Court File and Parties

COURT FILE NO.: FC-16-287 DATE: 2018/09/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ERDAL OZTURK Applicant – and – CANAN DOGRU Respondent

Counsel: Self-Represented (for the Applicant) Claudia Bordes, for the Respondent

HEARD: September 21, 22, 23 and 24, 2017

REASONS FOR DECISION

D. SUMMERS J.

Introduction

[1] Mr. Ozturk brings this application under the Children’s Law Reform Act (“CLRA”) and the Family Law Act (“FLA”). He asks the court for an order giving him sole custody of the two children of the marriage or, in the alternative, joint custody. His pleading seeks an order that the children have regular access with their mother, the Respondent. At trial, he pursued an order for equal time sharing. Mr. Ozturk also asks the court for an order to prohibit the Respondent from removing the children to an area outside of a 50 kilometer radius from the Ottawa Courthouse, and an order authorizing police enforcement.

[2] The Respondent, Ms. Dogru, pleads under the Divorce Act. She seeks a divorce and corollary relief orders for joint custody with final decision making authority reserved to her. At trial, she argued for sole custody, with joint custody in the alternative. She asks that the children have their primary residence with her. Orders for child support, spousal support, and the equalization of net family property are sought as well as a restraining order against Mr. Ozturk and an order that he reimburse her for an amount equivalent to the child tax benefits that she was required to repay to the Canadian government. At trial, Ms. Dogru abandoned her claim for spousal support.

[3] No evidence was led that would allow the court to grant a divorce. As a result, the court is without jurisdiction to grant final corollary relief orders. I make the necessary amendment to allow child support to be determined under the FLA and the Ontario Child Support Guidelines.

The Issues

Parenting

(i) Is sole custody in the best interests of the children? If so, should decisions be made by their mother or their father? (ii) What is the time sharing schedule that is in the children’s best interests?

Child Support

(iii) What is the amount of child support to be paid? (iv) Should child support be payable retroactively?

Property

(v) What was the value of the matrimonial home on the date of separation? (vi) What is the equalization payment owing? (vii) Should occupation rent be paid? (viii) Should child tax benefits be reimbursed?

Background

[4] Mr. Ozturk and Ms. Dogru were married on September 11, 2008.

[5] Mr. Ozturk is 37 years old. He is a citizen of both Canada and Turkey where he was born on December 10, 1979.

[6] Mr. Ozturk currently works as an apprentice plumber. His training includes periods of classroom instruction through Algonquin College. Mr. Ozturk is the sole owner of the matrimonial home and continues to live there with his parents. His father lived with the family for a period prior to separation. His mother immigrated to Canada early in 2016.

[7] Ms. Dogru was born in Germany on June 8, 1981 to Turkish parents. She was living in Germany before marrying Mr. Ozturk in 2008, first in a cultural ceremony in Turkey and formally after moving to Canada. She was 36 years of age at the time of trial. Ms. Dogru’s parents still live in Germany. She is both a German citizen and Turkish citizen and is now a permanent resident of Canada.

[8] Ms. Dogru was trained in Germany to be a registered pharmacy technician. In Canada, she completed further training as a medical esthetician. Her attempt to establish a home business did not succeed. She worked at Shopper’s Drug Mart before and after her esthetics program. She has not worked outside of the home in several years.

[9] The parties have two children. Their first daughter, Ecrin Bensu Ozturk, was born March 20, 2011. Ecrin’s sister, Merve Cansu Ozturk, was born in Germany, on May 29, 2015.

[10] Mr. Ozturk and Ms. Dogru separated on June 10, 2015. Since then, they have been embroiled in litigation – first in Germany and subsequently in Canada.

[11] The children live with their mother during the week in Barrhaven - a location where she chose to move despite the considerable distance from Mr. Ozturk’s home. Access has evolved since separation. Mr. Ozturk now has the girls with him every weekend from Friday after school until Sunday evening. Holidays have been shared equitably.

Is sole custody in the best interests of the children? If so, should decisions be made by their mother or their father?

[12] Mr. Ozturk argues that he makes good decisions for the children. He contends that Ms. Dogru does not. A number of situations were canvassed at trial including Ms. Dogru’s decision to withhold the children in Germany that resulted in Mr. Ozturk’s application under the Hague Convention, the timing of Ecrin’s open heart surgery, choosing a school for Ecrin, and the frequency of Ms. Dogru’s residential moves.

[13] Mr. Ozturk states that he involves Ms. Dogru in the decisions that must be made for the children and he will continue to do so. He says his plan to raise the girls includes her. He does not believe that Ms. Dogru’s plan includes him. Mr. Ozturk does not trust Ms. Dogru. He believes that if given the chance, she will do what she can to marginalize him as a parent.

[14] Ms. Dogru does not deny that Mr. Ozturk consults her when there are decisions to make but says that her voice is always secondary. According to Ms. Dogru, he does not hear her as an equal. If she does not agree with him, she claims he gets angry and aggressive until she gives in. To get along, she says her only choice is to submit. Ms. Dogru describes her marriage to Mr. Ozturk as abusive – emotionally, physically, and sexually. She acknowledges that she no longer feels physically unsafe.

[15] Ms. Dogru agrees that joint custody is desirable and best for children when possible, but she says it is not possible here. She submits that she is the parent most capable of making decisions that are in the best interests of the children. She believes she is more in touch with their needs.

[16] The assistance of the Office of the Children’s Lawyer (“OCL”) was requested under the Order of Justice J. Mackinnon dated February 19, 2016. The clinical investigation was carried out by Ms. V. Morinville. Her report was released October 13, 2016. She testified at the trial.

