Panaccione v. Kerr, 2019 ONSC 5870

CITATION: Panaccione v. Kerr, 2019 ONSC 5870

DIVISIONAL COURT FILE NO.: 18-0090

DATE: 2019-10-15

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kiteley, Ducharme and Pomerance, JJ.

BETWEEN:

Massimo Panaccione

Appellant

– and –

Melissa Dawn Kerr

Respondent

A. Palazzio, Counsel for the Appellant

Chad D. Rawn, Counsel for the Respondent

HEARD at Hamilton: October 9, 2019

Pomerance J. (Orally):

[1]

Introduction

Massimo Panaccione appeals against the decision of Taylor J., Kerr v. Panaccione, 2018 ONSC 7061, ordering that he pay child support on the basis of imputed income, and dismissing his request for equalization of family property.

2The parties were married on July 16, 2005. There is one child of the marriage, born January 1, 2008. In early 2015, the respondent Melissa Kerr brought an application for divorce and corollary relief. The parties were divorced on June 11, 2015. Ms. Kerr has custody of the child and Mr. Panaccione has designated access visits.

3The decision of Taylor J. was released on November 28, 2018 following a four day trial.

4The standard of review requires that we defer to the findings of the trial judge, absent a showing of palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. We further note the principle of deference to family support orders, which should only be overturned in the event of an error in principle, a significant misapprehension of the evidence, or an award that is plainly wrong: see Hickey v. Hickey, [1999] 2 S.C.R. 518.

5The appellant has failed to demonstrate a basis for intervention in this case. The trial judge gave thorough and thoughtful reasons in support of his conclusions. His findings of fact and credibility are amply supported by the evidence.

The Support Order

[6]

The Support Order

On the issue of imputing income, the appellant left the trial judge with little option, given his repeated failure to make proper financial disclosure. He failed, on three occasions — December 2015, August 2016 and October 2017 — to comply with production orders issued by the court. On the third day of trial, he told the court that he had relevant documents on his computer. The trial judge refused to receive that material. The appellant has failed to provide the transcript for that day of the proceedings, and we are therefore unable to review the actual ruling. However, there are good reasons to deny such a request mid-trial, when the parties’ positions have already crystallized, and the appellant has already failed to comply with three production orders.

7In his reasons, the trial judge specifically found that the appellant had deliberately withheld disclosure of his finances, making it difficult, if not impossible, to determine his actual income or ability to earn an income. The trial judge further found, as he explained at paragraphs 13 and 14, that the respondent is either intentionally underemployed or is misrepresenting his actual income in order to avoid his obligation to pay child support. Notably, the appellant had an income upwards of $75,000 per year during the period from 2011 to 2014. Yet in 2016 he reported an annual income of $29,436 and in 2017 a mere $8 for the year. The trial judge found it to be no coincidence that the appellant experienced a significant decrease in income the very year that the proceeding was commenced.

8In imputing an income of $75,000 per year, the trial judge considered all of the relevant factors, including age, educational training and experience, previous job history, previous income, and the appellant’s own statements about his earning capacity. There was no evidence to support any justification for underemployment. The trial judge correctly applied the principles set out by the Court of Appeal for Ontario in Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.).

9The trial judge’s findings were also informed, more generally, by the appellant’s admission in cross-examination that he had manipulated documents that had been entered into evidence. For example, in one instance, he had removed the respondent’s name from a cover letter relating to a transfer of property. In another instance, he removed from a document the words: “Melissa Dawn Kerr is my spouse and has consented to this transaction”. The appellant admitted to having intentionally manipulated the documents in order to provoke a response from the applicant, though he claimed that inclusion of the documents in the materials filed with the court was an accident. Understandably, this was a matter of grave concern for the trial judge, and it cast serious doubt on the appellant’s credibility. This is the very type of credibility assessment that trial judges are in the best position to make, and we see no reason to interfere with it.

Equalization

[10]

Equalization

On the issue of equalization, the trial judge found that the parties had effectively settled equalization of property in 2011, when they divided the proceeds from the sale of the matrimonial home. Once again, the trial judge’s conclusion was based on specific findings relating, in part, to the appellant’s conduct and his credibility. The trial judge stated at paragraphs 28 and 29:

I do not accept the respondent’s position that it was never his intention to resolve property issues between he and the applicant by way of the division of the proceeds from the sale of the matrimonial home. I do not accept his evidence that he did not understand the nuances of the calculation of the equalization of net family properties. The respondent impressed me as intelligent and capable of asserting what he believed to be his rights. I also accept as accurate the applicant’s description of the respondent as “forceful, controlling, demanding and overpowering”. I accept that the respondent calculated and dictated the disbursement of the proceeds from the sale of the matrimonial home. I accept that the respondent instructed the applicant to remove from the joint account the balance of the net proceeds from the sale of the matrimonial home which he had deposited on December 7, 2011. I find that he did so because of his awareness that he had received a significantly greater portion of the sale proceeds by reason of his bridge financing loan being more than twice the amount of the applicant’s bridge financing loan.

I also think it significant that both parties apparently were content with the property division which was completed at the time of or shortly after the completion of the sale of the matrimonial home and the purchases of their respective new homes. Neither party took any steps to review or recalculate the “reconciliation of other accounts” until more than three years after that reconciliation was completed. To me this is a clear indication that both parties thought that they had completed the equalization of their net family properties and were content with property division which was the result.

Conclusion

[11]

Conclusion

In short, the appellant has failed to establish any palpable or overriding error. Nor has he pointed to any error in principle or misapprehension of the evidence. The reasons of the trial judge are amply supported by the evidence as are his findings. We accordingly dismiss the appeal.

Kiteley J. (Orally):

Costs

[12]

Costs

On consent, the appellant will pay to the respondent $2300 inclusive of fees, disbursements and H.S.T., if paid within 30 days. If not paid in full within 30 days, the appellant shall forthwith pay to the respondent $5000, plus H.S.T.

13The Director, Family Responsibility Office, shall enforce the payment of $2500 plus H.S.T. as the portion of the costs attributable to the child support issues.

___________________________ Pomerance J.

I agree

Kiteley J.

I agree

Ducharme J.