Ontario Superior Court of Justice

Court File No.: FS-23-37679
Date: 2025-02-24

Between:
Melis Kocabas, Applicant
and
Yavuz Polat, Respondent

Applicant Counsel: Ayhan Baker (Self-Represented)
Respondent Counsel: Self-Represented

Heard: February 24, 2025

Reasons for Judgment
M. Kraft

Introduction

[1] The Applicant (“Melis”) and the Respondent (“Yavuz”) started cohabiting on July 21, 2021. They came to Canada together from Turkey as political refugees in 2022. Melis gave birth to the parties’ one child, CBP, on March 15, 2023.

[2] The parties then separated on March 27, 2023 when CBP was 12 days old, after Yavuz assaulted Melis and was subsequently arrested.

[3] CBP is now 23 months old.

[4] CBP has been in Melis’ sole care since the separation. Melis moved with CBP to Newfoundland & Labrador at the end of February 2024, after having served Yavuz with a Notice of Relocation.

[5] Yavuz has chosen not to participate in these proceedings. He has not sought any parenting time with CBP since he was 12 days old.

[6] Since the parties are not married, the orders being sought are to be made pursuant to the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”) and the Family Law Act, RSO 1990, c F.3 (“FLA”).

Issues to be Determined

[7] The issues to be determined at this uncontested trial are as follows:

a. What parenting orders should be made in relation to the child, including the following:

i. Who should have decision-making responsibility over the major decisions that impact CBP?

ii. What kind of parenting time should Yavuz have?

iii. Should Melis be permitted to travel with CBP without Yavuz’s consent?

iv. Should Melis be permitted to renew CBP’s passports and/or other government-issued documentation without Yavuz’s consent or need to sign?

b. Should income be imputed to Yavuz for child support purposes and if so, what is Yavuz’s child support obligation, retroactive and on an ongoing basis?

c. Should a restraining order be granted against Yavuz?

Litigation History

[8] On March 27, 2023, Yavuz was charged with uttering death threats/bodily harm toward Melis; assault; assault with a weapon; and mischief under $5,000 by Yavuz against Melis.

[9] Yavuz’s criminal Release Order required that:
a) he not be within 100 meters of any place where Melis lives, works, or goes to school except pursuant to a family court order;
b) he not be within 10 metres of the family apartment except to retrieve his personal belongings on two occasions only in the presence of uniformed police officers;
c) he not possess any weapons; or
d) he not apply for a weapons licence.

[10] On April 9, 2023, Melis issued the within Application seeking, among other things, sole decision-making responsibility with respect to the child; primary residence of the child; child support retroactive to the date of separation; an order dispensing with Yavuz’s consent to enable her to obtain government-issued documentation for the child and travel; and costs.

[11] On August 23, 2023, Yavuz was charged with 6 additional charges of failing to comply with his Release Order.

[12] Melis served the within Application on Yavuz on September 14, 2023. Yavuz did not file an Answer or Financial Statement.

[13] On November 2, 2023, Melis’ counsel sent Yavuz a letter reminding him that the deadline within which he had to serve and file an Answer was past due but provided him with a further extension to serve and file his responding pleading by November 7, 2023, failing which Melis would request an uncontested trial.

[14] Yavuz did not respond to this letter, nor did he serve or file responding pleadings.

[15] On December 15, 2023, Melis served a Notice of Relocation on Yavuz advising of her intention to relocate with the child to Newfoundland and Labrador. Yavuz did not file an objection to Melis’ Notice of Relocation.

[16] At the end of February 2024, Melis moved with the child and her new partner to Newfoundland & Labrador. Once moved, Melis’ counsel reached out again to Yavuz and offered him virtual parenting time with the child. Virtual parenting time was arranged to take place on February 23, 2024. Upon connecting to the Zoom link on February 23, 2024, Yavuz immediately disconnected when he saw the child near Melis’ new partner.

[17] Since February 2024, Yavuz has not made any further request for parenting time with the child.

[18] Yavuz has not seen CBP since the separation.

[19] Pursuant to Rule 10(5) of the Family Law Rules, if a respondent does not serve and file an answer, the consequences set out in paragraphs 1-4 of rule 1(8.4) apply. The consequences set out in Rule 1(8.4) include the court dealing with the case in the party’s absence.

[20] Given Yavuz’s failure to serve and file responding pleadings, despite being reminded by her counsel, Melis proceeded with her claims by way of an uncontested trial.