[17] Ms. Morinville regarded both Mr. Ozturk and Ms. Dogru as loving, doting parents. She did not find any parenting concerns with either of them and said both were capable of caring for their children.

[18] It was Ms. Morinville’s opinion that joint decision making was not an option for the parties. However, she also expressed serious concerns about either of them having sole custody. Her fear was that sole custody would allow that parent to marginalize or possibly eliminate the other from the lives of the children. Nevertheless, she recommended sole custody to Ms. Dogru. She said she was doing so cautiously with the stipulation that Ms. Dogru consult and engage with Mr. Ozturk on all decisions. Only in the event of disagreement, should she make the final decision. Ms. Morinville said that Mr. Ozturk’s involvement was imperative for the sake of the children.

[19] I am of a different view. For the reasons that follow, I find that it is Mr. Ozturk who is the parent most capable of making decisions in the children’s best interests. I found him to be sincere in his testimony when he said he will involve and consult with Ms. Dogru in all custodial decisions. Conversely, considering Ms. Dogru’s testimony alongside the evidence of her past actions left me questioning the extent to which she would genuinely engage Mr. Ozturk in parenting decisions. Expressed differently, I was not persuaded that Ms. Dogru would put the children’s best interests ahead of her own when it came to their father.

The Legal Test

[20] The merits of a custody and access claim must be determined on the basis of the child’s best interests. Making that best interest determination requires the court to consider all of the child’s needs and circumstances. Those include:

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

The Hague Application

[21] After Ecrin’s birth, Ms. Dogru was diagnosed with epilepsy. This disorder made her second pregnancy high risk. As a result, the parties agreed that the baby should be born in Germany where Ms. Dogru would have the help of her parents. In early February, 2015, the family travelled to Cologne, Germany with the intention that Ms. Dogru and Ecrin would remain there with Ms. Dogru’s parents until the baby was born. According to Mr. Ozturk, it had been agreed that Ms. Dogru and the children would return to Canada by September, 2015.

[22] Merve was born at the end of May, 2015. In June, Mr. Ozturk travelled to Germany to meet her. Ms. Dogru advised him that the marriage was over and she intended to remain in Germany with the children.

[23] Mr. Ozturk brought an application under the Hague Convention for the return of the children to Canada. Ms. Dogru had already commenced custody proceedings in the German courts. His application had the effect of staying that action.

[24] Ms. Dogru argued that the children had not been wrongfully removed or retained. She denied separating in June and said they had been apart since February, 2015. She alleged that Mr. Ozturk ended the marriage then and left her to have the baby and raise Ecrin in Germany. Mr. Ozturk denied that there was ever any intention to separate in February, 2015. Although Ms. Dogru now describes her marriage as abusive, she did not argue this in the Hague application. On cross-examination, she said that she was too ashamed and embarrassed to do so.

[25] Mr. Ozturk’s Hague application was successful and Ms. Dogru was ordered to return Ecrin to Canada within two weeks of the decision. The court did not order that Merve be returned. Because she was born in Germany, the court reasoned it was not possible that she was wrongly removed or retained from Canada.

[26] Ms. Dogru appealed and in late December, 2015, the appeal was dismissed. Only when she determined that she had no further right of appeal did she agree to return to Canada. Even then, she asked for and obtained Mr. Ozturk’s consent to delay her flight by a few weeks to secure a better fare.

[27] When Ms. Dogru produced copies of her airline tickets, Mr. Ozturk learned that her flight from Germany to Toronto was via Turkey, where she and the children had a twenty one hour layover in Istanbul. He offered to pay for direct flights. She refused.

[28] Mr. Ozturk later discovered that Ms. Dogru had booked return flights (emphasis added) for the following week, again via Istanbul. When questioned, Ms. Dogru said the flights were booked that way by her father because they were cheaper.

[29] When Ms. Dogru arrived in Toronto with the children on February 4th, 2016, she immediately sought out the police, said she was afraid of Mr. Ozturk and asked to be taken to a shelter. The police assisted and she left the airport without seeing Mr. Ozturk who was there to meet them. He had no idea what happened or why until he contacted airport security. Mr. Ozturk immediately commenced this action and brought an urgent motion, without notice, for an order compelling Ms. Dogru to bring the children to Ottawa. That order was granted by Justice M. Shelston on February 9, 2016.

[30] The youngest child, Merve, had only German travel documents. Mr. Ozturk said Ms. Dogru refused to go the Canadian embassy to get emergency travel documents for the child. When asked why, she said a German passport was what she wanted and it was easier to get.

[31] Mr. Ozturk asks this court to consider Ms. Dogru’s attempt to withhold the children in Germany as evidence of her inability to act in the best interests of the children and how far she will go to exclude him from their lives. He also asks the court to see her travel arrangements and actions upon arrival in Toronto as a further attempt to keep him from the children notwithstanding the Hague order. His theory is this. He argues that the lengthy layover in Istanbul provided Ms. Dogru with sufficient time to obtain Turkish citizenship documents for the children through the Turkish underground. These documents would then be available for use the following week for the return flight to Turkey that had already been booked. Mr. Ozturk points out that the Hague order compelled Ms. Dogru to return Ecrin to Ontario but did not require the child to actually remain here. (Emphasis added). In his view, had Ms. Dogru successfully returned to Turkey with the children, it would have been impossible to find them. Turkey, he said, is different than Canada or Germany that way. Referring to his inability to trust Ms. Dogru, he said once you have doubt in your mind, it does not go away.

