ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: DF987/10
DATE: 2013-02-26
BETWEEN:
Evren Merve Cosgun
Applicant
– and –
Hasan Cosgun
Respondent
D.A. Bertolo, for the Applicant
Respondent Appearing in Person
HEARD: February 19, 20, 2013
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] By final order, pursuant to partial Minutes of Settlement, granted September 12, 2012, the parties resolved the issues of parenting of the children, child support, medical and dental coverage and life insurance. The same order directed a trial on the following issues:
a) property;
b) retroactive child support;
c) retroactive and ongoing section 7 expenses;
d) retroactive and ongoing spousal support;
e) entitlement to child tax benefit; and
f) costs.
Background
[2] The parties married in Turkey on April 12, 1994. They came to Canada in October 2000. The applicant, Ms. Cosgun (“mother) is 41 years of age. The respondent, Mr. Cosgun (“father”) is 49. They have four children:
i) Rumeysa Betul Cosgun, born February 23, 1995;
ii) Rufeyda Seyma Cosgun, born May 7, 1996;
iii) Hasan Ubeydullah Cosgun, born April 26, 1999; and
iv) Elyesa Safa Cosgun, born December 8, 2003.
[3] Separation occurred on January 1, 2010. A divorce was granted on September 23, 2010.
[4] Although there is disagreement as to the actual parenting arrangements after separation, the aforementioned final order provides that Rumeysa and Rufeyda have their primary residence with mother, Hasan has his primary residence with father, and Elyesa shares time with both parents on a fixed scheduled. Hasan also was to spend time with mother on a fixed schedule while Rumeysa and Rufeyda were to determine the time spent with father.
[5] This arrangement was formalized by the order and continued until October 2012. At this time, all four children were with mother. This continues to the present. Father travelled to Turkey in late November 2012, returning to Canada in early February 2013.
[6] Mother was a housewife for many years. She had employment in the latter period of cohabitation. Her income was $24,499 in 2009, $38,661 in 2010 and $23,078 in 2011. In 2010, her employment discontinued and she has since received long term disability income. Mother enrolled at Mohawk College in 2011 and expects to complete a social service worker program in April 2013. A one year placement follows graduation. She may be commencing employment in 2014. Mother has incurred significant student loan debt in her education program, said to be approximately $47,000.
[7] Father was employed by FPM Marketing for some time. His income was $29,915 in 2009, $30,717 in 2010 and $30,779 in 2011. Father quit his job on November 23, 2012, although he described it as taking a leave so that he could return to Turkey. He reported looking for employment while in Turkey but was unsuccessful. After returning to Canada, father indicated his former position was no longer available and, at present, he is unemployed. His source of income is said to be child tax benefit and GST rebate.
Retroactive Child Support
[8] Mother seeks an award for child support from January 15, 2010 to July 31, 2012. The existing order dealt with support commencing August 1, 2012. Father opposes this request and asks for compensation regarding the child tax benefit.
[9] Mother received the child tax benefit for all four children from separation to July 31, 2012. The existing order addresses the benefit thereafter. I cannot calculate the compensation father seeks as the benefit is determined on the income of the parent. I can only determine entitlement based upon findings regarding the actual parenting regime as it changed over time. The parties may then apply for a re-calculation of the child tax benefit by the appropriate government agency, subject to the terms of the order granted herein.
[10] Pursuant to the order of September 12, 2012, each party was to prepare and serve a written breakdown, on a monthly basis, as to where the children were living. They did so.
[11] Not unexpectedly, their evidence differs. Quite frankly, it is less than clear in its entirety as there was some movement by the children over the past several years.
[12] The monthly living arrangements are set out in the parties’ written report, attached to an affidavit. They adopted these reports in their evidence.
[13] There is no disagreement that Rumeysa and Rufeyda have primarily resided with their mother since separation. There is an evidentiary dispute as to Hasan and Elyesa.
[14] Mother says Hasan primarily resided with his father since separation, save for September to December 2011 and October 2012 to the present. Father does not disagree to any great extent, although suggesting Hasan was with him most of 2011. Hasan was seeing both parents in this time period.
[15] As to Elyesa, mother indicates his primary residence was with her throughout, while father claims it was a shared parenting regime with the child spending more than 45 per cent of the time with him. He also says Elyesa was primarily residing with him in January to June 2010 and with mother July to August 2010.
[16] There were also time periods when mother returned to Turkey with one or more of the children; however, I do not see that as being of significance in determining residence for child support purposes.
