PREPARED

service that was not provided. Bell
Mobility was unjustly enriched by
charging a fee for no service.
While the conduct of Bell Mobility
was tending towards the highhanded
end of the spectrum, the
conduct was not found to be a
marked departure from ordinary
standards of decent behaviour.
The decision to vigorously defend
the class action was not malicious,
arbitrary or highly reprehensible
misconduct. Punitive damages,
therefore, were not warranted.
The claim of waiver of tort
(disgorgement of the profits) was
dismissed, as there was no tortious
conduct or any claim of tort.
~
FAMILY LAW – CUSTODY &
ACCESS
Lacoursiere v Penk
2013 NWTSC 29 (June 7, 2013)
Presiding: Justice V.A. Schuler
For the Applicant: M. Nightingale
For the Respondent: self-represented
The parties are the subject of an
interim order whereby the mother
has sole custody of two young
children and the father (resident in
Germany) has reasonable access.
There was a dispute regarding the
extent of the father’s summer
access. The court set a detailed
schedule with conditions of access.
As the father is not a resident of
Canada and has no connections
here, it was a condition that he
deposit his passport with the
RCMP during the period of access.
In addition, the court ordered
access via Skype for the period
until the summer access.
TERRITORIAL
COURT
FAMILY LAW – EVIDENCE –
EXPERT WITNESSES - CHILD
WELFARE – PERMANENT
CUSTODY
Re A, B, C, and D
2013 NWTTC 9 (Apr 22, 2013)
Presiding: Chief Judge R.D. Gorin
For the Applicant: S.M. MacPherson
For the Respondents: C. Seddon
The Director of Child and Family
Services applied for permanent
custody of four children. Much of
the evidence presented in the
affidavit filed by the Director was
hearsay.
While admissible, the
hearsay evidence raised reliability
concerns.
The applicant’s expert
witness testified that, when faced
with inconsistent test results, he
chose the result that placed the
child at higher risk.
That gave
cause for concern as to the
objectivity of his evidence
generally.
A and B were ordered returned to
their parents, subject to a
supervision order. They had been
apprehended in 2009 while their
mother was incarcerated for an
assault on a child.
In 2011 the
children were returned to their
parents, but were apprehended
again following an incident of
domestic violence in 2012. While
the respondents were not perfect
parents, they have acknowledged
their deficiencies and worked hard
to resolve their issues. The
existing concerns are sufficient to
require a declaration that A and B
are in need of protection, but not a
further order of custody.
An order for permanent custody of
C and D was granted. They had
been apprehended at birth. Since
their apprehension, C and D have
been thriving in their foster home.
The foster mother is willing to
adopt them, so there is the
prospect of them being raised in
the same home from birth to
adulthood. A permanent order is
in their best interests.
■ Maureen McGuire is an Appellate
Counsel with Alberta Justice. She is a
member of the Bar in the NWT, Ontario,
and Alberta. Any comments or questions
regarding case digests would be
welcomed at her email address,
Maureen.McGuire@gov.ab.ca.
16 ■ MAY/JUNE 2013 ARCTIC OBITER