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             Pilon v. Pilon, 2015 NWTSC 64            S-1-DV-2006-103771

 

 

 

                 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

 

                 BETWEEN:

 

 

 

                         JEANNINE DIANE PILON, of the City of

                       Yellowknife, in the Northwest Territories

 

 

                                       - and -

 

 

                          ROGER ERNEST PILON, of the City of

                       Yellowknife, in the Northwest Territories

 

                                                    Petitioners

 

 

 

             __________________________________________________________

 

             Transcript of the Oral Decision delivered by The Honourable

 

             Justice L. A. Charbonneau, sitting in Yellowknife, in the

 

             Northwest Territories, on the 7th day of December, 2015.

 

             __________________________________________________________

 

 

 

             APPEARANCES:

 

             Mr. E. Bruveris:        Counsel for Ms. Pilon, Petitioner

 

             Mr. R. Pilon:           For himself, Petitioner

 

 

 

                     This transcript has been altered to protect

                 the identity of the child pursuant to the direction

                               of the presiding Judge


 

 

 

 

         1      THE COURT:             This case was before me in

 

         2          regular Family Chambers on December 3rd, 2015.

 

         3          Two Notices of Motion, one filed by the mother,

 

         4          the other filed by the father, are before the

 

         5          Court concerning the care and control of one

 

         6          child, A., born in 2001.

 

         7               It is apparent from the record that this is

 

         8          a high conflict and complex matter.  I will refer

 

         9          to some of the background.  My purpose this

 

        10          afternoon is not to summarize all the past

 

        11          proceedings on this case, but I think some

 

        12          background is necessary to put my remarks in

 

        13          context.

 

        14               A few years after A.'s birth, the parties

 

        15          separated.  They lived in the same house for some

 

        16          time and, in 2004, began living in different

 

        17          homes and began a shared parenting regime which

 

        18          was eventually incorporated in a Corollary Relief

 

        19          Order.

 

        20               Some years later, the mother initiated

 

        21          proceedings to vary that Order and obtain sole

 

        22          custody of A.  That matter went to trial in March

 

        23          2011.  The Court's decision was filed in August

 

        24          2011 and is reported at 2011 NWTSC 41 ("the 2011

 

        25          decision").  It is a lengthy decision which goes

 

        26          over the trial evidence, some of the contentious

 

        27          issues that emerged from that evidence and were

 

 

 

 

 

 

 

                                        1


 

 

 

 

         1          relevant to the issue of custody, and of course

 

         2          it includes the Court's findings.

 

         3               Ultimately, the Court did not grant the

 

         4          mother sole custody in 2011.  But the Court also

 

         5          disagreed with the father's position that the

 

         6          existing custody regime should remain unchanged.

 

         7          The Court decided that A. should spend

 

         8          alternating years with each parent, each year

 

         9          being aligned with the school year.  The Court

 

        10          decided that this regime should begin with A.

 

        11          spending the first year with his mother.  He

 

        12          would then spend a year with the father starting

 

        13          in September 2012, and this alternating regime

 

        14          would continue from year to year.

 

        15               The Court also concluded that A. has special

 

        16          needs.  The Court concluded that of the two

 

        17          parents, the mother was the more reasonable one

 

        18          when it came to dealing with his medical issues

 

        19          and with medical professionals.  Although the

 

        20          Court directed that the mother consult with the

 

        21          father and keep him advised of changes and

 

        22          recommendations regarding A.'s medical situation,

 

        23          the Court also ordered that in the event of

 

        24          disagreement as to medication, treatment, or

 

        25          testing, the final decision would be the

 

        26          mother's, and that she also would have authority

 

        27          to consent to testing at school without the need

 

 

 

 

 

 

 

                                        2


 

 

 

 

         1          to obtain the father's consent.  This authority,

 

         2          the Court decided, would remain with her even

 

         3          when A. was spending his year in the care of the

 

         4          father, unless the mother agreed otherwise.

 

         5               As far as the shared parenting regime, the

 

         6          year commencing in September 2014 was a year

 

         7          where A. was with his father.  The school year

 

         8          commencing in September 2015 was when he was to

 

         9          return to the care of his mother.

 

        10               As far as the present motions, it is

 

        11          undisputed that A. was returned to his mother's

 

        12          care in August 2015 for what was supposed to be

 

        13          the year in her care; but he has not remained in

 

        14          her care.  There is significant conflict in the

 

        15          affidavit evidence about the reasons that led to

 

        16          this.

 

        17               The father's wife and another child have

 

        18          relocated to Manitoba.  The father wants to

 

        19          relocate to Manitoba as well.  It is undisputed

 

        20          that the father took A. to Manitoba in September

 

        21          2015, registered him in school and, for all

 

        22          intents and purposes, purported to relocate A. to

 

        23          Manitoba to live with the father's family.

 

        24          Again, there is much conflict in the evidence

 

        25          about how this came to be and, in particular,

 

        26          whether this was a unilateral action on the

 

        27          father's part or whether it was something that

 

 

 

 

 

 

 

                                        3


 

 

 

 

         1          happened with the mother's agreement or

 

         2          acquiescence.

