Court File and Parties

COURT FILE NO.: FC-23-00000120-0000 DATE: October 31, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: STEVEN LATREILLE Applicant Counsel for the Applicant: Ralph Lee

– and –

BREANNA PUYUTTAQ Respondent Counsel for the Respondent: John Allan

DECISION

ABRAMS, J

Introduction

[1] This is the Respondent’s motion seeking an order that, inter alia, Ontario lacks jurisdiction to determine parenting issues pertaining to the child, Alessa Marie Puyuttaq, born October 15, 2022 (“Alessa”). Rather, as the Respondent contends, Nunavut is the proper forum to determine parenting issues.

Brief Background

[2] The Respondent is Alessa’s biological mother.

[3] Apart from the Applicant’s assertion that he is Alessa’s biological father, he is not listed as such in the Application for Certificate of Birth: Exhibit “H” to the affidavit of the Respondent, sworn October 12, 2023 (“the Respondent’s affidavit).

[4] In contrast, the Applicant is listed as the father of the Respondent’s older child, Trent Connor Puyuttaq, born December 13, 2021 (“Trent”).

[5] It is uncontested that Trent is ordinarily and habitually resident in Gjoa Haven, Nunavut (“Gjoa Haven”). Notably, there is nothing to suggest that the Applicant has, at any time, sought parenting time with Trent.

[6] The Respondent is Inuit, as are both children.

[7] The Respondent ordinarily and habitually resides at #3 Spearhead Road, Gjoa Haven, as confirmed in her Nunavut Identification card: Exhibit “A” to the Respondent’s affidavit.

[8] The Respondent travelled to Yellowknife, Northwest Territories to give birth to Alessa: Exhibit “H” to the Respondent’s affidavit.

[9] Thereafter, the Respondent ordinarily and habitually resided in Gjoa Haven with both children.

[10] Correspondence from the Government of Nunavut, together with the medical records attached, confirms that both children have been under the care of the Gjoa Haven Health Centre since birth: Exhibits “D”, “E” and “F” to the Respondent’s affidavit.

[11] The last entry in Alessa’s medical records pertains to a visit to the Gjoa Haven Health Centre on May 16, 2023.

[12] On June 10, 2023, the Respondent travelled from Nunavut to Ottawa with Alessa. A copy of the airline ticket is appended as Exhibit “F” to her affidavit. The Respondent left Trent behind in the care of her mother.

[13] The purpose of the trip was to explore the possibility of reconciling with the Applicant.

[14] The Respondent agreed to let the Applicant care for Alessa for a week while she investigated obtaining temporary housing.

[15] The Respondent obtained emergency housing on June 28, 2023, at a shelter for women and children; however, the Applicant refused to return Alessa to her.

[16] The Respondent reported the situation to the Ottawa Police, but they refused to assist her without the benefit of a court order.

[17] The Respondent immediately sought legal advice from Legal Aid in Nunavut. She was directed to Legal Aid Ontario. She eventually received a certificate but found it difficult to find a lawyer.

[18] She eventually found counsel and brought this proceeding at the earliest opportunity.

Issue

[19] The only issue to be determined on this motion is whether the Court has jurisdiction to determine parenting issues pertaining to Alessa.

Analysis and Findings

[20] In my view, the only court having jurisdiction to determine parenting issues pertaining to Alessa is the Nunavut Court of Justice. I say that for the following reasons.

[21] The Applicant concedes that prior to June 10, 2023, Alessa’s ordinary and habitual residence was with the Respondent in Gjoa Haven, Nunavut.

[22] Thus, it follows that the Respondent was Alessa’s primary parent and sole care provider from the date of birth, October 15, 2022, to June 28, 2023 (the status quo), when the Applicant refused to return Alessa to the Respondent.

[23] The Applicant argues that the ordinary and habitual residence of Alessa changed on June 10, 2023, when the Respondent relocated to Ottawa. I do not see it that way.

[24] I accept the Respondent’s evidence that the trip to Ottawa was merely exploratory to determine if a reconciliation with the Applicant was possible. Conversely, I reject the Applicant’s evidence that the Respondent had a settled intention to relocate to Ottawa from Nunavut.

[25] In my view, had the Respondent intended to relocate to Ottawa, she would have brought Trent along as well, rather than leaving him in the care of her mother in Gjoa Haven. Further, the Respondent had no choice but to bring Alessa with her, owing to Alessa’s age.

[26] I accept the Respondent’s evidence that she sought and obtained emergency shelter for she and Alessa at a women’s shelter catering only to women and children. In my view, had the Respondent intended to relocate on a permanent basis, she would more likely have investigated housing that was permanent, and which could have included the Applicant.

[27] I reject the Applicant’s evidence that the Respondent only intended to reside at the women’s shelter while awaiting more permanent housing on November 1, 2023. Specifically, I find the undated text message appended to the Applicant’s affidavit that purports to support this assertion to be of no weight.