[17] Neither party presented a full and complete history of the parenting regime, in part due to the passage of time and having to rely on memory.
[18] In view, mother’s evidence is more compelling. Father was focused, in part, on attempting to establish over 45 per cent time with Elyesa, a difficult task when assembling events relying solely on memory. Minor changes are of no concern on this issue.
[19] Accordingly, I make the following findings:
a) Rumeysa and Rufeyda had their primary residence with mother from separation to July 31, 2012;
b) Hasan had his primary residence with father from separation to July 31, 2012, save and except for the time period of October to December 2011 when he was with his mother; and
c) Elyesa had his primary residence with mother from separation to July 31, 2012.
[20] As indicated, the order of September 12, 2012, deals with the parenting regime commencing August 1, 2012. All four children, however, have been with mother since October 2012, in part as father returned to Turkey in late November. The parties anticipate Hasan will be primarily residing with his father once his father obtains suitable accommodation. In terms of support calculations, father should have paid guideline support for all children and until Hasan returns to his residence, notwithstanding the court order.
[21] Based upon the parties’ incomes, as previously described, mother is entitled to retroactive child support, based upon the residence of the children, as follows:
January 15, 2010 to December 31, 2010 $ 6,192.00
January 1, 2011 to August 31, 2011 $ 3,016.00
September 1, 2011 to December 15, 2011 $ 2,562.00
December 15, 2011 to July 31, 2012 $ 3,052.00
October 1, 2012 to February 28, 2012 $ 2,175.00
Total: $16,997.00
[22] Further, father shall continue to pay guideline child support for four children of $725 per month, commencing March 1, 2012, and until Hasan returns to reside with him, based upon his imputed income of $30,700.
[23] When Hasan so returns, the parties shall revert to the order of September 12, 2012.
[24] I do not accept Mr. Cosgun’s unemployment as a factor in child support calculations. He quit his job in November 2012. No satisfactory reason was provided. Income, therefore, was imputed based upon his prior income.
[25] I also do not accept father’s evidence as to delivering funds to his daughters when mother was in Turkey. Documentation could easily have been obtained to substantiate the claim, failing which other witnesses could have been called. The evidence is neither logical nor persuasive.
[26] As mother received the child tax benefit for all children, father is likely entitled to apply for a re-determination based on the above findings. As the result of such would likely require mother to pay back a portion of the benefit received, and as a matter of equity, I direct that father is restrained from making such an application until the retroactive child support is paid. To do otherwise would allow him to benefit from not paying child support.
Retroactive Extraordinary Expenses
[27] Mother seeks payment from father of 50 per cent of the following section 7 expenses:
i) Rumeysa – karate $ 324.31
ii) Rumeysa and Elyesa – music $ 187.74
iii) Rumeysa – Y.M.C.A. $ 133.19
iv) Rufeyda – basketball $ 170.00
v) Rufeyda – orthodontic $6,091.76
vi) Rufeyda – Y.M.C.A. $ 133.19
vii) Hasan – soccer $ 99.40
vii) Elyesa – Y.M.C.A. $ 99.40
ix) All children – recreation centre $ 137.75
x) Rumeysa – driver’s licence $ 125.00
xi) Rufeyda – driver’s licence $ 125.00
xii) Children – judo ($157/mo.) $ 942.00
Total $8,568.74
[28] Receipts, for the most part, were provided. I am satisfied all items are legitimate section 7 expenses. I am also satisfied that all items, save the orthodontic or dental, are reasonable and that father must share in these expenses.
[29] Mother did not provide all of the orthodontic or dental invoices or receipts. She acknowledges father made some contribution, namely $900. The receipt provided reveals payment by insurance of $4,441.76. Mother also refused to allow the dental office providing copies of the invoices to father. In the circumstances, this part of the claim is denied, leaving a total amount of $2,476.98.
[30] Father claims to have paid some expenses. He provided no documentation.
[31] Father’s share of section 7 expenses should exceed 50 per cent on a pro rata basis. Mother’s request is more than reasonable as to the total amount as I have found. Accordingly, father is directed to pay to mother $1,238.49, being 50 per cent of the section 7 expenses.
Ongoing Section 7 Expenses
[32] On the same basis, the parties shall share ongoing section 7 expenses on an equal basis.
Spousal Support
[33] Mother is entitled to spousal support in the circumstances of this case. Her counsel, however, concedes that no spousal support is payable given father’s child support obligations. I agree. No award is made at this time.