 

         3               The mother filed a motion on November 6th,

 

         4          2015, seeking the immediate return of A. to the

 

         5          Northwest Territories and to her care.  That

 

         6          application came before this court for the first

 

         7          time on November 12th.  At that point, the only

 

         8          evidence before the Court was the mother's

 

         9          affidavit.  The father appeared by phone.  He

 

        10          told the Court that he intended on filing a

 

        11          Notice of Motion to vary the custody regime.  He

 

        12          told the Court various things about his version

 

        13          of what happened before A.'s move, but of course

 

        14          none of it was under oath and properly in

 

        15          evidence before the Court at that point.

 

        16               The Court ordered that A. be returned to the

 

        17          NWT and returned to the care of his mother by

 

        18          November 20th.  The order also prohibited both

 

        19          parties from removing the child from the

 

        20          Northwest Territories and stated that the 2011

 

        21          order would remain in effect.  The matter was

 

        22          adjourned to be spoken to on December 3rd, which

 

        23          is when it came before me.  By then there were

 

        24          new materials before the Court.  The father had

 

        25          filed a Notice of Motion seeking various relief

 

        26          and he had also filed a lengthy affidavit.  In

 

        27          addition, the mother had filed a Supplementary

 

 

 

 

 

 

 

                                        4


 

 

 

 

         1          Affidavit.

 

         2               The mother continues to seek A.'s immediate

 

         3          return to her custody and care.  She asks that

 

         4          the order include a clause requiring the RCMP to

 

         5          assist with enforcement if necessary.

 

         6               In the motion that he filed on November

 

         7          24th, the father seeks the appointment of counsel

 

         8          for A., a variation of the 2011 order granting

 

         9          him interim primary day-to-day care of A., child

 

        10          support, and an order permitting him to relocate

 

        11          with A. to Manitoba.

 

        12               I will now refer to the evidence.  It is not

 

        13          possible for me to refer to it in all its detail.

 

        14          I do want to make a few preliminary observations

 

        15          about it, though.

 

        16               The first is that some of the topics and

 

        17          events covered in the affidavits were the subject

 

        18          of evidence at the 2011 trial.  To the extent

 

        19          that findings were made by the Court at that

 

        20          time, the evidence now presented is of little

 

        21          weight or use because any analysis now undertaken

 

        22          must have as its starting point the findings that

 

        23          were made by the Court in 2011.

 

        24               The second observation I want to make is

 

        25          that while there is significant conflict in the

 

        26          evidence, there are certain relevant facts that

 

        27          are not disputed.  Clearly, there have been

 

 

 

 

 

 

 

                                        5


 

 

 

 

         1          changes in the circumstances since the 2011 Order

 

         2          was made.  At the time that Order was made, both

 

         3          parents lived in Yellowknife.  It appears from

 

         4          the decision, in particular at paragraphs 109 and

 

         5          121 of the decision from 2011, that while the

 

         6          possibility of the father relocating had been a

 

         7          live issue at one point, it no longer was by the

 

         8          time of trial.  Things are different now.  The

 

         9          father's wife has lost her employment and she and

 

        10          another child have relocated to Manitoba.  The

 

        11          father wants to relocate there as well.  That is

 

        12          a change of circumstances compared to what the

 

        13          situation was in 2011.

 

        14               Another change is A.'s age.  He was ten at

 

        15          the time the 2011 Order was made.  He will turn

 

        16          15 next March.  There is no doubt that that is a

 

        17          big difference.  In the 2011 decision, at

 

        18          paragraph 149, the Court specifically

 

        19          acknowledged that the custody regime may have to

 

        20          be revisited as A. got older.

 

        21               Another point is that at the time the 2011

 

        22          order was made, although there had been problems

 

        23          between A. and his mother, the situation was

 

        24          found at that point to have been improving.  In

 

        25          fact, one of the reasons why the Court felt A.

 

        26          should spend the first year with his mother was

 

        27          to build upon these improvements.  It would

 

 

 

 

 

 

 

                                        6


 

 

 

 

         1          appear that at present, the situation between A.

 

         2          and his mother has deteriorated significantly.

 

         3               At first blush, these changes in

 

         4          circumstances may well open the door for the

 

         5          custody regime to be revisited, but that of

 

         6          course does not answer the question as to how it

 

         7          should be changed.  Any decision in that regard

 

         8          must be based on what is in A.'s best interests,

 

         9          and, on that front, A.'s best interests may not

 

        10          necessarily coincide with his present wishes.

 

        11               What I mean by that is that if, for example,

 

        12          one change in circumstance should turn out to be

 

        13          the two parents no longer live in the same

 

        14          community, that does not answer the question of

 

        15          which parent A. should be residing with.  That

 

        16          decision would have to be made on an assessment

 

        17          of what is in his best interests, which would

 

        18          include an analysis of whether one parent is, in

 

        19          fact, trying to cut A.'s ties from the other

 

        20          parent.  At this point, these are things that are

 

        21          alleged by the mother and denied by the father.

