



COURT OF APPEAL FOR ONTARIO

CITATION: Vanleer v. Young, 2020 ONCA 459

DATE: 20200713

DOCKET: C68400

Gillese, Brown and Thorburn
    JJ.A.

BETWEEN

Yulanda Vanleer

Applicant (Respondent)

and

Vershawn Ashanti Young

Respondent (Appellant)

Vershawn Ashanti Young, acting in
    person

Luigi De Lisio, for the
    respondent

Heard by video conference:
    June 25, 2020

On appeal from the order of Justice Robert
    B. Reid of the Superior Court of Justice, dated June 7, 2019.

Gillese
    J.A.:

[1]

This appeal raises issues related to custody,
    access, spousal support and costs.

A.

BACKGROUND IN BRIEF

[2]

Vershawn Ashanti Young is the appellant in this
    proceeding. Yulanda Lateche Vanleer is the respondent. They met in September
    2011 while living in Lexington, Kentucky, and were married on May 12, 2012. There
    is one child of the marriage, A.Y., who was born in 2013. All three are
    American citizens.

[3]

The family lived together in Lexington for the
    first two years of marriage. They moved to Ontario in July 2014 so that Mr.
    Young could work as a professor at an Ontario university. The family moved back
    to the United States in September 2016 and returned to Ontario in March 2017,
    where they began living in Niagara-on-the-Lake. Mr. Young commuted to work.

[4]

On October 19, 2017, Ms. Vanleer took A.Y. and
    left the family home in Niagara-on-the-Lake to live in a womens shelter, never
    to return.

[5]

In February 2018, Ms. Vanleer brought an
    application in which she sought custody of A.Y., child and spousal support, and
    the division of net family property. The matter went to trial in late May 2019,
    at which point A.Y. was six years old.

[6]

Over the course of the seven-day trial, both
    parties testified. In addition, Ms. Vanleer adduced evidence from her daughter
    from a previous marriage, who had lived with the parties during the marriage.
    Mr. Young led evidence from two people: a friend and colleague, and an
    immigration consultant. The court also received a custody and access report and
    heard the evidence of the clinician engaged by the Office of the Childrens
    Lawyer who had prepared the report (the OCL Report).

[7]

At trial, the parties disagreed on the date of
    separation. The trial judge found that they ceased living under the same roof on
    October 19, 2017, the date on which Ms. Vanleer took A.Y. and left the family
    home. The trial judge did not specify the precise date of separation, a matter
    to which I return below.

[8]

On June 7, 2019, the trial judge made the
    following orders (the Order):

i.

The divorce is severed from the claim for
    corollary relief and either party may proceed to request a divorce by way of
    affidavit evidence;

ii.

There will be no order as to equalization of net
    family property;

iii.

Ms. Vanleer shall have sole custody of the child;

iv.

Ms. Vanleer shall not relocate with the child
    outside of Canada unless she has first given 120 days written notice to Mr.
    Young. Intended relocation will be considered a material change in circumstance
    for the purpose of reconsidering custody, access and primary residence for the
    child;

v.

Mr. Young will have access to the child each
    Wednesday after school until Thursday morning at school and alternate weekends
    from Friday after school to Monday at school. Both parties will have two ten-day
    uninterrupted summer vacations per year. Additional access may be scheduled by
    agreement of the parties;

vi.

Commencing July 1, 2019, based on annual income
    of $146,000, Mr. Young shall pay child support of $1,270 per month and 80% of
    all s. 7 expenses; and

vii.

Commencing September 1, 2019, based on Mr.
    Youngs annual income of $146,000 and imputed income of $29,400 to Ms. Vanleer,
    Mr. Young is to pay spousal support in the amount of $1,968 per month for five
    years.

[9]

The trial judge also awarded Ms. Vanleer $10,000
    in costs (the Costs Order).

[10]

Mr. Young brought an appeal from the Order to the
    Divisional Court. On June 9, 2020, the Divisional Court concluded it lacked
    jurisdiction to hear the appeal and transferred it to this court.

[11]

This court heard the appeal on June 25, 2020.

B.

ANALYSIS

[12]

In his factum, Mr. Young raises nine issues. At
    the oral hearing of the appeal, he concentrated his submissions on the issues
    related to custody, access, support and the costs award at trial, and relied on
    his factum for argument on the other issues.

[13]

Each of the nine issues is set out below, as framed
    by Mr. Young in his factum. A summary of Mr. Youngs argument on the issue is
    then set out, followed by my disposition of the issue and the reasons therefore.