Equalization of Net Family Property
[34] Once again, there is an evidentiary dispute. Quite frankly, the issue is straightforward. The dispute results from father’s lack of understanding as to the manner of calculation.
[35] For example, he seeks to revisit the sale of the property in 2005. Apparently the $70,000 proceeds were not divided equally. Separation, however, was in 2010 and, therefore, this transaction is of no concern.
[36] Similarly, father seeks reimbursement for mortgage payments and taxes from separation until the matrimonial home was sold in October 2010. The sale resulted in a loss, each party contributing funds to pay the balance of encumbrances. Further, father made no claim for reimbursement in his answer. He had exclusive possession of the matrimonial home since separation and had he presented such a claim, I am confident mother would have sought occupation rent. Lastly, father offered no explanation for the delay in selling the home.
[37] Father also seeks a credit for property owned on the date of marriage, for $25,000. He indicates the residence was sold during the marriage but offered no details as to the amount received or what use was made of the money. Father has not made out a case for this claim.
[38] In result, the above requests by father are denied.
[39] I have reviewed the net family property statements of the parties and accepted by them in their testimony. I find father owes mother an equalization payment of $769.80, based upon the following calculations:
Mother Father
Assets
Matrimonial home – sold at loss 0.00 0.00
Household contents $10,000.00
Vehicles $10,000.00 $ 6,000.00
Bank account $ 4,000.00
Property in Turkey $11,500.00
Total: $21,500.00 $20,000.00
Debt
Legal Aid $ 4,613.87 $ 4,613.87
To close residence sale $ 2,000.00 $ 1,255.88
Bank account overdraft $ 295.48
Visa credit card $ 2,000.00
Total: $ 8,909.35 $ 5,869.75
Assets on Date of Marriage
Jewellery $ 5,000.00
Vehicle $ 5,000.00
Total: $ 5,000.00 $ 5,000.00
Net Family Property $ 7,590.65 $ 9,130.25
[40] The parties agree on most of the above items or, at least, did not challenge same. While father raised some concern as to the value of mother’s property in Turkey, I note the order of September 12, 2012 directed the parties to obtain a formal valuation. Mother did so, but father did not. As there was no evidence to the contrary, I accept the valuation report as presented. Father also presented some complaint as to household contents. Save for one carpet and one bed, mother did not obtain any items from the residence. The household contents remained in father’s possession. He offered no evidence as to what happened to these items or their value. Mother estimated the value at $10,000. In my view, that is a conservative estimate.
Restraining Order
[41] Mother seeks a restraining order against father. There was an incident in the past as set out in the pleadings. In her testimony, mother said she was afraid of father. Father does not oppose a restraining order provided such does not interfere with his access as described in the existing order, specifically picking up the children at mother’s residence.
[42] Accordingly, an order is granted on this basis. Counsel for the applicant shall prepare a draft order and deliver it to the respondent for approval. If there is a dispute as to the terms, a hearing date shall be set by the trial coordinator and I shall determine the appropriate terms.
Summary
[43] In result, a final order shall issue on the following terms:
i) the respondent shall pay the applicant $16,997 for retroactive child support;
ii) the respondent shall pay to the applicant ongoing child support for four children of $725 monthly, based upon his imputed income of $30,700, commencing March 1, 2013 and until Hasan returns to reside with him when child support shall revert to the order of September 12, 2012;
iii) the respondent is retrained from applying for a recalculation of the child tax benefit for January 1, 2010 to July 31, 2012 until such time as the retroactive child support in (i) is paid;
iv) the respondent shall pay to the applicant $1,238.49 for retroactive section 7 expenses;
v) the parties shall share ongoing section 7 expenses equally;
vi) although the applicant is entitled to spousal support, no award is made at this time given the respondent’s child support obligations;
vii) the respondent shall pay to the applicant $769.80 as an equalization of their net family property;
viii) a restraining order is granted against the respondent in the usual terms, subject to the terms of the order of September 12, 2012. Counsel for the applicant shall deliver a draft order to the respondent for approval. If there is a dispute, the trial coordinator shall set a hearing date before me; and
ix) support deduction order to issue
[44] As father appeared in person at the trial, if there is a request for costs, I will require oral submissions. Either counsel for the applicant or the respondent may contact the trial coordinator for a date for a costs hearing.
D.J. Gordon J.
Released: February 26, 2013
COURT FILE NO.: DF987/10
DATE: 2013-02-26
ONTARIO
SUPERIOR COURT OF JUSTICE
Evren Merve Cosgun
Applicant
– and –
Hasan Cosgun
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: February 26, 2013
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