 

        22          It is one of the many conflicts in the evidence.

 

        23               One area where there is conflict in

 

        24          particular is what has transpired since August

 

        25          2015 when A. was returned to the care of his

 

        26          mother.  That conflict in these various areas

 

        27          cannot be resolved on the basis of affidavits.

 

 

 

 

 

 

 

                                        7


 

 

 

 

         1          Unless the parties are able to come to some sort

 

         2          of a resolution, which most unfortunately does

 

         3          not seem very likely at this point, the

 

         4          application for variation will have to be the

 

         5          subject of a hearing with viva voce evidence, and

 

         6          this will not happen overnight.  Inevitably, it

 

         7          will take some time before that hearing can

 

         8          proceed.

 

         9               In the meantime, the mother seeks

 

        10          enforcement of the existing Orders.  She wants A.

 

        11          returned to her care immediately in accordance

 

        12          with the custody regime that was decided in 2011

 

        13          and which was the basis for the Order made by the

 

        14          Court in November.

 

        15               For his part, the father asks that the

 

        16          custody regime be varied on an interim basis so

 

        17          that A. can remain in his care even though, under

 

        18          the existing regime, this is supposed to be the

 

        19          year he spends with his mother.  And I understand

 

        20          that the father also wants A. to be in his care

 

        21          in Manitoba.

 

        22               The factual conflict in the affidavits filed

 

        23          by the parties is very consistent with past

 

        24          history.  The 2011 decision includes numerous

 

        25          references to conflicting evidence presented in

 

        26          that case.  It is worth pointing out that the

 

        27          Court's findings as to credibility in that case

 

 

 

 

 

 

 

                                        8


 

 

 

 

         1          were mixed, as was the Court's assessment of each

 

         2          parent's decision about various things.  The

 

         3          mother and the father were each found to be

 

         4          somewhat unreasonable or unrealistic about

 

         5          aspects of their approaches and behaviours.  This

 

         6          was not a situation where the Court's conclusions

 

         7          were entirely in line with the mother's position,

 

         8          nor were they entirely in line with the father's

 

         9          position.  The Court concluded, also, that

 

        10          aspects of each parent's positions were not

 

        11          always in line with A.'s best interests.

 

        12               On many of these topics, there is overlap

 

        13          between the areas that were covered at that trial

 

        14          and some of the things that are now covered in

 

        15          the affidavits, and this makes it all the more

 

        16          difficult to make any decision based on the

 

        17          parties' most recent conflicting affidavits and

 

        18          the assertions that they make about what has been

 

        19          happening over the past few months.

 

        20               Serious allegations are being made in both

 

        21          directions.

 

        22               The father alleges that A. does not want to

 

        23          live with his mother and wants to live in

 

        24          Manitoba.  He says that A. is and feels unsafe in

 

        25          the mother's house.  The father deposes that A.

 

        26          has recently disclosed to him that there has been

 

        27          physical abuse both on the part of his mother and

 

 

 

 

 

 

 

                                        9


 

 

 

 

         1          on the part of her common-law spouse while A. has

 

         2          been in their house.  The father deposes that at

 

         3          A.'s insistence, he brought him to the RCMP in

 

         4          early October 2015 to make a complaint about this

 

         5          abuse.  The father says that the Department of

 

         6          Social Services has also been notified of the

 

         7          situation and are investigating.  There is no

 

         8          evidence before the Court at this point of any

 

         9          charge being laid against anyone or of Social

 

        10          Services having taken any specific action in

 

        11          relation to these allegations.  In submissions

 

        12          last Thursday, counsel for the mother advised

 

        13          that she had an upcoming appointment with Social

 

        14          Services in relation to these allegations.

 

        15               Another allegation that the father makes is

 

        16          that the mother essentially agreed with him

 

        17          taking A. to Manitoba and that she is now going

 

        18          back on that agreement.

 

        19               It seems undisputed that there was a serious

 

        20          conflict between A. and his mother at the end of

 

        21          a camping weekend at Reid Lake (which is outside

 

        22          of Yellowknife) at the end of the Labour Day

 

        23          weekend.  The mother does describe this incident

 

        24          in her affidavit and it seems fairly clear that

 

        25          this incident happened.  She deposes that they

 

        26          had been camping as a family at Reid Lake that

 

        27          weekend and were in the process of packing up

 

 

 

 

 

 

 

                                        10


 

 

 

 

         1          when an argument broke out between her and her

 

         2          son.  As a result, he declared that he was going

 

         3          to walk back to town.  She decided to let him

 

         4          "walk it off", thinking that within 20 minutes

 

         5          they would have finished packing and would catch

 

         6          up with him on the road.  As it turned out, A.

 

         7          hitchhiked and got a ride into town from a man

 

         8          who was driving on the Ingraham Trail and saw

 

         9          him.  A. asked to be taken to his father's home.

