Jul 16, 2020

Vanleer and Young: A "Tidbit" Case

Vanleer v. Young, 2020 ONCA 459 (CanLII)

Vanleer is a family law court of appeal decision with a number of issues that were appealed.

Factually, it involves a husband and wife married in 2012 and with one child, born in 2013. The parties had a seven day trial which resulted in an Order on a number of issues in dispute.

The first ground of appeal advanced by Mr. Young is that the trial judge erred in determining an exact separation date. Interestingly, the court of appeal agreed that the judge made no error in this regard. While in this case nothing of legal significance turned on the separation date, and therefore there was no practical effect to the trial judge's decision, it is curious that the court of appeal did not feel it necessary to comment that generally judges should not make general findings of fact on the separation date.

The next ground of appeal was that the trial judge erred in ordering spousal support. While Mr. Young maintained the relationship was only two years, the trial judge found the cohabitation period was five years. The court of appeal reiterated the strong deference given to trial judges with respect to support awards. Moreover, the court of appeal identified both compensatory and non-compensatory grounds for spousal support to be ordered. There was no basis to interfere with the 5 year period for the support award.

The next grounds of appeal (grouped together by the court of appeal) related to custody and access. The court of appeal disagreed there was any error in awarding the mother sole custody. The trial judge accepted the conclusion in the OCL report that sole custody was not viable. Among a number of reasons, the court of appeal noted that Mr. Young was "rigid" and "domineering" throughout the marriage and separation. In addition, there was a "significant power imbalance" in the relationship.

I pause here to note that although there has been a clear trend towards joint custody in Ontario, it is a double-edged sword. To committed and reasonable parents, it is a means to appropriately involve them both in the child's life. Certainly, we should move past the days where one competent parent who simply sees the child less than the primary parent has no say in major decisions related to the child.

However, when there is a power imbalance, joint custody can be a recipe for chaos and conflict. It is not only against the child's best interests in those situations, but can serve to perpetuate an abusive relationship beyond separation. Judges need to be especially on guard against joint custody orders flowing from relationships where there is a significant power imbalance.

Next, the court sidestepped the issue of whether it can order someone to get counselling. The court declined to order Ms. Vanleer to get counselling on the facts of the case and did not address the issue of jurisdiction head-on. Other cases have dealt with this issue more directly.

With respect to costs of the trial, the court reminded Mr. Young that leave is needed to appeal a costs award and leave was not sought (nor would it have been granted). In any case, while Ms. Vanleer was not successful moving the child, she won on every other point and was entitled to costs.

Finally, Mr. Young asked that Ms. Vanleer share in the marital debt because of his high debt load. Like many ordinary litigants, Mr. Young does not understand that the equalization regime in Ontario creates a debtor-creditor relationship between the parties, and cannot be used (except in certain circumstances) to transfer ownership of an asset or debt from one party to the other. The trial judge rightly cited a lack of jurisdiction in declining to make this order, and the court of appeal agreed.

Vanleer is not a groundbreaking case by any means. It is what I call a "tidbit" case, allowing readers to take "tidbits" across a bunch of different issues.

As one last point, once again the court of appeal has asked the legislature to amend the legislation to make the appellate routes in family law easier to understand. I have observed that with under 10 words worth of changes in the relevant statutes, the entire problem can be fixed. Let's hope it gets done.

Michael H. Tweyman is a partner at Modern Family Law LLP