ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO. 01-FP-267719-0001
DATE: 20120809
B E T W E E N:
leyla okatan Applicant
Arthur C. Brown for the Plaintiff
- and -
MEHMET ALI YAGIZ Respondent
Self-represented
HEARD: June 27, 2012
M.A. SANDERSON J.
Reasons for DECISION
Introduction
[ 1 ] The Applicant, Leyla Okatan ("Ms. Okatan"), moves for an order to change the Order of Mesbur J. dated June 18, 2004, requiring Mehmet Yagiz ("Mr. Yagiz") to pay child support for their daughter Emine, born May 10, 1997, of $284 per month [based on his income of $32,400 per year], to pay $396 per month retroactive to January 1, 2007 and on an ongoing basis [based on income of $43,000 per year.]
[ 2 ] In addition, she seeks payment of extraordinary expenses under s. 7 of the Guidelines set out in Exhibit 10, again retroactive to January 1, 2007, and on a going-forward basis.
The Facts
[ 3 ] Ms. Okatan brought her motion to change on April 9, 2009.
[ 4 ] Given earlier orders of this Court, it was not open to her to seek a variation before January of 2007.
Income of Mr. Yagiz
[ 5 ] Mr. Yagiz has been an employee of CI Investments since October 2, 2000.
[ 6 ] In 2007, according to his Notice of Assessment (which Ms. Okatan does not challenge), his T4 income was $37,912.65. His total income was $42,912 before deductions, including $5,000 he received upon cashing in an RRSP.
[ 7 ] In 2008, although we do not have a copy of his complete tax return, it appears that Mr. Yagiz had T4 earnings of $45,076 and $6000 of revenue from cashing in his RRSP, for a total income of $51,076.
[ 8 ] In 2009, he had T4 income of $42,366.26 according to his Notice of Assessment.
[ 9 ] In 2010, he had T4 income of $45,071.75.
[ 10 ] In 2011, he had T4 income of $42,331.50 and total income of $42,367 before deductions.
[ 11 ] Mr. Yagiz said in chief he was/is prepared to continue paying $370 per month into the future.
[ 12 ] He later clarified that since he has remarried and his wife is about to give birth, he is going on paternity leave from mid-July 2012 to mid-December 2012, a period of 5 months. During that time, his monthly income will be 55% of $3,454.16, his monthly income but for the leave. He is prepared to pay child support during that time frame based on 55% of that income (about $22,825 per year, or $202 per month.)
Income of Ms. Okatan
[ 13 ] Ms. Okatan has not sought or received spousal support since December 1, 2004. Mesbur J. held she is highly educated and clearly employable. Ms Okatan has two under-graduate and two post-graduate degrees, including a Masters in Mechanical and Industrial Engineering from the University of Toronto, completed in 1996.
[ 14 ] Before coming to Canada in 1995, she worked as an engineer in her homeland Turkey, for Turkish Hydro for 15 years.
[ 15 ] She became a citizen of Canada in 2000.
[ 16 ] In her 2007 tax year, Ms Okatan declared total income of $16,329.67, including T4 income of $10,496. She received unemployment insurance of $5,833.
[ 17 ] In 2008, her T4 income was $2,511.91. She received unemployment insurance of $307 and social assistance payments of $5,647.57 for a total of $8,466.48.
[ 18 ] In 2009, she received social assistance payments of $6,784 and family support payments of $2,511.
[ 19 ] In 2010, she received social assistance payments of $8,715 and T4 earnings of $1,016.
[ 20 ] In 2011, she received T4 income of $600, other employment income of $375.81 and social assistance payments of $5,572.92 for a total of $6,548.73.
[ 21 ] From the date of the order of Mesbur J. to January of 2012, Mr. Yagiz made child support payments of $284 per month.
[ 22 ] On February 24, 2012, Mr Yagiz and Ms Okatan consented to a temporary order made, without prejudice, based on an income of $41,000 and raising child support starting January 1, 2012 to $370 per month.
Issues to be Determined re Child Support
[ 23 ] Given Mr. Yagiz' concession he is prepared to agree to pay $370 per month based on income of $41,000 [except during his scheduled paternity leave between mid-July and December 15, 2012], the issues related to child support are: (1) Should retroactive adjustments be required? (2) If so, to when? (3) Should the child support of $370 paid on consent after January 1, 2012 be adjusted based on income of $42,367 per year? (4) What amount should be ordered between July 15 and December 15, 2012? (5) How much child support should be ordered on an ongoing basis?
Analysis and Conclusion re Child Support
[ 24 ] Unless otherwise provided, the amount of child support for children under the age of majority is presumptively the amount set out in the Child Support Guidelines.
[ 25 ] The Court may depart from the Guidelines and exercise its discretion under s. 17 of the Divorce Act .
[ 26 ] Mr. Yagiz during his evidence agreed that $370 per month based on income of $41,000 per year would be fair.
