Court File and Parties

COURT FILE NO.: 04-FA-13070FIS-0001 DATE: 20160414 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sebahat Cinar, Applicant in the original application; Respondent in the Motion to Change AND: Omer Cinar, Respondent in the original application; Applicant in the Motion to Change

BEFORE: Kiteley J.

COUNSEL: Mr. Cinar, self-represented Ms. Brett for Director, Family Responsibility Office

HEARD: April 14, 2016

Endorsement

[1] This case is an example of the need for a unification of family law proceedings.

[2] In 2011, Justice Backhouse made an order dealing with property and child and spousal support including an order that Mr. Cinar pay lump sum spousal support in the amount of $20,000 and pay child support in the amount of $719 per month based on annual income attributed to him of $80,000. The order provided that if the child attends university out of town, the monthly child support payable would be reduced to $300 per month. In paragraph 5, Justice Backhouse ordered that university expenses for the child be shared on a pro rata basis with annual income attributed to Ms. Cinar of $30,000.

[3] Mr. Cinar appealed that order and the appeal was dismissed with costs to be paid by Mr. Cinar in the amount of $6000.

[4] The child started at the University of Waterloo in the fall of 2011. Mr. Cinar says that the child stopped attending Waterloo University in the fall of 2014 and attended Ryerson University in Toronto. It is not clear from the evidence whether he is still in university.

[5] In 2013, there was an attendance before Justice Herman in this court apparently initiated by Mr. Cinar dealing with s. 7 expenses and table amount of child support. There was a case conference before Justice Goodman in 2014.

[6] The Director of the Family Responsibility Office commenced enforcement proceedings in 2013.

[7] On March 18, 2015 Mr. Cinar signed a consent to the order by Justice Zisman in which he agreed to pay the arrears in installments of $5000 (x3) and a final payment of $5638. He understood on that occasion that while he was required to comply with the order, he could bring proceedings in this court to challenge the arrears. Mr. Cinar paid the June installment voluntarily but did not pay the remaining installments voluntarily.

[8] In February 2015 in this court, Mr. Cinar issued a motion to change the order of Justice Backhouse in which he asks that, based on his income of $20,000, child support be reduced to $160.00 per month effective May 1, 2011. The documents are not clear but he asks that starting on May 1, 2011, the parents share the child’s university expenses on a pro rata basis. And he asked that the child support owed to the Applicant be fixed at $0 effective January 30, 2015.

[9] At the first DRO attendance, disclosure was agreed upon. At the second attendance, the DRO noted that neither party had complied with the earlier disclosure order.

[10] On November 19, 2015 Mr. Cinar brought a motion for an order to stop enforcement of the Family Responsibility Office and an order for disclosure from Ms. Cinar. Paisley J. made an endorsement in which he adjourned the motion for service and for Mr. Cinar to prepare a factum.

[11] On January 26, 2016, the matter came on before Stevenson J. and she made an order for disclosure by Ms. Cinar. She directed Mr. Cinar to service the Family Responsibility Office with all motion materials and she adjourned the issue of suspension of enforcement by FRO to February 4, 2016 to allow for service.

[12] On February 4, 2016, Justice Paisley made an endorsement adjourning the enforcement issue to February 25, 2016 and ordered Mr. Cinar to provide disclosure.

[13] In an endorsement dated February 26, 2016, Justice Paisley dismissed his motion to suspend enforcement.

[14] Because Mr. Cinar did not comply with the consent order dated March 18, 2015, the Director resumed enforcement proceedings. In late February 2016 on a motion for a warrant of committal, the motion was adjourned to April 19, 2016 on condition that Mr. Cinar paid $7500 which he did. According to the Statement of Arrears, Mr. Cinar still owes $8019.11.

