Court File and Parties

COURT FILE NO.: FC-22-920 DATE: 2023/02/13 SUPERIOR COURT OF JUSTICE – ONTARIO – Family Court

RE: Sukru Akyuz, Applicant AND Songul Sahin, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Applicant, self-represented Michael Leibovitch Randazzo, Counsel for the Respondent

HEARD: January 31 and February 8, 2023

Endorsement

[1] Both parties have brought motions requesting that the court determine the following issues:

a. Should the court recognize the Divorce Decree dated December 2020 issued by a Turkish court by way of a summary judgment?

Parenting

b. Which parent should have the decision-making responsibility?

c. What parenting time is in the best interests of the children?

d. Should the children change schools?

Child support

e. Should child support be changed from the interim Order of Justice James ordering the applicant father to pay child support in the amount of $700 per month?

Jointly owned property

f. Should the jointly owned property be partitioned and sold?

Restraining Order

g. Should the court issue a restraining order prohibiting the applicant from contacting the respondent mother?

Date of separation

h. What is the date of separation?

Financial disclosure

i. Should the father be sanctioned by way of a fine for not providing court ordered financial disclosure?

Background

[2] The parties were born in Turkey and were married in March 2009 in Turkey. They immigrated to Canada in 2011.

[3] They have two children of the marriage Zehra born December 4, 2013, and Zeynep born February 15, 2016.

[4] In November 2020, both parties filed a Joint Divorce Application in Turkey through the father’s legal counsel.

[5] On December 2, 2020, the parties attended before Judge Ayhan Istikbal in Turkey to confirm their consent to the following Divorce Decree:

• The parties would be divorced;
• The children would reside primarily with the mother and she would have primary decision-making responsibility;
• The father would parent the children every second weekend;
• The father would pay $500 per month as child support; and
• There was an acknowledgement that all their assets were divided to their satisfaction.

[6] On October 25, 2022, the father was charged with assault and forcible confinement. A letter from the Children’s Aid Society (“CAS”) indicates that the children were at risk of harm due to domestic violence, and it expressed concerns with respect to the father’s use of corporal punishment. The CAS is not taking a position in this motion, as the children are primarily living with the mother and their contact with their father is limited.

[7] Prior to the charges, the father had the children every weekend from Friday after school until Monday morning. After the charges were laid, the father’s parenting time with the children changed to the second and fourth weekends of each month, from Friday at 6:00 p.m. to Sunday at 6:00 p.m.

[8] As of today, the father has made only one child support payment.

[9] On March 18, 2022, the mother advised the father that she would be leaving the parties’ jointly owned property located at 291 St. Denis Street in Ottawa and moving to Rockland. On March 31, 2022, he asked her for her keys to her unit.

Issue #1 Should the court recognize the Turkish divorce decree?

Legal principles

[10] A motion for summary judgment is governed by Rule 16(6) of the Family Law Rules (“FLR”) which provides:

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).

[11] The Divorce Act s. 22 (1) states that:

A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of the proceedings for the divorce.

[12] In this case, neither party was habitually resident in Turkey for at least one year.

[13] The Divorce Act section 22 (3) is applicable here. It preserves the common-law rules regarding the recognition of foreign divorces.

[14] In Powell v. Cockburn, [1977] 2 S.C.R. 218, the Supreme Court held that only in rare circumstances should a foreign divorce which was properly obtained pursuant to the laws of that jurisdiction not be recognized as being valid.

[15] In Wilson v. Kovalev, 2016 ONSC 163, Justice Chappel summarizes the law in this area and she held that the onus is on the party who is submitting that the foreign divorce decree should not be recognized on any of the following grounds: no notice, contrary to Canadian public policy, the foreign country did not have jurisdiction to grant the divorce, evidence of fraud which goes to the jurisdiction of the granting authority and there was a denial of natural justice by the granting authority.

[16] She also stated that a minimal connection to the country may be sufficient (para 12).

