Apolega v. Soliman, 2015 ONSC 3220

Apolega v. Soliman, 2015 ONSC 3220

COURT FILE NO.: FS-14-00394106-00

DATE: 20150521

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary-Anne Apolega

Applicant

• and -

SolomOn Soliman

Respondent

Appearing in Person

No-one Appearing for the Respondent

HEARD: May 4th, 2015

S. R. Goodman, J.

reasons for order

1This matter came on before me initially on March 3rd, 2015, as an undefended trial. The applicant, Mary-Anne Apolega, was not represented by a lawyer. Having read the material that she had filed in support of her claims, I was of the opinion that she had not adduced the necessary evidence to prove her case. Further, I wished to be sure that Mr. Soliman, who did not respond to the application or attend the trial, was aware both of the relief that Ms. Apolega was seeking and of the trial date. I made procedural orders on March 4th and adjourned the trial to May 4th, 2015. I did not seize myself with the matter.

2As it happens, the trial came before me for hearing on May 4th, 2015. In determining the issues before me, I have reviewed the following documents: Ms. Apolega’s application, dated April 14th, 2014; her Form 35.1 Affidavit in Support of Claim for Custody or Access, dated April 10th, 2024 [sic]; her Form 13.1 financial statement, sworn on April 10th, 2014 (with the attached income tax documentation); and the order of Paisley, J., dated September 19th, 2014, which granted a divorce to Ms. Apolega. I also reviewed the following additional material that she filed in support of her claims: her Form 23C Affidavit for Uncontested trial, dated March 31st, 2015; her Form 13.1 financial statement, sworn March 31st, 2015, with attached income tax documentation; and a Form 13B Net Family Property Statement. I am also satisfied that Mr. Soliman was aware of the trial date. In fact, he sent Ms. Apolega a relatively lengthy e-mail (in the Phillipino language), referring to various financial issues and seeking forgiveness from her and the parties’ son, David. While under oath and at my request, Ms. Apolega translated the e-mail into English and read it to me. (The e-mail, dated April 29th, was entered as Exhibit 1 on the trial.) More will be said about the children below.)

3I asked Ms. Apolega to supplement her written evidence by providing oral testimony, so that she could answer the questions that I had after reading the documentary evidence she had filed. She testified. Below, I will address each claim she makes, to the extent that I believe that some comment should be made about my determination of such claim.

Background Facts:

4The parties were married on January 4th, 2009. They separated in 2012. They were divorced by order of Paisley J., dated April 14th, 2014.

Child-Related Claims:

5The custody and support claims in this case fall to be determined under the provisions of the Divorce Act.

6The parties are the parents of two children, namely, David Carl Apolega, born on December 28th, 1999, and Kziah Cassandra Soliman, born on June 24th, 2010.

7Kziah has resided with Ms. Apolega since she was born. I am satisfied that Ms. Apolega has always been the parent who is responsible for meeting Kziah’s needs. Mr. Soliman worked abroad for three to four months at a time when the parties were cohabiting. Thus, he played a more limited role in the care of the children. According to Ms. Apolega, it is she who has not only cared for the children on a day-to-day basis, but also made all major decisions regarding them.

8According to Ms. Apolega, Mr. Soliman has not exercised any access to the children since the separation because he has been abroad. She has not opposed his having access; he has simply not made any requests for it. (Mr. Soliman apparently is currently living in the Phillipines, although it appears from his e-mail that he may also be working in Afghanistan at the current time.)

9David has been living with Ms. Apolega’s parents in the Phillipines since May 2014. He will be returning to Canada to live with Ms. Apolega in August 2015. Ms. Apolega has explained that given her need to retrain and her belief that at his age, David would thrive, if he were to be with her parents in the Phillipines while she retrained, she decided to have him live there. She simply could not afford to support the three of them in Toronto. David will return to Toronto this summer.

10In his e-mail to Ms. Apolega (Exhibit 1), Mr. Soliman has expressed that he wishes to visit David, but is reluctant to do so because he has no ability to contribute to his support, including David’s “tuition fee”. He says that he tried to reach out to David, but was not successful. He asks Ms. Apolega to speak to David and to ask David for his forgiveness and to talk to him. He asks Ms. Apolega to send him some pictures of Kziah. Ms. Apolega testified that when she was in the Phillipines in December 2013, Mr. Soliman asked to see the children on a day when she had already made plans. She said that she offered to have him see them on another day, but he did not want to do that. She did not hear from him again, until she received the April 29th, 2015 e-mail that he clearly sent in response to the material she has filed in support of her claims. Nevertheless, Ms. Apolega believes that it is important that the children have their father in their lives and is not opposed to his having reasonable access to the children on reasonable notice to her.

