Court File and Parties

COURT FILE NO.: FC-21-155 DATE: 2024/05/ 15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Selda Sahin Applicant AND Canpolat Sahin Respondent

BEFORE: Justice Engelking

COUNSEL: Ron Paritzky, For the Applicant Self-Represented Respondent

HEARD: February 27, 2024

Endorsement

[1] Ms. Sahin has brought two motions: one for an order striking the Respondent’s pleadings regarding non-parenting claims as well as certain other relief, and another seeking an order finding Mr. Sahin in contempt for failing to comply with certain court orders.

[2] Ms. Sahin’s Notice of Motion dated December 1, 2023, requests the following:

1. The following Orders pursuant to Rule 1(8) of the Family Law Rules: a. An Order for costs; b. An Order striking the Respondent's Answer insofar as all non-parenting claims are concerned; c. An Order that the Respondent is not entitled to any further order of this court until this court orders otherwise;

2. Updated financial disclosure including copies of all bank and credit card statements to which the Respondent and his corporations have access for the period January 2020 to date.

3. An Order permitting the release to the Applicant of the Respondent's remaining proceeds of sale of the former matrimonial home held in trust by Kelly Santini LLP, with credit to be given to the Respondent for equalization purposes.

4. An Order permitting the release to the Applicant of her share of the proceeds of sale of the property municipally known as 2041 - 401B Arrowsmith Drive, Ottawa, Ontario, KIJ, 7V7, with the balance of the net proceeds to be held in trust pending an agreement by the parties or further order of this court.

5. An Order requiring the Respondent to confirm the children are properly buckled in any vehicle in which they are driven by the Respondent by texting a photo to the Applicant cach time he transports the children.

6. Such further and other relief as this Honourable Court deems just.

[3] In her Notice of Contempt Motion dated December 1, 2023, Ms. Sahin seeks a finding of contempt of court because Mr. Sahin:

Have failed to provide outstanding disclosure ordered by Justices McEachern [sic] and Engelking including:

1. Income Report:
2. Business Valuation;
3. Bank Statements for the following personal and business accounts: Business a) TD Canada Trust - Canadian Emergency Business, account no. ***12-01 b) TD Canada Trust - 'I'D Business Travel Visa, account no. *** 8098 Personal c) TD Canada Trust - TD Every Day Savings, account no. *** 7908 d) TD Canada Trust - TD Business Travel Visa, account no. ***8098 e) TD Canada Trust - TD Cash Back Visa, account no. *** 5072 Personal f) RBC Advntge [sic], account no. *** 2228 g) RBC Credit Card, card no. *** 4780 Personal h) RBC, account no. *** 5916 i) RBC Credit Card, card no, *** 8822 j) RBC Credit Card. card no. *** 9218 k) RBC Credit Card, card no. *** 7912

Have failed to provide a sworn affidavit explaining the reasons for the increases for 2019, 2020 and 2021 for the following expenses along with documentary evidence confirming those increases: Vehicle expenses, Travel expenses, Professional lees, Salaries and wages, Supplies. Utilitics, Office expenses, Meals and entertainment, Insurance and bank charges.

[4] The relief Ms. Sahin is seeking on the contempt motion is:

1. An Order that the Respondent be imprisoned for a period of 48 hours if he has not purged his contempt by the Return date of this Motion:
2. An Order that the Respondent pay a fine in the amount of $1,000 if he has fully purged his contempt by the Return date of the Motion and if he has not purged bis contempt by the Return date of this Motion, an Order that the Respondent pay a fine of $5,000.
3. An Order requiring the Respondent to pay to the Applicant the sum of $2,000 as a penalty if he has fully purged his contempt by the Return date of this Motion and $10,000 if he has not fully purged his contempt by the Return date of this Motion.
4. An Order requiring the Respondent to pay the costs of this Contempt Motion on a complete recovery basis, regardless of whether the Respondent purges his contempt by the Return date of this Motion.
5. An Order permitting the Applicant to bring further contempt Motions without the need for personal service.
6. Such further and other relief as this Honourable Court deems just.