 

        10               The father deposes that after this incident,

 

        11          he encouraged A. to go back to his mother's place

 

        12          and to work things out with her.  At that point,

 

        13          he was scheduled to leave to go to Manitoba for a

 

        14          period of two weeks.  He deposes that the mother

 

        15          would not let A. stay with her for those two

 

        16          weeks.  He related a lot of things that A.

 

        17          allegedly told him about his exchanges with his

 

        18          mother, including the fact that she told him he

 

        19          had made his choice and that, essentially, she

 

        20          kicked him out.  The father deposes that she

 

        21          packed up all of A.'s belongings in 25 to 30

 

        22          boxes and told the father to come pick them up.

 

        23          The father deposes that he believed at that point

 

        24          that the mother was in agreement to letting A. go

 

        25          to Manitoba with him and live there.  This, he

 

        26          says, is why he arranged for A. to travel there

 

        27          with him, for his things to be moved, and this is

 

 

 

 

 

 

 

                                        11


 

 

 

 

         1          why he registered A. for school down there

 

         2          notwithstanding the fact that under the Court

 

         3          Order, A. was to be in his mother's care for the

 

         4          school year.

 

         5               In her Supplementary Affidavit, the mother

 

         6          does not respond to many of the allegations in

 

         7          the father's lengthy affidavit, but she

 

         8          specifically says that her silence on those

 

         9          matters should not be taken as an admission.  She

 

        10          deposes that since the Reid Lake incident, she

 

        11          has been unable to have A. return to her care.

 

        12          She does not talk about the aspect of any refusal

 

        13          on her part to let A. return living with her or

 

        14          about packing up his belongings or about agreeing

 

        15          in any way to have him reside with his father,

 

        16          notwithstanding the 2011 Order.

 

        17               The mother's Supplementary Affidavit is

 

        18          focused on the fact that this court's November

 

        19          12th Order still has not been complied with.

 

        20          About that, she deposes that A. did show up at

 

        21          her residence on November 25th, five days after

 

        22          the deadline that had been set by the Court.  She

 

        23          deposes that A. told her he did not want to stay

 

        24          there, did not feel safe staying there and wanted

 

        25          to live in Manitoba and should be able to make

 

        26          his own choices about where to live.  She says

 

        27          she attempted to lock the door to force A. to

 

 

 

 

 

 

 

                                        12


 

 

 

 

         1          stay so that they could continue their

 

         2          conversation, but he roughly moved her out of the

 

         3          way by elbowing her in the chest.  She also

 

         4          deposes that she looked out the window after A.

 

         5          left and she saw that the father's truck was

 

         6          parked a short distance away and she saw A. get

 

         7          into that truck and drive off with his father.

 

         8               At this point, the mother is persuaded that

 

         9          A. is being influenced and controlled by his

 

        10          father and that this fits with a long-standing

 

        11          pattern of parental alienation on his part.  She

 

        12          wants A. back in her care immediately so she can

 

        13          arrange for counselling to "de-program" him and

 

        14          restore their relationship.  Her position and her

 

        15          fear is that any additional time that A. spends

 

        16          with his father will be further detrimental to

 

        17          her ability to renew her bond with A.  Her

 

        18          position is that if need be, the Order that A. be

 

        19          returned to her should be enforced by the RCMP.

 

        20          In essence, she says A. should be forced back

 

        21          into her care today irrespective of his present

 

        22          wishes.  The father's position is that A. should

 

        23          not be forced to live with his mother against his

 

        24          will.  He denied attempting to alienate A. from

 

        25          his mother, and he says that given the

 

        26          complainants that have recently been made, there

 

        27          are safety concerns about returning A. to that

 

 

 

 

 

 

 

                                        13


 

 

 

 

         1          household.

 

         2               Under both the Order that was made in 2011

 

         3          after the trial and the one that was made in

 

         4          November 2015, A. should now be in the care of

 

         5          his mother.  The starting point should be that

 

         6          those Orders are complied with.  The question

 

         7          then becomes whether, on the evidence now before

 

         8          the Court, this is what should happen, and that

 

         9          is because there is evidence before the Court now

 

        10          that was not before the Court in November.

 

        11               It appears uncontradicted that at this point

 

        12          A. does not want to return to live with his

 

        13          mother.  This does not just come from the father

 

        14          relaying what A. tells him but from the mother's

 

        15          own evidence about how things went when A. came

 

        16          to her house on November 25th.

 

        17               A.'s wishes are a factor to consider if they

 

        18          can reasonably be ascertained.  Children's Law

 

        19          Act, Section 17(2)(b).

 

        20               The older a child is, the more his views may

 

        21          be ascertainable.  But a child's views are not

 

        22          determinative.  There are many very good reasons

 

        23          why children should not be burdened with

 

        24          decisions that ought to be made by adults.

 

        25          Giving a child ultimate say on these matters puts

 

        26          incredible pressure on the child even if no one

 

        27          is consciously trying to put that pressure on.

