Jul 20, 2020

COURT OF APPEAL SUMMARIES (July 13 – 17, 2020)

Vanleer v. Young, 2020 ONCA 459 (CanLII)

[Gillese, Brown and Thorburn JJ.A.]

Counsel:

VAY, acting in person

Luigi De Lisio, for the respondent

Keywords: Family Law, Custody, Access, Best Interests of the Child, Maximum Contact Principle, Spousal Support, Civil Procedure, Appeals, Jurisdiction, Costs, Family Law Rules, O. Reg. 114/99, Rule 24(1), Hickey v. Hickey, [1999] 2 S.C.R. 518, Young v. Young, [1993] 4 S.C.R. 3, Mattina v. Mattina, 2018 ONCA 867, Marchildon v. Beitz, 2012 ONCA 668, Priest v. Reilly, 2018 ONCA 389, Christodoulou v. Christodoulou, 2010 ONCA 93

Facts:

The trial judge granted custody of the parties’ child to the respondent wife, made an access order, and granted her spousal support. The husband appealed.

Issues:

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

2. Whether spousal support should be awarded to the wife and, if so, what was the appropriate quantum and duration.

3. Whether there should be parallel custody.

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

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

6. Whether the wife should continue treatment for her emotional issues and in particular her bipolar illness.

7. Whether the costs award to the wife should be vacated.

8. Whether the appellant was experiencing undue hardship.

9. Whether the wife should share in the marital debt and s. 7 expenses.

Holding:

Appeal dismissed.

Reasoning:

1. No. There was no need for the trial judge to determine a precise date of separation, since no order for the equalization of net family property was made.

2. Yes. The trial judge did not err in the amount of spousal support her ordered, or its five year duration, given this was an approximately five year marriage. An appellate court will not to interfere absent a demonstrated error in principle, a significant misapprehension of the evidence, or where the award is clearly wrong.

3. 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 a report from the office of the children’s lawyer. 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. In ordering sole custody in favour of the wife, the trial judge accepted the conclusion in the OCL Report that joint custody and shared parenting were not viable options and its recommendation that the wife be given sole custody. A trial court’s decision on custody and access matters is owed considerable deference on appeal, and there was no error on the part of the trial judge with respect to custody and access.

4. See #3 above.

5. See #3 above.

6. No. Assuming that the court even had jurisdiction to require the wife to continue to receive treatment for her disorder, the court determined that the trial judge did not err in refusing to make such an order, or in finding the wife to be a responsible and capable parent, and that the one occasion on which she appeared to have forgotten to take her mediation was an isolated incident.

7. No. There was no divided success. The wife was successful and was presumptively entitled to costs under Rule 24(1) of the Family Law Rules. There was no basis to set aside the costs order.

8. No. The trial judge took into consideration the husband’s debt situation (much of it student debt the preceded the marriage) when he established the quantum of spousal support. He did this despite having found that the husband was the author of his own financial misfortune, the debt was not incurred to support the wife or their child, and it would be inappropriate to hold the wife responsible for the debt. There was no basis to interfere in this case. If the husband’s financial circumstances change such that he becomes unable to meet his support obligations, he can bring a motion to change on that basis.

9. No. The trial judge found that both parties had a negative net worth. He declined to make an order making the wife responsible for half of the debts that the husband had accrued during the marriage, citing a lack of jurisdiction. The Court agreed with the trial judge.