CITATION: Young v. Vanleer, 2020 ONSC 3606

DIVISIONAL COURT FILE NO.: 19-32

DATE: 20200609

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Kristjanson, Favreau JJ.

BETWEEN:

Vershawn Ashanti Young

Appellant

– and –

Yulanda Vanleer

Respondent

Self-represented

Luigi De Lisio, Counsel for Respondent

HEARD at Toronto June 8, 2020

[1] The appellant, Vershawn Ashanti Young, appeals from an Order made by Justice R. Reid in the Ontario Superior Court of Justice, Family Court, in St. Catharines, Ontario, issued February 8, 2018.

[2] At the outset of the hearing, we raised the issue of whether the Divisional Court had jurisdiction to hear the appeal. After hearing submissions, we concluded that the Divisional Court lacked jurisdiction to hear the matter. Our reasons are set out below.

[3] If this was a matter of exercising our discretion to take jurisdiction to hear this appeal, we would be inclined to do so. We have read the material and, apart from the jurisdictional issue, are ready to proceed. Regrettably, we have concluded that jurisdiction to hear the appeal lies with the Ontario Court of Appeal, not the Divisional Court, pursuant to s.6(1)(b) of the Courts of Justice Act, R.S.O.1990, Chap.C.43, because the relief from which the appellant appeals was granted under the Divorce Act, R.S.C., 1985, c.3(2nd Supp.).

[4] We note that in paragraph 1 of Justice Reid’s Endorsement he states: “The divorce is severed from the claim for corollary relief and either party may proceed to request a divorce by way of affidavit evidence.” In her Application, the respondent (applicant in the proceeding before Justice Reid) claimed corollary relief for custody and support under the

Page: 2

Divorce Act as well as claims under the Family Law Act R.S.O. 1990, c.F.3 and the Children’s Law Reform Act, 1990, c.C.12 and did not claim a divorce. We do not have the Answer in the record before us but there is no issue that the appellant (respondent before Justice Reid) claimed a divorce along with other claims including custody. The facts fall squarely within the analysis in Mattina v. Mattina, 2018 ONSC 1569 and in particular, para.49. Accordingly, we conclude that our only jurisdiction is to determine whether to transfer the appeal to the Court of Appeal under s.110(1) of the Courts of Justice Act, or to dismiss the appeal.

[5] Counsel for the respondent, Mr. De Lisio, concedes that this issue was raised by the respondent at a late date and makes no objection to the matter being transferred to the Court of Appeal and not dismissed. He has undertaken to work cooperatively with the appellant to expedite the appeal if possible. We note, as many courts before us have, that the appeal route from a final order made in a family dispute is far from straightforward. We consider it in the best interests of the child to have the appeal heard as soon as possible. In addition, the immigration status of both parties is up for renewal at the end of the month which makes it highly desirable to have the appeal dealt with as expeditiously as possible.

[6] Costs of the attendance before the Divisional Court are adjourned to the Court of Appeal.

[7] Notwithstanding Rule 59.05, this order is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal order need be entered and filed unless the Court of Appeal requires one. Any party many nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations. This order takes effect upon the parties receiving it and need not be issued to be effective.

Backhouse J.

I agree

Kristjanson J.

I agree

Favreau J.

Released: June 9, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BACKHOUSE, KRISTJANSON, FAVREAU JJ.

BETWEEN:

Young v. Vanleer

REASONS FOR DECISION

By the Court

Released: June 9, 2020