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Judge grants guardianship to husband despite Ottawa residency

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"If this case did not merit imposition of the maximum summary penalty, I cannot imagine what other case might," Justice Paul Bychok stated in regards to a sexual assault that occurred in Kugluktuk last June. NNSL file photo

A Nunavut judge has ruled that a man now living in Ottawa to care for his disabled Nunavummiuq wife fits the definition of a guardian under territorial legislation.

The wife was born and raised in Iqaluit.

Her husband came to Nunavut's capital in 1991 and settled down.

They got married in 1991, had careers and raised children in Iqaluit.

On Sept. 6, 2020, the wife suffered a debilitating stroke and was taken to Ottawa on a medical flight.

The court appointed her husband as guardian in 2013 and again in 2015, this time for five years.

Public guardians make day-to-day decisions on behalf of their loved ones as well as choices about living arrangements, social and recreational activities, education, health care and life support.

The couple had to reside in Ottawa so the wife could have access to the care she requires.

She wants her husband to remain as her legal guardian.

Nunavut's Office of the Public Guardian sought direction from the territorial court after the couple's guardianship order expired in July 2020. The legislation requires that a person must be a resident of Nunavut to qualify as a guardian.

Justice Paul Bychok noted that Nunavut its Guardianship and Trustee Act from the Northwest Territories in 1999. While the legislation requires that a guardian be a "resident" of the same jurisdiction where the guardianship is sought, it does not define the term "resident." There is no caselaw to act as a guide, Bychok pointed out.

"I have no doubt most people if asked what resident means would answer 'someone who lives in a particular place,'" the judge stated in his April 19 decision.

He added that there is "no one more suitable" to act as the wife's guardian than her husband, a situation that would be in her "best interest," a principle that the legislation promotes.

"They did not stay in Ottawa because they wanted to relocate. They are not able to return home because (the wife) cannot get the medical treatment she needs at home," Bychok stated, adding that the couple are "prisoners of circumstance."

He compared their predicament with that of Nunavummiut who lack a close family member who can act as their guardian. Those individuals are often sent to care facilities outside of Nunavut and the cost is covered by the territorial government.

He also noted that the legislation gives a judge the authority to determine residency.

"To give the Act a fair, large, liberal, and remedial interpretation, I am satisfied that (the husband) in these circumstances remains a Nunavut resident. To rule otherwise, I am confident, would shock the conscience of objective and informed Nunavummiut," he stated, indicating that he signed an order prolonging the husband's guardianship.

About the Author: Derek Neary

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