A. Overview

[1] Figen Akova and Muhammet Orel were married in Turkey on December 11, 2011. Ms. Akova and Mr. Orel have one son, Omer, who is 7 years old. They separated in March 2016 when their son was less than a year old.

[2] Since Ms. Akova and Mr. Orel separated, there have been various orders dealing with decision making and parenting time. Since September 2020, Mr. Orel has had overnight parenting time for one night each weekend.

[3] In July 2019, Ms. Akova and Mr. Orel had a trial in the Ontario Court of Justice before Weagant J. The only issue at that trial was whether Ms. Akova could relocate to Turkey with Omer. After three days of evidence, Justice Weagant adjourned the trial. The trial never resumed and Justice Weagant never ruled on Ms. Akova’s relocation request. Instead, Justice Weagant transferred Ms. Akova’s relocation application to the Superior Court to be joined with a similar motion Ms. Akova had brought for permission relocate to Turkey with her older child from a previous relationship.

[4] As a result of Justice Weagant’s order, Ms. Akova commenced this application in the Superior Court of Justice in January 2020 in which she sought the following relief:[^1]

a. An order mirroring the orders made in the Ontario Court of Justice in relation to custody, decision making and child support (with the necessary amendments to reflect the 2021 amendments to the Divorce Act, RSC, 1985, c. 3); and

b. Permission to relocate to Turkey with Omer.

[5] Because of the travel restrictions caused by the global COVID-19 pandemic, Ms. Akova has decided not to move to Turkey and is no longer pursuing her relocation application. Ms. Akova is now only seeking sole decision making in relation to Omer and permission to travel with Omer without Mr. Orel’s consent.

[6] This matter proceeded as an uncontested trial. Mr. Orel was noted in default because he failed to file an answer. Ms. Akova served Mr. Orel with her materials for the uncontested trial but Mr. Orel has not responded.

[7] It is appropriate to incorporate into my final order clauses that reflect the current parenting time arrangements. There is no prejudice to Mr. Orel in continuing the orders already in effect. Mr. Orel will continue to have parenting time with Omer every weekend from 6:00 pm on Saturday until 6:00 pm on Sunday and otherwise as agreed to between him and Ms. Akova. The remaining issues for me to decide are as follows:

a. Is it in Omer’s best interests for Ms. Akova to have sole decision-making responsibility?

b. Is it in Omer’s best interests for Ms. Akova to be able to travel internationally with Omer without Mr. Orel’s consent?

c. Should Mr. Orel be imputed with an income for the purpose of paying child support?

d. Should Mr. Orel be ordered to pay costs?

[8] As long as Ms. Akova and Omer continue to live in the Greater Toronto Area, it is in Omer’s best interests to grant Ms. Akova sole decision-making responsibility, including the ability to apply for a passport and other travel documents for her son without the need to obtain the consent of the Respondent. It is in Omer’s best interests to allow Ms. Akova to travel internationally with him without Mr. Orel’s consent as long as Mr. Orel knows where and when they will be travelling and continues to have parenting time with Omer if they are away for an extended period of time.

B. Is it in the child’s best interest for Ms. AKOVA to have sole decision-making responsibility?

[9] A parent with decision-making responsibility can make significant decisions about their child’s well-being including with respect to (a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extra-curricular activities: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 18. There is a statutory presumption that a child’s parents are equally entitled to decision-making responsibility with respect to their child: Children’s Law Reform Act, s. 20(1). The burden is on Ms. Akova to establish it is in Omer’s best interests for her to be given sole decision-making responsibility.

[10] I am satisfied that having regard to the child’s physical, emotional and psychological safety, security and well-being, it is in his best interest for Ms. Akova to have sole decision-making responsibility in relation to his care: Children’s Law Reform Act, s. 24(2). There are four reasons for my decision.

[11] First, Ms. Akova has been Omer’s primary caregiver since his birth. Ms. Akova has had sole custody of Omer and sole decision-making responsibility in relation to Omer since June 2018. Pursuant to Justice Murray’s order, Ms. Akova is simply required to inform Mr. Orel of major decisions she makes in relation to health, education and travel. Granting Ms. Akova sole decision making will ensure continuity and consistency for Omer going forward.

