Court File and Parties

COURT FILE NO.: FC-24-405 DATE: 2024/11/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shawn Nicholas Garo Markaroglu (Applicant) AND Leah Marie Looby (Respondent)

BEFORE: Justice Marc R. Labrosse

COUNSEL: Mr. Markaroglu, Self-Represented John Allan, for the Respondent

HEARD: October 29, 2024

Endorsement

[1] There are two motions before the court:

a. The applicant moves for the following relief:

i. Interim custody of two children aged 8 and 5 years;

ii. An order requiring the respondent to move back to Deep River from Saskatchewan with the children;

iii. An order that the respondent pay half the mortgage, property taxes, utilities and insurance on the matrimonial home;

iv. An order for no child support to be paid until the custody and access issues are resolved;

v. An order for the deed of the matrimonial property to be transferred to the Applicant.

b. The respondent moves for the following relief:

i. Interim decision-making for the two children aged 8 and 5 years;

ii. Virtual parenting time to the applicant;

iii. Payment of child support by the applicant;

iv. Enforcement of Child support arrears;

v. Disclosure (was resolved prior to the motion);

vi. Partition and Sale of the jointly owned matrimonial home.

[2] The respondent and the children have been residing in Saskatchewan since September 2023. There is a history of family violence whereby the applicant was found guilty of assault by choking and mischief in 2021. He is currently on probation.

[3] The temporary relief sought by the parties will have a significant impact on the lives of the parties and of the children. There are important credibility issues, mobility issues, financial issues and issues surrounding the best interests of the children which require that this matter proceed to trial as soon as possible.

[4] I decline to order most of the temporary relief sought by the parties as the adjudication of these issues must be done on a more complete evidentiary record. The importance is that the children must continue to have parenting time with the father, that child support be paid and that the father has the opportunity to cover the expenses on the matrimonial home and protect the interests of the parties. In the meantime, this matter shall be case managed by me in order for a full adjudication to take place of the parenting and mobility issues as everything will then flow from that decision.

Background

[5] The parties met in Ottawa in 2009. The applicant joined the military in 2011 and the parties relocated to Petawawa in 2013. In June 2013, they bought the matrimonial home as joint tenants in Deep River.

[6] The parties married on August 17, 2013. There are two children of the marriage. L.A. who was born in 2016 and is 8 years old. E.M. was born in 2019 and is 5 years old.

[7] The respondent has provided very little evidence of parenting prior to the separation and prior to her move to Saskatchewan. Her focus has been on the parental conflict. The applicant has provided his view on parenting prior to the move to Saskatchewan. He claims to have been an active parent, involved in schooling and transportation. He also focusses on the parental conflict.

[8] The respondent claims a history of family violence. On June 29, 2021, there was an incidence of family violence and the applicant was found guilty of assault by choking and mischief. The respondent argues that a finding was made that the applicant has conspiratorial and persecutorial thinking, however, I was not directed to such a finding. That wording forms part of the Probation Order. The applicant’s probation is from June 10, 2024, to June 9, 2026.

[9] On July 2, 2021, the respondent relocated to Ottawa with the children. There is very little evidence on parenting issues during the following two-year period and how involved the applicant was in the children’s lives. The applicant provided evidence of the frequency of visits from 2021 to 2023. However, there is no clear explanation as to why the applicant had no visits with the children after September 11, 2022 but I appreciate that after July 2023, the children were residing in Saskatchewan. Prior to that, there may have been an impact from the criminal charges. However, there is no adequate explanation as to why there were virtually no phone calls and no visits for such extended periods in 2022 and 2023.

[10] What is apparent from the affidavits is that the applicant had frequent concerns that the respondent would relocate to Saskatchewan. While the applicant was residing in Ottawa, the respondent claims that he paid no child support. After two years, the respondent claims that she could no longer afford to live in Ottawa but there is no evidence as to the efforts she made to be employed while living in Ottawa or any explanation as to why legal proceedings were not commenced to compel the applicant to pay child support. She relocated to Saskatchewan in July 2023. The applicant claims that he only found out about the relocation on September 28, 2023, which also raises questions on why it took so long.