[ 27 ] In fact, his current (2011) income appears to have been $42,367.
[ 28 ] If he were not about to embark on paternity leave, he would presumptively be assumed to be required to make payments of $396 per month on an ongoing basis.
[ 29 ] Under s. 17 of the Divorce Act , this Court can in its discretion reflect the reality that his income will be decreased by 45% to $22,825 per year between mid-July and mid-December 2012. Should he be required to pay $396 per month or $202 per month in the interim?
[ 30 ] In P(WC) v. P(C) , [2005] B.C.J. No. 179, 2005 BCCA 60 , the British Columbia Court of Appeal held that an election to apply assets in a manner that resulted in diminished income and increased expenses was not a material change in circumstance.
[ 31 ] Mr. Yagiz acknowledged he is taking parental leave in order to be able to travel to China and Turkey with his present wife. This choice, while understandable, was made at his option. In my view, it should not adversely affect his child support obligations to Emine. I therefore decline to suspend or vary downward Mr. Yagiz' obligation to pay $396 per month in the interim.
[ 32 ] Should the child support variation be made retroactive and if so, to what date?
[ 33 ] Often, variation orders are made retroactive to the date the motion was initially brought: Riml v. Riml , [2004] ON 1346 (Ont. Div. Court.) However, again the effective date is within the discretion of the motions judge.
[ 34 ] The motion to vary here was not brought until April 9, 2009. After the motion was filed, there was a flurry of activity in 2009, but little activity thereafter until June 2011. On August 30, 2010, a dismissal order was issued. On July 28, 2011, it was necessary for Ms. Okatan to obtain an Order setting aside the August 30, 2010 dismissal order.
[ 35 ] In all of the circumstances here, especially Ms. Okatan's delays in pressing forward with her motion, I exercise my discretion not to order varied retroactive child support payments covering the period before the Order of Perkins J. [dated February 24, 2012, but made effective from January 1, 2012].
Re Section 7 Expenses
[ 36 ] Mesbur J.'s judgment made no specific reference to s. 7 expenses, although it did provide that if Ms Okatan obtained employment and had to pay for child care for Emine, the parties were to share that cost in proportion to their incomes.
[ 37 ] Section 7 of the Federal Child Support Guidelines provides as follows:
- (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
( a ) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
( b ) that portion of the medical and dental insurance premiums attributable to the child;
( c ) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
( d ) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
( e ) expenses for post-secondary education; and
( f ) extraordinary expenses for extracurricular activities.
Definition of “extraordinary expenses”
(1.1) For the purposes of paragraphs (1)( d ) and ( f ), the term “extraordinary expenses” means
( a ) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
( b ) where paragraph ( a ) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
Universal child care benefit
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.
Section 7 Claim for Private and Public School Expenses
[ 38 ] Ms. Okatan claims contribution from Mr. Yagiz for extraordinary and special expenses for Emine to attend at NIL Private School between January 2007 and June 2009 (see Exhibit 10) at a cost totalling $15,285. At that school, Turkish language and culture were a focus.
[ 39 ] While the Respondent husband agreed it would be helpful for Emine to maintain links to her Turkish ancestry, he said he could not afford to pay for NIL. In his view, there was "nothing wrong with the public schools in Canada."
[ 40 ] Ms. Okatan also claims his contribution for s. 7 public school expenses of $1,882, including rental of musical instruments, school supplies and school trips, and for $2,038.25 of recreational and equipment expenses.
Counselling
[ 41 ] Given the warring between her parents over many years, Emine has needed and received counselling.
[ 42 ] Ms. Okatan gave evidence that in her view, Emine would benefit from continuing counselling from a Ms. Pancer, a sociologist who counselled her between 2002-2008 in the context of a Children's Aid proceeding.
[ 43 ] Exhibit 12 is a letter dated February 15, 2012 from Emine's family doctor addressed "To Whom It May Concern" including the following:
Emine has suffered psychological problems at least since 2002 … I have always recommended ongoing counselling. She referred to past counselling with Ms Pancer. Leyla tells me this [counselling with Ms. Pancer] is not covered by their current health care. Emine is reluctant to start a therapeutic relationship with anyone else… I hope you are able to provide some assistance to Emine for this necessary counselling."
[ 44 ] Ms. Okatan gave evidence that Emine "insists to see Ms. Pancer and no one else."
[ 45 ] Ms. Pancer charges $150 per session.
[ 46 ] Emine has not seen Ms Pancer since 2008 or 2009. Ms Pancer is a social worker, not a psychologist. Mr. Yagiz' health benefit plan does not cover such counselling (although it would cover up to $500 per year for counselling for Emine by a psychologist.)
[ 47 ] Emine has not had any counselling at all since 2010.
[ 48 ] A review of Exhibit 9, the correspondence between Mr. Yagiz and Emine, highlights the nature of the father/daughter relationship and suggests to me the desirability of continued counselling for Emine.