[12] Second, Mr. Orel has had very limited parenting time with Omer since their separation in March 2016. Immediately after their separation, Mr. Orel was not able to see Omer because of the ongoing criminal proceedings. Mr. Orel did not see Omer at all between March 2016 and June 2018. In January 2018, Justice Murray of the Ontario Court of Justice granted Mr. Orel supervised access to Omer at an access centre but Mr. Orel refused to see Omer under those conditions. In June 2018, Justice Murray varied the access order to allow Mr. Orel to see Omer with a mutually agreed upon third party present. For the next year, Mr. Orel saw Omer sporadically for a few hours on the weekends. In May 2019, Justice O’Connell granted Mr. Orel unsupervised access every other weekend. In August 2019, Justice Weagant granted Mr. Orel nine hours of unsupervised parenting time each week. Justice Weagant also ordered that once Mr. Orel had an apartment without roommates, he would be granted overnight parenting time one night each weekend. Since September 2020, Mr. Orel has had parenting time one night per week. While Mr. Orel has seen Omer consistently since May 2019, his role in Omer’s life has been limited. It is anticipated that Mr. Orel will continue to have limited parenting time with Omer going forward.

[13] Third, there is a history of family violence in this case. Mr. Orel was found guilty of threatening bodily harm against Ms. Akova in January 2017. He was given a conditional discharge. On January 23, 2018, Justice Murray of the Ontario Court of Justice issued a restraining order prohibiting Mr. Orel from communicating with Ms. Akova except through a third party to arrange Mr. Orel’s parenting time or through counsel. That restraining order has been varied since 2018. Now, Mr. Orel can communicate with Ms. Akova by email to arrange his parenting time. While some communication between Ms. Akova and Mr. Orel is necessary to facilitate Mr. Orel’s parenting time, Ms. Akova should not be required to discuss significant parenting issues and decisions with the person who victimized her.

[14] Fourth, Ms. Akova is no longer seeking to relocate to Turkey. In her affidavit dated May 12, 2022, she states, “I am willing to continue to reside in Ontario.” I intend to order that Omer reside primarily with Ms. Akova in the Greater Toronto Area. Granting Ms. Akova sole decision-making authority will not allow her to unilaterally decide to relocate to Turkey with her children. Even if Ms. Akova has sole decision-making responsibility, there is no risk she will be able to use that authority to effectively terminate Mr. Orel’s parental rights.

[15] It is in Omer’s best interest to grant Ms. Akova sole decision-making responsibility, as defined in s. 18 of the Children’s Law Reform Act, over decisions in relation to (a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extracurricular activities. Ms. Akova shall advise Mr. Orel of any major decision she makes. Ms. Akova shall not change Omer’s place of residence without Mr. Orel’s consent or a court order.

[16] Ms. Akova’s mother and siblings live in Turkey. It is in Omer’s best interests to have a relationship with his extended family. The real issue is whether Ms. Akova should be allowed to travel to Turkey for extended periods of time without Mr. Orel’s consent.

[17] Mr. Orel has stopped participating in these proceedings. Mr. Orel attended a settlement conference on May 18, 2021 but failed to provide an offer to settle. He did not attend the trial management conference on July 28, 2021. He has not filed an answer and has been noted in default.

[18] Given Mr. Orel’s lack of participation in these proceedings, I am concerned that he will fail to respond to Ms. Akova’s requests to travel in a timely way and will frustrate her ability to take Omer to meet his extended family. I am, therefore, satisfied that Ms. Akova should be permitted to travel internationally without Mr. Orel’s prior consent. Ms. Akova is also given permission to apply for and renew a passport and other travel documents for Omer.

[19] Nonetheless, Mr. Orel is entitled to know when, where and for how long Ms. Akova intends to travel with Omer. If Ms. Akova is going to be out of the country with Omer for more than 72 hours, she shall provide Mr. Orel with an itinerary at least 14 days before they depart including information about their flights and where they will be staying while abroad. Ms. Akova shall also provide Mr. Orel with a telephone number where he can reach Ms. Akova while she is away in case of an emergency.

[20] Ms. Akova has asked for an order suspending Mr. Orel’s parenting time when she is travelling with Omer. It is not in Omer’s best interests to go long periods without any contact with his father. If Ms. Akova is travelling with Omer for more than a week, Mr. Orel shall have virtual parenting time with Omer by telephone or by video at least once per week for up to 30 minutes.

D. Child support

[21] Mr. Orel has an obligation to pay child support based on his income in accordance with the Child Support Guidelines. Mr. Orel is required to provide Ms. Akova with information about his income on an annual basis. Mr. Orel has not given Ms. Akova information about his income, so in January 2018, Justice Murray of the Ontario Court of Justice made an order requiring Mr. Orel to pay child support on an imputed income of $30,000 per year.

[22] Mr. Orel has continued to fail to comply with his obligation to provide annual disclosure of his income. I, therefore, have no information about Mr. Orel’s current income.

