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

DATE: 2022/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TAMMY MORGAN

Applicant

– and –

CURTIS CUNNINGHAM

Respondent

Applicant is self-represented

Respondent is self-represented

HEARD: February 24, 2022 (By Videoconference)

AMENDED RULING

The text of the original Ruling of July 4, 2022 was amended on September 28, 2022 and a description of the amendments is appended.

Corthorn J.

Introduction

[1] The parties are the parents of CAC, born August 2003 (“the child”). 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 of the Order requiring Mr. Cunningham to pay monthly child support of $625.

[2] Mr. Cunningham brings this motion for an order providing for a reduction, including retroactively, of his child support obligations. Mr. Cunningham relies in part on a reduction in his income over time. Mr. Cunningham also relies on a verbal agreement, which he alleges was reached with Tammy Morgan in April 2016. Mr. Cunningham’s position is that the verbal agreement provided for a reduction of child support to $300 effective in early 2016.

[3] Ms. Morgan opposes the request for a reduction of child support. 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, by choice, each winter in the Caribbean, and (c) deliberate concealment of income earned.

[4] With respect to the termination of child support, Mr. Cunningham relies on the child having graduated from high school in 2021 and thereafter earning an income from employment at Costco. Ms. Morgan agrees that Mr. Cunningham does not have to pay child support effective the child’s 18th birthday (August 2021). She requests that Mr. Cunningham be required to pay child support in the event the child pursues post-secondary education.

The History of this Motion

[5] The history of Mr. Cunningham’s motion is set out in the court’s November 2021 and January 2022 endorsements: Morgan v. Cunningham, 2021 ONSC 7555 and 2022 ONSC 549, respectively. I shall not repeat that history here. The motion was adjourned in October 2020, March 2021, and November 2021 because not all of the relevant evidence was before the court.

[6] The November 2021 endorsement includes a detailed list of the additional documents that Mr. Cunningham was to serve and file. A deadline was set for Mr. Cunningham to deliver the documents, and a timetable was established for the exchange of additional evidence. Mr. Cunningham’s motion was adjourned to January 2022.

[7] As of the return date for the motion in January 2022, Mr. Cunningham had not complied with all of the terms of the November 2021 endorsement. In addition, Mr. Cunningham raised for the first time that he is relying on his “disability” in support of his request for a reduction of his child support obligations.

[8] In January 2022, Mr. Cunningham was offered and declined a further adjournment of his motion so that he could both (a) deliver the balance of the evidence required pursuant to the November 2021 endorsement, and (b) deliver a further affidavit, with exhibits if relevant, as evidence of the disability upon which he relies.

[9] The motion was adjourned in January 2022, in any event, because neither party was able to articulate for the court the specific relief they are seeking. For example, Mr. Cunningham asks the court to reduce monthly child support from $625 to $300. Yet, in January 2022, he was unable to identify either (a) the month and year in which he is requesting that the reduction be effective, or (b) the months and years during which he is asking that the reduction remain in effect.

[10] Similarly, Ms. Morgan was unable to particularize, for each of the years 2016 through 2021, the amount at which she requests the court set Mr. Cunningham’s monthly child support obligation and the annual income upon which the monthly amount is to be based. In addition, Ms. Morgan was unable to provide the calculation of and basis for the imputation of income she is requesting.

[11] The parties ultimately made their respective submissions over the better part of the day on February 24, 2022. No oral evidence was given. The parties rely solely on affidavit evidence.

Background

[12] Pursuant to the Order, Mr. Cunningham was required to pay child support in the amount of $625 per month commencing on April 1, 2007. The Order provides that child support in that amount shall be paid on the first of each month thereafter. The Order does not provide for adjustment or termination of child support.

[13] The Order grants the parties joint custody of the child and provides that the child’s primary residence shall be with Ms. Morgan. Last, the Order grants Mr. Cunningham “liberal and generous access to [the child] on terms agreed to between the parties.”

[14] It is undisputed that the child’s primary residence has always been and to the date of the motion remained with Ms. Morgan. The parties disagree about the extent to which Mr. Cunningham spent time at Ms. Morgan’s home between 2007 and 2013. The parties agree that whatever their relationship was in those years, they were separated by August 2013.

[15] Mr. Cunningham asks the court to reduce child support to $300 per month effective March 31, 2016. That request is based on a verbal agreement which Mr. Cunningham alleges the parties reached.

[16] Mr. Cunningham also asks the court to adjust child support, to $56 per month, effective March 1, 2016. He asks that child support be adjusted on the 1st of March in each of the years 2017 to 2021. Mr. Cunningham selects the 1st of March as the adjustment date because that is approximately the date on which he files his tax returns each year.

[17] In summary, Mr. Cunningham asks the court to retroactively adjust child support to the amounts set out below:

March 1, 2016 $ 56 / mo.

March 1, 2017 $ 254 / mo.

March 1, 2018 $ 326 / mo.

March 1, 2019 $ 232 / mo.

March 1, 2020 $ 0

March 1, 2021 Unspecified

[18] Mr. Cunningham bases those amounts on his Line 150 income as set out in his Canada Revenue Agency (“CRA”) notices of assessment for the years 2016 to 2020. Mr. Cunningham did not make any submissions as to what his income for 2021 was.

