Blanchard v. Maxwell, 2023 MBCA 89
Written by Booker Zhang
Introduction
The case report discusses Blanchard v. Maxwell, 2023 MBCA 89, a family law case in Manitoba concerning child support. This case reiterates appellate courts’ deferential approach to trial courts’ standard of review in child support cases. It argues that an appellant faces an arduous task to overturn trial courts’ child support orders.
Background
In Blanchard v. Maxwell, 2023 MBCA 89, the Manitoba Court of Appeal affirmed the decision from Manitoba’s Queen’s Bench, imputing the petitioner’s income at $90,000 per year.[1] In this case, the petitioner (Father) and the respondent (Mother) separated in December 2017 with two children.[2] On December 7th, 2020, they entered into an interim consent order, requiring the Father to pay child support of $289 per month based on the Father’s and Mother’s yearly income of $52,500 and $32,000, respectively.[3] The Mother submitted that the court should impute an income of $90,000 to the Father because he could earn over that as a heavy equipment mechanic.[4] The trial judge considered the Mother’s proposal “eminently fair and reasonable” and then determined Father’s income to be $90,000/year.[5] Consequently, the court ordered the Father to pay the Mother rising child support of $812/month, starting June 1st, 2022.[6]
Decision
The Father then appealed to the Manitoba Court of Appeal. One of his core arguments is that the trial judge wrongfully concluded that he was intentionally underemployed under section 19(1)(a) of the Federal Child Support Guidelines.[7] The intentional underemployment here suggests that an individual is intentionally making less of what they are capable of earning to enter into a lower-income basket.[8] In this case, the Father was a mechanic but left to start his business as a heavy equipment mechanic during the marriage.[9] The business has done very well and generated increasing revenue every year.[10] The Father has deducted his business income from some expenses, such as meals, vehicles, and house, for income tax purposes.[11] He argued that his career change was a pursuit of a better work/life balance instead of an intentional underemployment.[12]
However, the court was not satisfied with the Father’s argument and believed that the main concern came from the losses in the farming operation.[13] Other than the business, the Father also started a small farm operation with growing losses each year during the marriage and deducted these losses from his income.[14] Given that the Father could not predict when the farm would become profitable, the court held that the trial judge was entitled to take farming operation losses into consideration when deciding the Father’s income.[15]
Furthermore, the court also found that whether the characterization of the farming operation losses fell under either unreasonable deduction of expenses or intentional underemployment did not make an enormous difference.[16] The Father did not provide a specific calculation or argument to the trial judge about the total deductible expenses for income imputation.[17] He assumed that all losses could reduce his income.[18] On the other hand, the Mother provided a summary of the Father’s income information and an outline indicating unreasonable business expenses.[19] According to the documents provided by Mother, Father’s annual net income would have exceeded $90,000 virtually every year in the seven years before the trial.[20] The court found that the comprehensive evidence provided by the Mother entitled the trial judge to accept the Mother’s summary with limited analysis.[21] Even if the court accepted that the Father was not intentionally underemployed, the alternative would be that the Father had unreasonably deducted some business expenses from income for child support purposes—which would also be caught by the Federal Child Support Guidelines under section 19(1)(g).[22] Applying either clause (section 19(1)(a) or section 19(1)(g)) would lead to the same conclusion.
As a result, the court concluded there was no need for appellate intervention with the trial judge’s decision and dismissed the Father’s appeal with costs.[23]
Analysis
The court has emphasized a long-accepted and respected principle about the standard of review on appeal for support orders. Justice Morden introduced this principle in Harrington v. Harrington (1981), 33 O.R. (2d) 150 and wrote that “we should not interfere with the trial judge’s decision unless we are persuaded that his reasons disclose material error, and this would include a significant misapprehension of the evidence, of course, and to use familiar language, the trial judge’s having ‘gone wrong in principle or [his] final award [being] otherwise clearly wrong.’”[24] The Supreme Court of Canada emphasized this rule in Hickey v. Hickey, [1999] 2 SCR 518 and stated that this approach “promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.”[25]
Here, the Father would need to prove either an error in principle, a significant misapprehension of the evidence, or a clearly wrong award to earn the opportunity to convince the court. However, the Father’s argument about the intentional underemployment was off the track. Whether the Father was intentionally underemployed or had unreasonably deducted his income did not matter, as neither a significant mistake, essential evidence misapprehending, nor a wrong award was detected. As mentioned above, both intentional underemployment and unreasonable income deduction would enable the trial judge to make the same decision. Therefore, it was open for the court to step away from appellate intervention and uphold the trial judge’s decision.
Conclusion
In conclusion, the appeal court refrains from overturning child support orders unless the reasons are strong enough to defeat the significant deference. The appellant would have to go over and beyond and rely on material errors to stand a chance.
[1] Blanchard v Maxwell, 2023 MBCA 89 at para 12 [Blanchard 2023].
[2] Blanchard v Maxwell, 2022 MBQB 113 at para 1 [Blanchard 2022].
[3] Ibid at para 8.
[4] Ibid at para 48.
[5] Ibid at para 80.
[6] Ibid.
[7] Blanchard 2023, supra note 1 at para 3.
[8] Thompson v Thompson, 2013 ONSC 5500 at paras 98-99.
[9] Blanchard 2023, supra note 1 at para 6.
[10] Ibid.
[11] Ibid.
[12] Ibid at para 8.
[13] Ibid at para 9.
[14] Ibid.
[15] Ibid.
[16] Ibid at para 10.
[17] Ibid at para 11.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid at para 11.
[22] Ibid.
[23] Ibid at para 12, 13.
[24] Harrington v Harrington, 1981 CarswellOnt 247 at para 12.
[25] Hickey v Hickey, 1999 CarswellMan 254 at para 11.
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