[32] While this is speculation by Mr. Ozturk, no persuasive reason was given why Ms. Dogru would have turned down his offer of a direct flight. She was travelling with her 4 year old and 8 month old baby. Her itinerary required approximately 30 hours of travel just to get to Toronto to only then face another 5 hour car ride to Ottawa. Considering Ms. Dogru’s actions upon her arrival in Toronto and Mr. Ozturk’s need to apply to this court to obtain yet another order to ensure the return of the children to their home in Ottawa, I do not accept Ms. Dogru’s explanation that her flight arrangements were made for cost saving reasons only. Her flight schedule alongside her request to go directly to a shelter upon arrival in Toronto lead me to infer that she was buying time until she and the children could leave Canada again the following week.

[33] Ms. Morinville was also of the view that Ms. Dogru had been duplicitous and dishonest with the court in Germany. All but one of the collateral sources contacted during her OCL investigation indicated there was no reason to believe that Ms. Dogru had permanently moved away. Although concerned about Ms. Dogru’s past attempt to withhold the children in Germany, Ms. Morinville was still of the opinion that Ms. Dogru’s reasoning behind other decisions had been more child centered.

[34] I find Ms. Dogru’s efforts to resist returning to Ottawa and her intention to leave again reveal a determination to keep the children apart from their father that was neither in keeping with their best interests nor with the spirit of the Hague order.

Ecrin’s Surgery

[35] When Ecrin was 2 years old, it was discovered that she had a heart condition. In late July, 2016, the parties had a follow up meeting with her pediatric cardiologist at CHEO. The doctor advised that she would be presenting Ecrin’s case to her colleagues in a few days. She anticipated there would be group agreement to move forward with the surgical repair even though it was surgery that could technically be done at any age. Mr. Ozturk and Ms. Dogru were advised there was agreement and were told that the next surgery date was September. The doctors were clear that Ecrin’s condition was not an emergency. In that sense, the surgery was elective and the parents were advised to consider the child’s recovery time in relation to their schedules before selecting a date. A follow up appointment was booked for a year in the event the surgery had not been done by then.

[36] The parties disagreed about the timing of Ecrin’s surgery. Mr. Ozturk wanted to have it done as soon as reasonably possible. Ms. Dogru denies Mr. Ozturk’s contention that she wished to wait until Ecrin was 12 or 13 years old before proceeding. She claims she did not want to postpone surgery that long but neither did she want it done in September. With school starting and her upcoming move to new accommodations, she did not see the fall as a good time. She did not say whether she proposed an alternate date.

[37] With further discussion, the parties agreed that Ecrin’s surgery would be scheduled for March, 2017. The operation went well even though the doctors discovered that her heart repair was more extensive than the tests had previously revealed. Ecrin is fine now and for that, her parents are grateful. Mr. Ozturk points to his insistence on surgery sooner rather than later as proof that his decision was the better one.

[38] What I cannot determine on the evidence is whether the decision taken at the time was or was not the best one in the circumstances. No one knew the full extent of the repair to be done to Ecrin’s heart until the surgery was under way. That it turned out to be a good decision is without question. What I can determine in this instance is that the parties were able to work through their differences. Compromises were made and a decision was reached. Ms. Dogru confirmed that she is glad the surgery was done.

Ecrin’s School

[39] Enrolling Ecrin in school for the 2016 fall term created conflict for the parties. Initially, Ms. Dogru registered the child in an English program but waited for a month before advising Mr. Ozturk, who believed that she should attend a Francophone school. Ecrin had gone to a French daycare and he thought she should remain fully immersed in the French language. Mr. Ozturk spoke of his daughter’s cultural richness and the language abilities she already had in English, German and Turkish. In his view, learning a language is easier at a young age. He thought it to be in Ecrin’s best interest to learn French sooner rather than later. He believed it would bring her opportunity in the future.

[40] Ms. Dogru saw their daughter’s education needs differently. She distinguished between Ecrin being at a French daycare in a play environment and being at a French school in a learning environment. She favoured a French Immersion program that would allow the child to develop both her English and French language skills. Ms. Dogru was also concerned about her ability to communicate with the teachers and to help Ecrin with her homework if she was at a Francophone school. Neither Ms. Dogru nor Mr. Ozturk speaks French.

[41] As Mr. Ozturk wished, Ecrin was registered in a Francophone school by mid-September, 2016. He remains steadfast that it was and is in Ecrin’s best interests to attend a Francophone school and holds this up as an example of his capacity to make better decisions for the children. Although Ms. Dogru is proud that her daughter is now speaking French, she still believes it was the wrong decision. She gave in, she said, because she felt like she had no choice. She reiterates that Mr. Ozturk gets angry and aggressive when she does not do what he wants her to do. I am not persuaded that Ms. Dogru was forced into this decision.

[42] Ms. Morinville was of the view that Ecrin’s interest would have been better served in a French Immersion program, at least initially. That, she said, would have provided an opportunity to observe how she learned before deciding on a French only program. Ms. Morinville saw Ms. Dogru as more knowledgeable about the children’s developmental needs. She acknowledged that both parties wanted the best for Ecrin but distinguished between Mr. Ozturk wanting the best for Ecrin and possibly not making the best decision in the circumstances. Ultimately, to avoid further disruption for Ecrin, Ms. Morinville recommended that she remain in the Francophone school where she was registered. Her concern was for the upheaval the child had been through over the previous year and the number of schools that she had already attended in a short time.

[43] By the time of trial, Ecrin had been in a Francophone school for a year. There was no evidence to indicate that it was not consistent with her best interests.