[19] Mr. Cunningham asks the court to terminate child support as of August 2021 – the month in which the child turned 18 years. Ms. Morgan does not dispute the suspension of child support effective that month.

[20] From August 2021 to the return date for the motion, the child was not pursuing post-secondary education and was gainfully employed on at least a part-time basis. Ms. Morgan asks that child support continue if the child pursues post-secondary education. As to a fixed end date for child support, Ms. Morgan asks the court to consider that the child has some learning challenges; he may take longer to complete post-secondary education than would a student who does not face such challenges.

[21] Mr. Cunningham did not provide the court with his calculation of child support payments made versus the child support payable, the latter if based on the amounts he proposes for the years 2016 through 2020 and into 2021. Despite not having done an arrears calculation, Mr. Cunningham believes that he has overpaid child support between March 1, 2016 and August 31, 2021. Mr. Cunningham asks the court to set arrears of child support at $0, as of August 31, 2021.

[22] Ms. Morgan asks the court to (a) dismiss Mr. Cunningham’s motion, (b) maintain monthly child support at $625 from March 1, 2016 to August 31, 2021, and (c) where necessary, impute the requisite level of income. With respect to (c), I note that the Federal Child Support Guidelines, S.O.R./97-175, as amended (the “Guidelines”), relate monthly child support of $625 to an annual income of $67,100. An annual income of $67,600 – the income figure which appears in the Order – gives rise to monthly child support of $630.

[23] Ms. Morgan denies that there was a verbal agreement to reduce child support from $625 to any lower amount. She asks the court to find that Mr. Cunningham is deliberately earning less income than what he is capable of earning and/or is concealing income earned. Ms. Morgan points to Mr. Cunningham’s bank statements as evidence of funds available to Mr. Cunningham that are in excess of the amounts reasonably expected to be available to someone earning the modest to low levels of income reported by Mr. Cunningham to CRA.

[24] Ms. Morgan asks the court to consider Mr. Cunningham’s choice to travel and to spend several months in Jamaica each winter. Mr. Cunningham is said by Ms. Morgan to have admitted on the record that he travels to Jamaica for the winter months. Ms. Morgan submits that admission was made by Mr. Cunningham when the parties appeared before MacEachern J. on January 3, 2020 for a case conference.

[25] Relying on monthly child support remaining level at $625 from the date of the Order forward, Ms. Morgan asks the court to fix arrears at $27,332.95 as of December 16, 2021. Ms. Morgan bases that figure on a payment schedule from the Family Responsibility Office (“FRO”).

The Issues

[26] The issues to be determined on this motion are as follows:

1. Did the parties have a verbal agreement to reduce monthly child support from $625 to $300 effective March 31, 2016?

2. Regardless of whether a verbal agreement was reached, what amount of child support was payable for the period from March 1, 2016 to August 8, 2021?

3. Has Mr. Cunningham overpaid or underpaid child support to August 8, 2021 (and, if so, in what amount)?

4. What additional terms, if any, are required to address child support?

Issue No. 1 - Did the parties have a verbal agreement to reduce monthly child support from $625 to $300 effective March 31, 2016?

[27] For the reasons that follow, I find that the parties did not reach a verbal agreement to reduce monthly child support from $625 to $300 effective March 31, 2016.

[28] First, Mr. Cunningham’s evidence as to the terms of the verbal agreement reached is internally inconsistent. In his March and July 2021 affidavits, Mr. Cunningham’s evidence is that pursuant to the verbal agreement he was to pay $200 per month plus additional expenses. In his December 2021 affidavit, Mr. Cunningham’s evidence is that the parties verbally agreed that he was to pay $300 per month plus additional expenses.

[29] In none of his affidavits does Mr. Cunningham provide an explanation for the change in his evidence from the $200 to the $300 monthly amount. For example, Mr. Cunningham does not identify that either of the figures was a mistake, or even a typographical error, on his part.

[30] This internal inconsistency in Mr. Cunningham’s evidence is, on its own, a sufficient basis upon which to dismiss the request for an order that child support be based on the alleged verbal agreement. There are, in any event, other reasons why I dismiss that request.

[31] The suggestion made in Mr. Cunningham’s affidavits is that the timing of the verbal agreement is linked to the withdrawal from FRO, in April 2016, of enforcement of the Order. I find that the evidence does not support the existence of such a link.

[32] In a letter dated April 21, 2016, addressed to Mr. Cunningham, FRO informed him that the office “had recently received a Notice of Withdrawal form requesting that [FRO] stop enforcing [the] Order”. The FRO letter (or at least the first page of it) does not include any information as to the reason why the Notice of Withdrawal was filed.

[33] In his March 2021 affidavit, Mr. Cunningham links the withdrawal of enforcement from FRO to the alleged verbal agreement. At para. 6 of that affidavit, Mr. Cunningham says, “In April 2016, Tammy Morgan chose to remove our file from the [FRO] because we (Tammy Morgan and I) made a verbal agreement” (emphasis added). In para. 7 of the same affidavit, Mr. Cunningham refers to the verbal agreement based on monthly child support of $200 plus additional funds.

