Hornblower v. Nookiguak, 2015 ONSC 7860

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Liza Marie Hornblower and Patrick Michael Casey

Applicants

• and -

Lianne Keemeepiajuk Nookiguak and Patrick Jaypeetee Kopalie

Respondents

Hamoody Hassan for the applicants

No one appearing for the respondents

HEARD: September 23, 2015

MITROW J.

[1]

Background

In this unusual case, the applicants seek sole custody of a child born in Nunavut. The child is now age two and has been in the applicants’ care since shortly after the child was born, when the applicants attended in Nunavut to take de facto custody of the child and to bring the child to Ontario where the applicants reside.

2The respondents are the child’s mother and father.

3Pursuant to a temporary order that I made, Hornblower v. Nookiguak¹, 2014 ONSC 945 (S.C.J.), a number of concerns were identified as to the process engaged in by the applicants to bring the newborn child to Ontario. Although an interim interim without prejudice custody order was made in favour of the applicants, the order included the following requirements that had to be met before a final order could be obtained:

30. …

2. The applicants shall file the following:

a) A certified copy of the child’s birth certificate or statement of live birth;

b) Copies of the forms submitted by each party pursuant to section 21.2(2) of the Children’s Law Reform Act;

c) An original police records check for the applicant Liza Marie Hornblower under the name of “Liza Marie O’Brien” with the form of the police records check to be in compliance with s. 21.1 of the Children’s Law Reform Act and O. Reg. 24/10.

3. The respondents shall be personally served with the application, the form 35.1 affidavit of each applicant, all other affidavits filed by the applicants, this endorsement, and a copy of this signed and issued order. The application shall be amended with a return date of April 14, 2014 at 9:30 a.m.

4. If the applicants intend to rely on any consent signed by either or both of the respondents in relation to any claims made in the application, then the signature of each respondent shall be witnessed by a reliable adult person not related to either respondent, and the consent shall be accompanied by an affidavit of execution. The consent shall provide confirmation as to whether or not the respondents obtained independent legal advice. The affidavit of execution shall confirm that the deponent was satisfied that the respondents are both literate and that they were able to read and understand the consent.

5. The applicants shall file an affidavit from the Children’s Aid Society of London and Middlesex (“Society”) or other evidence from the Society confirming why it was involved, the nature of its investigation, its findings, and why its file was closed.

6. The applicants forthwith shall also serve the children’s aid society in Nunavut having jurisdiction where respondents reside, with a copy of this endorsement and the signed and issued order.

4One of the central concerns at the time of the previous order was whether the respondents understood what they were doing, whether they had genuinely consented to the newborn child being taken to Ontario, and whether they had been properly served with, and had notice of, the present application for custody of the child commenced by the applicants. I remained seized with this case.

5The application was adjourned from time to time to permit the applicants to provide all the information ordered by the court.

[6]

Consent of the Respondents

Importantly, on September 12, 2014, both respondents were personally present before this court. The respondents both advised the court that they were in agreement with custody of their child being awarded to the applicants.

7On that day, Mr. Raynor, an Ontario lawyer, appeared on behalf of the respondent father and tendered, in relation to the respondent father, a certificate of independent legal advice, signed by Mr. Raynor, with the executed consent of the respondents attached thereto. Mr. Raynor also signed an affidavit of execution as to the respondent father’s signature on the consent.

8The consent provided that: (1) the child would remain in the sole care and custody of the applicants; (b) the applicants exclusively were to make decisions or sign documents regarding the child’s health, education, welfare or advancement in life, and dispensing with the requirements of the respondents’ signatures; (c) the child would reside with the applicants in the vicinity of London, and requiring 60 days’ notice of any change in residence of outside London, Ontario; (d) the applicants were required to provide the respondents with their address, telephone and email; and (e) the child would not leave the permanent day-to-day care and control of the applicants without notice to the respondents.

9In the consent, the respondents also agreed to waive their right to file an answer.

10Neither respondent, in fact, filed an answer and, accordingly, the hearing before me proceeded on an undefended basis on September 23, 2015, based on affidavit evidence and exhibits, filed.

11In relation to the respondent mother, a certificate of independent legal advice, signed by Jack Squire, a lawyer in the Territory of Nunavut, was filed, with the consent signed by the respondent mother appended thereto. Mr. Squire also signed an affidavit of execution as to the respondent mother’s signature on the consent.

[12]

Compliance with Previous Orders

I am satisfied that the applicants have filed all documentation required by the previous order; I am satisfied that the applicants have complied with s. 21.1 and 21.2 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”) as to police records checks and documentation from Children’s Aid Societies – in this case being the Children's Aid Society of London and Middlesex (“Society”).

13The records of the Society, filed as an exhibit, confirm that, ultimately, the Society had no protection concerns and closed its file.

14By way of a previous order, the children's aid society, in Nunavut, having jurisdiction where the respondents reside, was invited to advise Mr. Hassan of any intention to be added as a party in this proceeding. A letter dated May 12, 2014 from Ms. Sheila M. MacPherson, legal counsel to the Director of Child and Family Services and the Director of Adoptions for the Government of Nunavut, confirmed that leave to be added as a party would not be sought. However, that letter did express a concern that the child was removed from Nunavut for adoption purposes contrary to the provisions of that jurisdiction’s adoption legislation.

15The plan of the applicants, ultimately, is to adopt the child, and it was with that purpose in mind that plans were made for the applicants to bring the newborn child to Ontario.

16The Society records contains various communications with authorities in Nunavut, with suggestions from the latter that the removal of the child from Nunavut may have constituted a breach of Nunavut’s laws.

17In his submissions, Mr. Hassan acknowledged that RCMP in Nunavut had been involved in the matter; however, I do agree with Mr. Hassan there then is no evidence as to what came of the RCMP involvement, now over two years ago. The applicants depose that they were never charged with any offences regarding contravention of any laws of Nunavut; also, they have not been contacted by the RCMP.

[18]

Analysis

I am satisfied that the consent of the respondents was voluntary and informed.

19The issue of an adoption is not before the court; the issue raised in the application is one of custody pursuant to the Act.

20The evidence of the applicants is that the child is thriving in their care.

[21]

Disposition

I find, in the circumstances, considering the factors in s. 24(2) of the Act, and considering that the child has been in the applicants’ care since shortly after birth and that the respondents have consented to the order sought, that it is in the child’s best interests that the applicants have custody of the child. A final order shall issue in accordance with paragraphs 1 to 5 inclusive of the consent, filed.

22The order shall also incorporate paragraph 7 of the consent that deals with corrections to the respondent mother’s surname and the child’s surname.

23A final order shall issue accordingly.

Footnotes

1. 1In that case, the surname “Nookiguak” was incorrectly spelled “Nookigack” and the correct name is shown in these reasons.