MARTIN HARDER and
LORETTA HARDER

Respondents


Transcript of the Oral Judgment of The Honourable Justice  J.Z. Vertes, sitting in Yellowknife, in the Northwest Territories, on the 26th day of September, A.D. 2005.

APPEARANCES:

Ms. M. Staszuk,
agent  for Ms. Keenan Bengts:  For the Applicants

Ms. S. MacPherson:   Counsel for the Respondent Linda Vachon

Ms. K. Peterson, Q.C.:  Counsel for the Respondents, Martin Harder and Loretta Harder

 THE COURT: These reasons address the interim custody application of Brian and Ingrid  Carter. I will review the facts only insofar as  it is necessary to explain my decision. The issues in this application concern the best interests of the child in question, as in all custody cases, but they also concern questions of conflicts of laws, standing for grandparents, and the interests of proposed adoptive parents. These are all questions of significant interest, but having regard to the immediate circumstances of this case, any in-depth exploration of these issues will have to wait for another day. It seems to me to be far more important to issue a decision as promptly as possible.
     The child in question is Hayley Vachon, born on May 31st, 2003. The child's mother is the respondent, Linda Vachon, who is now 21 years old. The applicants are Linda Vachon's mother and step-father. Hayley's natural father, Waylon Pie, is not involved in these proceedings and  apparently has had no involvement in Hayley's life.
     Ever since Hayley's birth, she and her mother have lived with the applicants, Hayley's grandparents, in the applicants' home in Yellowknife. The grandparents had a role in
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Hayley's life that appears to be close to a parental one in terms of providing care, nurture
and support to Hayley.
 This is important because the Children's Law Act requires that a non-parent must be granted standing in order to apply for custody. Because of the history of the care arrangements, I am satisfied the applicants have the requisite standing to bring this application, and I granted them standing when the matter first came on before me.
 Even though the applicants play a significant role in Hayley's care and support, it is also apparent to me that Linda Vachon fulfills the role of being Hayley's mother. She is the
primary source of care for her. And I should say that my conclusions, limited as they may be, are
gleaned from the affidavit evidence that has been presented, and as in many interim applications, my knowledge base is therefore highly constricted because of course none of the assertions in those affidavits have been tested by cross-examination or otherwise. But I have confidence in the conclusions I have formed based on the evidence that has been put before me.
 It is readily apparent as well, however, that there are stresses and strains in
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 Ms. Vachon's relationship with her parents. Soon after Hayley's birth, Mr. Vachon
expressed an interest in placing Hayley for adoption. The applicant grandparents were opposed to this and expressed their willingness to either help Ms. Vachon raise Hayley or to raise Hayley themselves.
 In July of this year, Ms. Vachon spoke with a social worker about placing Hayley for adoption. She was subsequently put in contact with a private adoption agency in Edmonton.
Through them, she selected and met the other respondents, Martin and Loretta Harder, who had
signed up with the agency as prospective adopting parents.
 On September 1st, without telling her parents, Ms. Vachon left Yellowknife, along with
Hayley, and went to Edmonton. A few days later, she left Hayley with the Harders. She gave her
consent to adoption. Ms. Vachon then returned to Yellowknife.
According to Ms. Vachon, the natural father agreed to this course of action.
 On September 6th, Mr. and Mrs. Carter launched proceedings seeking custody of Hayley.
The Harders, to their credit, and even though  they reside in Alberta, retained counsel to
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respond to this application (as did Ms. Vachon)
 The first question to address is whether  this court should assume jurisdiction in this matter. Hayley is in Alberta with the Harders, who through the adoption agency, have started steps to present an adoption petition to the Alberta court. The Alberta Director of Adoptions has been notified of the proposed adoption and has started to do the necessary assessments. Counsel for Ms. Vachon and for the Harders suggested that the applicants could always apply for standing in the Alberta court and contest the adoption. The difficulty with that is that (a) there is no requirement for notice to grandparents in the Alberta legislation, and (b)there is no guarantee that the applicants would have standing in any Alberta proceeding. Because I think they deserve standing does not necessarily mean that they must be given standing in some other proceeding in some other jurisdiction.
