CITATION: Morgan v. Cunningham, 2021 ONSC 7555

COURT FILE NO.: FC-07-246-3

DATE: 2021/11/16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: TAMMY MORGAN, Applicant

-and-

CURTIS CUNNINGHAM, Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Tammy Morgan, self-represented (Responding Party)

Curtis Cunningham, self-represented (Moving Party)

HEARD: November 9, 2021 (By Zoom)

ENDORSEMENT

Introduction

[1]

Introduction

The parties are the parents of Curtis Andrew Cunningham, born August 8, 2003. The parties both refer to their son as “CJ”. In 2007, a final order was made on the consent of the parties (“the Order”). At issue on Curtis Cunningham’s motion is the term therein pursuant to which Mr. Cunningham is required to pay child support in the amount of $625 per month.

2Mr. Cunningham brings this motion for relief in the form of an order providing for a reduction, including retroactively, in the amount of child support he is required to pay. Mr. Cunningham relies in part on a reduction in his income over time. He also relies on CJ having graduated from high school and beginning to earn an income as an employee of Costco.

3Ms. Morgan opposes the request for a reduction of the child support payable. Her position is that if Mr. Cunningham is reporting that he earns less income than he did in 2007 (which Ms. Morgan questions), then the reduced income is the result of (a) deliberate efforts on Mr. Cunningham’s part not to remain employed to his full potential, (b) a number of months spent each winter in the Caribbean, by choice, and (c) deliberate concealment of income earned.

The History of this Motion

[4]

The History of this Motion

Despite the nature of the relief sought, Mr. Cunningham did not file a motion to change (Form 15) and the related change information form (Form 15A). Mr. Cunningham filed a notice of motion (Form 14). Ms. Morgan had, however, previously filed a motion to change – which was described by one of my colleagues as being “more of an enforcement of the Final Order rather than a variation” (October 1, 2020 endorsement of Doyle J.).

5The parties’ route to this November 2021 return date has been tortuous. From September 2019 to March 24, 2021, the parties were before the court for a first appearance, several case conferences, a return date for Ms. Morgan’s motion (October 2020) and a return date for Mr. Cunningham’s motion (March 2021). I note that Mr. Cunningham failed to attend on at least two dates and neither party attended for one of the case conference dates.

6A number of substantive case conference endorsements and interim endorsements were issued along the way. Those endorsements address deficiencies in the materials filed by the parties, Mr. Cunningham in particular. To an escalating degree, Mr. Cunningham has been directed to file the materials and evidence required in support of the relief he is requesting.

7For example, in January 2020, MacEachern J. ordered that Mr. Cunningham file documents related to his income in the years 2016 to 2019. Justice MacEachern set a deadline by which documents related to Mr. Cunningham’s income in the years 2016 to 2018 were to be filed. As noted by Summers J. in her February 2020 endorsement, Mr. Cunningham failed to meet the deadlines set by MacEachern J.

8The parties were before the court in October 2020 on what appears to be the return of Ms. Morgan’s motion to change. In response to that motion, Mr. Cunningham requested that his child support obligations be reduced from $625 to $200 per month. On that occasion, Doyle J. noted that the following materials were not before the court:

• The parties’ respective 2019 tax documents and updated financial statements, as required by r. 13(12) of the Family Law Rules, O. Reg. 114/99;

• Proof of Mr. Cunningham’s income, including Employment Insurance, subsequent to the date, in the fall of 2019, when Mr. Cunningham was laid off from Greely Construction; and

• Evidence from Mr. Cunningham, including documentary evidence, of the efforts he made to secure alternative employment after being laid off in the fall of 2019.

9Justice Doyle adjourned the motion.

10The parties were before Shelston J. in March 2021 on the return of Mr. Cunningham’s motion to vary the amount of child support payable. Justice Shelston informed Mr. Cunningham that his two-page affidavit was insufficient evidence for a motion of this kind. Justice Shelston ordered Mr. Cunningham to provide a detailed affidavit addressing the following matters:

• The circumstances that existed when McKinnon J. made the Order;

• The child support payments made since the date of the Order; and

• “All evidence to support a variation of the [Order] including copies of his income tax information and his position on ongoing support.”

11Mr. Cunningham was given until March 25, 2021 to file the above-noted materials. Ms. Morgan was given until April 14, 2021 to file responding materials.