Multiple Moves

[44] Following Ms. Dogru’s return from Germany in February, 2016, she was given exclusive possession of the matrimonial home under the Orders of M. Shelston J. dated February 9, 2016 and J. Mackinnon J. dated February 19, 2016. Notwithstanding her right to exclusive possession, Ms. Dogru left the home in the spring and went to a shelter with the children. She claimed she was frightened and felt stalked by Mr. Ozturk because he would often attend the home of a neighbour, Mr. Paoletti, to visit his father. After Mr. Ozturk and his father vacated the matrimonial home to allow Ms. Dogru to move in, Mr. Paoletti offered to have Mr. Ozturk Sr. live with them and use a spare bedroom. Mr. Paoletti testified to this at trial. Ms. Dogru returned to the matrimonial home after a further order was granted by M. Shelston J. dated June 9, 2016 that granted exclusive possession to Mr. Ozturk failing her return.

[45] In late August, 2016, Ms. Dogru and the children moved to a location on Ogilvie Road in the east end of Ottawa but approximately 35 kilometers from Mr. Ozturk’s home. This is where she was living when Ms. Morinville completed her OCL investigation. By the time of trial a year later, Ms. Dogru had moved to a location in Barrhaven that was even farther away from Mr. Ozturk’s home. Ms. Dogru said she moved to Barrhaven because she liked the neighbourhood. On cross-examination, she agreed with Mr. Ozturk that there were family neighbourhoods in Orleans, closer to his home. This move required another change in schools for Ecrin.

[46] Under the circumstances and the upheaval for the children since separation, I find Ms. Dogru’s decision to move her residence for a second time in less than a year, in the absence of a reasonable explanation for doing so, to be inconsistent with the children’s best interest. In addition to forcing another change in schools for Ecrin, the move created even greater distance and travel time to and from their father’s house unnecessarily. The only reason given for the move was that Ms. Dogru liked the neighbourhood.

What is the time sharing schedule that is in the best interests of the children?

[47] Mr. Ozturk now has the children with him every weekend from Friday evening to Sunday evening. He seeks an order for equal time. He says he is very happy about the additional time that he now has with the children but says equal time is what would be fair to them and provide quality time with each parent. Mr. Ozturk was clear that he wants the children to have as much time with Ms. Dogru as with him. Based on his Monday to Thursday work schedule, he states the children could be with him during alternate weeks or each week from Thursday evening until Monday morning. He is willing to drive them across town for school as needed by the schedule. He says his parents are also available to help with the children.

[48] Ms. Morinville’s recommendation for primary residence to Ms. Dogru recognized that Merve had been separated from her father for the first 8 to 9 months of her life. Although this emotional and physical distance was the direct result of Ms. Dogru’s actions, it was still the child’s reality that she did not have the same secure attachment to her father that she did to her mother. Acknowledging this reality, Ms. Morinville was not prepared to remove the child from Ms. Dogru. She was the parent with whom Merve was securely attached. Ms. Morinville also considered that Ms. Dogru was in the home, not in the workforce, and was available to care for the children without need of third party caregivers.

[49] Ms. Morinville’s recommendation for access was for Mr. Ozturk to have the girls with him two evenings a week from 3:00 pm until 7:00 pm and from Friday at 3:00 pm until Saturday at 3:00 pm in week one. In week two, he would have the girls with him for one evening a week from 3:00 pm to 7:00 pm and for the weekend from Friday at 3:00 to Sunday at 6:00 pm. At the time, Ms. Dogru was living much closer to Mr. Ozturk than she is now and for a while they followed this schedule.

[50] After Ms. Dogru moved to Barrhaven, the parties recognized that the recommended schedule no longer worked and they agreed to the current weekend arrangement. The distance between their homes and the time spent in traffic made short mid-week visits impractical. It is somewhat surprising for Ms. Dogru to now ask the court to consider granting access as recommended by the OCL. Less surprising is Ms. Dogru’s wish to have some weekend time with the children for leisure activities.

[51] I am not persuaded that equal time sharing is in the best interests of the children at this time. Among other factors, I consider their young ages, the distance between their two homes and the extent of the travel that would be required for Ecrin from her father’s house to and from school and the instability they have experienced since 2015. Nor am I persuaded that the time sharing schedule sought by Ms. Dogru is in the children’s best interests or practical. When she moved to Barrhaven, it was recognized by the parties themselves that a schedule involving shorter and more frequent visits could not work. However, I accept Ms. Dogru’s request that the parenting schedule provide her with some leisure time with the children. I find that to be in the children’s best interest as I find it to be in their best interest to maintain generous time with their father. The following schedule meets these important considerations. The children will continue to have their primary residence with Ms. Dogru. In week one and week three, Mr. Ozturk will have the children in his care from Thursday evening at 5:00 pm until Sunday evening at 5:00 pm. He will drive Ecrin to school on Friday morning and Merve to Ms. Dogru’s home or to daycare, as the case may be. In week two, Mr. Ozturk’s parenting time will continue as it is currently from Friday at 6:00 pm until Sunday at 6:00 pm. In week four, the children will be in his care from Friday at 6:00 pm until Saturday at noon when they will be returned to Ms. Dogru. This schedule continues the weekend pattern that the children are accustomed to with their father, with only two days when transportation to and from school will be required. It also provides them with some leisure time with their mother once a month. A full weekend with her would have resulted in the children not seeing their father for almost two weeks. I encourage the parties to remain flexible with one another around this schedule in the best interests of the children.

[52] Ms. Dogru agrees that the children are happy with their father and that she is not concerned for them in his care. She knows he loves them and wants what is best for them. The evidence spoke to their improved ability as parents to spend time together for the sake of the children. Examples were given about weekend outings to water parks and other family venues where Ms. Dogru was invited and agreed to join in.