[11] The probation order requires the applicant to participate in all directed assessments, counselling or rehabilitative programs including anger management, substance abuse, domestic violence which may include the PAR Program, parenting, psychiatric or psychological issues and conspiratorial and persecutorial thinking. At the hearing of this motion, the applicant provided a letter from his Probation and Parole Officer to confirm that the applicant is moving forward with the programs which are being referred to him.

[12] This is the most relevant background for the purposes of this decision. However, I have considered the full content of the affidavit of the parties which is summarized as follows:

a. For the applicant, he has provided evidence with respect to the following issues:

i. Financial and physical abuse by the respondent;

ii. Facts surrounding the abduction to Saskatchewan;

iii. Child safety concern;

iv. Applicant’s parenting time with the children;

v. Family violence;

vi. Emotional Distress and Parental Responsibility.

b. For the respondent, she has provided evidence with respect to the following issues:

i. Background but only in respect of family violence;

ii. Parenting after separation mostly focused on the time in Saskatchewan;

iii. Applicant’s child support and child support arrears;

iv. Sale of the jointly owned property.

Analysis

[13] I have considered all the evidence filed. There is a considerable amount of conflicting evidence and issues which are unresolved. One of the major issues is the lack of parental contact between the applicant and the children since September 2022 and the limited contact since July 2021. This puts in doubt the relationship between the applicant and the children. The court also has significant concerns surrounding the relocation of the children to Saskatchewan and I reject the suggestion by the respondent that the unilateral move to Saskatchewan has established a new status quo. At the same time, there has been considerable delay in bringing this motion to require the children to relocate to Ontario although the applicant did attempt to have it dealt with on an urgent basis.

[14] At the motion, there was an issue as to if the applicant has been having regular virtual parenting time, but his affidavit suggests that he had been having regular calls from January 2024 until the end of July 2024. There are also questions surrounding the relationship of each parent with the children and if sufficient evidence has been provided to the court at this stage.

[15] Further, there are urgent issues surrounding the matrimonial home such as insurance, mortgage defaults, mortgage renewal and the applicant’s ability to buy out the respondent’s interests which need to be addressed.

[16] In the end, this matter needs to get to a trial, and it will require case management in order to get there. The children have been residing in Saskatchewan since July 2023. The applicant only found out about the move at the end of September 2023. This leaves questions around the applicant’s parenting time before the relocation and why the applicant was not more involved in the children’s lives and why no court application was brought soon after July 2021 to assert the applicant’s parenting time. Once again, the criminal conditions may have impacted this situation.

[17] However, the court must look at the parenting issues from the perspective of the interests of the children as opposed to the interests of the parents. They have now been residing in Saskatchewan for close to 15 months and it would not be reasonable to require them to relocate based on the limited picture given to this court at this temporary motion. This is a trial issue which must be fully explored. At the same time, the applicant’s role as a parent has been significantly impacted by the first relocation to Ottawa and the second relocation to Saskatchewan together with limits imposed by his criminal conditions. All of this must be assessed on a full record at a trial to determine the best interests of the children. Hence, the need to get this case trial ready through case management.

[18] At this point, there is an immediate need to deal with issues of interim child support and the matrimonial home.

[19] In terms of child support, the applicant must begin paying immediately. There is no argument to suggest that the applicant can delay paying child support while he disputes the relocation by the respondent. He will commence paying child support effective December 1, 2024, without prejudice to the interest of both parties.

[20] As for child support arrears, I decline to deal with that issue, and it will be a trial issue. The picture of what has transpired since July 2021 remains unclear and evidence will be required to determine the issues surrounding child support arrears although it may be difficult to imagine how the applicant can justify not having paid anything towards child support in over three years since the date of separation.

[21] The applicant has been consistent in pointing the finger at the respondent for failing to contribute to the expenses for the matrimonial home, but he is in sole possession. If she were to continue paying, there would be issues of occupation rent. It is not up to the respondent to pay the ongoing expenses for the matrimonial home following her departure, particularly as the low-income earner of the couple. The bottom line is that the applicant must decide if he can afford to keep it. Regardless, he must keep it in good standing failing which the court will have to intervene.