[34] In his July 2021 affidavit, at para. 6, Mr. Cunningham says, “In April 2016, the applicant decided to remove the file from [FRO]” (emphasis added). In that affidavit, Mr. Cunningham appears to link Ms. Morgan’s “decision” in that regard to the alleged verbal agreement. Paragraph 7 of that affidavit begins with, “Furthermore, in April 2016, the applicant and I, came to a mutual verbal agreement …”

[35] At para. 6 of his December 2021 affidavit, Mr. Cunningham’s evidence is that “In April 2016, the applicant had our file removed from the [FRO]”. In the following paragraph, Mr. Cunningham says, “Furthermore, in April 2016, the applicant and I had come to a mutual verbal agreement …”

[36] The evidence summarized in the preceding paragraphs does not support a finding that the reason why enforcement of the Order was withdrawn from FRO in April 2016 was because of the existence of the alleged verbal agreement.

[37] Last, Mr. Cunningham relies on a series of monthly bank statements as evidence of the alleged verbal agreement. For example, Mr. Cunningham includes as an exhibit to his December 2021 affidavit a document titled “TD Canada Trust Transaction History” for the period from January 2016 to December 2018 (“the TD documents”). The TD documents appear to be a computer-generated, continuous history of the transactions during the calendar year 2016 for an account in Mr. Cunningham’s name.

[38] Mr. Cunningham did not serve and file a notice pursuant to s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, that would entitle him to rely on the TD documents as business records. Ms. Morgan does not dispute the authenticity of the TD documents. Mr. Cunningham is a self-represented litigant; he is not well-versed in evidentiary requirements. I grant him leave to rely on the TD documents without having to call evidence to authenticate the documents.

[39] During submissions, Mr. Cunningham informed the court that he placed a check, or some other, mark beside each entry in the TD documents upon which he relies as evidence of (a) child support paid, and/or (b) the alleged verbal agreement. With respect to the latter, I note the following points:

• For the first three months of 2016 (i.e., prior to the month in which the verbal agreement is alleged to have been reached) the entries check-marked are for January 29 ($200), March 31 ($200), and March 31 ($80);
• The only check-marked entry for April 2016 is for $85 on the 29th of that month; and
• At no time from January 2016 to December 2018 is a child support payment in the amount of $300 reflected (i.e., check-marked).

[40] I find that the TD documents do not support the existence, as of April 2016, of the alleged verbal agreement to reduce monthly child support from $625 to either $200 or $300 effective March 31, 2016.

[41] At para. 12 of her April 2021 affidavit, Ms. Morgan acknowledges that Mr. Cunningham met with her in April 2016 to discuss his financial circumstances and make a proposal with respect to child support. Ms. Morgan’s evidence is that Mr. Cunningham showed up, unexpectedly, at her place of employment and informed her that he had lost his job with Tomlinson Construction. Ms. Morgan acknowledges that Mr. Cunningham “convinced” her that he was in dire straits.

[42] Ms. Morgan’s evidence is also that Mr. Cunningham made a proposal to her that included a temporary reduction in the payments that he would make towards child support, with a return to the full amount of $625 once he was once again employed. There is no evidence from Ms. Morgan that she accepted the proposal and consented to a reduction, from $625 to $200, of monthly child support.

[43] Even if an inference could be drawn from Ms. Morgan’s evidence – and I draw no such inference – that she agreed to a temporary reduction in child support, the bank documents discussed below show that Mr. Cunningham did not even fulfil the obligations set out in the proposal as detailed in Ms. Morgan’s affidavit. Mr. Cunningham would have been in breach of the alleged agreement. Ms. Morgan would have been entitled to rely on that breach in support of a resumption of reliance on the terms of the Order with respect to child support.

[44] Having found that the parties did not agree verbally to a reduction in child support effective March 31, 2016, I next determine the child support payable from March 1, 2016 to August 8, 2021.

Issue No. 2 - Regardless of whether a verbal agreement was reached, what amount of child support was payable for the period from March 1, 2016 to August 8, 2021?

a) The Positions of the Parties

[45] Mr. Cunningham’s position is that the Line 150 income set out in his CRA notices of assessment for the years 2016 to 2020 accurately reflects the income which he was reasonably capable of earning in those years. He also asks the court to consider that he suffers from an unspecified disability, which prevented him from earning additional income. Mr. Cunningham made no submissions as to precisely when, from 2016 to 2021, he suffered from that disability.

[46] Ms. Morgan’s position is that Mr. Cunningham was intentionally under-employed or unemployed throughout the years 2016 to 2021. She asks the court to impute income to Mr. Cunningham at $67,100 per year for each of those years.

b) The Law

[47] Sections 19(1)(a)-(i) of the Guidelines list the circumstances in which the court may exercise its discretion to impute income. Ms. Morgan relies exclusively on s. 19(1)(a). It provides that the court may impute income where the support payor “is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of the child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.”

[48] In determining whether to impute income to Mr. Cunningham, the following questions must be answered:

i) Was Mr. Cunningham intentionally under-employed or unemployed in any of the years 2016 to 2021?

ii) If so, were Mr. Cunningham’s circumstances the result of his reasonable health needs? (Mr. Cunningham is not relying on the pursuit of education as a reason for the amount of income he earned from 2016 to 2021.)

iii) If not, then what income is appropriately imputed to Mr. Cunningham?

