Court resolves tangled child custody case

In the familiar tale from the Bible, King Solomon resolved what may be the world’s first recorded child custody case by suggesting that the child be cut in half with a sword.

Last December, Justice Beverly Browne of the Nunavut Court of Justice heard a case that would have taxed the powers of Solomon, with all his wisdom, to come to a fair and workable judgment.

Her task was to decide the custodial fate of three-year-old boy caught within a bitter triangle: his grandmother, his mother, and his father.

“I have struggled with this difficult case in terms of assessing the best interest of the child,” Browne said in a written judgment released Jan. 29. In the end, Browne decided the boy will stay with the person who has cared for him for most of his three years: his grandmother.

The difficulty for Browne arose because each of the three people closest to the boy displayed such a complicated grab bag of bad and exemplary behaviour and because their interactions were likewise a tangle of good intentions and mean-spirited intolerance.

Describing the child, Browne said, “He is fortunate to have his own room and his own stuff in two households. The grandmother and the mother are of Inuit descent, and the father is French-Canadian. He is a young boy who loves to hang out at the shop with his father and to mimic his father’s ability to fix things. He has the exceptional opportunity of learning and speaking in English, Inuktitut, and French.”

But, added Browne, “In spite of the delightful picture I have described of this lad, all the people around him show antagonism and hostility to one another. The only common element is they all love him and wish the very best for his future.”

The father and mother had an on-and-off relationship, which was off when the woman found she was pregnant. It was only through a DNA test that paternity was established. Father, mother and grandmother established a household in Iqaluit with the boy, but there was “significant conflict,” among the adults, Browne said.

In October 2005, the grandmother left the house with the child without leaving a note or making a phone call. “She indicated she was ordered to leave by the mother,” Browne noted. While living at the local women’s shelter she decided to attend a funeral in northern Quebec and the child was left in a foster home. Neither the father nor the mother knew the whereabouts of the grandmother or the boy.

The father applied to the court for interim custody of the child, and it was granted to him. Later, however, Browne said it was discovered that the father had sworn a false affidavit and had deliberately misled the court. Subsequently, the court ordered that the grandmother have access to the child from Sunday morning to Monday morning.

The grandmother, despite her behaviour in the fall of 2005, appears in many respects to be a model citizen. She works full time, pays bills and does not allow alcohol in her home.

The boy’s mother and her sister take their respective children to the grandmother’s house during the day, while the father works in his shop.

“Often the extended family gathers at the grandmother’s house for lunch,” Browne said.

The judge noted that the grandmother is antagonistic towards the father, who at 41, is almost 20 years older than her daughter. “The grandmother and father both have strong personalities and both are reluctant to allow the other to have the upper hand,” said Browne. “Both behaved poorly at various times during the trial and over this child’s life. It is imperative that both… put aside their angry feelings toward one another.”

The mother, for her part, was described by witnesses, the judge said, as “a good mother when she is sober and not under the influence.” She is “practical and insightful in acknowledging that she is presently not capable of having custody of the child.”

While the father is an important male role model in the child’s life, Browne said, “a child needs a peaceful, regular and well provided life. The father’s home would more aptly be described as chaotic and unpredictable.”

In granting custody to the grandmother, Browne said that the woman has been “the anchor” during the child’s life. “The grandmother has continued to be a strong and regular caregiver.”

But she said that the father must have regular and generous access, including one overnight each weekend or two overnights every other weekend. “The child should only be in the care of the mother when she is sober from alcohol and drugs,” Browne ordered.

As for the father and grandmother’s relationship, she said, “They must begin to show respect for each other and they must never speak badly of each other in the presence of the young boy. He must learn respect for all as he grows up in this interesting and challenging family.”