11In his e-mail, Mr. Soliman says, “Whatever you plan, go ahead, but I’d rather kill myself rather than have my children be ashamed of me.” [I believe that he is referring to his alleged inability to provide support for them. I will say more about this below.]

12Ms. Apolega seeks orders permitting her to apply for and/or renew the children’s passports, without the need for Mr. Soliman to consent to the application or renewals; permitting her to move the children’s permanent residence, without the need for Mr. Soliman to consent to the move; and permitting her to travel with the children outside of Canada, without Mr. Soliman’s consent. She asserts that because of Mr. Soliman’s lack of contact with her and his past failure to respond to her when she has reached out to him by letter or e-mail, she ought not to have to obtain his consent for the just-mentioned purposes.

13She also seeks an order permitting her to change Kziah’s surname from “Soliman” to “Apolega”. She testified that when David was born (in the Phillipines), the law required that he have her surname. The parties were not married at the time. The parties subsequently went their separate ways. About seven or eight years later, they got back together again and married in Canada. Kziah was given Mr. Soliman’s surname. Ms. Apolega believes that it is in Kziah’s best interests to have the same surname as her brother and mother. She believes that the children should have the same surname so that they will feel part of a family unit. Further, if Kziah’s surname is changed, it will mean that as she grows up, she will not have to explain to others why it is that she has a different surname from her mother and brother. In my view, it is also likely that if Kziah has the same surname as her mother and brother, Ms. Apolega will have less difficulty when travelling with the children. I asked Ms. Apolega whether it would be appropriate for Kziah to retain “Soliman” as a middle name. She testified that she wished for the children to be treated similarly in terms of their names. The parties had not given David the middle name “Soliman”; she wishes for the children to be treated the same. She seeks the name change under the provisions of the Change of Name Act.

14I am satisfied that it is in the children’s best interests that the orders requested by Ms. Apolega above be made, but with some notification terms and a limited mobility restriction.

Child Support:

15Ms. Apolega seeks an order for child support. She seeks an order for child support for the two children, starting as of January 1st, 2013. In her Form 23C affidavit, she concedes that she does not know Mr. Soliman’s exact annual income. However, she deposes that she is aware that he is making a “decent” amount of money from the rental of an apartment building in the Phillipines that has 10 units. In addition, she asserts that he owns several food carts/kiosks in different malls in the Phillipines. She also understands that he earns income from a scrap business. (Again, the e-mail suggests that Mr. Soliman may be working in Afghanistan, as he did at some prior time.)

16Mr. Soliman did not see fit to respond to the case or even to attempt to file a financial statement or other evidence on the trial. Instead, a few days before the hearing, he sent an e-mail to his wife, in which he seems to assert that he has no or a limited ability to pay child support. He suggests that had Ms. Apolega agreed to his receiving at least a portion of the proceeds from the sale of the matrimonial home (which proceeds are currently being held in trust), he might have been able to start a business so that he would be able to provide support. He asserts that the apartment building is still subject to a loan, which he has not paid for at least a year. He claims he owes about $5,000 Cdn. (Ms. Apolega’s conversion) on his credit card(s), due to the interest accrual on it/them. He referred to the likelihood of the repossession of his Ford Fiesta car. He referred to a lot, which was subject to a loan taken so that he could pay for his Montero automobile and then sell it, to be able to provide support for her and the children. However, he asserts that he got into an accident and had just learned that the insurance company had denied his claim. He adds, “I don’t know how to start all over again.”

17Simply put, Ms. Apolega does not accept Mr. Soliman’s claim to have no ability to support the children. She notes that his e-mail refers to employment in Afghanistan. She believes that he may well be continuing to work there for weeks at a time. She simply has no reliable evidence as to where he is living and what he is doing. Her father and friends had seen him in the Phillipines. He continues to have the food kiosks and apartment building. She testified that he has a lot in the “high end” area of Manila. Although he says that his sister owns one of the two automobiles, she believes it is his. His sisters are nurses, but also have food kiosks in malls. She submits that he has the ability to pay support, based on a Canadian income of $30,000 a year.

18She seeks the table amount of child support of $438 a month, for the period January 1st, 2013 to date, plus an order that he share the children’s “section 7” expenses under the federal Child Support Guidelines.