Discussion

[17] For the reasons that follow, the court concludes that there is a genuine issue requiring a trial. The court finds that due the conflicting evidence, it cannot weigh the evidence and evaluate the credibility of the numerous affiants and it is in the interests of justice for such powers to be exercised only at a trial.

[18] Therefore, the court orders, pursuant to Rule 16 (6.2) of the FLR, that a hearing be set so that the court can receive oral evidence. A settlement/trial management conference will be held prior to the hearing to allow for settlement discussions and to determine the timelines for filing of documents and the cross-examination of the affiants.

[19] Firstly, there is uncontroverted evidence that:

a. The parties both admit that there were numerous discussions before the divorce decree that they would separate; b. The divorce decree indicates that it was on consent of both parties; and c. The divorce decree indicates that: “our Court sees that the parties declared their free will” and “our court finds that the parties’ terms of agreement reasonable”.

[20] The father is alleging that the divorce was obtained on a fraudulent basis, as the letter from his counsel confirms that there was no intention by the parties to be divorced and that the mother had indicated that she would not attempt to enforce the divorce decree in Canada. Furthermore, evidence that the parties did not consider themselves divorced, is that after the issuance of the divorce decree, they cohabited as husband and wife and did not separated until January 2021. He says that the mother told him it was a formality, and a divorce could be completed quicker in Turkey than in Canada and she would not enforce it, specifically the terms regarding parenting the children.

[21] The father states that he had travelled to Turkey to pick up the children to attend school in Canada, as due to the pandemic, they had not been attending school in person and he was very concerned about their education.

[22] The letter from the father’s Turkish lawyer, Yidiz Sahin, states that the parties were not really serious about the divorce. She raises an issue of manipulation and misrepresentation by the mother bordering on fraud. Her testimony supports the father’s position that the consent divorce decree was not meant to be enforced and that he was manipulated by the mother to enter into the terms of the divorce decree on the basis that she would not seek to enforce it.

[23] This allegation of manipulation and misrepresentation is borne out to some extent in the evidence in that the mother never requested child support until much later: November 2021.

[24] Also, the parties did not follow the parenting time set out in the divorce decree and in fact the father had full time care of them for a while after the divorce decree was issued. For example, was the main caregiver from December 17, 2021, to January 3, 2022.

[25] On the one hand, the father indicates that the divorce was completed in a hurry and the children were not given an opportunity to be heard. In addition, the parties did not follow the divorce decree, as she did not request child support until late 2021 and the father had the children full time.

[26] The mother’s reply affidavit alleges that the father’s lawyer is not neutral or objective as she is the father’s cousin and she acted for him and not both parties.

[27] She states that the Turkish court had authority to consider the best interests of the children and would only grant a divorce if the parties were separated or did not live together. She was unrepresented and if anything, he had the upper hand as he was represented.

[28] In her affidavit, the mother purports to advise the court regarding Turkish’s divorce law, but she has not been qualified as an expert.

[29] Next, there is conflicting evidence with respect to the Turkish law and what occurred at the time of the decree.

[30] The mother’s evidence is that after the divorce decree, the parties lived in separate units in their jointly owned property on St. Denis Street; she began dating someone in March 2021 because she believed they were divorced.

[31] The mother did tell the father at the time of the divorce decree that she would not seek the term of child support and was so happy that they would be divorced that she only asked for $100 per month but the court insisted on $500 as $100 was not a reasonable sum.

[32] She waived the right to spousal support and equalization payments and felt under pressure to do so in order that the divorce order proceed. She did not have counsel but rather he had counsel so she was in a weaker position.

[33] The court told the parties that they would have to deal with the Canadian property upon their return to Canada.

[34] There is a contradiction of evidence of whether the parties cohabited after the divorce and only separated on January 1, 2021, as submitted by the father. As discussed below, the court finds that there is a genuine issue requiring a trial with respect to the date of separation.