[22] At this point, the issues of property insurance, mortgage arrears if any, and ongoing mortgage payments are of primary importance. If the applicant is not able to maintain the expenses surrounding the home while the court provides him with an opportunity to buy out the respondent’s interest, it will have to be sold and I will manage that process. The applicant must provide adequate evidence to the respondent about the home insurance and exactly what consent is required by the insurer to put this in place. This must be done immediately. Next, the applicant must demonstrate that the mortgage is in good standing and if he has a pre-approval to buy out the respondent’s interest in the matrimonial home.

[23] In terms of parenting, the applicant has a right to know what is going on in the children’s lives. The respondent must provide all details surrounding their schooling, health, dental and extracurricular activities. The applicant has a right to know the circumstances in which they are residing and where they are residing subject to a valid reason why such information should be withheld. The respondent has an obligation to set up a file for the children on a parenting application such as Our Family Wizard where he can go to get all the information about the children including a calendar of activities, report cards, medical information, a detailed summary of all appointments and details of their daily activities. Both parents will be responsible to pay their share for such an on-line application but clearly the respondent has the bulk of the responsibility to provide all the information. In addition, there should be no reason why the applicant should not have the names of all professionals involved in the lives of the children and access to information about the children. This would include information about the school.

[24] On this point about access to information, the respondent has been reluctant to advise as to where she is residing with the children. I am not aware of a basis to justify this. The criminal trial is over along with the sentencing. The terms of probation should not prevent the applicant from knowing where his children are residing, the type of accommodations, where they are sleeping, where they go to school and other general issues surrounding their daily lives. I will reserve my opinion on any restrictions that should be placed on the applicant’s access to information given the respondent’s apparent reluctance to do so. This issue shall be discussed during case management whereby the respondent may need to justify a request to limit the applicant’s access to information.

[25] In the end, I decline to deal with issues or relocation, expanded parenting time and decision-making as these issues are more properly determined at a trial.

[26] There will be a virtual case management conference set up by trial coordination as soon as possible. That CMC will deal with the following issues:

a. The applicant’s parenting time and possibility for in-person visits;

b. Confirmation from the applicant’s parole officer that he is fully participating and attending all recommended programming;

c. House insurance and status of the mortgage;

d. Confirmation from the applicant as to his desire and ability to purchase the respondent’s interest in the matrimonial home;

e. Any remaining disclosure issues required to have this matter ready to be added to a trial list;

f. Both parties providing a draft Trial Scheduling Endorsement Form.

[27] As for temporary orders, I order the following:

a. I will be the case management judge;

b. The applicant will start paying monthly child support commencing December 1, 2024, in accordance with the Federal Child Support Guidelines based on his line 15000 income from his 2023 Notice of Assessment;

c. The parties will commence communicating via on-line application such as Our Family Wizard, both parties shall pay their share of the cost and the respondent will start including all the information about the children’s lives as discussed in this Endorsement. All messaging will be child-focused.

d. The applicant will have a minimum of two virtual calls with the children per week. The mother may be present during the calls but shall not interfere unless the applicant seeks to discuss inappropriate topics with the children. If this happens, the respondent may direct the applicant to change the topic and if he fails to do so, the call may be terminated, and the respondent will message the applicant to specify the reasons why the call was terminated until the next scheduled call.

e. The applicant will have 45 days to provide evidence of his ability to buy out the respondent’s interest in the matrimonial home. He shall provide an appraisal of the home and evidence that he has financing approval failing which, the parties should be discussing the terms of sale. In the meantime, the applicant will be solely responsible for all expenses related to the matrimonial home and shall provide evidence that nothing is in default.

Costs

[28] My preliminary view is that the success on these motions has been divided. The parties are encouraged to resolve the issue of costs or simply agree to leave them in the cause. However, if they are unable to agree, both parties will have 15 days from the date of this Endorsement to provide written costs submissions. Both parties will have 15 days thereafter to respond. All costs submissions will be no longer than 4 pages plus attachments.

Justice Marc R. Labrosse Published: November 22, 2024