19I appreciate that Ms. Apolega may wish to receive the table of amount of support for David for the May 2014 to August 2015 period. Effectively, she asks that she be reimbursed for amounts that she either gave or wishes to give to her parents to compensate them for the day-to-day expenses they may have incurred for David while he is in their home. She also seeks a contribution to section 7 expenses, which I believe are past city programmes; babysitting costs; and extra-curricular some extra-curricular expenses. Having viewed the documents that Ms. Apolega attached to her Form 23C Affidavit, I point out that the costs incurred for a birthday party for Kziah do not qualify as a section 7 expense that is compensable under the federal Child Support Guidelines.

20As David was and is not living with Ms. Apolega and the evidence does not satisfy me that Ms. Apolega had to pay room and board to her parents for David, it would not be appropriate to require Mr. Soliman to pay child support for two children for the period that David has been and will be in his grandparents’ care, at least on the evidence before me. I order, then, that Mr. Soliman pay $438 a month for the period of January 2013 to April 2014, inclusive, for a total of $7,008.00. For the months of May 2014 to August 2015, Mr. Soliman must pay support for one child in the amount of $245, for a total of $3,920.00 for that period. Starting on September 1st, 2015, he shall pay monthly child support of $438.00 a month for two children to Ms. Apolega (on the expectation that as of September 1st, 2015, David will be living with his mother).

21She has produced registration receipts for the children for City programmes in Toronto totalling $176.00 in 2013 and a list of baseball fees for David in the Phillipines, for which she asserts that she and Mr. Soliman should be responsible, totalling about $772.00 for the period June 2014 to May 2015, inclusive.

22In addition to the above expenses, Ms. Apolega testified that she incurs babysitting expenses for Kziah, to enable her to attend school and to work. The babysitting time depends on her schedule. In 2013, when she was at Centennial College, she paid the babysitter $30 a day. In 2013, between March and September, she worked as a cashier. Between September and December 2013, she was in school full-time. She paid a total of $1,600.00 to the babysitter. In 2014, the amount of the expense changed when Kziah started school (which necessitated a babysitter for less time). Between January and September, she paid $25 a day to the babysitter and after Kziah started school, she paid $15 a day. In total, however, she paid $2,160 for both periods of time when she worked and went to school. In 2015, she started with a new babysitter. That sitter charges $10.00 to pick Kziah up from school and $20 when Ms. Apolega works at Joe Fresh at night. (Ms. Apolega works there between 18 and 25 hours a week, for minimum wage). Thus, she has been spending about $108.00 a month for babysitting services since January: $541.00 until the end of May. This will continue until September 2015 when the cost will likely be higher. Although Kziah will be in school full-time, Ms. Apolega anticipates working full-time, which will require help before and after work. At the current time, Ms. Apolega does not know what the cost will be at that time. Thus, for the period between January 2013 and the end of May 2015, the total cost of babysitting was about $4,301.00.

23In the not-too-distant future, Ms. Apolega expects to pay $36 a month for the months of May to August, inclusive, for dance programmes for Kziah. She would like to pay about $150 a month for voice coaching or lessons for Kziah, given her natural singing talent, but concedes that she cannot currently afford it. She also anticipates an expense for David for baseball this summer, totalling about $1,500 Cdn. Thus, I accept that she will either spend or reimburse her parents for dance and baseball fees of $1,644.00 between now and the end of August 2015.

24As I understand it, during the years 2013 to 2015, Ms. Apolega has worked part-time and also had income from “Hotpink Photobooth”, apparently a mobile photobooth business. Further, her financial statement, sworn on March 31st, 2015 shows a 12-month income for the period of April 1st, 2014 to March 31st, 2014 of $31,452. Her tax returns show significantly less income for tax purposes, due to the deduction of expenses from her business. Further, I am aware that Ms. Apolega has received student loans, as she shows a debt to OSAP of $40,000.00 in that financial statement. It is not clear as to what portion of the loan was referable to living expenses, as opposed to actual school-related expenses such as tuition and books. In the end, I am not satisfied on the evidence before me that Ms. Apolega’s income for child support purposes for the 2013 to 2015 period in issue is any less than $30,000 a year. In my view, it would be appropriate for Ms. Apolega and Mr. Soliman to share equally the children’s section 7 expenses until such time as either of them obtains a further court order changing the proportion of sharing. Thus, Mr. Soliman shall pay the sum of $14,374.50 to Ms. Apolega on account of the amounts of table support I have found, above, that he owes her for January 2013 to August 2015, inclusive; his 50% share of the babysitting expenses incurred between January 2013 and May 2015, inclusive; and the other section 7 expenses that I found were shareable for the period from January 2013 to August 2015, inclusive.