[35] In my view, there is conflicting evidence, and the court cannot weigh the evidence and evaluate credibility on the documentary evidence before it. In addition, if the parties did not legally consent to the divorce decree, then there is a question of whether the Turkish court had the authority to grant a consent divorce decree. This court questions whether a divorce could have been severed from the corollary relief.

[36] Evidence of Turkish law may be required at the oral hearing.

[37] Accordingly, pursuant to Rule 16 (6.2) of the FLR, the court orders a mini trial. A settlement/trial management conference will be scheduled to discuss the issues and to manage the trial and the witnesses.

[38] Therefore, the issues of parenting as set out below will be dealt with on an interim basis.

The children

Decision-making

[39] In determining the parenting issues regarding the children, the court must consider only their best interests.

[40] Regarding decision making responsibilities, the father currently has a condition of his bail release not to contact the mother. He was recently charged with assault and forcible confinement, but no trial date has been set.

[41] In these circumstances, it would be challenging for the parties to have joint decision making responsibilities. The father suggests “split decision-making” where he would make decisions on education (except school where it would be joint) and the mother would make decisions on health (unless it is major surgery).

[42] At this time, this type of decision-making regime would still require the parties to communicate and discuss major issues regarding the children. This is not feasible under the current bail conditions and, is not in the children’s best interests as it will add to the already high conflict situation. It could also delay the determination of an important decision.

[43] This lack of harmony and ability to communicate has hampered the children’s transfer of schools and has required them to be transported on highways to an Ottawa school from Rockland.

[44] In addition, the parties were unable to agree on whether Zehra should wear glasses or not, and whether the children should be involved in extra-curricular activities.

[45] Therefore, on an interim basis until further order of this court the mother will have sole decision-making responsibility.

Parenting time

[46] The mother moved to Rockland with the children after providing the 30 days’ notice to the father. His time with the children has not changed and therefore, this is not a relocation issue but rather, a change in residence.

[47] The email from father’s providing instructions for the return of the keys to the unit where the mother was residing is evidence that he was not objecting to the move.

[48] However, he was not prepared to consent to the children’s change of school. He strongly believes that as a teacher, he is in the best position to assist the children in their academic progress and schoolwork. He would like the children to live with him on weekdays and that they continue to attend Manor Park Public School in Ottawa.

[49] At this time, the children are transported every day from Rockland to Ottawa for school.

[50] I note that the children have resided with their mother in Rockland since spring 2022, which represents almost one year.

[51] As stated in Downs v. Downs, 2022 ONSC 3382, on an interim motion, the courts are reluctant to change the status quo unless there are compelling reasons to do so, or that the parties’ behavior is such that requires a change of parenting.

[52] The court notes that domestic violence has a negative impact on the children including emotional confusion, feeling of instability and insecurity, fear of being harmed or their parent being harmed. See Whidden v. Ellwood, 2015 ONSC 4126. Certainly, at this interim stage of the proceedings, the court has concerns with respect to these allegations and notes that charges have been laid but a conviction has not been entered.

[53] At this interim stage, the children are with their mother and a no-contact bail condition will ensure that the father does not contact the mother.

[54] The father has filed numerous letters from family and friends who have stated that he is a loving and caring father who looks after the children’s needs.

[55] I find that both parents love their children and want the best for them. At this interim stage, the court will not change the status quo as there are no compelling reasons to do so.

[56] However, the children should remain with the mother. The CAS intervention indicates that there has been domestic violence that has put the children at emotional risk and that they are content that the children are residing with the mother. The father has agreed to pursue a parenting program but has failed to do so. He indicates that he has registered for several programs.

[57] There is also concern with respect to his use of corporal punishment on the children and the court is concerned with respect to the emotional harm to the children, as the father videotaped the children while they were crying.

[58] Regarding the father’s parenting time, it is in the best interests of the children that they spend more time with their father. This is especially so since he has been involved in their academics.

[59] Therefore, the father’s parenting time will be increased to three weekends per month, (first, second and fourth weekends), from Friday evening to Monday morning when he will return them to school.