Issue
    #1  Whether a date of separation should be determined and, if so, what it
    should be.

[14]

Mr. Young argues that the trial judge erred in
    failing to determine the exact date on which the parties separated.  He says
    that the date of separation significantly impacts the reasons behind any court
    order in a custody, separation, or divorce proceeding. On appeal, he contends
    that the marriage lasted less than two years and that a determination of the
    separation date was necessary to understand, among other things, the nature and
    duration of the family dynamics, and to decide issues related to spousal
    support and marital debt.

[15]

In the circumstances of this case, in my view, the
    trial judge did not err in failing to specify the precise date on which the
    parties separated. To understand how I reach this conclusion, it is necessary
    to identify exactly what the trial judge said and the context within which he
    made the statement.

[16]

The trial judges discussion of the date of
    separation begins on line 13 of page 3 of his reasons and concludes on line 8
    of page 4.  The full text of that discussion reads as follows:

Although there is a debate about exactly when
    the parties separated,
there is no doubt that they ceased living under
    the same roof on October 19, 2017. Ms. Vanleer testified that that was the date
    of their separation
since she went with [A.Y.] to live in a womens
    shelter and did not return home.
The evidence of Mr. Young was that the
    parties agreed to separate when they were living temporarily in Phoenix in the
    early months of 2017
. At that time Mr. Young was on a study leave from
    the [university] and was completing the practical portion of his U.S. law
    degree. He testified that when they returned to Canada and he rented a house in
    Niagara-on-the-Lake they were separated but under one roof while Ms. Vanleer attempted
    to find alternative accommodation and employment. Since October 2017 Mr. Young has
    continued to reside in the same house in Niagara-on-the-Lake. Ms. Vanleer eventually
    moved from the womens shelter with [A.Y.] to a rented apartment in St. Catharines
    where she continues to live.  [Emphasis added.]

[17]

The trial judge then makes the impugned
    statement (the Statement):

I need not choose one version or the other
    since the exact date of separation is of no legal significance to this
    decision.

[18]

On a fair reading of his reasons, when the trial
    judge made the Statement, he understood that while the parties disagreed on the
    month of separation, they were agreed that it took place in 2017  on Mr. Youngs
    evidence the date of separation was in the early months of 2017 whereas on Ms.
    Vanleers trial evidence, it was October 19, 2017. While the trial judge did
    not specify the precise date of separation, on either partys version of
    events, as they married in May 2012 and separated in 2017, the marriage lasted
    approximately five years.

[19]

A review of the transcript confirms the validity
    of the trial judges understanding of the parties evidence and their respective
    positions on the date of separation. The parties agreed on a number of matters
    and dates relating to separation: that sexual relations between them ceased
    after A.Y.s birth in 2013; that they started sleeping in separate beds while
    in Phoenix in early 2017 (January to April); and that on October 19, 2017, Ms.
    Vanleer moved out of the family home with A.Y. The contest was whether they
    separated in the early months of 2017 (Mr. Youngs position) or on October 19,
    2017 (Ms. Vanleers position at trial).

[20]

In the circumstances of this case, the trial
    judge did not err in failing to find the precise date of separation. He did not
    need to specify the precise date of separation because, after finding that both
    parties had a negative net worth, he made no order for equalization of net
    family property. While the length of cohabitation is a relevant factor in
    determining such things as the amount and duration of spousal support, the
    trial judges implicit finding that the marriage lasted approximately five
    years was sufficient for those purposes.

Issue
    #2  Whether spousal support should be awarded to [Ms. Vanleer] and, if so,
    what is the quantum and duration.

[21]

Mr. Young argues that the trial judge erred in
    ordering spousal support.  He says that the marriage was short, lasting only
    two years, and that during it, he supported Ms. Vanleer financially and
    otherwise so she was able to acquire a university education and become self-sufficient.
    He also says that he cared for A.Y. and Ms. Vanleers children from a previous marriage
    while she worked in low-wage jobs of her choice. Further, he says he suffered economic
    disadvantage as a result of the marriage. Consequently, he says, Ms. Vanleer is
    not entitled to any spousal support or, if she is, support should be limited to
    $1,500 for one year. In the further alternative, he says that spousal support
    should be calculated based on an income of $100,000, his annual income during
    the pre-separation period.