25In January 2013, the parties sold their jointly-owned matrimonial home, a condominium municipally known as 68 Grangeway Avenue, Suite 1803. Their real estate lawyer, John Zinati, is holding the proceeds in trust, pending the determination of the issues outstanding between the parties. Apparently, the amount being held is about $35,051.42. Thus, one-half the amount is Mr. Soliman’s share: $17,525.70.

26Given Mr. Soliman’s residence outside of Canada (likely in the Phillipines); his failure to pay support during the periods referred to above; his failure to respond to this case; and his expressed view that he cannot afford to pay support, it is unlikely that Ms. Apolega will be able to obtain payment of the above amounts in a reasonably timely and inexpensive manner. In my view, the amounts owing above ought to be secured and paid out of Mr. Soliman’s share of the proceeds from the sale of the matrimonial home immediately.

27After payment of $16,874.50 (the $14,374.50 amount and the costs order below of $2,500.00), about $651.20, plus any interest that has accumulated on Mr. Soliman’s one-half share of the proceeds from the sale of the matrimonial home that are held in trust will be left in trust. Mr. Zinati’s firm shall pay that balance to the Family Responsibility Office as security for the child support obligations under this order that are not paid out to Ms. Apolega via the $16,874.50 sum. If Mr. Soliman defaults under the order for support that is not covered in the $16,874.50 amount, then FRO may resort to the amount paid to them by Mr. Zinati’s firm to meet the support payments to the extent that they are sufficient to do so.

28Ms. Apolega seeks disclosure from Mr. Soliman for child support purposes. Ms. Apolega must also make disclosure, should she continue to seek a contribution by Mr. Soliman to the section 7 expenses that she incurs for the children.

Equalization Payment:

29Even though I attempted to explain to Ms. Apolega what she had to prove that an equalization payment was owing to her, the material she subsequently filed still did not address my concerns. Ms. Apolega submits that she has no way of knowing what the value of Mr. Soliman’s assets and debts were at V-day, for example, making it impossible for her to determine the equalization payment to which she claims she is entitled. He has not responded to her claim and has not made a claim, himself, for an equalization payment. In my opinion, he is taken to have accepted that the issue will be dealt with in the context of her claim. Ms. Apolega asks that the court order that there be no equalization payment. I do so. The evidence does not permit the court to arrive at the conclusion that either party owes an equalization payment to the other. Thus, to be clear, the issue of the equalization of the parties’ net family property is being decided in this case. No equalization payment shall be payable by one party to the other.

30This being the case, Mr. Zinati’s firm shall pay to Ms. Apolega her one-half share of the proceeds from the sale of the matrimonial home, currently being held by Mr. Zinati’s firm in trust for her, together with any interest that has accumulated on that one-half amount to the date of the payment out to her of her one-half share of the proceeds.

Costs:

31Ms. Apolega seeks a contribution by Mr. Soliman of about one-half the amount she has incurred in this case for legal services, legal advice and disbursements. It was she who had to take the steps to resolve the outstanding issues between the parties. It would be unfair, she submits, for her to have to shoulder the total costs of doing so. In my view, the request that Mr. Soliman pay $2,500.00 to her on account of her costs is fair and reasonable. She has succeeded in her requests for custody and child support and I have agreed with her position that the equalization issue should, effectively, be determined by the order I have made above. Her conduct in pursuing this case appears to have been entirely reasonable and appropriate. Having considered the costs considerations referred to in Family Law Rule 24, I order that Mr. Soliman pay costs to Ms. Apolega in the amount of $2,500.00 and that this amount of the costs she incurred be characterized as having been incurred to obtain of the child support order. These costs shall be paid to FRO by Mr. Zinati’s law firm immediately out of Mr. Soliman’s one-half share of the proceeds.

Final Order:

32In view of all of the above, I order as follows:

1. Ms. Apolega shall have custody of the children.

2. She shall be permitted to obtain and renew public documents for the children such as passports and health cards, without the need for Mr. Soliman to consent to her doing so.

3. Subject only paragraphs 4 and 5 below, if she decides to travel with a child(ren) outside of Ontario or she permits a child(ren) to travel outside of Ontario for a period that does not exceed 7 days, she may do so without the need to notify Mr. Soliman of the decision and without the necessity to obtain Mr. Soliman’s consent to such travel. If the travel is to exceed 7 days, then she must provide notice to Mr. Soliman of the decision/permission at least 21 days before the trip and unless Mr. Soliman obtains a temporary or final order during the 21-day period preventing the travel from taking place, it may take place, without the need to obtain Mr. Soliman’s consent.