Choice of School

[60] Regarding the move, the mother did provide notice under s. 39.1 of the Children's Law Reform Act (“CLRA”), which requires that the parent with the children provide notice of a change in residence. There is no stipulated notice period provided in the section.

[61] The change of residence is not significant and results in an extra 30 minutes of driving for parenting time. The father’s time with the children has not changed because of the move. This is not really a relocation case but rather an issue of parenting of the children.

[62] The school reports filed indicate that the children are improving and progressing in their academics.

[63] The father acquiesced to the move and on an interim basis, the court finds that the children’s needs are being met by their mother in Rockland.

[64] When determining school, the court should consider the ability of each parent to assist in the homework, how much they were involved in the children’s educational program and the promotion of the child’s cultural and linguistic heritage. See Clarkson v. Harris, 2019 ONSC 4865.

[65] In Thomas v. Osika, 2018 ONSC 2712, Justice Audet articulated the following factors for the court’s consideration:

[37] The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion. However, a number of general principles have emerged from the case law to assist the decision-maker in making the decision in the child’s best interests. They can be summarized as follows:

a. Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody (Deschenes v. Medwayosh, 2016 ONCJ 567); b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are important elements affecting a child's best interests. In developing a child's educational plan, the unique needs, circumstances, aptitudes and attributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679 (Ont. C.J.)); c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567); d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, [1996] S.C.J. No. 52 (S.C.C.)); e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.)); f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)); i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479); j. Third party ranking systems, such as the Fraser Institute’s, should not factor into a Court’s decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479); k. If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.)); l. Custodial parents should be entrusted with making the decision as to which school children should attend. When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431); m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567).

[66] Additionally, the distance that a child must travel is also a consideration in the determination of the school. See Madore v. Bahuder, 2018 ONSC 4817.

[67] It is not in their best interests to be travelling every school day to and from Ottawa to attend school. The father has filed some evidence that he suggests that the school in Ottawa is better than the school in Rockland. As stated in Wilson, the fact that a school is ranked higher in academic standards in certain studies does not mean that this is the school that the children should attend. The choice of school must be determined in a holistic approach considering many factors and determining what is in the children’s best interests.

[68] The father continues to be involved in their studies, as he has them on some weekends. His parenting time has been increased to Monday morning, on three weekends per month. This would allow him to spend more time with the children and work on any school assignments and homework.

[69] It is in the children’s best interests that, on an interim basis, they attend school in the neighbourhood of the primary parent, i.e., Rockland Public School.

Child support

[70] The father is a teacher and until recently, he was working full time. His 2020 and 2021 Notices of Assessment Line 150 indicates incomes of over $90,000.

[71] He has only made one child support payment.

[72] The father has asked that child support be terminated at this time, as he is on stress leave from his work, He indicated that he intends to return work as a supply teacher.

[73] At the time of Justice James’ consent order, the parties agreed that he would pay $700 per month, based on a set off amount on the assumption that the children were spending more than 40% of the time with the father.

[74] He was also ordered to file an updated financial statement by January 31, 2023.

[75] He has failed to do so. Yet, he comes to court asking the court to vary this order that he consented to several months ago. He does not provide details of what he will be earning as a supply teacher and when this will commence.

[76] The court declines to change the child support owed at this time. The letter presented by the father to the court states that he is off work until January 31, 2023 “due to certified medical reasons”. It lacks details as to the diagnosis, prognosis and treatment.

[77] The issue of child support will need to be determined with a more fulsome record, including the father’s financial statement, as ordered by Justice James.

[78] In addition, the parties respective 2022 incomes should be before the court for its review when determining child support.

Jointly owned property

Legal principles

[79] Section 3(1) of the Partition Act provides that any person interested in land in Ontario may make an application for the partition or sale of the land. Section 2 states that all joint tenants, tenants in common and all parties interested in any land in Ontario may be compelled to “make or suffer” partition or sale of the land.