[49] For question (i) to be answered in the affirmative does not require the court to find that Mr. Cunningham had a specific intent to evade his child support obligations: see Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 36; Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at paras. 25-26.

[50] As the party relying on s. 19(1)(a) of the Guidelines, Ms. Morgan has the onus to establish an evidentiary basis to support an imputation of income: see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28.

c) Analysis

[51] Before dealing with the substantive issues, I first address the evidence upon which Mr. Cunningham relies both in support of his request for child support to be reduced, and in response to Ms. Morgan’s request for the court to impute income.

[52] Throughout this proceeding, Mr. Cunningham has repeatedly (a) been ordered by this court to produce documents related to his income, and (b) failed to comply with those orders: see paras. 7-11 of the November 2021 endorsement. At para. 6 of that endorsement, I found that to “an escalating degree, Mr. Cunningham has been directed to file the materials and evidence in support of the relief he is requesting.”

[53] In keeping with that pattern of escalating orders, at para. 19 of the November 2021 endorsement, Mr. Cunningham was ordered to “deliver a further affidavit setting out all of the evidence upon which he intends to rely with respect to several matters”, including 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.

[54] Mr. Cunningham was to serve and file his further affidavit no later than at 4:00 p.m. on December 10, 2021. When the parties were once again before me in January 2022, Ms. Morgan informed the court that she did not receive Mr. Cunningham’s further affidavit until December 14, 2021. She did not oppose Mr. Cunningham relying on the further affidavit, despite his failure to comply with the terms of the November 2021 endorsement.

[55] Not only did Mr. Cunningham fail to deliver his further affidavit in accordance with the terms of the November 2021 endorsement, but he also failed to include in his further affidavit much of the evidence he was ordered to provide. For example, he failed to provide the details of his employment status and income earned for the entire period from January 1, 2016 to the return date of the motion. In addition, he failed to produce copies of the relevant pages from his passport.

[56] The deficiencies in Mr. Cunningham’s evidence are addressed where relevant in answer to the component questions (i) to (iii), in this section of the ruling.

i) Was Mr. Cunningham intentionally under-employed or unemployed in any of the years 2016 to and including 2021?

[57] At para. 11 of his December 2021 affidavit, Mr. Cunningham lists his employment for some, but not all, of the period from January 1, 2016 to December 2021. For each of the calendar years 2016 to 2021, I (a) will review Mr. Cunningham’s affidavit evidence and the exhibits upon which he relies; (b) consider the periods during each calendar year for which Mr. Cunningham provides no evidence and/or for which there are no supporting documents; and (c) make findings with respect to Mr. Cunningham’s employment and income for each of the calendar years.

[58] At the conclusion of this section of the ruling, I consider the evidence and the lack of evidence, collectively, and answer this first question.

2016

[59] Mr. Cunningham’s evidence is that he received social assistance for the entire calendar year. The only document upon which Mr. Cunningham relies in support of his entitlement to social assistance throughout 2016 is a letter dated January 8, 2016 from an Ontario Works Administrator with the City of Ottawa. The contents of that letter do nothing more than inform Mr. Cunningham of the name of his new caseworker. There is no evidence as to why Mr. Cunningham was in receipt of social assistance at that time.

[60] Included as exhibits to Mr. Cunningham’s December 2021 affidavit are his CRA notices of assessment for the years 2016 to 2020, the TD documents, and records for Mr. Cunningham’s personal bank account with Scotiabank (“the Scotiabank documents”). Only the TD documents include entries for 2016; the Scotiabank documents are relevant to late 2018 and subsequent years.

[61] The TD documents are addressed in an earlier section of this ruling; Mr. Cunningham is granted leave to rely on those documents. There is no narrative evidence from Mr. Cunningham in which he addresses the Scotiabank documents. Based on the form and content of those documents, I find that they are monthly statements for a personal account in Mr. Cunningham’s name. As a result, a notice pursuant to the business records section of the Evidence Act is not required for Mr. Cunningham to be entitled to rely on the contents of the Scotiabank documents.

[62] Based on the contents of Mr. Cunningham’s affidavits, the TD documents, and the 2016 CRA notice of assessment, I make the following findings:

• Mr. Cunningham’s Line 150 income for 2016 was $13,781;
• In 2016, Mr. Cunningham’s social assistance benefits were deposited to his TD bank account by the City of Ottawa;
• Mr. Cunningham received social assistance benefits in the amount of $681 per month from January through August 2016 and $706 per month from September through December 2016;
• In August 2016, the TD account was credited with $1,121.63 (August 4) and $505.42 (August 11), from a payor described in the TD documents as “SDE (OLRT) Inc. pay”; and
• The total of the funds deposited into Mr. Cunningham’s TD account for social assistance and from SDE (OLRT) Inc. pay in 2016 was $9,900 (($681 x 8) + ($706 x 4) + $1,121.63 + $505.42).

[63] There is no evidence to explain the difference of approximately $3,880 between Mr. Cunningham’s Line 150 income ($13,781) and the total calculated immediately above ($9,899.05). Nor is there any evidence from Mr. Cunningham confirming that the TD account was the only account into which funds he received in 2016 were deposited.