[5] Mr. Sahin did not file any response to Ms. Sahin’s motions, though he did appear in court. On the day of the motion, Mr. Sahin consented to two requests for relief of Ms. Sahin, and on February 28, 2024, I released an endorsement which provided as follows:

On consent of the parties, there shall be a temporary order as follows :

1. The sum of $50,182 shall be released to the Applicant from the Respondent’s share of the proceeds of sale of the former matrimonial home known municipally as 167 Asper Trail Circle, Ottawa, Ontario, K2M 0K7 and applied towards the arrears of child and spousal support in the amount of $42,606 as well as the child and spousal support due for the month of March 2024, with credit to be given to the Respondent for equalization purposes.
2. Mr. Matthew Landry shall be permitted to release the sum of $16,000 from the Respondent’s share of the proceeds of sale of the Arrowsmith property to Kalex Valuations Inc., in order to permit Kalex Valuations Inc. to release a copy of the business valuation to the Respondent and to the Applicant’s lawyer. These funds shall not be released until Kalex Valuations Inc. confirms the business valuation was completed on February 26, 2024, confirms it is owed not less than $16,000, both as the Respondent has claimed and until Kalex Valuations Inc. confirms it will release the report upon payment of the said $16,000.

[6] The first paragraph of my endorsement pertains to paragraph 3 of Ms. Sahin’s Notice of Motion. The second paragraph of my endorsement relates to Mr. Sahin’s obligation (based on a previous order requiring Mr. Sahin to provide a business valuation report), and his information to Ms. Sahin and to the court that his business valuator, Kalex Valuations Inc., had completed a report but would not release it without payment of $16,000. It also relates to Ms. Sahin’s request in paragraph 4 of her Notice of Motion for the release of funds from the proceeds of sale of 2041-401B Arrowsmith Drive, Ottawa, Ontario.

[7] Notwithstanding her Notice of Contempt Motion, Ms. Sahin did not make submissions regarding contempt. Rather, her submissions were focused on Mr. Sahin’s pleadings regarding financial issues being struck, or timelines being made for disclosure, a failure of complying with which would result in an order striking Mr. Sahin’s pleadings on the financial issues.

[8] Ms. Sahin’s position is that Mr. Sahin will owe her an equalization payment; however, she has been unable to determine what that payment will be based on, among other things, Mr. Sahin’s non-disclosure of the value of his business, Polat Construction, which is operated through a numbered corporation, 10047481 Canada Corp. She additionally submits that Mr. Sahin’s income for support purposes remains unknown, also for reasons of non-disclosure, although one has been imputed to him on a temporary basis.

[9] On March 3, 2022, Justice MacEachern made an order requiring Mr. Sahin “to produce the disclosure sought by the Applicant in her Motion dated July 15, 2021, within 30 days.”

[10] On May 17, 2022, Justice MacEachern made an order that neither party was “to smoke in the vehicle if the children are also in the vehicle or allow other persons to do so.” She also ordered the parties “to ensure that the children are properly buckled into safety restraints (seatbelts) when travelling in any vehicle when in that party’s care.”

[11] On October 26, 2022, I granted an order varying the non-smoking prohibition to include any indoor spaces, providing for child and spousal support on an imputed income to Mr. Sahin, ordering the sale of two of three jointly held properties and requiring Mr. Sahin to “provide disclosure of any outstanding items from Schedule “A” of the Applicant’s Notice of Motion and/or Justice MacEachern’s orders of March 3, 2022 and May 17, 2022, as well as a sworn affidavit explaining the reasons for the increases for 2019, 2020 and 2021, for the following expenses along with documentary evidence confirming those increases: Vehicle expenses, Travel expenses, Professional fees, Salaries and wages, Utilities, Office expenses, meals and entertainment, Insurance and Interest and Bank charges.”

[12] On February 3, 2023, I ordered Mr. Sahin to pay Ms. Sahin $10,000 in costs for the motion resulting in the October 26, 2022, order.

[13] In her motion materials, Ms. Sahin asserts that despite three court orders, each with timelines included, Mr. Sahin has not yet provided the following:

(a) An income report; (b) Business evaluation– this may or may not be received as a result of my February 28, 2024 endorsement; (c) Bank statements as outlined in paragraph 3, a. through k. above; and, (d) A sworn affidavit explaining the change in business expenses as outlined in paragraph 11 above.