[ 49 ] The real issue here in my view is whether Ms. Okatan and/or Emine should be able to insist that counselling be provided by Ms. Pancer or whether Emine should receive counselling by a psychologist covered by Mr. Yagiz' employee health benefits.
[ 50 ] With respect to counselling expenses, 7(c) [of the Guidelines] refers to health-related expenses that exceed insurance reimbursement by at least $100 annually, including professional counselling provided by a psychologist or social worker.
Trips to Turkey
[ 51 ] Ms. Okatan claims reimbursement for the cost of $2,445 for sending Emine to Turkey in 2009.
[ 52 ] In the summer of 2009 Emine was 12.Her mother was not employed on a full time basis. The trip was not required for babysitting but for cultural and broadening of experience and relationship purposes.
Trips to the United States
[ 53 ] Ms. Okatan claims s. 7 expenses for 21 trips to the United States between 2007 and 2012 at a cost of about $1,000 per trip.
Conclusion re Section 7 Costs
Private School fees
[ 54 ] Given his income level, the lack of compelling evidence about Emine’s special needs and the amount of the NIL fees, I am not satisfied that Mr. Yagiz should be required to pay such costs under s. 7.
[ 55 ] On the evidence, and having regard to the circumstances and means of the parties, I am not satisfied that Emine’s particular educational needs warranted an expenditure for a private school that for the parents had a desirable emphasis. There was no evidence that the public school education Emine would otherwise have received was in any way deficient or that Turkish cultural activities and education could not have been provided on a supplemental extracurricular basis. Nor am I satisfied that the private school was necessary to satisfy Emine’s social needs at the time. Public school education apparently sufficient to satisfy Emine’s educational and social needs was available at no extra cost. Now a student in the public system she is doing well. While undoubtedly attendance at NIL was desirable to Emine and both of her parents, given their circumstances, it was economically unrealistic.
[ 56 ] With respect to public education expenses, Mr Yagiz is ordered to pay his share (based on his income of $42,367 and hers of $419 per month) of extra expenses in the public school totalling $1,512, including rental of musical instruments, school supplies and school trips, plus $2,038.25 for recreation and equipment between 2008 and 2012.
Counselling
[ 57 ] While I am of the view that Emine could benefit from counselling, given his income, the wording of s. 7 and the availability of counselling from a psychologist on his benefits plan, it was not reasonable for Ms Okatan [and/or Ms Okatan and Emine] to insist on counselling from Ms. Pancer, when counselling was otherwise available and unused for up to $500 per year on Mr. Yagiz' policy.
[ 58 ] While it is Emine's right to refuse other counselling, when Mr. Yagiz had coverage for counselling for her up to $500 per year, I am of the view that he should not be required to pay for a service that would have been available to Emine on his insurance had she opted to take advantage of it.
[ 59 ] A related issue is whether there was a need for counselling over $600 on an annual basis for which he would be expected to contribute in any event.
[ 60 ] I am not convinced on the evidence before me that even if she were to be counselled by Ms. Pancer, she would reasonably require more than 4 counselling sessions per year.
Turkey Trip
[ 61 ] Again while desirable, such a trip was not necessary and was unreasonable given the respective means and circumstances of the parties.
[ 62 ] While he may voluntarily agree to pay for plane tickets for her in the future, I do not consider those trips meet the criteria under s. 7
Trips to the United States
[ 63 ] In my view, the trips to the United States do not meet the s. 7 criteria.
[ 64 ] Ms Okatan did not distinguish between Emine’s costs and those of other family members who accompanied them. Other family members visiting family members should have been expected to pay their proportionate share of the costs. Again, while the decision to make the trips at her own expense was Ms. Okatan's to make, given the nature and cost of the trips, it was not reasonable to expect Mr. Yagiz to pay for them.
Disposition
[ 65 ] Mr. Yagiz is ordered to pay child care expenses of $390 per month commencing January 1, 2012. I have declined to suspend or vary downward Mr. Yagiz' obligation during the period he is on leave from his employment between July 15 and December 15, 2012.
[ 66 ] Mr. Yagiz is ordered to pay his prorated share (based on his income of $42,367 and hers of $419 per month) of s. 7 expenses in the public schools of $1,512 , including rental of musical instruments, school supplies and school trips, and his prorated share of $2,038.25 for recreation and equipment.
[ 67 ] In my view, the trips to the United States do not meet the s. 7 criteria.
[ 68 ] Counsel may make written submissions on costs on or before August 24, 2012.
M.A. SANDERSON
Released: August 9, 2012
COURT FILE NO. 01-FP-267719-0001
DATE: 20120809
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: leyla okatan Applicant - and – MEHMET ALI YAGIZ Respondent REASONS FOR DECISION M.A. SANDERSON J.
Released: August 9, 2012