[64] There is no evidence from Mr. Cunningham as to the efforts, if any, that he made to find employment in 2016 and/or if he did not make any such efforts, why he did not do so.

[65] The entries related to SDE (OLRT) Inc. are the first entries in the TD documents to include the descriptor “pay”. Entries in the TD documents for later years also include that descriptor. For example, there is a December 2018 entry for “pay” from Greely Construction (see para. 79, below). I draw an inference and find that Mr. Cunningham was employed by SDE (OLRT) Inc. for at least two weeks in the summer of 2016.

[66] Mr. Cunningham did not address that period of employment in his December 2021 affidavit. He did not acknowledge being employed for any period in 2016. He did not describe the type of work he did for SDE (OLRT) Inc. He did not explain why his employment with SDE (OLRT) Inc. did not continue beyond early August 2016.

[67] I find that Mr. Cunningham was not completely forthcoming in his evidence regarding both his employment status during and income earned in 2016.

2017

[68] Mr. Cunningham’s evidence is that he continued to receive social assistance from January 1 to July 17, 2017. There is no evidence from Mr. Cunningham in narrative form or through supporting documents as to why he continued to be entitled to social assistance for the first six and one-half months of 2017.

[69] Based on the contents of Mr. Cunningham’s affidavit evidence, the TD documents, and the 2017 CRA notice of assessment, I make the following findings:

• Mr. Cunningham’s Line 150 income for 2017 was $29,913;
• In 2017, Mr. Cunningham received social assistance benefits totaling $5,458.25. That total is based on the following amounts deposited to the TD bank account: From January through March - $ 706 per month From April through June - $ 819.75 per month In July - $ 706 (one-time payment) In August - $ 175 (one-time payment)
• Mr. Cunningham was employed with “Expercome” from July 18 to December 23, 2017. (There is no evidence as to the nature of the work that Mr. Cunningham performed at Expercome, his hours of work, the rates of pay, or the income earned in that period.);
• Mr. Cunningham received Employment Insurance benefits (“EI benefits”) from December 24 to 31, 2017;
• The difference between Mr. Cunningham’s Line 150 income and the total of the social assistance that he received is $24,454.75 ($29,913 - $5,458.25);
• Allowing for EI benefits of approximately $550 per week for the final week of December 2017 (see para. 76, below), I draw an inference and find that Mr. Cunningham’s income from Expercome for the 23-week period from July 17 to December 23, 2017 was $23,905 ($24,455 - $550); and
• Allowing for four weeks of unpaid vacation in a full calendar year, income of $23,905 earned in 23 weeks is equivalent to an annual income of $49,889 ($23,905 / 23 x 48).

[70] There are no bank or other records as evidence of the pay received from Expercome and/or the account into which that pay was regularly deposited.

[71] Last, there is no evidence from Mr. Cunningham as to the efforts, if any, that he made to find employment from January 1 to July 10, 2017, and from December 24 to 31, 2017 and/or if he did not make any such efforts why he did not do so. Mr. Cunningham does not provide any explanation as to why he did not work during either of those periods.

[72] I find that Mr. Cunningham was not completely forthcoming in his evidence regarding both his employment status during and income earned in 2017.

2018

[73] Mr. Cunningham’s evidence is that he received EI benefits from December 24, 2017 to January 20, 2018. There is no evidence from Mr. Cunningham as to his circumstances from January 21 to July 9, 2018. His whereabouts during that period are unknown. There is no narrative evidence and there are no documents to indicate whether Mr. Cunningham was employed, unemployed, or receiving social assistance during that period.

[74] Mr. Cunningham’s evidence is that he was employed with Greely Construction from July 10 to December 13, 2018. Included as an exhibit to the December 2021 affidavit is an incomplete copy of a 2018 Record of Employment from Greely Construction (the “2018 ROE”). Only the front page of the document is provided; it identifies code “A” as the reason for the record being issued.

[75] I take judicial notice of the fact that a ROE is a two-sided document and that the explanation of the codes appears on the back of a ROE. The back page of the 2018 ROE is not included as part of the exhibit.

[76] Based on the contents of Mr. Cunningham’s affidavits, the TD documents, the Scotiabank documents, the 2018 CRA notice of assessment, and the 2018 ROE, I make the following findings:

• Mr. Cunningham’s Line 150 income for 2018 was $37,112;
• Mr. Cunningham received EI benefits of $547 per week for each of the first three weeks of 2018, for a total of $1,641;
• Mr. Cunningham’s insurable earnings for the five-month period that he worked with Greely Construction were $26,980.49;
• Mr. Cunningham did not receive any income or EI benefits from December 10 to 23, 2018;
• Mr. Cunningham received an unspecified amount of EI benefits for the final week of 2018; and
• Allowing for four weeks of unpaid vacation in a full calendar year, income of $26,980 earned in five months is equivalent to an annual income of $59,770 ($26,980 / 5 x 12 x 48 / 52).