[53] I agree with Ms. Morinville that equal parenting should not be ruled out in the future. Both Mr. Ozturk and Ms. Dogru are capable and loving parents. Ms. Morinville saw that Merve was developing a strong bond with her father while also getting to know her paternal grandparents. That was in September, 2016 when Ecrin was 5 and Merve was a little over 15 months old. Considerable time has passed since then and the parenting schedule has changed significantly. No evidence was given to indicate that Merve has done anything other than develop the secure bond with her father that was denied during the first eight to nine months of her life.

What is the amount of child support to be paid?

[54] Mr. Ozturk’s Notices of Assessment for 2013, 2014 and 2015 confirmed his line 150 income as follows:

2013 $17,681.00 2014 $18,496.00 2015 $23,903.00

[55] Mr. Ozturk did not provide his 2016 Notice of Assessment but did produce his T4 slips from two employers and Service Canada for employment insurance benefits. His income from these three sources totals $31,721.46. To calculate his income for purposes of child support, he is entitled to deduct union dues in the amount of $1,375.80. The result is income equal to $30,345.66 for 2016.

[56] For 2017, Mr. Ozturk produced his record of employment from prior employment confirming earnings of $18,084.50 plus a current paystub for gross weekly earnings of $844.11. His paystub also confirmed year to date earnings of $4,584.63. He states his expectation that his income in 2017 will be $31,000.00.

[57] Ms. Dogru alleges that Mr. Ozturk has not fully disclosed his income. After a review of his bank statements, she argues that the deposits to his bank account were greater than his income. She submits his actual income for child support purposes is $42,410.00.

[58] Although not argued by Ms. Dogru, the Child Support Guidelines allow the court to impute income to a parent as it considers appropriate in the circumstances. The circumstances that can be considered are not limited.

[59] I am not persuaded by Ms. Dogru’s analysis of the bank accounts or that additional income should be imputed to Mr. Ozturk.

[60] I find Mr. Ozturk’s income to be as stated above.

[61] The table amount of child support for 2017 for two children under the Child Support Guidelines is $452.00 per month for the period between January, 2017 and November, 2017. Effective December 1, 2017, under the most recent version of the tables, the amount increased to $474.00.

[62] Within 15 days of the release of these reasons, Mr. Ozturk shall provide Ms. the court with complete copies of his 2016 and 2017 Income Tax Returns and Notices of Assessment. If his Line 150 income is not as stated, I reserve the right to make the necessary adjustments to child support.

Should child support be payable retroactively?

[63] With the exception of three payments totaling $850.00, and other miscellaneous contributions toward groceries and other expenses, Mr. Ozturk has not paid child support. The question now is whether he should be ordered to pay child support retroactively and if so, what is the effective date of that obligation?

[64] Under the FLA, the court may order that support be paid for any period prior to the date of the order. The leading authority on the issue of retroactive child support is the Supreme Court of Canada decision known as D.B.S. v. S.R.G. Although this case was decided under the Divorce Act, it is equally applicable here.

[65] D.B.S. v. S.R.G. set the framework for the exercise of the court’s discretion when deciding whether retroactive child support is to be ordered. The overarching principles that govern are: 1) each parent has an obligation to insure that their child receives proper support in a timely manner; and 2) the court must balance the support payor’s interest in the certainty of the status quo with the need for fairness and flexibility. Under this umbrella, the court listed these four factors to be considered: reasonable excuse for the delay requesting payment; conduct of the payor parent; the circumstances of the children; the hardship to the payor of a retroactive award.

[66] I have considered the principles in D.B.S. v. S.R.G. along with these four factors. Mr. Ozturk was not paying child support, therefore, it cannot be said that he has an interest in the status quo to protect or balance against the obligation to ensure that the child receives proper support.

[67] Ms. Dogru’s claim for child support was made in her pleadings dated March 4, 2016. That is the date that formal notice was given to exercise the rights of the children to receive child support. Prior to that, there is no evidence that she gave him notice that she wanted support.

[68] Mr. Ozturk argues that he has been generous with Ms. Dogru and the children. She acknowledges that he purchased food and gave her cash from time to time but says it was not nearly enough. Mr. Ozturk also points out that he pays for the children to attend German school and Turkish school on the weekend so they can learn about their cultural heritage and language. He currently contributes to an RESP for each of them. Nevertheless, Mr. Ozturk had notice of Ms. Dogru’s claim for child support and did not pay it. To that degree, he knowingly preferred his own interests.

[69] Ms. Dogru’s income consists of social assistance and government child tax benefits totaling $28,025.00 annually in 2017. This is not a situation where the children were enjoying a high standard of living. They will benefit from a retroactive child support.

[70] I find that a significant retroactive support award would cause Mr. Ozturk considerable hardship at this time. His Financial Statement discloses considerable debt. Leaving aside his mortgage which had decreased since separation by approximately $9,500.00, his unsecured personal debt has increased by over $43,600.00. In addition to his child support obligations, he owes a sizable equalization payment to Ms. Dogru and has no other assets aside from the matrimonial home.

[71] The court in D.B.S. v. S.R.G. held that if a retroactive award is appropriate, it should usually commence on the date that the recipient advised that support should be paid or renegotiated. That is the effective date of notice. If there is blameworthy conduct by the payor, an earlier date may be appropriate but as a general rule, not earlier than three years before notice was given. In cases of extreme blameworthy conduct by the payor, an even earlier commencement date may be appropriate.

[72] Considering the circumstances here I find that child support should commence effective April 1, 2016. The parties agree that Mr. Ozturk is to receive credit for the $850.00 he paid, against his retroactive support obligation.