[80] A joint tenant has a prima facie right to the partition or sale of jointly owned lands: Mammoliti v. Smutniak, 2022 ONSC 6461, at paras. 25-27; Latcham v. Latcham, at para. 2.

[81] Allegations of malicious, vexatious or oppressive conduct and evidence relating thereto must relate to the partition and sale issue itself, and not the general conduct of a joint owner: Kaphalakos v. Dayal, 2016 ONSC 3559, at para. 17.

[82] The party opposing the sale must marshal evidence which will require the court to exercise its discretion to refuse partition and sale: Afolabi v. Fala, 2014 ONSC 1713, [2014] O.J. No. 2429.

[83] The court must consider potential prejudice to realistic claims yet to be determined on a final basis if a sale is to occur in the meantime: Dhaliwal v. Dhaliwal, 2020 ONSC 3971, at para. 16.

[84] In Marchese v. Marchese, 2017 ONSC 6815, at para. 18, the court outlined criteria for determining whether jointly owned property should be ordered sold:

The determination of whether a matrimonial home should be ordered to be sold is governed by the Partition Act, R.S.O. 1990, c. P.4 and the principles articulated by the Ontario Divisional Court in Kaphalakos v. Dayal, 2016 ONSC 3559, at paras. 16-17:

(a) a joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant; (b) a court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made; (c) the party opposing the sale must show malicious, vexatious or oppressive conduct to avoid the order; and (d) the malicious, vexatious or oppressive conduct must relate to the partition and sale issue itself and not to the general conduct of the person bringing the motion.

[85] In Greenbanktree Power Corp. v. CoinamaticCanada Inc. (2004), 75 O.R. (3d) 478 (C.A.), the Ontario Court of Appeal indicated that there are limited circumstances where the court can refuse a partition and sale and at para. 2, stated that it can refuse a partition if oppression is shown:

In our view, "oppression" properly includes hardship, and a judge can refuse partition and sale because hardship to the co-tenant resisting the application would be of such a nature as to amount to oppression.

[86] In Silva v. Silva (1990), 1 O.R. (3d) 436 (C.A.), the Court of Appeal indicated a further potential limitation on the circumstances in which an interim order for partition and sale of jointly-owned spousal property can be denied. At page 445, the court stated:

The two statutes are not incompatible, but where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.

Discussion

[87] The mother submits that the jointly owned property is the only asset that remains to be divided. Her equity is tied up in this property and the carrying costs are not being met. Also, certain expenses have been paid from the parties’ joint account.

[88] Under the Partition Act, she has the prima facie right to request the partition and sale of the jointly owned property and the father has not requested an order for an exclusive possession of the property.

[89] On the other hand, the father is requesting that the children reside with him and return to the jointly owned property. The children resided with him full time on a periodic basis and his parenting time plan involves the children residing with him on a full time or on a week on/week off basis with them attending Manor Park school.

[90] In addition, the father has made numerous proposals and settlement offers so that he could buy out the mother’s interest in the jointly owned property. A partition and sale will prejudice his rights, specifically as it deals with the children and his financial circumstances.

[91] In their pleadings, both parties have requested a division of property.

[92] In Binkley and Harewood, the Ontario Court of Appeal stated that an order for sale on an interim basis should not be made if the resisting spouse has an arguable case for (i) exclusive possession, or (ii) an order vesting the property into his name alone in respect of her claim for equalization or spousal support.

[93] The jointly owned property is located on St. Denis Street, in Ottawa, and is jointly owned by the parties. It is a three-unit residence and the rent collected is used to pay some of the carrying costs.

[94] This has led to issues for tax purposes as both parties did not discuss nor agree on what amounts would be claimed by them in their respective T1 annual return. This led to a term in Justice James order that the parties refile for 2019 and 2020 tax years. The parties are in a high conflict litigation and the ability to discuss matters and outstanding issues is very limited. They cannot agree on the amounts to be included in these tax returns.

[95] Nevertheless, the jointly owned property is the only asset left between the parties and the mother is interested in receiving her equity so that she may have some funds.