[22]

As a preliminary point, I reject Mr. Youngs
    contention that the marriage lasted only two years. As I explain above, the
    trial judge implicitly found that the parties separated in 2017 and that the
    marriage lasted five years. In making his support orders, the trial judge
    operated on the basis that the parties had a five-year marriage  and he made
    no error in so doing.

[23]

The Supreme Court of Canada has spoken clearly
    on the role of appellate courts in reviewing spousal support orders: we are not
    to interfere absent a demonstrated error in principle, a significant
    misapprehension of the evidence, or where the award is clearly wrong:
Hickey
    v. Hickey
,
[1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577, at paras. 10-12.
    On that standard of review, there is no basis on which to interfere with the
    trial judges determination that Ms. Vanleer was entitled to spousal support or
    in the exercise of his discretion in establishing the level and duration of
    that support.

[24]

The trial judge gave a detailed review of the
    history of this five-year marriage and the parties respective positions 
    financially and otherwise  within it. He described Mr. Young as a very
    motivated and educated individual, having achieved a JD degree in law and a PhD
    in English. Mr. Youngs work history included work in a high school, as a
    school principal, and as a professor who taught various subjects at the
    university level. Ms. Vanleer was qualified as a nurses aide.

[25]

The trial judge found that Ms. Vanleer was
    frugal in managing her funds. In contrast, he found Mr. Young was not a good
    financial manager. He gave detailed reasons for this finding, including a
    thorough consideration of Mr. Youngs substantial debt load. (I give more
    details of the trial judges findings on this matter below when discussing Mr.
    Youngs argument that the child and spousal support orders will cause him undue
    hardship.) The trial judge expressly found that Mr. Youngs debt was not due to
    providing support for Ms. Vanleer or A.Y. He concluded that Mr. Young was the
    author of his own financial misfortune and that it was appropriate that he
    alone shoulder responsibility for his debts.

[26]

The trial judge found that Ms. Vanleer was
    entitled to both compensatory and non-compensatory support. Her income stream
    changed significantly as a result of her marriage to Mr. Young. She stopped
    working full-time as a nurses aide, a position which she had held for about
    eight years, and worked part-time at Mr. Youngs request. After that, she
    worked part-time in modest positions in Canada when she could find them. The
    trial judge explicitly accepted Ms. Vanleers evidence that her role in the
    marriage required that she be at home with A.Y. and her other children, that
    her employment and income was always secondary to that of Mr. Young, and that
    her inability to find reasonable full-time employment after separation was due,
    at least in part, to her need to care for A.Y.

[27]

In terms of quantum and duration of support, despite
    having found that Mr. Youngs debts had been incurred solely for his own
    benefit, the trial judge recognized Mr. Youngs debt load and ordered spousal
    support at the low end of the Spousal Support Advisory Guidelines. Based on Mr.
    Youngs financial statement, the trial judge found Mr. Youngs annual income to
    be $146,000 per year ($12,166 per month). He imputed an annual income of
    $29,400 to Ms. Vanleer based on her education and earning potential. He ordered
    spousal support of $1,968 per month, payable for five years, beginning on September
    1, 2019.

[28]

On appeal, Mr. Young attempted to rely on fresh
    evidence to argue that his total income should be reduced because a portion of
    it related to a research grant. Mr. Young did not follow the process for
    introducing new evidence on appeal and I would not admit it. If he wished to
    clarify or dispute the amounts shown as his income on the financial statement
    that he produced to the court, the time to do that was before the trial judge.

[29]

Just as there is no basis to interfere with the
    trial judges determination that Ms. Vanleer is entitled to spousal support, there
    is no basis to interfere with the quantum or duration of the spousal support
    that he ordered.

Issue #3  Whether
    there should be parallel custody.

Issue #4  Whether
    there should be maximum contact with the child.

Issue #5  Whether
    there should be an equal sharing of holidays.

[30]

These issues relate to custody and access and
    are best considered together.

[31]

Mr. Young says that he is a committed and
    capable father and has been heavily involved in A.Y.s life since her birth. He
    seeks an order for parallel custody giving him authority over A.Y.s education
    and extracurricular activities and giving Ms. Vanleer authority over religion
    and, with some exceptions, medical matters. Alternatively, he asks for an order
    granting him a sphere of influence over education or an order that A.Y.
    attend Montessori school. He points to cases such as
Young v. Young
,
[1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193, to say that no one factor trumps
    other considerations in the best interests analysis, not even high conflict
    between the parents. In terms of the maximum contact principle in determining
    access, he says that the court must consider the willingness of each spouse to
    facilitate access and that the trial judge failed to take that into
    consideration. He says that he is willing to foster access between Ms. Vanleer
    and A.Y. but the converse is not true.  He also contends that the trial judge
    erred in failing to ensure there was an equal sharing of the important holiday
    dates between the parents.