 

 

 

 

 

 

 

                                        14


 

 

 

 

         1          But it also makes the child vulnerable to

 

         2          pressure if a parent is inclined to try to

 

         3          manipulate the situation.  And, of course, if

 

         4          parental alienation is actually established, it

 

         5          is especially important not to give effect to a

 

         6          child's wishes because, if that is done, the

 

         7          parent who has behaved improperly by causing

 

         8          alienation is, in effect, rewarded for that bad

 

         9          behaviour, and more importantly, the child is

 

        10          negatively impacted because the result of the

 

        11          alienation is to cut off that child's bond with

 

        12          the alienated parent.  To give effect to a

 

        13          child's wish in those cases is to compound the

 

        14          effect of the alienating behaviour and

 

        15          jeopardizes any chance of restoring the bond

 

        16          between the child and the alienated parent.

 

        17               The mother argues that the decision on these

 

        18          applications should take into account that there

 

        19          has already been a finding in this case of

 

        20          parental alienation.  In that regard, in

 

        21          submissions, counsel for the mother referred to a

 

        22          report that was filed in the context of the 2011

 

        23          trial.  The father also referred to that report

 

        24          in his submissions.

 

        25               The report in question was authored by a

 

        26          Dr. Seitz who testified at the 2011 trial.  She

 

        27          had prepared a report in 2009 and had come to

 

 

 

 

 

 

 

                                        15


 

 

 

 

         1          certain conclusions on this issue.  But it is

 

         2          important for everyone to understand that what is

 

         3          relevant at this point is not what the 2009

 

         4          report said, not even what the doctor testified

 

         5          to in 2011.  What is relevant are the findings

 

         6          that were made by the Court in the 2011 decision.

 

         7               The issue of parental alienation was

 

         8          addressed by the Court at paragraphs 110 to 124

 

         9          of the 2011 decision.  Among other things, the

 

        10          Court noted that the 2009 report had not been

 

        11          updated by the time of trial and this had an

 

        12          impact on the weight that could be attached to

 

        13          the doctor's conclusion.

 

        14               The Court's interpretation of the doctor's

 

        15          report was not that the doctor concluded this was

 

        16          a situation of parental alienation in the matter

 

        17          that is usually understood.  That is apparent

 

        18          when one reads paragraph 113 of the decision:

 

        19                 The contentious part of Dr. Seitz's

                           evidence is her finding that A.'s

        20                 behaviour and that of his parents

                           and K. as she observed it in early

        21                 2009 suggests that there are ongoing

                           alienating processes at play, by

        22                 which [the mother] is more and more

                           the alienated parent.  Dr. Seitz

        23                 made it clear that this is not a

                           case of what is usually referred to

        24                 as "Parental Alienation Syndrome",

                           which she explained as a syndrome in

        25                 which the child is the victim of

                           behaviour by one parent which is

        26                 aimed at alienating that child from

                           the other parent.  What she found in

        27                 this case was "parental alienation"

                           which she described as a family

 

 

 

 

 

 

                                        16


 

 

 

 

         1                 dynamic, not focused on actions by

                           one parent.

         2

 

         3               Ultimately, the Court concluded that the

 

         4          opinion of the doctor was not significant to the

 

         5          decision that had to be made.

 

         6               At paragraph 124, the Court said:

 

         7                 The significant thing in my view is

                           that Dr. Seitz described all this as

         8                 a dynamic, not an intentional course

                           of action by [the father].  Although

         9                 it is clear that Dr. Seitz tended to

                           accept what she was told by [the

        10                 mother] and was more skeptical about

                           what she was told by [the father]

        11                 and K., her conclusion was that all

                           are reasonably good parents to A.

        12                 And although Dr. Seitz testified

                           that she would not now change her

        13                 opinion, her opinion is still

                           affected by the fact that her

        14                 observations were made and her

                           information gathered more than two

        15                 years ago.  The testimony of [the

                           mother] indicates that her

        16                 relationship with A. has improved

                           since then.  [The father] no longer

        17                 has concerns about her mistreating

                           A.  From this I conclude that even

        18                 if Dr. Seitz is correct and the

                           family dynamic was causing some

        19                 alienation of [the mother], that has

                           significantly decreased or changed,

        20                 possibly because [the father] and

                           his spouse have consciously changed

        21                 any behaviour on their part that may

                           have contributed to the dynamic.

        22                 For those reasons, I do not view

                           Dr. Seitz's opinion as to alienation

        23                 of [the mother] as determinative of

                           or very significant for the decision

        24                 I have to make.  I am not saying

                           there is no validity to her

        25                 concerns, but they are concerns that

                           appear to have been addressed.

        26

 

        27               In light of these excerpts of the decision,

 

 

 

 

 

 

 

                                        17


 

 

 

 

         1          I do not think it is accurate to say that there

 

         2          was a finding in 2011 that deliberate parental

 

         3          alienation had been established.  The Court's

 

         4          findings were much more nuanced than that.

 

         5               Whether parental alienation can now be

 

         6          established at this point on the basis of what

 

         7          has transpired since 2011 of course is another

 

         8          issue entirely, and one that may well have to be

 

         9          addressed when the variation hearing proceeds.