[21] Melis filed a Form 23C, sworn on June 27, 2024, two separate 35.1 Affidavits for parenting, sworn on August 9, 2023 and June 27, 2024 respectively, and draft orders.

Issue One: What Parenting Orders Should Be Made?

[22] Melis seeks sole decision-making responsibility for the parties’ child, that CBP continue to reside primarily with her in Newfoundland & Labrador and an order that Yavuz’s parenting time take place on a supervised basis only, to be facilitated between him and the maternal grandparents. She also seeks an order dispensing with Yavuz’s consent to enable her to obtain government-issued documentation for the child and to allow her to travel without Yavuz’s consent. In addition, Melis seeks a restraining order against Yavuz.

The Law on Parenting

[23] Pursuant to s.21(1) of the CLRA, either parent is permitted to apply to a court for decision-making responsibility with respect to a child and for parenting time.

[24] Even though CBP is no longer habitually resident in Ontario, this court has jurisdiction to make a parenting order with respect to the child pursuant to s.22(1) of the CLRA because CBP was physically present in Ontario at the commencement of Melis’ application for the order and there is no application respecting decision-making responsibility or parenting time with respect to CBP pending before an extra-provincial court in Newfoundland & Labrador where CBP is habitually resident.

[25] Section 24(1) of the CLRA sets out that the court is only to consider the child’s best interests in making a parenting order. In considering the best interest factors, set out in s.24(3) of the CLRA, the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s.24(2).

[26] The best interest factors set out in s.24(3) of the CLRA include, but are not limited to the following:

a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b. The nature and strength of the child’s relationship with each parent;
c. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
d. The history of care of the child;
e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g. Any plans for the child’s care;
h. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
i. Any family violence and its impact, on among other things,
i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the children; and
j. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Analysis

[27] Melis has been the child’s primary caregiver since his birth. Upon Yavuz being charged criminally, the child was left solely in Melis’ care, from the time he was 12 days old.

[28] Melis deposes that she has suffered family violence at Yavuz’s hands during their relationship, including during her pregnancy and after his birth. The physical and verbal abuse endured by Melis was described as including Yavuz assaulting her with a knife, threatening to kill her and the child and being verbally abusive. Despite the terms of the criminal Release Order, Melis deposes that Yavuz breached the conditions and sent her threatening messages through third parties. Melis argues that Yavuz is unpredictable and violent and, as a result, she fears for her safety and that of the child.

[29] After the assault incident on March 27, 2023, the Toronto Children’s Aid Society (“CAS”) initiated a child protection investigation. The CAS advised Melis that they considered CBP to be safe in her care.

[30] Yavuz continued to make threats toward Melis and her family in Turkey. As a result, Melis contacted the police on a number of occasions due to his breach of the no-contact criminal conditions.

[31] I find that it is in the child’s best interests for Melis to have sole decision-making responsibility over the major and day-to-day decisions that impact CBP based on the factors set out in s.24(3) of the CLRA and for the following reasons:

a. CBP has only been in the care of Melis since his birth. He is almost 2 years of age.
b. Melis has made all important decisions affecting CBP since birth without input from Yavuz.
c. Melis has met all of the child’s day-to-day needs and been his full-time caregiver.
d. As CBP’s only caregiver, he is bonded and attached to Melis.
e. Melis has demonstrated that she provides the child with predictable and stable childcare.
f. Melis served a Notice of Relocation on Yavuz in accordance with s.39.3 of the CLRA. Yavuz did not object to the proposed relocation, as he was entitled to do, pursuant to s.39.3(5) of the CLRA. As a result, Melis was permitted to relocate with the child pursuant to s.39.4(2) of the CLRA.
g. Melis relocated with CBP to Newfoundland & Labrador along with her new partner. The child has been in the new province for a year. Melis has deposed that she and her new partner have a home and a separate bedroom for CBP and are meeting all of his needs.
h. Melis and Yavuz cannot coparent given the history of family violence.
i. Yavuz has not asked for any parenting time despite having had the opportunity for such parenting time since separation. Even when offered virtual parenting time, Yavuz voluntarily ended the parenting time when he saw the child in the presence of Melis’ new partner.
j. Yavuz has taken no active steps to seek parenting time with the child since the separation, 23 months ago.
k. The child requires a stable and predictable schedule given his very young age.
l. Yavuz has demonstrated no interest in the child since he was 12 days old.
m. Melis has demonstrated a willingness to support the child’s relationship with his father, particularly, since she has directed her counsel to reach out to Yavuz and offer virtual parenting time.
n. Yavuz chose not to participate in these proceedings and, as a result, he took no steps to seek any parenting rights in relation to the child.