[77] When the EI benefits paid in January 2018 ($1,641) and in the final week of December 2018 (estimated at $550) and the income earned from Greely Construction in the latter five months of 2018 ($26,980) are subtracted from the Line 150 income ($37,112), the difference is $7,491. There is no evidence from Mr. Cunningham explaining how that additional income was earned. Nor is there any evidence as to the bank account, if any, into which the additional income earned was deposited.

[78] There are minimal bank or other records as evidence of the pay received from Greely Construction and/or the account into which that income was regularly deposited. The entries in the Scotiabank documents begin as of December 10, 2018 and continue to August 8, 2020. Those records are heavily redacted. For example, all of the entries in the account balance column are redacted. Some of the entries in the withdrawal and deposit columns are also redacted. It is not in dispute that Mr. Cunningham redacted the Scotiabank documents.

[79] An entry for a deposit made on December 21, 2018 is redacted. The redaction of that entry is not entirely effective. It is easily determined that the payor is Greely Construction and the amount deposited is $676.09. The date of the deposit is subsequent to the end of Mr. Cunningham’s employment with Greely Construction. It is therefore not clear that the amount deposited on that date is reflective of amounts regularly deposited while Mr. Cunningham was employed with Greely Construction.

[80] Last, there is no evidence from Mr. Cunningham as to the efforts, if any, that he made to find employment from January 1 to July 10, 2018 and from December 14 to 31, 2018 and/or if he did not make any such efforts, why he did not do so. Mr. Cunningham does not provide any explanation as to why he was not working during both of those periods.

[81] I find that Mr. Cunningham was not completely forthcoming with the evidence available with respect to both his employment status during and income earned in 2018.

2019

[82] Mr. Cunningham’s evidence is that he received EI from January 1 to June 10, 2019 and worked once again for Greely Construction from July 10 to November 1, 2019. With respect to the final part of the year, Mr. Cunningham’s evidence is that he was either in receipt of EI benefits (November 2 to December 14) or was waiting for his union to call him with an offer of work (December 15 to 31).

[83] There is no narrative evidence from Mr. Cunningham and there are no documents from Service Canada with respect to his entitlement to EI benefits or the amount of such benefits received in 2019. Mr. Cunningham’s evidence that he was waiting to receive a call from his union is addressed in a later section of this ruling.

[84] Included as an exhibit to Mr. Cunningham’s December 2021 affidavit is an incomplete copy of his 2019 Record of Employment from Greely Construction (the “2019 ROE”). Once again, code “A” is the entry to explain why the record was provided and only the front page of the document is included in the exhibit.

[85] Based on the contents of Mr. Cunningham’s affidavits, the Scotiabank documents, the 2019 CRA notice of assessment, and the 2019 ROE, I make the following findings:

• Mr. Cunningham’s Line 150 income for 2019 was $27,714;
• Mr. Cunningham received a total of $1,936 in EI benefits in January 2019 - $496 on January 11; $960 on January 22; and $480 on January 29. (These figures are based on deposits to Mr. Cunningham’s Scotiabank account.);
• Mr. Cunningham received a total of $2,880 in EI benefits in December 2019 - $960 on December 17; and $1,920 on December 24. (These figures are based on deposits to Mr. Cunningham’s Scotiabank account.);
• Mr. Cunningham’s insurable earnings for the 16 weeks (July 10 to November 1 is a 16.2-week period) that he worked with Greely Construction were $21,124.45; and
• Allowing for four weeks of unpaid vacation in a full calendar year, income of $21,125 earned in 16 weeks is equivalent to an annual income of $63,375 ($21,125 / 16 x 48).

[86] When the EI benefits paid in January 2019 ($1,936), the income earned from Greely Construction in 2019 ($21,125), and the EI benefits paid in December 2019 ($2,880) are subtracted from the Line 150 income ($27,714), the difference is $1,773. There is no evidence from Mr. Cunningham explaining how that additional income was earned. There is also no evidence as to the bank account, if any, into which the additional income earned was deposited.

[87] There is no evidence from Mr. Cunningham as to the efforts, if any, that he made to find employment from January 1 to July 10, 2019, and/or if he did not make any such efforts, why he did not do so. There is no explanation from Mr. Cunningham as to why it was not until July 10, 2019 that he secured work.

[88] With respect to the period from December 14 to 31, 2019, Mr. Cunningham’s evidence is that he was waiting for his union to call him with work. It is also Mr. Cunningham’s evidence that he was waiting from January 1, 2020 to October 2020 for his union to call him to work. That aspect of Mr. Cunningham’s evidence is addressed below in a section devoted to the “Rules and By-Laws for Dispatching Members for Available Work” (“the Rules”). The Rules are set out in a three-page document on letterhead for the Labourers’ International Union of North America, Local 527 (“LIUNA”). A copy of that document is attached as an exhibit to Mr. Cunningham’s December 2021 affidavit.

[89] I find that Mr. Cunningham was not completely forthcoming with the evidence available with respect to both his employment status during and income earned in 2019.

2020

[90] Mr. Cunningham’s evidence is that from January 1 to October 2020, he was “waiting for union to call to work”. In that regard, he relies on the Rules. That aspect of his evidence is addressed in a later section of this ruling.