[14] Ms. Sahin also seeks updated financial disclosure, being all bank account and credit card statements of Mr. Sahin and his corporation from January of 2020 to the present.

[15] At Exhibit “E” of her affidavit sworn on January 30, 2024, Ms. Sahin has included a list of the disclosure she considers to still be outstanding, as well as of that provided. Very few items are marked as having been satisfied. However, several of them may be satisfied, or unnecessary, if a business valuation report for Polat Construction is obtained. Others, for example those requiring explanations (numbers 6, 7, 9, 11, 12, and 13), may be more appropriate for questioning.

[16] Additionally, Mr. Sahin provided Ms. Sahin with many of the missing documents by email on February 26, 2024, the day of the motion. Ms. Sahin provided a list of what she received to the court, and it included many of the outstanding bank statements, though some were illegible and/or disorganized.

[17] Ms. Sahin nevertheless requests an order that Mr. Sahin’s pleadings in relation to the financial issues be struck, or that he be given one last time in which to provide certain disclosure, failing which his financial pleadings be struck.

[18] Both the striking of pleadings, and findings of contempt, are to be reserved for the most egregious of cases, and where no other remedy is available.

[19] In this case, I have already made an order for the payment of proceeds from the sale of the Arrowsmith property for the release of the business valuation report of Polat Construction from Kalex Valuations Inc. This may go a long way to satisfying Ms. Sahin’s need. I am, however, unaware, if it has in fact a) been completed, and b) been released since the motion was heard.

[20] I am, therefore, going to make a further disclosure order with timelines, and invite the parties to return to an appearance before me to ascertain next steps, if necessary. Failure by Mr. Sahin to comply with my order may, at that point, result in an order striking his pleadings.

[21] I decline to make any further order in relation to the parenting issues, those being the smoking in the vicinity of the children and the seatbelt issue. As I indicated, Ms. Sahin did not make any submissions on the issue of contempt nor take the court through the test for such a finding, and/or how the circumstances in this case have met the test. I am of the view that Ms. Sahin would be better served by moving her matter on to trial rather than seeking temporary relief on the same issue on which she has already sought relief. Ms. Sahin’s practice, moreover, of having Mr. Sahin followed and watched by a private detective is beginning to border on inappropriate.

Order

[22] There shall be an order, in conjunction with my February 28, 2024, order on consent, as follows:

1. The Respondent shall provide to the Applicant an income valuation report within 60 days of today.
2. If a business valuation report has not been provided to the Applicant by the Respondent as per my order of February 28, 2024, the Respondent shall provide a business valuation report to the Applicant within 60 days of today.
3. The Respondent shall provide to the Applicant corporate tax returns, including all schedules, for Polat Construction or 10047481 Canada Corp. for 2022 and 2023 no later than June 30, 2024.
4. The Respondent shall provide to the Applicant any bank/credit card statements not yet provided, as well as legible copies of the following bank/credit card statements, by no later than June 30, 2024: TD Business Travel Visa #2600 – June 5, 2018, June 5, 2019, August 6, 2019, September 5, 2019, November 5, 2019, January 6, 2020, March 5, 2020, and June 5, 2020. TD Business Visa #4185 – August 5, 2022, September 6, 2022, and November 7, 2022. TD Business Visa #6621 – October 6, 2020, May 5, 2021, June 7, 2021, and April 5, 2022. TD Cash Back #6739 – March 17, 2020, April 17, 2020, September 17, 2020, November 17, 2020, December 17, 2020, February 17, 2021, May 17, 2021, June 19, 2021, February 17, 2022, March 17, 2022, April 18, 2022, and June 17, 2022. TD Cash Back #5072 – November 17, 2022
5. If the required disclosure is provided as set out above, the Applicant may proceed to questioning for a maximum of three hours.
6. If the required disclosure is not provided as set out above, the Applicant may schedule a further appearance before me through the office of the Trial Coordinator, at which time an order striking the Respondent’s pleadings on the financial issues may be granted.
7. The Applicant is entitled to costs for this motion, which ought not to have been required. If the parties are unable to agree on the quantum for same, a brief appearance before me to hear submissions in this regard may be scheduled before me.

Engelking, J. Date: May 15, 2024