[32] Given the history of family violence, which includes Yavuz not complying with the no-contact conditions of his criminal Release Order, I am also persuaded that it is in the child’s best interests to only have supervised parenting time with Yavuz if Yavuz seeks parenting time in the future and for such time to be at the discretion of Melis, with the supervision requirements to include Yavuz paying for the cost of supervision. I am also persuaded that if requested, Yavuz is to have virtual parenting time with the child once every month to be facilitated through the maternal grandparents and Yavuz.

[33] Given the lack of contact between the child and Yavuz since CBP’s birth, he will need to build a relationship with CBP if he intends to re-enter his life, since no bonding or attachment between the child and Yavuz has occurred.

[34] Melis shall be given authority to obtain any government issued documentation for the child without the need for Yavuz’s consent, such as a passport, birth certificate, social insurance number, driver’s licence, etc. Melis shall also be authorized to travel with CBP without notifying Yavuz or obtaining his consent in advance.

Issue Two: Should Income Be Imputed to Yavuz and If So, What Is Yavuz’s Child Support Obligation?

The Law on Child Support

[35] Pursuant to s.31 of the FLA, every parent has an obligation to provide child support for a child, to the extent that the parent is capable of doing so.

[36] An order of child support is meant to recognize that each parent has an obligation to provide support for the child and apportion the obligation according to the child support guidelines: s.33(7). A court making an order for the support of a child shall do so in accordance with the child support guidelines: s.33(11).

[37] Since the parents are not married, the provincial child support guidelines apply. Since CBP is habitually resident in Newfoundland and Labrador, the Newfoundland and Labrador Provincial Child Support Guidelines apply, Newfoundland and Labrador Regulation 40/98 (“NL Guidelines”).

[38] Melis seeks child support for CBP in accordance with the Ontario Child Support Guidelines, O. Reg. 391/97, specifically for $304 a month, based on an imputed income for Yavuz of $35,000 a year. However, since CBP is resident in Newfoundland, the NL Guidelines apply.

[39] Melis has no employment history in Canada and was in receipt of Ontario Works.

[40] Yavuz worked in the construction industry as a general labourer. Melis deposes that he has no health problems and asks the court to impute him with a minimum wage income of $35,000 a year.

[41] Melis has no information about Yavuz’s income since he did not file an answer to her claims. The only information on the record is that during the parties’ relationship, Yavuz worked in the construction industry as a general laborer and that he solely paid the parties’ rent and grocery expenses since she earned no income.

[42] Yavuz has not paid any child support to Melis since separation on March 27, 2023. Melis seeks retroactive child support to the date of separation.

The Law on Imputation of Income

[43] When determining whether to impute income to a payor, the court has regard to s.17 of the NL Guidelines, which allows the court to impute income to a parent as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment.

[44] The general principles regarding financial support of children under the NL Guidelines was recently referred to by the Court of Appeal of Newfoundland & Labrador in Drover v. Drover, 2020 NLCA 9, paras 11 and 12, which I have reproduced below:

a. The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.
b. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children.
c. A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
d. Imputing income to a parent on the basis that the parent is “intentionally under-employed or unemployed” does not incorporate a requirement for proof of bad faith. “Intentionally” in this context clarifies that the provision does not apply to situations beyond the parent’s control.
e. The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
f. Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision.
g. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
h. A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.
i. The person seeking imputation of income has the initial onus to establish an evidentiary basis to support that claim. From the caselaw, such an onus does not relieve the prospective payor from providing full and complete disclosure so as to ensure that a court has full information. As there are many circumstances in which a party seeking that income be imputed will not have full financial knowledge or information, courts generally do not set the threshold too high as regards the existence of appropriate circumstances where imputation of income can be considered. Once the party seeking that income be imputed provides satisfactory evidence suggesting a prima facie case for the imputation of income, the onus shifts to the other party to satisfy the court as to that person’s income level. (See McKenna v. McKenna, 2015 ONSC 3309.)