[23] In the circumstances, I am not prepared to vary Justice Murray’s order. Mr. Orel will continue to pay child support in the amount of $256 per month based on an imputed income of $30,000. Mr. Orel is required to give Ms. Akova accurate information about his income no later than June 1^st^ each year starting on June 1, 2023.

E. Costs

[24] Ms. Akova is seeking $1,500 in costs. As the successful party, Ms. Akova is presumptively entitled to costs: Family Law Rules, R. 24(1).

[25] Any costs order made must be fair, reasonable and proportionate. In deciding what amount would be fair, reasonable and proportionate, I must consider, the complexity of the issues, the conduct of the parties and the time spent on the litigation.

[26] Mr. Orel chose to stop participating in these proceedings. Ms. Akova made every effort to settle this matter. She had her settlement conference brief and offer to settle translated into Turkish so Mr. Orel could clearly understand them. Nonetheless, Mr. Orel rejected her offer, failed to attend the trial management conference and failed to file an answer. Ms. Akova, therefore, had no choice but to pursue this uncontested trial.

[27] I find that $1,500 is a fair, reasonable and proportionate amount for Mr. Orel to pay in costs.

F. COnclusion

[28] Ms. Akova’s application is granted in part.

[29] The following order is made:

a. Omer Faruk Orel, born June 2, 2015 (“Omer”) shall reside primarily with the Applicant Mother, Figen Akova in the Greater Toronto Area.

b. Ms. Akova shall have sole decision-making responsibility with respect to significant decisions with respect to Omer’s health, education, extra-curricular activities, culture, language, religion and spirituality. Ms. Akova shall advise Mr. Orel in writing of any decisions she makes about Omer’s health, education, extra-curricular activities, culture, language, religion and spirituality.

c. Mr. Orel shall have parenting time with Omer on the following schedule:

i. Saturday evenings at 6:00 pm to Sunday evening at 6:00 pm; and

ii. Additional time as can be agreed upon by the parties.

d. Parenting time exchanges shall take place at Yorkdale Mall, or at another agreed upon location.

e. The parties may communicate via email or WhatsApp for the purposes of arranging additional parenting time or scheduling exchanges.

f. Ms. Akova may travel internationally with Omer without the consent of Mr. Orel for a period of time not exceeding 60 days. The Respondent’s in-person parenting time shall be suspended during any international travel.

g. If Ms. Akova plans to be out of the country with Omer for more than 72 hours, she shall provide Mr. Orel with an itinerary for their trip including flight information, information about where they will be staying throughout their trip and contact information for them while away.

h. Ms. Akova may apply for and renew the passport (and any other government documents) for Omer without requiring the consent of the Respondent, Muhammet Orel.

i. If Ms. Akova is travelling with Omer for more than 7 days, Mr. Orel shall have virtual parenting time (by telephone or video) with Omer at least once per week for up to 30 minutes.

j. The Order of Justice Murray (OCJ) dated January 12, 2018 with respect to child support shall be terminated effective June 1, 2022.

k. Starting June 1, 2022 and on the first of each month thereafter, Mr. Orel shall pay child support to Ms. Akova for Omer Orel, in the amount of $256 per month, based on an imputed annual income of $30,000.

l. Mr. Orel shall give Ms. Akova a copy of his income tax return, notice of assessment, and all income information required by Section 21 of the Child Support Guidelines no later than June 1st each year starting June 1, 2023 for the purpose of assessing support in accordance with the Child Support Guidelines.

m. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.

n. Mr. Orel shall pay $1,500 in costs inclusive of HST and disbursements payable to Legal Aid Ontario within 60 days.

Davies J.

Released: September 9, 2022

COURT FILE NO.: FS-20-14723

DATE: 20220909

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FIGEN AKOVA

Applicant

and -

MUHAMMET OREL

Respondent

REASONS FOR JUDGEMENT

Davies J.

Released: September 9, 2022

[^1]: Ms. Akova also sought an order permitting her to relocate to Turkey with her older son, but she has since abandoned that claim.

Akova v. Orel, 2022 ONSC 5119

Case Summary

A. Overview

B. Is it in the child’s best interest for Ms. AKOVA to have sole decision-making responsibility?

D. Child support

E. Costs

F. COnclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

A. Overview

B. Is it in the child’s best interest for Ms. AKOVA to have sole decision-making responsibility?

C. Should MS. AKOVA be permitted TO TRAVEL INTERNATIONALLY WITH omer WITHOUT MR. OREL’S CONSENT?

D. Child support

E. Costs

F. COnclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues