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 women’s 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 Children’s 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. Young’s 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. Young’s 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 judge’s 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 women’s 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 women’s 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. Young’s evidence the date of separation was in the early months of 2017 whereas on Ms. Vanleer’s trial evidence, it was October 19, 2017. While the trial judge did not specify the precise date of separation, on either party’s 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 judge’s 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. Young’s position) or on October 19, 2017 (Ms. Vanleer’s 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 judge’s 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. Vanleer’s 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. Young’s 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 CanLII 691 (SCC), [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 judge’s 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. Young’s 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 nurse’s 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. Young’s substantial debt load. (I give more details of the trial judge’s findings on this matter below when discussing Mr. Young’s argument that the child and spousal support orders will cause him undue hardship.) The trial judge expressly found that Mr. Young’s 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 nurse’s aide, a position which she had held for about eight years, and worked part-time at Mr. Young’s request. After that, she worked part-time in modest positions in Canada when she could find them. The trial judge explicitly accepted Ms. Vanleer’s 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. Young’s debts had been incurred solely for his own benefit, the trial judge recognized Mr. Young’s debt load and ordered spousal support at the low end of the Spousal Support Advisory Guidelines. Based on Mr. Young’s financial statement, the trial judge found Mr. Young’s 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 judge’s 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 CanLII 34 (SCC), [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 judge’s 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. Vanleer’s 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 judge’s findings to support Mr. Young’s 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 court’s decision on custody and access matters is owed considerable deference on appeal. I see no basis on which to interfere with the trial judge’s 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 doctor’s 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 child’s best interests as a result of Ms. Vanleer’s 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 Lisio’s 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. Young’s 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. Young’s claim of undue hardship, as I explain above in Issue #2, the trial judge took into consideration Mr. Young’s 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. Young’s 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. Young’s 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. Young’s 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. Young’s 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. Young’s submission that he should be awarded costs of $1,500 as a penalty for Ms. Vanleer’s 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.”