Analysis

[45] In the case at bar, Yavuz has chosen not to participate in these proceedings. The court, therefore, has no evidence on record as to his prior income earning capability. The best evidence on which the court can rely is Melis’ affidavit which states that Yavuz’s income was used solely to pay rent and groceries. She asks the court to impute a minimum wage income on Yavuz.

[46] Pursuant to s.3(2) of the NL Guidelines, the amount of child support set out in the applicable tables, according to the number of children under the age of majority to whom the order relates and the income of the parent against whom the order is sought, and the amount, if any, determined under s.7 is presumptive. In other words, there is no discretion in the NL Guidelines for the court to order any other amount of child support other than what is set out in the tables, if the children are under the age of majority.

[47] As a result, Yavuz is obliged to pay child support for CBP pursuant to the NL Guidelines based on an imputed minimum wage income of $35,576 in the table amount of $299 a month for one child starting on March 1, 2025 and on the first day of each month going forward.

[48] Melis also seeks retroactive child support from the date of separation, being March 27, 2023 to be paid to her within 30 days of the order.

The Law on Retroactive Child Support

[49] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the court looked at three scenarios where retroactive child support might be ordered, one of which is where there has not already been a court order for the payment of child support. This is the situation in the case at bar.

[50] Bastarache J. found that s. 15.1 of the Divorce Act does not expressly provide for retroactive support orders. In the context of a claim for child support where no previous order has been made or agreement reached between the parties for the payment of one parent to another for child support, this court has jurisdiction to award retroactive child support under s. 15.1 of the DA on a contextual reading of the statute. The court found that there is no restriction in the DA as to the date from which a court may order that an order of child support may take effect. In this respect, retroactive support for a child is compensation for what is legally owed. D.B.S., paras. 81-84.

[51] In this case, the parties are not married. The jurisdiction to order retroactive child support is set out in s.34(1)(f) of the FLA.

[52] The majority in D.B.S. confirmed bedrock principles relating to the obligation of separated parents to pay child support. The amount of support payable under this obligation depends on their ability or their income according to the governing support regime that applies to them.

[53] Bastarache J. observed that the mere fact of parenting places a great responsibility upon parents. They are immediately responsible as guardians and providers upon the birth of a child. Bastarache J. further observed that the parent and child relationship is one that engages not only moral obligations, but also legal obligations; support is an obligation that arises automatically upon the birth of a child; D.B.S., at paras. 36-37.

[54] In D.B.S., the court set out the two steps to decide the issue of retroactive child support. The court must first determine whether a retroactive award should be made on the facts of the case. This determination, in my view, is a question about entitlement. The second step is to decide the amount of support that would adequately quantify the obligation of the payor to pay support during the intervening time. This step requires the court to determine the date from which retroactive child support should be payable, as the amount payable each month is fixed by the table amount according the CSGs for the payor’s income in each year of the retroactive period.

[55] There are several factors to consider in determining whether retroactive child support should be ordered. These factors are often referred to as the D.B.S. factors and can be summarized as follows:

a. Is there a reasonable excuse for why child support was not sought earlier?
b. Did the payor parent engage in blameworthy conduct?
c. What are the child’s circumstances?
d. Will hardship be occasioned by a retroactive award?

Analysis

[56] In this case, Melis issued the Application on April 29, 2023, about one month after the separation. I find that Melis did not delay in her attempt to secure child support.

[57] I further find that Yavuz has engaged in blameworthy conduct. Yavuz’s conduct was blameworthy because he consciously chose to ignore his child support obligations: Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct: D.B.S., at para. 107. Yavuz was aware that he was the only parent working and when he was no longer able to live with Melis and the child because of his criminal charge conditions, he was aware that the child would become Melis’ sole responsibility. He took no active steps to see the child despite the fact that he was a newborn and he took no steps to provide any support for the family financially.

[58] The present circumstance of the child is that he has now relocated to a new province and is being looked after by Melis, along with her new partner. Melis has done her best to provide for the child financially. There is no doubt, based on the evidence on record, that the child has undergone hardship since the separation.

[59] Since Yavuz chose not to respond to Melis’ Application or participate in these proceedings, despite being given opportunities to do so, the court has no proper evidence on record from Yavuz as to whether hardship would be occasioned by a retroactive child support award.