 

        10               A. certainly seems to now be completely

 

        11          aligned with his father, including on the

 

        12          question of relocating to Manitoba.  He is

 

        13          apparently making serious allegations against his

 

        14          mother and her current spouse.  Part of the

 

        15          evidence adduced by the father is an email sent

 

        16          to him by the mother in 2013 where she reports

 

        17          that A. made a very serious threat against her;

 

        18          more specifically, to slit her throat.  All of

 

        19          these things raise flags and concerns, but it is

 

        20          obviously beyond the Court's ability, without

 

        21          more evidence, to draw any firm conclusion on

 

        22          that issue at this point.  But there are elements

 

        23          in the evidence here that do raise concerns.

 

        24               Another area of concern that arises on the

 

        25          evidence, of course, are the allegations of A.

 

        26          being physically abused in the mother's

 

        27          household.  Allegations of abuse are not new in

 

 

 

 

 

 

 

                                        18


 

 

 

 

         1          this matter as it is clear from the 2011 decision

 

         2          that these types of accusations were, at trial,

 

         3          made by both parents against the other.  At this

 

         4          point, there is no admissible evidence that such

 

         5          abuse has taken place; everything that is before

 

         6          the Court is hearsay.  But A. has told his

 

         7          mother, not just his father, that he feels unsafe

 

         8          in her home.  That does not establish that he is

 

         9          actually unsafe or actually even feels that way,

 

        10          as opposed to him saying that because it is a way

 

        11          to remain in the care of his father, but it does

 

        12          confirm that these are things that A. is, in

 

        13          fact, saying, because, again, it is not coming

 

        14          just from the father, it is also coming from the

 

        15          mother herself.

 

        16               Another concern is the volatile nature of

 

        17          the relationship between A. and his mother at

 

        18          this point, irrespective of what has caused it.

 

        19          The incident at her house on November 25th, as

 

        20          well as the Reid Lake incident earlier on,

 

        21          suggests that at this point she is not able to

 

        22          get through to him, and this is a reality that

 

        23          cannot be ignored.

 

        24               The net result of their argument at Reid

 

        25          Lake was that he started walking to town from a

 

        26          very remote area, essentially in the middle of

 

        27          the bush.  She may have thought it best to let

 

 

 

 

 

 

 

                                        19


 

 

 

 

         1          him walk it off, and maybe there was very little

 

         2          a parent could do in her situation, but the

 

         3          situation was not without some risk for A.  He

 

         4          could have been picked up by someone with less

 

         5          noble intentions than the man who did pick him

 

         6          up.  He could have encountered a bear.  All sorts

 

         7          of things could have happened.

 

         8               As for the interaction at the house on

 

         9          November 25th, the mother was evidently not able

 

        10          to convince him to stay with her or reason with

 

        11          him at all at that point.  She attempted to lock

 

        12          the door to stop him from leaving and continue

 

        13          the conversation, but it appears that this

 

        14          escalated matters further to the point that he

 

        15          was rough and physical with her.  That type of

 

        16          interaction between A. and his mother is not

 

        17          conducive to restoring their relationship; it is

 

        18          more conducive to escalating things further

 

        19          between them and ultimately causing more harm.

 

        20               The father's actions in this matter raise

 

        21          some concerns as well.  It is always a great

 

        22          concern when a parent takes a course of action

 

        23          that goes against a Court Order without first

 

        24          taking steps to get that Order varied.  Here, the

 

        25          father claims that he thought he had the mother's

 

        26          agreement not only to have A. stay with him, but

 

        27          also to relocate him to Manitoba.  I must say I

 

 

 

 

 

 

 

                                        20


 

 

 

 

         1          find that claim suspect.  It would be one thing

 

         2          for the father to think, after a volatile

 

         3          incident between A. and his mother, that the

 

         4          mother was agreeable to have A. stay with him for

 

         5          some time.  But a relocation outside the

 

         6          jurisdiction, and her giving up her whole year

 

         7          with A., is a whole other matter.  Given the

 

         8          highly conflictual history of this matter, I have

 

         9          some difficulty with the suggestion that the

 

        10          father could have truly believed the mother was

 

        11          agreeing not only to have A. in his care but that

 

        12          she was agreeing to this for the whole school

 

        13          year and agreeing to a relocation to Manitoba.  A

 

        14          firm finding cannot be made on this on the basis

 

        15          of affidavits, but I am just flagging it as a

 

        16          concern that emerges from the evidence.

 

        17               In all the circumstances, the unilateral

 

        18          actions of the father do raise concerns, in

 

        19          particular, on the relocation issue, and, for

 

        20          that reason, I do not think that A. should be

 

        21          taken outside the jurisdiction, further away from

 

        22          his mother, under the present circumstances

 

        23          because then he would be completely removed from

 

        24          her and that would make the restoration of

 

        25          communication and relation with her very

 

        26          difficult, if not impossible.