4. If Ms. Apolega decides to change a child(ren)’s residence from its current location but within any of Toronto; York Region; Durham Region or Peel Region, she must provide Mr. Soliman with at least 60 days’ notice of her decision. Unless Mr. Soliman obtains a temporary or final order during the 60 day-period that prevents her from changing the children’s residence, then she may proceed with the change of residence, without the need to obtain his consent, but she shall provide Mr. Soliman with details of the address at which the child(ren) will be residing.

5. If Ms. Apolega wishes to move the children’s residence outside of the areas referred to in paragraph 4 above in Ontario, outside of Ontario, or outside of Canada, then she must provide no less than 90 days’ notice of her intention to do so to Mr. Soliman. So long as Mr. Soliman does not obtain a temporary or final order during the 90-day period that prevents such a change in the child(ren)’s residence within the 90-day notice period, then she is permitted to make the move, without the need to obtain his consent.

6. Mr. Soliman shall have reasonable access to the children in Toronto or elsewhere on reasonable notice to Ms. Apolega in writing and only with her consent in writing to it or with a court order.

7. Ms. Apolega shall be permitted to change Kziah Cassandra Soliman’s name to “Kziah Cassandra Apolega”, without the necessity of obtaining Mr. Soliman’s consent to the name change under the Change of Name Act.

8. Mr. Soliman shall pay $438 a month in child support for the two children for the period of January 2013 to April 2014, inclusive, for a total of $7,008.00. For the months of May 2014 to August 2015, Mr. Soliman must pay child support for one child in the amount of $245.00, for a total of $3,920.00. Mr. Soliman shall pay the sum of $3,446.50 to Ms. Apolega on account of the section 7 expenses she has incurred for the children since January 2013. For babysitting, the amount incurred and to be incurred up to May 2015, inclusive is included in this amount. For extra-curricular expenses such as dance and baseball, the expenses incurred and to be incurred up to and including August 2015 are included in this amount. These amounts are secured by Ms. Soliman’s one-half share of the proceeds from the sale of the matrimonial home, which proceeds are currently being held in trust by Joseph Zanati’s law firm.

9. Starting on September 1st, 2015 and on the first day of each subsequent month, he shall pay the table amount of $438.00 a month to Ms. Apolega for the two children under the federal Child Support Guidelines, based on an imputed income of $30,000 a year.

10. Starting on June 1st, 2015 and on the first day of each subsequent month, Mr. Soliman shall pay $54.00 a month (one-half of $108.00, the current amount) to Ms. Apolega on account of babysitting expenses she incurs for Kziah.

11. Mr. Soliman shall pay to Ms. Apolega the sum of $2,500.00 on account of the costs she incurred in this case, the amount to be characterized as a child support-related order. This amount is secured by Mr. Soliman’s one-half share of the proceeds from the sale of the matrimonial home, which proceeds are currently being held in trust by Joseph Zanati’s law firm.

12. Neither party shall pay an equalization payment to the other under the Family Law Act, R.S.O. 1990, c. F.3.

13. Joseph Zinati’s law firm shall pay to Ms. Apolega immediately her one-half share of the proceeds from the sale of the matrimonial home, plus any interest that has accumulated on it.

14. Mr. Zinati’s law firm shall immediately pay to Ms. Apolega the amounts owing to her under paragraphs 8 and 11 above out of Mr. Soliman’s one-half share of the proceeds from the sale of the matrimonial home, currently being held in trust by Joseph Zinati’s law firm.

15. After payment of the total amount referred to in paragraph 14 above, Joseph Zinati’s law firm shall pay the balance of Mr. Soliman’s one-half share of the proceeds from the sale of the matrimonial home, together with any interest that had accumulated on Mr. Soliman’s one-half share of the proceeds prior to the payout, to the Family Responsibility Office, as security for the support that Mr. Soliman is obliged to pay, pursuant to this order, and which has not been paid under paragraph 15 above. FRO may resort to the funds to pay child support to Ms. Apolega, should Mr. Soliman default in his support obligations.

16. Each year during which child support (table amount and section 7 expenses) is payable to Ms. Apolega, on or before June 30th, each party shall comply with his or her disclosure obligations that are set out in the federal Child Support Guidelines.

17. For clarity, the child support terms above are subject to be changed by court order, at either party’s request (on notice to the other by way of a motion-to-change, pursuant to Family Law Rule 15).

18. Notice to Mr. Soliman under this order and/or service of documents upon him in this case (including any motion-to-change) may be made in the future by sending an e-mail to him at the three e-mail addresses set out in my March 3rd, 2015 endorsement. If she is required to serve a document(s) to him, then she may attach it/them to the e-mails. Service and/or notice are effective 48 hours after all three e-mails are sent out.

S.R. Goodman, J.