 Section 25 of the Children's Law Act provides that this court has jurisdiction to make a custody order if the child is habitually resident in the Territories. There is no doubt that the child is habitually resident here. She lived throughout her life here until her recent
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removal to Alberta. Her mother and grandparents reside here. No one really questioned this court's jurisdiction.
 Next, I think it would be helpful to outline what are the legal custody rights at present.
 The Children's Law Act presumes right of custody in the natural parents and, if the
parents are separated, then the parent with whom the child resides, pursuant to the agreement or
consent of the other parent, has the custody rights and responsibilities for the child. However, the custodial rights of a parent may be limited by law or by a court order. This is what I take to be the combined effect of subsections 1 through 5 of s. 18 of the Act.
 Of course, if the issue of custody is brought before the court, then the overarching
criterion to be used is the best interests of the child.
 So in this case, Ms. Vachon, as Hayley's mother, had the right to place Hayley for adoption. However, the Adoption Act of the Northwest Territories imposes a prerequisite to placing a child for adoption outside of the Territories. Section 42 prohibits anyone from placing a child, who is ordinarily resident in the Territories, for adoption outside the
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Territories without having obtained the Director's approval. If the child is to be placed with a non-relative, the person doing the placement must make application to the Director, which must be supported by a pre-placement report. I call these steps a prerequisite because s. 43(3) requires that these be done before the placement is to occur. If someone does not obtain the Director's written approval before placing a child for adoption outside the Territories, then that person is subject to summary conviction proceedings and liable to be fined or even jailed.
 In this case, these prerequisite steps were not taken. Ms. Vachon took Hayley and, with the
assistance of the adoption agency, placed her for adoption with the Harders in Alberta. Both Ms. Vachon and the adoption agency director say this was an oversight. They were not aware of this requirement. I have no reason to doubt these assertions. However, I cannot ignore the clear intent of these sections of the Adoption Act. They are there so as to ensure that the Director of Adoptions in the Northwest Territories approves the placement of every child for adoption outside of the Territories before the child is removed from the Territories (at
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least in the case where the person with whom the child is to be placed is not a relative)
   I agree with Ms. Staszuk that if it were acceptable to simply circumvent this explicit
prohibition by claiming inadvertence, then that would mean that the statute has no meaning or
force. This prohibition is a law that limits the custodial rights of Hayley's mother in these
circumstances. I cannot ignore it.
    In my opinion, as far as the laws of the Northwest Territories are concerned, the placement of Hayley for adoption in Alberta is without legal validity. Therefore she must be returned.
 I want to emphasize that I do not question the ability and desire of the Harders to provide
a suitable home for Hayley. But the law that I must apply is clear and it is the law of the Northwest Territories. I cannot countenance a circumvention of the requirements of the Adoption Act no matter how unintentional it was. And I note that s. 42 of the Adoption Act is written in clear, straightforward, mandatory language prohibiting the placement of the child outside of
the Territories without the requisite preliminary steps being taken.
 So we are now brought back to the
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fundamental question of custody for Hayley and  what would be the best for her in the interim
 The Carters seek permanent custody. Obviously there will have to be a trial of that issue. But in the interim, I am convinced that it is in Hayley's best interests to be with her mother. I have not been provided with cogent evidence demonstrating that Ms. Vachon could not adequately care for and support her daughter. There were never any child protection or child welfare concerns. All indications are that she is capable of suitably caring for Hayley.
 Applicants' counsel submits that Ms. Vachon has demonstrated that she does not want to be a
mother and that she has rejected Hayley. I do not draw that definitive conclusion. I am not
prepared to reject the assertion by Ms. Vachon that what she did, she did out of a carefully
considered concern for what she thought would be best for Hayley.