12In his motion confirmation form for the November 10, 2021 return date, the only document that Mr. Cunningham identified that he would be referring the court to is his affidavit sworn March 22, 2021. Mr. Cunningham filed a number of financial statements, with attachments prior to November 2021. Mr. Cunningham also filed an affidavit sworn on October 1, 2021.

13The financial statements filed by Mr. Cunningham were not provided to the court for the purpose of the hearing of Mr. Cunningham’s motion; Mr. Cunningham had not identified to the court staff that they should be made available to the presiding judge. The October 1, 2021 affidavit was not provided to the court and could not be located in the electronic court file available on the return of the motion.

14Mr. Cunningham fails to appreciate that it is his responsibility to abide by the terms of orders made and to ensure that all of the materials upon which he intends to rely are before the court for the purpose of the motion. He thinks that by filing a document electronically, he has done all that is required to bring the document to the attention of the court for the purpose of his motion.

15I find that Mr. Cunningham has not taken the steps necessary to familiarize himself with the court process, the Family Law Rules, and the court’s electronic filing process. I find that it was as a result of Mr. Cunningham’s failure to do so that the motion could not proceed on November 10, 2021.

16It was open to the court to dismiss his motion, without prejudice to Mr. Cunningham to bring a motion to change.

17I find, however, that in keeping with the primary objective of the Family Law Rules (r. 2(2)) and the meaning of “dealing with cases justly” (r. 2(3)), it is reasonable to adjourn the motion one final time to permit Mr. Cunningham to place the requisite evidence before the court.

18Although unrepresented, Ms. Morgan is assisted by counsel in her response to Mr. Cunningham’s motion. In addition to incurring expenses for that assistance, Ms. Morgan has expended time and effort in preparing her responding materials and placing them before the court. It would be unfair to Ms. Morgan to require her to start all over again in response to a motion to change.

Disposition

[19]

Disposition

For the reasons set out above, I order as follows:

1. Curtis Cunningham’s motion is adjourned to January 14, 2022 at 2:00 p.m.

2. Curtis Cunningham shall, no later than December 10, 2021 at 4:00 p.m., deliver a further affidavit setting out all of the evidence upon which he intends to rely with respect to the following matters:

• The start and end date for all periods during which he was employed from January 1, 2016;

• Proof of his income in the years 2019 and 2020, including copies of his T4 and other ‘T’ slips received for those years. “Income” includes employment income, Employment Insurance, other forms of benefits such as the CERB, and self-employment income, if any;

• A copy of his 2020 notice of assessment or re-assessment from CRA;

• Steps taken by him to secure employment (i.e., job applications, letters/emails of offer or decline from potential employers, communication from his union with respect to available jobs, etc.);

• The amount of income in each of the years 2016-2021 upon which Mr. Cunningham asserts that his child support obligations should be based;

• The amount of child support payments made in 2016-2021 and Mr. Cunningham’s specific calculation of the overpayment of child support, if any, that he asserts has been made;

• Copies of bank statements as evidence of child support payments made; and

• Copies of pages from his passport to identify the dates on which he left Canada and on which he returned to Canada for any out-of-country travel in the years 2016 through 2021.

3. Tammy Morgan shall, no later than Wednesday, January 5, 2022 at 4:00 p.m. deliver her responding affidavit, if any.

4. Curtis Cunningham shall, within the deadline set by the Family Law Rules, deliver a motion confirmation form in which he lists each document filed with the court and upon which he intends to rely in support of his motion.

5. Tammy Morgan shall within the deadline set by the Family Law Rules, deliver a motion confirmation form in which she lists each document filed with the court and upon which she intends to rely in response to Mr. Cunningham’s motion.

6. Any other materials that either party seeks to rely on for the purpose of this motion shall be filed in accordance with the deadlines for filing set in the Family Law Rules.

7. The costs for the appearance on November 10, 2021 are reserved to the motions judge.

20I remain seized of this matter. The motion shall proceed before me on Friday, January 14, 2022 at 2:00 p.m.

21At the conclusion of his appearance on November 10, 2021, Mr. Cunningham informed the court that he intends to retain counsel to assist him on the motion. If Mr. Cunningham follows through in that regard, he shall inform his counsel that there will be no further adjournments granted of Mr. Cunningham’s motion. Therefore, if Mr. Cunningham intends to be represented by counsel on the return of the motion, that individual must be available to appear and argue the motion on January 14, 2022 at 2:00 p.m.

Madam Justice Sylvia Corthorn

Released: November 16, 2021

CITATION: Morgan v. Cunningham, 2021 ONSC 7555