[91] Ms. Morgan submits that, for at least part of early 2020, Mr. Cunningham was deliberately unemployed because of his choice to travel outside Canada. In support of that submission, Ms. Morgan relies on what she describes as an “admission” made regard by Mr. Cunningham at a case conference in January 2020. In her January 3, 2020 endorsement for a case conference conducted on that date, MacEachern J. states that Mr. Cunningham (a) was not in attendance at the case conference, and (b) had “written to the court to say he had a preplanned trip to be away as of December 30, 2019 for 4 weeks.”

[92] Based on the contents of the endorsement of MacEachern J., I find that Mr. Cunningham made a deliberate choice to travel for at least the first month of 2020 and, as such, was deliberately unemployed for that period.

[93] The endorsement of MacEachern J. is also of note because she set out in detail the documents that Mr. Cunningham was required to serve and file at least ten days prior to the next case conference date. Those documents include Mr. Cunningham’s income tax returns, notice of assessment, and proof of income (including T slips). That endorsement precedes, by nine months, the various endorsements made on the return of Mr. Cunningham’s motion (see para. 5, above). The order made in January 2020 serves to highlight the extent of Mr. Cunningham’s delay in filing documents relevant to his motion.

[94] Returning to the 2020 calendar year, it is Mr. Cunningham’s evidence that from October to December 31, 2020, he received the COVID-related benefit (“CERB”).

[95] In support of his receipt of the CERB, Mr. Cunningham attaches as an exhibit to his December 2021 affidavit a two-page document from Service Canada. That document,

• is titled “Important Employment Insurance Information for You”;
• appears to have been mailed to Mr. Cunningham’s Vanier, Ontario home address;
• provides generic information only; and
• does not provide any evidence as to Mr. Cunningham’s entitlement to the CERB or the amount of any such benefits that he received in 2020.

[96] There are no bank documents as evidence of an automatic deposit into an account of the CERB benefits that Mr. Cunningham claims to have received in that year. Mr. Cunningham does not identify the bank account into which the CERB benefits he received were deposited.

[97] As a result, I rely on the 2020 notice of assessment and Mr. Cunningham’s bank records when considering (a) the income earned in 2020, and (b) whether to impute income for that year. Based on those documents, I find that Mr. Cunningham’s Line 150 income for 2020 was $9,449.

[98] I take judicial notice of the fact that the COVID pandemic begin in and continued through 2020. The COVID pandemic does not excuse Mr. Cunningham from providing evidence as to the efforts, if any, that he made to find work in that year. Mr. Cunningham has not provided any evidence in that regard.

[99] I find that Mr. Cunningham was not completely forthcoming with the evidence available with respect to both his employment status during and income earned in 2020.

2021

[100] Mr. Cunningham’s evidence is that from January 1 to August 8, 2021, he continued to receive the CERB; and from August 9 to December 7, 2021, he was employed as a construction worker with Pomerleau Inc. The latter is the date on which Mr. Cunningham swore his December 2021 affidavit.

[101] With respect to his receipt of the CERB, Mr. Cunningham relies on the generic document discussed in para. 95, above. He has not produced any bank documents for 2021. There is no evidence as to the amount of the CERB benefit that Mr. Cunningham received in the first seven-plus months of that year.

[102] As evidence of the income earned while employed with Pomerleau Inc. in the latter half of 2021, Mr. Cunningham attaches as an exhibit to his December 2021 affidavit a full-page, pay statement dated November 25, 2021. The statement is for the period from November 14 to 20, 2021. The statement includes figures for income earned both in that period and in the year to date.

[103] Based on the contents of the November 2021 pay statement, I make the following findings with respect to Mr. Cunningham’s employment with and income earned from Pomerleau Inc. from August 9, 2021 forward:

• Mr. Cunningham was paid a regular hourly wage of $34.17; an overtime hourly wage of $51.26; and a double-time hourly wage of $68.34;
• In addition, Mr. Cunningham was entitled to a contribution towards his pension and paid holidays;
• From August 9 to November 13, 2021, Mr. Cunningham’s total income earned (at regular, overtime, and double-time wages) was $22,475.33;
• As of November 13, 2021, Mr. Cunningham also received pension benefits totaling $4,494.54 and paid holiday benefits totaling $2,247.55; and
• Allowing for four weeks of unpaid vacation in a full calendar year, income of $22,475.33 earned in 13.6 weeks (August 9 to November 13 is a 95-day period) is equivalent to an annual income of $79,325 ($22,475.33 / 13.6 x 48). (The income of $22,475.33 does not take into consideration the value of the pension and vacation benefits which Mr. Cunningham received in the same period.)

[104] Last, there is no evidence from Mr. Cunningham as to the efforts, if any, that he made to find employment from prior to August 9, 2021 and/or if he did not make any such efforts why he did not do so. Mr. Cunningham has not provided any explanation as to why he was not employed until August 9, 2021.

[105] I find that Mr. Cunningham was not completely forthcoming with the evidence available with respect to both his employment status during and income earned in 2021.

The TD and Scotiabank Documents

[106] Ms. Morgan asks the court to carefully review the entries in the TD documents and Scotiabank documents. She submits that the bank documents provide evidence of Mr. Cunningham’s choice to spend a number of months per year outside Canada. Her belief is that Mr. Cunningham travels to and remains in Jamaica for several months of the winter and spring seasons.