 

        27               I am certainly satisfied that there is an

 

 

 

 

 

 

 

                                        21


 

 

 

 

         1          urgent need for intervention in this matter and

 

         2          for A. to receive counselling and assistance in

 

         3          dealing with the conflict that has been occurring

 

         4          over the past few months and in beginning to

 

         5          restore communication lines and the connection to

 

         6          his mother.  Both parents should cooperate fully

 

         7          on this.

 

         8               I bear in mind that the mother was granted

 

         9          final decision-making in 2011 for medical and

 

        10          treatment issues related to A., and this was

 

        11          because the Court had concluded at that time she

 

        12          was the more reasonable of the two parents when

 

        13          it came to such issues, and this was to be so

 

        14          even when A. was with his father.  There is at

 

        15          this point no basis to interfere with that

 

        16          finding.  She will have leave to arrange for

 

        17          whatever counselling she sees fit for A.

 

        18               I am also satisfied that A. needs legal

 

        19          representation in these proceedings.  Having

 

        20          counsel will assist in giving him a voice and

 

        21          hopefully also in understanding that the outcome

 

        22          of these proceedings, including where he is going

 

        23          to live, will not be left up to him.

 

        24               Counsel for A. may be able to obtain

 

        25          independent evidence to assist the Court in

 

        26          deciding what is in A.'s best interest in the

 

        27          face of this very complicated situation.  So I am

 

 

 

 

 

 

 

                                        22


 

 

 

 

         1          going to make that appointment today.  I know

 

         2          that counsel is here for the Office of the

 

         3          Children's Lawyer and I urge that office to

 

         4          arrange for counsel to speak to A. as soon as

 

         5          practicable on this matter because I think it is

 

         6          much needed in this case.

 

         7               I am going to adjourn this matter to

 

         8          December 17th, which is the last Family Chambers

 

         9          sittings before the courts close, and this is so

 

        10          that updates can be provided to the Court about

 

        11          various things, including the status of the RCMP

 

        12          and Social Services' investigation into the

 

        13          allegations of abuse.  It may be overly

 

        14          optimistic, but hopefully one or more counselling

 

        15          sessions may be arranged between now and then and

 

        16          this may provide additional useful information

 

        17          and assist everyone involved; and, finally,

 

        18          possibly by then counsel for the child may be in

 

        19          a position to assist the Court as to what the

 

        20          next step should be.

 

        21               The last issue of course is whether A.

 

        22          should be ordered returned to his mother's care

 

        23          immediately.  The mother does seek that.  She

 

        24          seeks strict enforcement of the existing court

 

        25          Orders even though she recognizes that her son

 

        26          currently seems to want nothing to do with her.

 

        27          Her position as conveyed to the Court through her

 

 

 

 

 

 

 

                                        23


 

 

 

 

         1          counsel last week is that she is convinced that

 

         2          if she has him back living with her, she will be

 

         3          able to turn the situation around with the

 

         4          assistance of a counsellor.  She is so convinced

 

         5          of this that she is asking the Court to go as far

 

         6          as to get the police involved, if need be, to

 

         7          forcibly bring A. back into her home.

 

         8               As I have already said, there is evidence

 

         9          before the Court now that was not before the

 

        10          Court at the November appearance.

 

        11               Even apart from the allegations included in

 

        12          the father's affidavit, many of which I realize

 

        13          the mother disputes, there is her own evidence

 

        14          about what A. told her when he was at her house

 

        15          on November 25th and her own evidence about the

 

        16          physical escalation and him being rough with her

 

        17          when she tried to prevent him to leave.  While I

 

        18          empathize with the mother's concerns and her wish

 

        19          to get things back on track with A. as soon as

 

        20          possible, with the greatest of respect, I am not

 

        21          persuaded that it is necessarily realistic to

 

        22          think that she can have the police force him back

 

        23          into her home and then succeed in getting things

 

        24          back on track with him and their communication.

 

        25          There is huge potential for such an action to

 

        26          cause further escalation of the situation and do

 

        27          more harm than good.  The chance of turning

 

 

 

 

 

 

 

                                        24


 

 

 

 

         1          things around would be much greater, in my view,

 

         2          once there has been some sort of intervention

 

         3          with counsellors and may also be assisted by A.

 

         4          having independent counsel to provide an outside

 

         5          perspective on things and some advice to him.

 

         6               So after much thought, and although the

 

         7          Court is always concerned when its Orders are not

 

         8          being complied with, I have concluded that any

 

         9          decision to order A. back into his mother's home

 

        10          should be made only with the benefit of

 

        11          submissions from his appointed counsel and in

 

        12          light of any additional evidence that may be

 

        13          brought forward as a result of counselling

 

        14          process.  Forcing A. to go back to that home

 

        15          before then, before there has been an opportunity

 

        16          for some counselling and some professional

 

        17          intervention, and especially ordering police

 

        18          involvement to enforce this, does not seem to me

 

        19          to be in his best interests.  And although I do

 

        20          understand the mother does not take that view, I

 

        21          think doing this at this point could also be very

 

        22          detrimental to her relation with him as well.