[15] Mr. Cinar served another notice of motion in which he asks for the following: (a) an order to refund $2,876 plus interest as child did not reside with his mother for four months period as explained in paragraphs 9 and 33. (b) an order to refund $2,339 plus interest to me, the Applicant received by enforcement of Family Responsibility Office despite child support arrears claim was dismissed at the trial as explained in paragraph 7. (c) an order to refund $14,246 plus interest for difference between $300 and $719 Family Responsibility Office applied for the period as explained in paragraphs 18 and 35. (d) an order for Applicant to pay to the Respondent in the amount of $18,529.80 plus interest as her share for child’s university expenses as explained in paragraphs 12 and 36.

[16] I accept Mr. Cinar’s evidence in paragraphs 9 and 33 with respect to the 4 months of July, August, September and October, 2011 and that payment of child support should have been suspended during those months. He has overpaid by $2,876.

[17] I accept Mr. Cinar’s evidence in paragraph 7 that the amount of $2,339.89 was wrongly taken and he overpaid by that amount.

[18] Mr. Cinar takes the position that he should have paid only $300 per month, not $719 per month starting in the fall of 2011 when the child went to university. On that basis, he says he overpaid $14,246. In the absence of opposition by Ms. Cinar, I accept that there should have been a reduction. Accordingly, the order should have been varied to require payment of only $300 effective September 2011.

[19] Paragraph 5 of the order of Backhouse J. required the parents to contribute to the s. 7 university expenses on the basis that Mr. Cinar’s income was imputed to be $80,000 and Ms. Cinar’s income was imputed to be $30,000. He has provided many pages of documents that he says confirm that he has paid $67,942.63 for university tuition and expenses and he seeks reimbursement on the ratio of imputed incomes, namely $18,529.80. Mr. Cinar did not provide a detailed summary of all of the expenditures and it is not reasonable for him to expect the court to pour over so many individual expenditures. Even in the absence of opposition by Ms. Cinar, I do not accept that calculation and I reduce it to $50,000. Roughly on the basis of the ratio in the final order, Ms. Cinar is required to pay $18,000.

[20] Mr. Cinar is asking for orders that Ms. Cinar repay him certain amounts as indicated above. I will make orders that he has overpaid but I will not make orders that Ms. Cinar should be required to reimburse him. On this record, I cannot make a finding whether reimbursement is appropriate.

[21] Because of the lack of comprehensive jurisdiction in one court, Mr. Cinar has attended in the OCJ and in the SCJ on too many occasions to count. The documentation he has filed in this court has not been consistent with the Family Law Rules. In the end, the order that he sought today differed from what he asked for in the motion to change but I have decided the relief sought today was sufficiently within the parameters of the motion to change that he ought not to be required to go back to square one. The complexity of the Family Law Rules vis-à-vis enforcement by FRO in one court, and variation of a final order and compliance with the s. 7 order in another court has been daunting for the parties. In this court there have been two DRO attendances, 5 attendances before 3 judges, each having to sort out the procedural context, and multiple attendances by counsel for the FRO in the OCJ and in this court. As a result of the lack of a cohesive institutional response in cases like this, the parties have been challenged to find a path to a result and far too many judicial resources have been needed which could have been used more productively.

Order

[22] Pursuant to paragraph 4 of the order of Justice Backhouse dated April 27, 2011, Mr. Cinar has: (a) overpaid child support for the months of July, August, September and October, 2011 in the amount of $719 per month or $2,876; (b) overpaid child support in the amount of $2,339.89.

[23] Effective November 2011 and until September 2014, pursuant to paragraph 4 of the order of Justice Backhouse dated April 27, 2011, Mr. Cinar was required to pay child support to Ms. Cinar in the amount of $300 per month and accordingly, Mr. Cinar has overpaid child support in the amount of $14,246 calculated as $419 x 34.

[24] Mr. Cinar’s obligation to pay child support table amount and s. 7’s ended in September 2014.

[25] Pursuant to paragraph 5 of the order of Justice Backhouse dated April 27, 2011, Ms. Cinar shall pay to Mr. Cinar the amount of $18,000 on account of s. 7 expenses for university.

[26] Mr. Cinar may take out this order without approval of Ms. Cinar.

Kiteley J. Date: April 14, 2016