[28] Further, I find that the balance of the allegations made by the Applicant against the Respondent in his affidavit either do not respond to the issue before the Court or lack sufficient corroboration. For example, the Applicant alleges that the Respondent abuses drugs and that text messages received from her support this. Again, the text messages are undated and so obtuse in terms of the words used so as not to ascribe anything nefarious on the part of the Respondent. Moreover, the record indicates that the Applicant made the same complaints about the Respondent to Children and Family Services and that the agency closed its file.

[29] In contrast, I find that the Applicant’s affidavit is more telling against him in terms of his reason for unilaterally overholding Alessa. As the Applicant concedes, when the Respondent and Alessa arrived in Ottawa, he did not have adequate housing to accommodate the three of them. However, after overholding Alessa, he was able to obtain suitable housing in Carleton Place, which I infer was dependent, in part, on him having care of Alessa.

[30] Query why a parent who has shown no interest in pursuing parenting time with his child, Trent, in Nunavut, would suddenly take an interest in Alessa, when he is not even listed as her biological father in the Application for Certificate of Birth: Exhibit “H”? Apart from his apparent belief that he is Alessa’s father, there is nothing in the material before me to confirm that is true.

[31] I find it more likely that the Applicant viewed Alessa as a means to secure more permanent housing, and when the Respondent offered to let him care for her over the course of a week, he seized the opportunity.

[32] It is notable, as well, that after commencing his Application, the Applicant did not bring a motion requesting an order that he be allowed to maintain primary care of Alessa. Rather, he left the Respondent to flounder trying to sort out legal representation in a province that is not her home, and with no, or very limited, resources. In my view, this was a strategic decision meant to establish a new status-quo.

[33] Without need of reproducing the entire text of the relevant statutes, Rule 5(1) of the Family Law Rules, and s. 22 of the Children’s Law Reform Act are authoritative in terms of deciding the issue.

[34] In s. 22(2) of the CLRA, “habitual residence” is defined as where a child is habitually resident in the place where he or she resided, either with a) both parents; b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent or acquiescence of the other or under a court order; c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

[35] Section 22(3) of the CLRA also addresses the situation where one parent unilaterally removes or withholds a child and states: “The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.”

[36] In Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.) it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage. Further, Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.) notes that the status quo is the status quo which existed without reference to the unilateral conduct of one parent.

[37] Alessa was ordinarily and habitually resident in Gjoa Haven, Nunavut with the Respondent and her sibling, Trent, from her date of birth to June 10, 2023, when she accompanied her mother to Ottawa, which I find to be the primary status quo.

[38] Alessa was ordinarily and habitually resident with the Respondent in Gjoa Haven, Nunavut, with the consent or acquiescence of the Applicant: s. 22(2) CLRA.

[39] Alessa was in the sole and primary care of the Respondent from her date of birth until on or about June 21, 2023, when the Respondent allowed the Applicant to care her on a temporary basis while the Respondent investigated the availability of temporary housing for her and the child, in Ottawa.

[40] For those reasons set out above, I find that the Respondent did not have a settled intention to remain in Ottawa.

[41] The Applicant unilaterally overheld Alessa on June 28, 2023, when he refused to return her to the Respondent, absent an agreement with the Respondent or a court order.

[42] The Applicant maintained his use of a unilateral self-help remedy from that date forward.

[43] The short-lived status quo was created by the Applicant to gain a tactical advantage, which the Court cannot condone.

[44] The Respondent did not acquiesce to the Applicant keeping Alessa, nor did she delay in commencing this process. Rather, left alone in a province that is not her home, and with limited resources, she brought this proceeding before the Court as expeditiously as possible.

[45] All of Alessa’s family connections and supports are in Gjoa Haven, Nunavut. Moreover, and importantly, her only sibling, Trent, is ordinarily and habitually resident in Gjoa Haven, Nunavut.

[46] If the Applicant wishes to assert his parenting rights in respect of Alessa, he is free to do so in the Nunavut Court of Justice.

[47] If the Applicant has any concerns regarding the Respondent’s ability to parent Alessa, he can take his concerns to the child welfare authorities in Nunavut.

[48] For all these reasons, Alessa shall immediately be returned to the primary care of the Respondent, who shall be free to return to Nunavut with the child.

[49] If the Applicant fails to return Alessa to the Respondent by no later than 10:00 a.m. on November 1, 2023, any police force having jurisdiction is hereby directed to make all reasonable efforts to locate, apprehend, and deliver the child to the Respondent.

[50] For the purpose of locating and apprehending Alessa in accordance with this Order, a member of a police force may enter and search any place where he or she has reasonable and probable grounds for believing that Alessa may be, including but not limited to, a dwelling house, with such assistance and such force as are reasonable in the circumstances, at any time.

Costs

[51] The Respondent is the successful party on this motion. If the parties cannot agree as to costs, they may provide brief, written submissions of no more than three pages, one side of the page, single spaced, 12-point font or larger, exclusive of a Bill of Costs, all within 14 days.

Justice Brian Abrams (signed electronically) The Honourable Mr. Justice B. W. Abrams Released: October 31, 2023