[96] The father has provided extensive details regarding debts and adjustments to be made from the mother’s interest.

[97] The mother is concerned that the rent payments are not sufficient to pay the carrying costs of the jointly owned property and the father has asked the mother to make those payments from their joint account.

[98] The court concludes that the father has failed to satisfy his onus in opposing the sale that there was malicious, vexatious, or oppressive conduct or any other ground as set out in the case law.

[99] Therefore, this court orders:

• The jointly owned property will be listed for sale within 30 days;
• The parties will choose a real estate agent by exchanging one name of a real estate agent within 15 days. If the parties fail to agree to a listing agent, the mother will choose the listing agent;
• The parties will cooperate with the signing of the listing agreement;
• The parties will cooperate with the sale and follow the directions of the listing agent;
• The father will permit the listing agent access to the property as necessary;
• The parties will cooperate on the sale of the property; and
• If either party fails to comply with this order, then the parties can return on a motion (I am not seized) and that party may request an order dispensing with the consent of the other party to effect the sale.

Restraining order

[100] Section 46 of the FLR reads:

On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

[101] At this time, the father is under bail conditions not to contact the mother. On an interim basis, the mother has the protection of the criminal proceedings.

[102] The court notes that there has been friction and conflict and that the mother alleges domestic violence throughout their relationship.

[103] At this point in the proceedings, cross-examinations have not taken place and, on an interim basis, the court is not required to complete an in-depth analysis and assessment of these allegations. Suffice to say that the father has been charged, he is innocent until proven guilty and that the mother is currently protected through bail conditions imposed on the father.

[104] Therefore, a restraining order will not issue at this time.

[105] If the condition of no-contact in the criminal proceedings is no longer in effect, the mother may renew her request for a restraining order.

Date of separation

[106] The mother states that the parties separated on August 31, 2019, when she moved from Chisasibi, Quebec to Montreal, Quebec. She indicates that she left him after an incident of domestic abuse. From August 2019 to December 2020 (the date of the Divorce Decree), the mother admits that the parties did live together but never for more than 90 days and never had an attempt to reconciliation.

[107] The father indicates that they separated in January 2021. Some affidavits filed by the father testify as to events where both parties attended as a couple. The affidavit of Ozcan Toprak is contradictory as in para. 11, he indicates that the parties did not live together after they divorced but then, he says that in March 2020, at the beginning of the pandemic, the couple moved to Ottawa together.

[108] Both parties have filed some evidence that supports their respective positions.

[109] The father filed his 2019 and 2020 tax returns on the basis that they were living together while the mother indicated that she was separated.

[110] The court has reviewed the evidence of other individuals who had contact with the parties at the relevant time. There are statements from tenants indicating they perceived the parties as husband and wife as they were living in the jointly owned property which contained three units.

[111] There is contradictory evidence provided in the affidavits filed by the father.

[112] For example, in the affidavit of Sukruye Ercenik, the father’s sister, it is detailed and described that if the parties do not have an agreement in Turkey, it takes three years to obtain a divorce. That is why she believed her brother agreed to the terms of the divorce on the basis that the mother would not try to enforce it in Canada. She believes that this is an attempt to obtain retroactive child support. The father came back with the children after the Divorce Decree and was the primary caregiver of the children until the mother returned. When she returned, the father moved from unit 2 to unit 1, at the 291 St. Denis building. In addition, she described, as did other affiants, that the parties attended a Turkish celebration held on December 31, 2019, after the date that the mother indicates that they were separated. Yet, the mother indicates that they did not attend this event as a couple.

[113] The affidavit of Munevver Erturk, a friend of the father, indicated that in April 2020, the father rented a room in unit 1, at 218 Alfred Street, for one year and they were neighbours. This contradicts other affidavits, including one from the neighbour, Zeynep Canker, who testified that in end of March 2020, she and her children, moved from unit 2 to unit 3, as the father moved to unit 2. She saw them living as a couple.

[114] In addition, many affiants are family members or friends who may not be objective.