[32]

I do not accept that the trial judge erred in
    his decisions on custody and access.

[33]

As required by law, the trial judge applied the
    best interests framework in making his custody and access orders. He heard
    evidence from both parties and had the benefit of the OCL Report. While he
    found that both parties were capable and loving parents, he also found a
    history of confrontation between them, a pattern of intimate partner violence,
    a lack of trust, and an inability to communicate.

[34]

In ordering sole custody in favour of Ms.
    Vanleer, the trial judge accepted the conclusion in the OCL Report that joint
    custody and shared parenting were not viable options and its recommendation that
    Ms. Vanleer be given sole custody.

[35]

Some of the factors and findings underlying the
    trial judges custody and access decisions include the following:

i.

He found that Ms. Vanleer was A.Y.s main
    caregiver while the parties were together in the first four and a half years of
    A.Y.s life and has been the main caregiver following separation in 2017;

ii.

He recognized and adopted the recommendation in the
    OCL Report that there be no change to the status quo, with A.Y. being in Ms.
    Vanleers primary care, as A.Y. was excelling academically and socially;

iii.

He described a pattern of intimate partner
    violence against Ms. Vanleer through much of the marriage, including some incidents
    to which Mr. Young admitted;

iv.

Both parties reported a pattern of
    confrontations and that A.Y. often witnessed the confrontations;

v.

He found a significant power imbalance between
    the two parties with oppressive behaviour on the part of Mr. Young;

vi.

He found that Mr. Young had been rigid and
    domineering throughout the marriage and after separation;

vii.

He noted the involvement of the police in
    disputes where the child was present; and

viii.

He found Ms. Vanleer to be the far more
    compliant partner.

[36]

In terms of access, the trial judge relied on the
    evidence at trial and the recommendations in the OCL Report and ordered that
    parenting time continue in accordance with earlier court orders.  There is
    nothing in the trial judges findings to support Mr. Youngs contention that
    Ms. Vanleer has or will fail to foster access between A.Y. and him.

[37]

The trial judge also took care to ensure that through
    the access schedule, both parents share equally in important holiday times. This
    can be seen in paras. 6,7, 9 and 11 of the Order, as well as in the additional
    instructions he gave at pages 30 and following of his reasons.

[38]

It is well-established that a courts decision
    on custody and access matters is owed considerable deference on appeal. I see
    no basis on which to interfere with the trial judges decision on those
    matters.

Issue
    #6  Whether [Ms. Vanleer] should continue treatment for her emotional issues
    and in particular her bipolar illness.

[39]

Mr. Young asks this court to make an order
    requiring Ms. Vanleer to attend counselling and submit an annual doctors note
    regarding her adherence to taking medication and attending counselling. He relies
    on the OCL Report that recommended that Ms. Vanleer continue receiving treatment
    for her emotional issues and bipolar illness.

[40]

Assuming that this court has the jurisdiction to
    make such an order, I would decline to do so.

[41]

Ms. Vanleer acknowledged at trial that she has
    bipolar disorder and is being treated for it, with medication, under the
    supervision of her doctor. She denied that her disorder affects her ability to
    care for A.Y. The trial judge found Ms. Vanleer to be a responsible and capable
    parent. He identified one occasion on which Ms. Vanleer appeared to have
    forgotten whether she had taken her medication but found no indication that
    that isolated event was indicative of any ongoing problem that would affect
    [A.Y.s] wellbeing (at page 7 of the reasons).

[42]

The trial judge is best positioned to make
    determinations of this sort. He was satisfied there was no issue as to the
    childs best interests as a result of Ms. Vanleers disorder. Deference is owed
    to his determination.

Issue
    #7  Whether the costs award to [Ms. Vanleer] should be vacated.

[43]

Mr. Young argues that the Costs Order should be
    vacated because: he incurred legal costs of $12,000 before assuming carriage of
    his case; while he has a law degree he has never practiced so he had to spend
    time far in excess of that which a practising lawyer would have required; and,
    success at trial was mixed.

[44]

I begin by noting that leave to appeal a costs order
    is required. Leave was not sought in this case and I would not have granted
    leave had it been.

[45]

In any event, I see no basis on which to
    interfere with the Costs Order.

