Marrese v Dyck, 2020 MBCA 94

Citation: Marrese v Dyck , 2020 MBCA 94 Date: 20201005 Docket: AF20-30-09409 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen BETWEEN : ) B. P. S. Dyck SHANNON KRISTEN MARRESE ) on his own behalf ) (Petitioner) Respondent ) S. K.

Marrese ) on her own behalf - and - ) ) Appeal heard and BARRY PETER SHELDON DYCK ) Decision pronounced: ) September 30, 2020 (Respondent) Appellant ) ) Written reasons: ) October 5, 2020 On appeal from 2019 MBQB 135 mainella JA (for the Court) : [ 1 ] The respondent appealed a final order made pursuant to The Family Maintenance Act , CCSM c F20 , requiring him to pay to the petitioner child support in the amount of $642 per month, plus a further $250 per month towards arrears of $16,782. [ 2 ] The award was for three children, ages 4, 8 and 10, and was based on a straight set-off calculation pursuant to the Manitoba, Child Support Guidelines Regulation , Man Reg 58/98 (the Guidelines ), with no

section 9 adjustment due to a lack of evidence. [ 3 ] At the hearing of the appeal, we dismissed a motion to introduce further evidence and the appeal, with reasons to follow. These are those reasons. [ 4 ] The trial judge was faced with the unenviable task of dealing with two self-represented litigants who lacked basic civility towards one another at times, late and incomplete financial disclosure by the respondent, and unsatisfactory testimony by both parties regarding the quantum of child support. [ 5 ] The petitioner’s income is not in dispute.

The disagreement here is whether the trial judge should have imputed income to the respondent in an amount higher than he reported in his income tax returns (see section 18(1) of the Guidelines ).

The trial judge concluded (at para 34): For the following reasons I order that respondent’s total annual income for child support purposes in each of the years 2017, 2018 and to date be set at $65,000: - he has demonstrated, in each of 2012, 2013 and 2014, an income earning ability of about $55,000, and offered no meaningful evidence as to why that could not have been achievable in subsequent years, and is not now; - his sworn financial statement discloses monthly expenses, which could only be supported by an income substantially more than he has reported;

- he has a history, over several years, of operating his businesses without reporting accurately to tax authorities his gross income,and blending personal with business expenses indiscriminately; and, - his failure or refusal to make proper financial disclosure is remarkable, and only a negative inference can reasonably be drawn. [6] We were not satisfied that it was in the interests of justice to admit further evidence on the appeal (see Palmer v TheQueen, (SCC), [1980] 1 SCR 759 at 775).

The majority of the respondent’s proposed evidence was irrelevant, as it wasnothing more than documentation of the high-conflict nature of the parties’ relationship post-separation.

The evidence as to therespondent’s debt obligations, including his accepted consumer proposal under the Bankruptcy and Insolvency Act could have beenadduced at the trial had he been more diligent and could not have reasonably affected the result when considered with the other evidence,given that the issue the trial judge was deciding was the amount of the respondent’s true income. [7] Because determinations of child support are fact-driven and discretionary, the standard of review is highlydeferential.

A support order cannot be overturned unless the reasons disclose an error in principle, a significant misapprehension of theevidence, or unless the award is clearly wrong (see Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11). [8] We accept that the trial judge did misapprehend the evidence when he said the respondent “made no disclosure for . .. 2018” (at para 23). Exhibits 21-23 at the trial were the respondent’s 2018 personal income tax return and the corporate tax returns fortwo of his construction businesses for that year.

However, in our view, this error was not material because it did not affect the decision(see Horch v Horch, 2017 MBCA 97 at paras 50, 137). The respondent’s reported income for 2018, like his reported income for 2017,was irreconcilable with his stated expenses (see Chief v Smith, 2010 MBCA 16 at para 3). [9] In June 2017, the respondent affirmed under oath in his Form 70D financial statement that his personal monthlyexpenses were $7,716.38.

In contrast, his net declared income for 2017 and 2018 for income tax purposes was under $15,000 per year ineach year. [10] As previously mentioned, the trial judge identified several pieces of evidence and inferences as to why he accepted thatthe respondent’s true income for 2017-2019 was much higher than what he reported for income tax purposes after 2015. As the trier offact, the trial judge was entitled not to accept the respondent’s claim that he had unusually high income for 2013-2014 due solely to somelucrative out-of-town concrete contracts.

In particular, the trial judge heard a great deal of evidence about the respondent’s enthusiasmfor the underground economy. The trial judge’s finding as to the respondent’s imputed income is reasonably supported by the record. [11] In

summary, we are satisfied that, in exercising his discretion to determine the quantum of child support, the trial judgeapplied the correct principles to the facts and in a manner consistent with the objectives of the Guidelines (see

section 1). [12] The respondent attempted to blame his former lawyer for the handling of his case and putting him at a disadvantage attrial. We see no merit to this submission. The respondent had the responsibility to familiarise himself with the legal process andproperly prepare his own case in a timely manner (see Dewing v Kostiuk et al, 2017 MBCA 22 at para 21).

The respondent is the authorof his own misfortune for being disorganised and ill-prepared for his trial despite ample time to prepare his case. [13] The respondent also complained that the trial judge did not provide him with a fair opportunity to present his case. Wereject that argument. A review of the transcript confirms that the trial judge did an admirable job of ensuring the trial was fair andbalanced (see Dewing at para 18). [14] In the result, the appeal was dismissed with costs in favour of the petitioner. Costs are set in the amount of $1,000 allinclusive. JA JA JA