[60] The court should attempt to craft the retroactive award in a way that minimizes hardship: D.B.S. at para. 116. While hardship for the payor parent is much less of a concern where it is the product of his own blameworthy conduct, it remains a strong one where this is not the case. In the case at bar, it is Yavuz’s own blameworthy conduct that has resulted in retroactive child support being owed by him.

[61] I find that this is an appropriate case where child support should be awarded retroactive to April 1, 2023.

[62] Based on the evidence on record, I find that Yavuz should be imputed with the Ontario general minimum wage income from the separation, March 27, 2023 onward as follows:

a. For the period October 1, 2022 to September 30, 2023, the general minimum wage in Ontario was $15.50 an hour x 40 hours a week x 52 weeks = $32,240;
b. For the period October 1, 2023 to September 30, 2024, general minimum wage in Ontario was $16.55 an hour x 40 hours a week x 52 weeks = $34,424.
c. For the period October 1, 2024 onward, the minimum wage income in Ontario increased to $17.20 an hour x 40 hours a week x 52 weeks = $35,776.

[63] Accordingly, I find that Yavuz owes Melis retroactive child support of $5,379 for the period April 1, 2023 to and including February 1, 2025, calculated as follows:

a. From April 1, 2023 to September 30, 2023, Yavuz should be imputed with a minimum wage income of $32,240 which amounts to a table child support obligation of $245 a month for one child in Newfoundland & Labrador. This amounts to $1,225 calculated as $245 x 5 months.
b. From October 1, 2023 to and including September 30, 2024, Yavuz should be imputed with a minimum wage income of $34,423 which amounts to a table child support obligation of $278 a month for one child in Newfoundland & Labrador. This amounts to $3,058, calculated as $278 x 11 months; and
c. From October 1, 2024 to and including February 1, 2025, Yavuz should be imputed with a minimum wage income of $35,776, which amounts to a table child support obligation of $299 a month for one child in Newfoundland & Labrador. This amounts to $1,196, calculated as $299 x 4 months.

Issue Three: Should a Restraining Order Against Yavuz Be Granted?

The Law on Restraining Orders

[64] Pursuant to s.35 of the CLRA, the court may make a final order against any person 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.

[65] Similarly, s.46 of the FLA authorizes the court to make a final restraining order against a person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any children in his or her lawful custody. Such an order can be made against a person who was cohabiting with the applicant.

[66] Section 46(3) of the FLA sets out that the provisions of the restraining order can deal with contact, communication or coming within a specified distance of the applicant or contain any other provision that the court considers appropriate.

[67] Melis seeks a restraining order so that:
a) Yavuz not be able to contact or communicate with her directly or indirectly except through the maternal grandparents to arrange for parenting time; and
b) for Yavuz not to come within 200 meters of her or CBP’s residence, workplace or place of education without her written consent or in accordance with a family court order.

[68] In Newfoundland & Labrador, the Children’s Law Act, RSNL 1990 c.C-13 and the Family Law Act, RSNL 1990, c.F-2, allow the court to make restraining orders as set out in the Ontario statutes.

[69] The legal principles for the court to apply when making a restraining order were set out by Sherr, J. in A.M. v. S.D., 2020 ONCH 479 at para. 95:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) or vulnerable persons search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.
c. It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.
d. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child.” See: McCall v. Res, 2013 ONCJ 254.
e. The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154; McCall v. Res, supra.
f. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 ONSC 4464.
g. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.
h. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195. However, there was no need for the applicant to sit back and let that behaviour continue for months before issuing an application, just so that she could argue that the bad behaviour continued for a lengthy period of time. Where serious behaviour has continued for “some period of time”, that will be sufficient. See: Proevski v. Roffel, 2020 ONCJ 310.
i. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.
j. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.
k. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra.
l. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.
m. A no-contact or communication order made pursuant to section 28 of the Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.
n. A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

Analysis

[70] I find that Melis has both a subjective and objective basis to fear for her safety from Yavuz. As stated, he physically assaulted her with a weapon and uttered death threats and threats of bodily harm against her. Further, when he agreed to conditions regarding his release which included having no direct or indirect contact with Melis, Yavuz continued to threaten her through family members and directly.

[71] I have considered whether a no-contact order pursuant to s.28 of the CLRA would be sufficient to protect Melis. I considered that Yavuz did not follow the criminal court’s release order. The court is not confident that Melis would be safe from Yavuz without the more robust protection that a restraining order provides. The court is hopeful that the restraining order does not have to be indefinite. If Yavuz can show compliance with this order for one year, it will consider that a material change in circumstances has occurred and will give strong consideration to changing the restraining order to a no-contact order under s.28 of the CLRA.