[46]

The Order does not reflect divided success.
    Although Ms. Vanleer did not obtain an order permitting her to move with A. Y.
    to Kentucky, she was otherwise fully successful at trial. Consequently,
    pursuant to rule 24(1) of the
Family Law Rules
, O. Reg. 114/99, Ms.
    Vanleer was presumed to be entitled to costs of the trial. There is nothing to
    rebut this presumption. Ms. Vanleer was represented by counsel; the trial
    proceeded over seven days; and, given the importance and complexity of the
    issues, the amount awarded is reasonable and proportional.

[47]

I conclude on this issue by noting Mr. Di
    Lisios concession on this appeal, on behalf of Ms. Vanleer, that Mr. Young is
    entitled to offset $350 against the Costs Order, as a result of a costs order in
    Mr. Youngs favour made at a court attendance on February 4, 2020.

Issue #8  Whether
    the appellant is experiencing undue hardship.

Issue
    #9  Whether [Ms. Vanleer] should [share in the] marital debt and s. 7 expenses.

[48]

As issues #8 and #9 are interrelated, I address
    them together.

[49]

Mr. Young says that fulfilling his spousal and
    child support obligations will create undue hardship because of his crushing
    debt load. He seeks an order vacating or reducing spousal support or an order
    requiring Ms. Vanleer to pay half of the marital debt and past s. 7 expenses.

[50]

In terms of Mr. Youngs claim of undue hardship,
    as I explain above in Issue #2, the trial judge took into consideration Mr.
    Youngs debt situation when he established the quantum of spousal support. He
    did this despite having found that Mr. Young was the author of his own
    financial misfortune, the debt was not incurred to support Ms. Vanleer or A.Y.,
    and it would be inappropriate to hold Ms. Vanleer responsible for the debt.

[51]

The trial judge acknowledged that Mr. Young was
    responsible for an unusually high level of debt and referred specifically to
    Mr. Youngs financial statement showing $347,000 in student loan debt at the
    time of separation. However, he found that some of the student loan debt was incurred
    prior to marriage and some related to Mr. Youngs law school tuition during the
    marriage. He also found that those debts were not incurred to support Ms.
    Vanleer or A.Y. He made that same finding in respect of Mr. Youngs debt for
    Canadian and American taxes prior to separation. Moreover, the trial judge
    found that while it was possible that some credit card debt was incurred
    during the marriage, even if it was, it was not in an amount that could be
    characterized as an unusually high level.

[52]

I note again that there must be a basis for
    appellate intervention before this court can interfere with support orders. There
    is no such basis in this case. If Mr. Youngs financial circumstances change
    such that he becomes unable to meet his support obligations, he can bring a
    motion to change on that basis.

[53]

In terms of Issue #9, the trial judge found that
    both parties had a negative net worth. He declined to make an order making Ms.
    Vanleer responsible for half of the debts that Mr. Young accrued during the
    marriage, citing a lack of jurisdiction. In the circumstances of this case, I
    fully agree with the trial judge.

C.

DISPOSITION

[54]

For these reasons, the appeal is dismissed. I
    would make no order as to costs of the appeal or the attendance before the
    Divisional Court. I would, however, add my voice to so many others of this
    court in imploring the legislature to clarify family law appeal routes: see
Mattina
    v. Mattina
, 2018 ONCA 867,
Marchildon v. Beitz
,
2012 ONCA 668
, 23
    R.F.L. (7th) 316;
Priest v. Reilly
,
2018 ONCA 389
,
Christodoulou
    v. Christodoulou
, 2010 ONCA 93, 75 R.F.L. (6th) 93.


[55]

In making no order as to costs, I reject Mr.
    Youngs submission that he should be awarded costs of $1,500 as a penalty for Ms.
    Vanleers late filing of responding materials. I see no compensable damages
    arising from the late filing.

[56]

I recognize that I have not followed the general
    rule that costs follow the event. On that basis, Ms. Vanleer would be entitled
    to costs of the appeal, having been wholly successful on the appeal. However,
    at the conclusion of the oral hearing of the appeal, Mr. Di Lisio advised that
    he was acting on a
pro bono
basis for Ms. Vanleer and so was not
    seeking costs of the appeal.

[57]

I wish to thank the parties for their submissions,
    with particular thanks to Mr. Di Lisio for assisting the respondent in this appeal
    on a
pro bono
basis.

Released: July 13, 2020 (E.E.G.)

E.E. Gillese
    J.A.

I agree.
    David Brown J.A.

I agree.
    Thorburn J.A.