 I acknowledge the degree of involvement that the applicants have had and want to have in Hayley's life. I see no reason why that cannot continue. Perhaps Ms. Vachon will realize the benefits to be gained by allowing her parents to have significant contact with Hayley (especially
if Ms. Vachon is working during the daytime).
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 I recognize that all this may do is delay the inevitable (as one counsel put it).  Maybe so.
If, after a trial, the Carters' application for custody is rejected, then there will be no
impediment to Ms. Vachon proceeding with the adoption. Perhaps, if that is the case, the
Carters will be able to reconcile themselves to their daughter's decision. Or, perhaps, Ms. Vachon will change her mind about the adoption.
 On the other hand, if the Carters gain custody, they will then be able to make the
decisions in Hayley's life.
 All I am making is an interim order. It does not presume what the outcome will be of any
trial with respect to the permanent custody of  Hayley.
 I also recognize that this is extremely difficulty for the Harders. Their expected  adoption of Hayley is put on hold for the time being. It may not happen at all. But there are no guarantees that the adoption would be approved in Alberta either. I realize that there is a risk that the Harders will go ahead and adopt some other child. But they have been involved in Hayley 's life for less than a month only. Her grandparents have been involved all her life.
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 I have also not ignored counsel's comments to the effect that it is not in Hayley's best
interests to be shuttled back and forth and that it would be better to leave her in the stable environment provided by the Harders as opposed to what appears to be a dysfunctional environment created by the frictions evident between Ms. Vachon and her parents. There is much to be said for this argument. But, as I said, Hayley has been with the Harders for less than a month. I think it would be far more difficult for her to be wrenched away from the Harders several months from now as opposed to right now. There is no ideal solution in this situation. And if I may be permitted an editorial comment that is purely gratuitous, unfortunately this is the type of situation where there may be no winners whatsoever unless and until everybody starts
focusing solely on what may be best for Hayley.
 In summary, I order as follows:
1. The child Hayley is to be returned to Yellowknife. I direct that Mr. and Mrs. Carter go and pick her up and bring her back. I say that because I have the sense that Mr. and Mrs. Carter are in a more capable position to do so, and it may be an opportunity for Mr. and Mrs. Carter to meet the people with whom their
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granddaughter has been living for this past month. I direct that arrangements be
made through counsel for an acceptable exchange time and place. I expect that will be somewhere in Alberta. That exchange is to occur sometime between 12 noon on Saturday, October 1st and Wednesday, October 5th. That should provide sufficient time for both the Carters and the Harders to make preparations.
2. No later than 12 noon on Saturday, October 8th, the Carters are to deliver the child to her
mother, Linda Vachon, at her residence in Yellowknife. This should provide Ms. Vachon with
sufficient time to make her necessary preparations.
3. Ms. Vachon will have interim custody of Hayley pending further order of this court.
4. If it turns out that Ms. Vachon does not want to, or does not feel able to, care for Hayley on
a day-to-day basis, then Hayley is to live with Mr. and Mrs. Carter. If however, Hayley does
live with Ms. Vachon, then the Carters will be entitled to have access to Hayley, in their own
home and elsewhere, on a regular and frequent basis. If the parties are unable to agree on
access arrangements, they may apply to the court for further directions.
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5. I direct a trial of the issue of the Carters' application for permanent custody of Hayley.
Counsel may seek directions as to expediting such a trial. The parties to that trial will be the
applicants and Ms. Vachon.
6. I direct that Hayley's natural father be served with a copy of the formal order in this matter and, also, that he be served with notice of the hearing date for the trial. Whether he wishes to participate is up to him.
7. The child shall not be removed from the Northwest Territories, once she has been returned
to Yellowknife, without an order of this court or the prior written agreement of Ms. Vachon and the Carters.
     I thank counsel for your assistance. I will leave it to you to prepare and file the formal order. There will be no costs.


 Certified Pursuant to Rule 723 of the Rules of Court

Jane Romanowich  CSR(A), RPR
Court Reporter

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