[115] The determination of the date of separation is a genuine issue requiring trial. On the record before me, the court is not prepared to grant a summary judgment decision on the date of separation. There is conflicting evidence and based on the various statements made by various individuals, the court cannot make findings of credibility without cross-examinations of the deponents.

[116] For example, the mother indicates that the parties were separated before the Divorce Decree issued by the Turkish court in December 2020. She had visited Turkey during the pandemic, as the children were attending school remotely and their physical presence was not needed in Canada. She states that the parties had lived separate and apart and there was no chance of reconciliation.

[117] However, the father has put forth evidence that they returned together to Canada and continued to reside together in one of the units at the jointly owned property on St. Denis St. where tenants observed them as being together as a married couple.

[118] This issue may need to be determined at a focused hearing and after a settlement/trial management conference has been held. At the conference, the parties can discuss the issue and the evidence, which will be led at the focused hearing, including the filing of affidavits for the evidence in chief and opportunities to cross-examine the deponents on their affidavits.

Financial disclosure

[119] Should the father be sanctioned by way of a fine for not providing court ordered financial disclosure?

[120] There is no question that the father has failed to file an updated financial statement as ordered by Justice James.

[121] In addition, both parties have failed to cooperate to refile their 2019 and 2020 income tax returns.

[122] The father’s failure to provide his statement has repercussions. A court order is not a suggestion. Court orders must be obeyed. Rule 1(8) of the FLR sets out sanctions if a party fails to comply, including striking out his pleadings, that is removing his claims before the court and dealing with how he to participate in the proceedings. Case law also confirms that the court has jurisdiction to order a fine or monetary payment as a remedy for non-compliance.

[123] The father has not provided a reason for his failure to comply with Justice James’ order. The court notes that there was voluminous relief requested in the mother’s motion, extensive materials have to be filed by the father in support of his own motion and responding to the mother’s numerous requests. In addition, he was under some stress that he states has led him to leaving his employment.

[124] The court will extend the time for the father to file an updated financial statement. He must do so by no later than March 15, 2023, failing which, the other party may move to strike his pleadings and/or ask for other remedies pursuant to the FLR.

[125] With respect to the filing of the parties 2019- and 2020-income tax returns documents as ordered by Justice James, this will require cooperation by both of them, failing which, they can discuss it at a settlement conference, which is the next step in accordance with the order of Justice James. They cannot file the tax documents without a date of separation.

[126] In conclusion, this court orders the following:

• The parties will attend a settlement conference/trial management conference for the purposes of discussing the issues of the date of separation and the validity of the Turkish Divorce Decree and the management of the oral hearing;
• The mother will have interim decision-making responsibility of the children and their primary residence will be with her in Rockland;
• The children will attend the Rockland Public School;
• The father will have parenting time the first, second and third weekend of every month, from Friday evening to Monday morning;
• The child support will remain unchanged pending financial disclosure;
• The jointly owned property located at 291 St. Denis Street will be sold on the following terms:
  • The jointly owned property will be listed for sale within 30 days;
  • The parties will choose a real estate agent by exchanging one name of real estate agent within 15 days. If they fail to agree to a listing agent, the mother will choose the listing agent;
  • The parties will cooperate with the signing of the listing agreement;
  • The parties will cooperate with the sale and follow the directions of the listing agent;
  • The father will permit the listing agent access to the property as necessary;
  • The parties will cooperate on the sale of the property; and
  • If either party fails to comply with this order, then the parties can return on a motion (I am not seized) and the party may request an order dispensing with the consent of the other party to effect the sale.
• The request for a restraining order is dismissed; and
• The request for a fine for failure to obey a court order is dismissed. The court will extend the time for the father to file an updated financial statement. He must do so by March 15, 2023, failing which the other may move to strike pleadings and/or ask for other remedies pursuant to the Family Law Rules.

[127] Costs reserved to the trial Judge. The court notes that there is divided success.

Justice A. Doyle Date: February 13, 2023