Property

[73] For purposes of determining each party’s net family property, the valuation date is June 10, 2015. This is the date of separation. The disputed assets and liabilities include the value of the matrimonial home, a gift of diamond jewelry from Mr. Ozturk to Ms. Dogru and gifts of gold to the parties and the children during marriage.

What was the value of the matrimonial home on the date of separation?

[74] The matrimonial home is solely owned by Mr. Ozturk. There are two competing appraisals that provide estimates of value that differ by $21,000.00. The related issue that contributes more significantly to the amount in dispute is the cost to fix the cracks in the foundation of the home.

[75] Both appraisers were very experienced in their field and both were forthright in their testimony. In my view, the key difference between the appraisals is the valuation date used and the comparable transactions relied on by each of the professionals. Mr. St. Pierre reviewed transactions that were close to the date of separation and pre-dated it by approximately two months whereas two of the three properties considered by Mr. Thompson were sold after the date of separation. The law is clear on this point. In family law, post-valuation date evidence is not to be considered to determine the value of an asset as of the valuation date. For this reason and those that follow, I prefer the evidence of Mr. St. Pierre and find the value of the home to be $321,000.00.

[76] The first of the two appraisals was prepared by Scott Thompson of Affiliated Property Group. He inspected the property on March 17, 2016. Mr. Thompson’s report relies on sales of comparable homes before and after the date of separation. He estimated the fair market value to be $300,000.00. His opinion was premised on the repair work being done. In other words, only if the repair work was completed, was the property valued at $300,000.00. Mr. Thompson did not comment on the extent of the repairs required or the cost associated with the work. He recommended that the necessary repairs were to be determined by an engineer or foundation specialist.

[77] Mr. Thompson testified that his report reflected the property value as of March 17, 2016 and not June 10, 2015 which was the date of separation. When questioned about the difference these intervening months might make in his opinion of value, he said he did not think it would have any impact. He said the market in that neighborhood had been flat during this time.

[78] The second appraisal was obtained by Ms. Dogru from Mr. Yves St. Pierre of Aura Appraisal Services. He inspected the property in August, 2016 but valued it as of June 10, 2015. It was his opinion that the property held value of $321,000.00 on that date.

[79] Two of the transactions that Mr. St. Pierre relied on as comparable were three bedroom properties whereas the matrimonial home was a four bedroom property. Mr. St. Pierre’s report indicates that all of the properties that he relied on for comparison purposes had the same square footage. Mr. Thompson stated that the market is very different for three bedroom homes than it is for four bedroom homes but he did not say in what way the difference would impact value.

[80] To arrive at his value, Mr. St. Pierre adjusted for the cost of repairing the cracks. He made two adjustments – one for $700.00 and one for $5,000.00. The $700.00 adjustment related to an interior crack in the laundry room/storage area. He relied on two estimates obtained by Ms. Dogru and attached them to his report – one for $675.00 plus HST and one for $680.00 plus HST from Ottawa Foundation Inc. The latter quote states that it was based on a site visit to the home and specifically references repair by a polyurethane injection. The $5,000.00 adjustment made by Mr. St. Pierre when valuing the house related to an exterior crack in the brick that he described as long and “impressive” but noted the absence of any damage or corresponding cracks in the interior. Mr. St. Pierre said most new construction includes a plastic membrane around the foundation and tyvek on the upper stories to protect against leaks. It was his view that the exterior crack could be fixed by removing and replacing the damaged bricks. He testified that he based his $5,000.00 estimate on past experience and a discussion with a knowledgeable realtor. Mr. St. Pierre relied on the sale of comparable properties in the neighbourhood that pre-dated the date of separation by approximately two months. He stated that according to Ms. Dogru, the cracks had not changed in many years. This information was not disputed by Mr. Ozturk.

[81] Mr. Ozturk cross-examined Mr. St. Pierre regarding damage to certain areas of the matrimonial property that had been missed. In particular, he pointed Mr. St. Pierre to the dent in the garage door, the water stain in the garage ceiling from a leak in the roof and some damaged shingles on the roof of the house. Mr. St. Pierre did not agree that these items would impact on his estimate of value.

[82] Mr. Ozturk contends that the cost to repair the foundation is much greater than the adjustments allowed by Mr. St. Pierre. He seeks a deduction in the calculation of his net family property for $51,194.65. This was the quote that Mr. Ozturk received in May, 2016 from a foundation company. This quote was unsigned and based on considerable excavation work to “stabilize” the foundation. This document was included in Mr. Ozturk’s exhibit book.

[83] Neither party called the experts that prepared the estimates to give evidence on the extent or cost of the foundation repair despite both parties having previously indicated their intention to do so. Without the testimony of the individuals who prepared these estimates, I have no ability to determine the extent of the work required or the corresponding cost. As a result, I make no order in this regard.

Jewelry

[84] Mr. Ozturk claims he made a gift to Ms. Dogru of a diamond jewelry set on the occasion of Merve’s birth that she did not include in her net family property calculation. He says it is a custom in his culture to make a gift to the mother on the birth of your child. Ms. Dogru denies that she received such a gift. Mr. Ozturk claims she acknowledged the gift during the court proceedings in Germany and produced an email from his lawyer there confirming such a conversation.

[85] Mr. Ozturk produced documentation from the retailer confirming the purchase price of $2,312.30 for a diamond bracelet bought on March 26, 2015. That documentation further confirmed the purchase of a second piece of diamond jewelry on the same date for $1,104.00.

[86] I find that Ms. Dogru received this gift of jewelry. These items are to be included in the calculation of her net family property at a total additional value of $3,416.00. The difference between that value and the amount shown on the receipts produced by Mr. Ozturk is PST and HST which amount is not properly included in the value of the asset.

[87] Mr. Ozturk produced proof that he purchased the diamond jewelry on credit. On the date of separation, he had a corresponding debt of $3,899.96.

Gold Bullion

[88] Mr. Ozturk cross-examined Ms. Dogru on alleged gifts of gold received from family members during the course of their marriage. He described one such gift as a gold bar given to Ecrin. Another was a gift of a gold coin. Mr. Ozturk claims the gifts were made to them jointly and estimates their worth at $34,000.00. He contends Ms. Dogru relied on the gold to pay her legal fees in Germany. Ms. Dogru denied the allegation and Mr. Ozturk did not produce any evidence to support his claim, therefore, I make no finding.

Division of Household Contents

[89] Mr. Ozturk is not satisfied that the division of household contents was equitable. Ms. Dogru says it was fair.

[90] It was evident that this issue caused Mr. Ozturk considerable frustration. He had hoped to resolve it by discussion and agreement. Had that happened, he said he would have agreed to whatever Ms. Dogru wanted. Ultimately, a list of requested items was produced. Not all requests were agreed to but the real problem arose when Ms. Dogru attended the home to remove items and took things that had not been asked for, left behind others that had been selected, removed fixtures such as the hood fan from the kitchen, damaged the wall in the process, and then left it behind in the basement anyway.

[91] No evidence was provided that would allow the court to determine the value of what was taken or what was left. As a result, I cannot include an entry for household contents in the equalization calculation.

[92] Mr. Ozturk does ask that Ms. Dogru pay the cost to repair the damaged kitchen wall. He did not provide an estimate to complete the work. Considering the damage described and the electrical work required to re-install the fan, I find $500.00 to be a fair payment from Ms. Dogru. This payment should be set off against the equalization payment owing by Mr. Ozturk.

[93] Mr. Ozturk also seeks an order for Ms. Dogru to return his power tools. That order is granted.

Unpaid Costs

[94] Ms. Dogru does not dispute her failure to pay the costs ordered by the court in Germany plus interest. Mr. Ozturk seeks payment of $1,030.00 and I make that order. This payment is also to be set off against his equalization obligation.

Advance Payment

[95] Ms. Dogru acknowledges that Mr. Ozturk made an advance payment against the equalization payment in August, 2016 in the amount of $15,000.00. This amount is to be credited against the equalization payment below.

What is the equalization payment owing?

[96] Neither party challenged the remaining entries in the other’s Financial Statement. Based on my findings above and the net family property calculation below, Mr. Ozturk owes Ms. Dogru an equalization payment in the amount of $85,257.88 less his advance payment of $15,000.00, less the $500.00 owed to him to repair the kitchen and the sum of $1,030.00 for legal fees. The balance of $68,727.88 shall be paid within 60 days unless the parties agree otherwise.

Mr. Ozturk Ms. Dogru

Assets

546 Louis Toscano Drive $321,000.00 Orleans, Ontario Jewelry $3,416.00 Tools $500.00 TD Chequing Account – Joint $6,866.00 $6,866.00 Total Assets $328,366.00 $10,282.00

Debts

TD Mortgage $124,505.00 TD Line of Credit $1,764.32 $1,000.00 TD Credit Card $2,218.97 People’s Jewellers Credit $3,899.96 $ .00 Total Debts $132,388.25 $1,000.00

Date of Marriage Deductions

2005 Toyota Tercel $4,500.00 RRSP $1,680.00 TD Bank Account $10,000.00 $ .00 Total Deductions $16,180.00 $0.00

NET FAMILY PROPERTY $179,797.75 $9,282.00

DIFFERENCE = $170,515.75 EQUALIZATION PAYMENT = $170,515.75 x .50 = $85,257.88

Should occupation rent be paid?

[97] Mr. Ozturk’s application did not include a claim for occupation rent nor was it clarified when he first raised the claim. Nevertheless, both parties addressed the issue at trial. He seeks to recover $10,314.85 for the period between March 1, 2016 and August 31, 2016 during which Ms. Dogru had exclusive possession of the matrimonial home under the Orders of M. Shelston J. dated February 9, 2016 and J. Mackinnon J. dated February 19, 2016. This amount is based on his monthly mortgage payment, property taxes, and other fixed operating expenses for a total of $1,472.00 that he paid while Ms. Dogru remained in possession of the property. He testified that he also investigated the rental market and believed that a 4 bedroom house such as his would have rented for $1,900.00 a month plus utilities or $2,200.00 per month if utilities were included. If occupation rent is ordered, Mr. Ozturk seeks to have it set off against his obligation to make an equalization payment.

[98] Ms. Dogru disputes his claim for occupation rent. She had primary care of the children. She was not working and not in receipt of any support at the time. She had no ability to pay.

[99] The court has authority to order occupation rent under the FLA. The exercise of that authority is discretionary. The following factors are to be considered: the timing of the claim; the length of time the spouse occupied the home; in circumstances of joint ownership, the inability of the non-occupying spouse to realize his or her equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation.

[100] Here, I decline to make an order for occupation rent. I take into consideration that Ms. Dogru had exclusive possession of the property for only six months. The children were living primarily with her but Mr. Ozturk paid neither child nor spousal support. The house was owned solely by him. There is no evidence that he wished to sell the property to realize his equity.

Should child tax benefits be reimbursed?

[101] Ms. Dogru did not advise the Canada Revenue Agency (CRA) that she was out of the country with Ecrin when the family travelled to Germany in February, 2015. In my view, she did not do so because it was her intention to return to Canada after the baby was born. It was not until November, 2015 that she wrote to CRA to say that she had separated from Mr. Ozturk and had been living in Germany with the child since February, 2015. Until notified, the various available tax benefits continued to be deposited into the parties’ joint bank account. Those payments terminated in December, 2015 and CRA sought to recover the overpayment. When benefits resumed following Ms. Dogru’s return to Canada, CRA offset the overpayment against her current benefits.

[102] The debt has now been paid and Ms. Dogru seeks to recover that amount from Mr. Ozturk. He does not deny using the funds received during her absence to pay household expenses. For the period between March and the end of June, 2015, I do not find his reliance on those funds to be unreasonable. Prior to Ms. Dogru advising of her intention to separate, he had no reason to believe that their child’s absence from her home in Canada was anything other than temporary. There was no reason to question the child’s residency and the need to maintain a home for her. Ecrin’s stay in Germany with her mother was akin to an extended visit with her maternal grandparents. In my view, Mr. Ozturk should not be held responsible to reimburse Ms. Dogru for that portion of the tax benefits paid.

[103] The period between July and the end of November, 2015 is less clear. By then, Ms. Dogru had made it known to Mr. Ozturk that she intended to remain in Germany with the children yet she failed to inform the Canadian government of Ecrin’s absence for another four and a half months. On his end, Mr. Ozturk was actively pursuing a legal remedy to ensure that Ecrin and her sister were returned to Canada. That Ecrin was a resident of Canada was the basis of his legal efforts. The court in the Hague agreed with him and ordered that the child be returned. Nevertheless, the benefits were paid in Ms. Dogru’s name for the benefit of the child. She did not receive the money but has been required to repay it. Mr. Ozturk should not retain the benefit of monies that did not belong to him. I order that he pay to Ms. Dogru the sum of $10,067.00 in satisfaction of this claim.

[104] Ms. Dogru also blames Mr. Ozturk for the fact that she did not receive the Child Tax Benefit again until July, 2017. Why she contends he should be held accountable for this was not made clear. Mr. Ozturk claims she did not receive the benefits because she did not file her income tax returns until then. Her dealings with the Canadian government are her responsibility.

My Order

1. Mr. Ozturk shall have sole custody of the two children of the marriage, Ecrin Bensu Ozturk, born March, 20, 2011, and Merve Cansu Ozturk, born May 29, 2015. Before making a final decision that affects the best interests of the children, Mr. Ozturk shall consult with Ms. Dogru. In the event of disagreement, Mr. Ozturk shall make the final decision.
2. The children shall have their primary residence with Ms. Dogru.
3. Commencing October 3, 2018, the children shall reside with Mr. Ozturk as follows: (i) Week One – from Thursday evening at 5:00 pm until Sunday evening at 5:00 pm. He will drive Ecrin to school on Friday morning and Merve to Ms. Dogru’s home or to daycare, as the case may be. (ii) Week Two – from Friday at 6:00 pm until Sunday at 6:00 pm. (iii) Week Three – from Thursday evening at 5:00 pm until Sunday evening at 5:00 pm. He will drive Ecrin to school on Friday morning and Merve to Ms. Dogru’s home or to daycare, as the case may be. (iv) Week four – from Friday at 6:00 pm until Saturday at noon when they will be returned to Ms. Dogru.
4. All holidays will be shared equally.
5. Each party shall have two weeks of vacation with the children, not to be exercised consecutively until the youngest child is 9 years of age unless the parties agree.
6. Ms. Dogru shall not remove the children outside of the 50 kilometer radius from the Ottawa Courthouse, 161 Elgin Street, Ottawa, Ontario.
7. Mr. Ozturk shall hold the children’s passports.
8. Commencing April 1, 2016 until December 31, 2016, Mr. Ozturk shall pay child support to Ms. Dogru in the amount of $443.00 each month for Ecrin Bensu Ozturk, born March, 20, 2011, and Merve Cansu Ozturk, born May 29, 2015 based on his 2016 income of $30,345.66.
9. Effective January 1, 2017 until November 30, 2017, Mr. Ozturk shall pay child support to Ms. Dogru in the amount of $452.00 each month for Ecrin Bensu Ozturk, born March, 20, 2011, and Merve Cansu Ozturk, born May 29, 2015 based on income in 2017 of $31,000.00. Effective December 1, 2017, Mr. Ozturk the child support payable to Ms. Dogru each month shall increase to $474.00.00 Ecrin Bensu Ozturk, born March, 20, 2011, and Merve Cansu Ozturk, born May 29, 2015.
10. Mr. Ozturk and Ms. Dogru shall share s. 7 expenses for the children in proportion to income. Neither party will incur a cost to which the other is expected to contribute without first obtaining his or her consent.
11. Mr. Ozturk shall maintain the children as beneficiaries of the extended health and dental care coverage available to him through his employment for as long as they remain eligible.
12. Mr. Ozturk shall pay to Ms. Dogru an equalization payment, after adjustments, in the amount of $68,727.88 within 60 days unless the parties otherwise agree.
13. Mr. Ozturk’s claim for occupation rent is dismissed.
14. Mr. Ozturk shall pay Ms. Dogru the sum of $10,067.00 in satisfaction of her claim to be reimbursed for lost child tax benefits.
15. Ms. Dogru is to return Mr. Ozturk’s power tools within 10 days.
16. Ms. Dogru’s claim for a restraining order against Mr. Ozturk is dismissed.
17. If the parties are unable to resolve the issue of costs, Mr. Ozturk shall serve and file his costs submissions within three weeks. Ms. Dogru will then have three weeks to respond. Each party’s costs submissions are not to exceed five pages in length exclusive of the Bill of Costs and Offers to Settle.

Madam Justice D. Summers Released: September 19, 2018