Disposition

[72] This court makes the following final order:

a. Pursuant to ss.24(1) and s.28(1)(a)(i) of the Children’s Law Reform Act, the applicant shall have sole decision-making responsibility in connection with the major decisions that impact the one child of the relationship;

b. Pursuant to ss.24(1) and s.28(1)(a)(ii) of the Children’s Law Reform Act, the child shall reside primarily with the applicant in Newfoundland & Labrador.

c. Pursuant to ss.24(1) and s.28(1)(c) of the Children’s Law Reform Act, the applicant shall be permitted to apply and renew all government issued documentation for the child, including but not limited to passports, social insurance numbers, health cards, driver’s licence, birth certificates, without the need for the respondent to consent or sign as a parent.

d. Pursuant to s.28(1)(c) of the Children’s Law Reform Act, the applicant shall be permitted to travel with the child without the need for the respondent’s consent.

e. Pursuant to s.28(1)(a)(ii) of the Children’s Law Reform Act, the respondent shall have supervised parenting time with the child through an access centre, the cost to be paid by the respondent, upon providing the applicant with a request for parenting time, the date and time of which shall be at the applicant’s discretion. Prior to exercising such supervised parenting time, the respondent shall surrender his Turkish and Canadian passports to the supervisor at the commencement of the parenting time to be returned to the respondent at the end of the parenting time.

f. Pursuant to s.28(1)(a)(ii) of the Children’s Law Reform Act, the respondent shall have virtual parenting time with the child via videoconferencing once monthly on the first Sunday of each month from 3:00 p.m. to 3:30 p.m. The particulars for the virtual parenting time shall be facilitated between the respondent and the maternal grandparents.

g. Pursuant to s.17 of the Ontario Child Support Guidelines and the Newfoundland & Labrador Child Support Guidelines, the respondent shall be imputed with the following income in each of the following years:

i. In 2023, from April 1, 2023 to and including September 1, 2023, minimum wage income of $32,240; [1]
ii. In 2023-2024, from October 1, 2023 to September 30, 2024, minimum wage income of $34,424; [2]
iii. In 2024/2025, from October 1, 2024 onward, minimum wage income of $35,776; [3]

h. Commencing on March 1, 2025 and on the first day of each following month, the respondent shall pay the applicant child support for the one child of the marriage in the table amount of $299 a month, based on his annual income of $35,776 a year.

i. Pursuant to s.15.1(1) of the FLA the respondent shall pay the applicant retroactive child support of $5,379 for the period April 1, 2023 to and including February 1, 2025, payable within 30 days of the release of these Reasons.

j. Commencing on June 1, 2025, and on the first day of each following June, the respondent shall provide the applicant with his income information as set out in s.21(1) of the CSG, which includes a copy of his complete income tax return and notice of assessment; the most recent statement of earnings, indicating the total earnings paid in the year to date, including overtime. In addition to any income information that must be included under paragraphs (c) to (g) of s.21(1), if the respondent receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information;

k. 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 order shall be paid to the Director, who shall pay them to the person to whom they are owed.

l. Pursuant to s.46(3) of the Family Law Act, and s.35 of the Children’s Law Reform Act, the respondent shall:

i. Not contact or communicate directly or indirectly with the applicant except through the maternal grandparents of the child to arrange his parenting time with the child;
ii. Not come within 200 metres of the applicant and child’s residence, workplace, or place of education, except without the applicant’s written consent or in accordance with a family court order.

m. SDO to issue.

n. The designated authority in Newfoundland & Labrador, known as Family Justice Services, shall register this Ontario support order pursuant to s.19 of the Interjurisdictional Support Orders Act, 2002, SO 2002, c 13.

Released: February 24, 2025
M. Kraft

Endnotes

[1] For the period October 1, 2022 to September 30, 2023, general minimum wage in Ontario was $15.50 an hour x 40 hours a week x 52 weeks = $32,240.

[2] For the period October 1, 2023 to September 30, 2024, general minimum wage in Ontario was $16.55 an hour x 40 hours a week x 52 weeks = $34,424.

[3] For the period October 1, 2024 onward, the minimum wage income in Ontario increased to $17.20 an hour x 40 hours a week x 52 weeks = $35,776.