 

        23               So the Order I am issuing today will be as

 

        24          follows:

 

        25          -    The matter is adjourned to be spoken to on

 

        26               December 17th, 2015, at 10 a.m.;

 

        27          -    The Order of this court, dated August 16,

 

 

 

 

 

 

 

                                        25


 

 

 

 

         1               2011, will remain in effect with the

 

         2               exception that on an interim interim basis:

 

         3               1.  A. may remain in the care of his father

 

         4                   until December 17th, 2015;

 

         5               2.  The issue of access over the holiday

 

         6                   season will be spoken to on December 17,

 

         7                   2015;

 

         8               3.  There will be a clause that neither

 

         9                   parent shall take A. outside the

 

        10                   Northwest Territories until further

 

        11                   Order of the Court or without leave of

 

        12                   the Court;

 

        13               4.  The mother shall be permitted to arrange

 

        14                   for counselling for A., and the father

 

        15                   shall cooperate and assist in ensuring

 

        16                   that A. attends any counselling sessions

 

        17                   that are arranged for him by the mother;

 

        18               5.  The Office of the Children's Lawyer is

 

        19                   appointed to represent A. in these

 

        20                   proceedings.  The terms of that

 

        21                   appointment will be in accordance with

 

        22                   the ones that are usually adopted by

 

        23                   this court.

 

        24          And I will ask Mr. Kinnear that a separate Order

 

        25          be taken out in the usual form.  But just so that

 

        26          all the parties are clear, what will be included

 

        27          in this order in addition to the appointment of

 

 

 

 

 

 

 

                                        26


 

 

 

 

         1          counsel is that:

 

         2          -    The Office of the Children's Lawyer (OCL) is

 

         3               authorized, without further consent of the

 

         4               mother or the father, to make a full and

 

         5               independent inquiry of all the circumstances

 

         6               relating to the best interest of A.;

 

         7          -    The OCL may contact and communicate with any

 

         8               and all third parties involved with A.,

 

         9               including but not limited to childcare

 

        10               providers, teachers and school authorities,

 

        11               family and child counsellors and assessors,

 

        12               medical service providers, psychologists,

 

        13               social workers, and any other individuals

 

        14               having contact with or information about A.;

 

        15          -    Counsel for the child will be entitled to

 

        16               receive copies of all notes, records, or

 

        17               reports relating to A. from any source

 

        18               whatsoever;

 

        19          -    Counsel for the child will have the

 

        20               authority to talk to and meet with A. alone

 

        21               and confidentially,     or with others, at

 

        22               any location counsel deems appropriate,

 

        23               including but not limited to the children's

 

        24               childcare, if that is applicable, school, or

 

        25               the parents' home;

 

        26          -    Counsel for the child will have leave to

 

        27               communicate directly with A.'s parents

 

 

 

 

 

 

 

                                        27


 

 

 

 

         1               without the presence of counsel for the

 

         2               parents even if the parents have legal

 

         3               counsel;

 

         4          -    All third parties involved with A.,

 

         5               including but not limited to the ones that I

 

         6               have already mentioned, are authorized to

 

         7               release any and all information about him,

 

         8               including documentary information, to

 

         9               counsel for the child, who shall receive and

 

        10               use that information for the purpose of

 

        11               attempting to resolve or have adjudicated

 

        12               the issues of custody and access;

 

        13          -    Counsel for the child will be entitled to

 

        14               provide an oral summary to this court of the

 

        15               information acquired in the course of

 

        16               representing A., and, by doing so, shall not

 

        17               be deemed to be a witness in these

 

        18               proceedings; and

 

        19          -    Counsel for the child is authorized to

 

        20               participate in these proceedings as though

 

        21               A. was a party and, without limiting the

 

        22               generality of this, will be entitled to

 

        23               production and discovery, toappear and

 

        24               participate in the proceedings, have the

 

        25               ability to examine and cross-examine

 

        26               witnesses, to call evidence, and to make

 

        27               submissions to the Court, including the

 

 

 

 

 

 

 

                                        28


 

 

 

 

         1               position advanced on behalf of A.

 

         2               These are the standard terms of Orders by

 

         3          this court appointing counsel to a child in

 

         4          Family proceedings and they are designed to

 

         5          ensure that counsel for the child get the maximum

 

         6          information that might be needed in order to

 

         7          present submissions.

 

         8               The final term of the Order I issue today,

 

         9          Mr. Bruveris, is that costs, which you have

 

        10          raised as an issue in earlier appearances, will

 

        11          be adjourned to December 17th to be spoken to,

 

        12          and depending on how things go and what decisions

 

        13          are made then, it may be that that issue is

 

        14          adjourned again.

 

        15               So that is my ruling.  The matter is

 

        16          adjourned to December 17.

 

        17               .................................

 

        18

 

        19

 

        20                        Certified Pursuant to Rule 723

                                  of the Rules of Court

        21

 

        22

 

        23

                                  Jane Romanowich, CSR(A)

        24                        Court Reporter

 

        25

 

        26

 

        27

 

 

 

 

 

 

 

                                        29

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.