[107] The November 2021 endorsement required Mr. Cunningham to produce “[c]opies of bank statements as evidence of child support payments made”. At no time did Mr. Cunningham ask the court for leave to file redacted copies of bank documents; the possibility of him producing less-than-complete copies of his bank documents was not raised by him. Despite the fact that the November 2021 endorsement did not permit Mr. Cunningham to produce redacted copies of his bank documents, he made the unilateral decision to deliver redacted copies of those documents.

[108] When determining the issues on this motion, I consider, as a factor with respect to Mr. Cunningham’s credibility and reliability as a witness, that Mr. Cunningham was less than forthcoming with the bank documents. He failed to comply with one or more court orders related to production of the bank documents.

[109] The TD documents are not as easily understood as are the Scotiabank documents (see the discussion below regarding 2020 and point of sale transactions, etc.). That said, it appears that for the period from early January 2018 to early July 2018, there are no point-of-sale transactions (i.e., purchases) in the Ottawa or Gatineau area. The entries in the TD documents for those months appear to be related to withdrawals and deposits at automatic bank machines (“ABMs”) and payments made by way of electronic transfers.

[110] The Scotiabank documents for 2019 include entries for point-of-sale transactions in the Ottawa area in the month of January and then no further such transactions until March 22, 2019 (“Opos Bell Canada (Ob) Montreal”, in the amount of $150). There are then no further point-of-sale transactions until June 6, 2019 (Opos Bell Canada transaction (Ob) Montreal, in the amount of $200). Point-of-sale transactions begin to appear more regularly as of June 12, 2019.

[111] The Scotiabank records show that, in late 2019 and in 2020, Mr. Cunningham made two large deposits – possibly each in four-figure or five-figure amounts (i.e., in the thousands or tens of thousands of dollars). The first of the two deposits was made on December 24, 2019 and the second on March 5, 2020. The amounts of both deposits and the resultant bank balances are each redacted. It is clear, however, that those deposits and bank are in excess of the unredacted three-figure amounts that otherwise appear in the Scotiabank documents (i.e., the redacted figures appear to have at least a four-figure value).

[112] In December 2019, the Scotiabank documents include entries for point-of-sale purchases made in the Ottawa and Gatineau areas. There are no such purchases from January 1 to February 25, 2020. Between those dates, the entries are restricted to bill payments, withdrawals, service charges, credit card payments, etc.

[113] The entries for withdrawals made on January 20, January 30, February 14, and February 24, 2020 are for “Shared ABM withdrawal” and identified as having been made at “BNS …”, with the balance of the branch location and other relevant information redacted. Once again, Mr. Cunningham’s unilateral efforts at redaction are not entirely successful. The withdrawals appear to involve a currency conversion, an airport location for an ABM machine used on at least one occasion, and references to “Kingston”.

[114] The point-of-sale transactions in the Ottawa and Gatineau areas appear once again from February 25 to March 7, 2020. On March 9, 2020, there is a point-of-sale purchase in Ottawa for WestJet in the amount of $30. The amount of that purchase does not necessarily suggest further travel on Mr. Cunningham’s part. However, from March 7, 2020 forward there are minimal, if any, point-of-sale purchases in the Ottawa and Gatineau areas. There continue to be transfers involving a currency conversion (i.e., May) and “Shared ABM Withdrawals” that involve a currency conversion (July and August).

[115] There is no evidence from Mr. Cunningham that he had any bank account, other than the Scotiabank account, in 2020 from which he managed his personal finances.

[116] Mr. Cunningham did not include any bank records for 2021 as an exhibit to his December 2021 affidavit. There is no explanation from him as to why he did not include bank records for any portion of 2021. I draw an adverse inference and find that Mr. Cunningham followed the same pattern of banking in 2021 as he did in 2018 through 2020.

[117] I find that Mr. Cunningham changed his banking habits from the first half of the year to the second half of the year in each of 2018, 2019, 2020, and 2021. I draw an inference and find that the change in his habits was the result of a deliberate choice on his part (a) not to work or to seek employment, and (b) to spend weeks, if not months, outside the Ottawa/Gatineau area. For the purpose of this motion, it is not necessary for me to make more specific findings as to where, outside the Ottawa/Gatineau area, Mr. Cunningham was during those week and months.

[118] I turn next to the Union Rules.

The Union Rules

[119] Mr. Cunningham does not provide any narrative evidence to explain the Rules. He simply refers the court to the copy of the Rules as a whole; he does not identify which sections of the Rules are relevant for the purpose of his motion.

[120] The Rules appear to be dated from 2010. There is no evidence confirming that the copy of the Rules provided reflects the Rules in effect as of 2019. Once again, taking into consideration that Mr. Cunningham is self-represented, I grant him leave to rely on the Rules without the necessity of calling evidence to authenticate the document.

[121] Mr. Cunningham provided minimal evidence as to whether he complied with the Rules and made himself available for work when offered in late 2019 (and at other times, including into 2020 – see below).

[122] For example, I note that some, if not a large part, of the onus rested with Mr. Cunningham to monitor the availability of work and remain in communication with LIUNA regarding available work. Rule 2 provides, “It is each member[’s] responsibility to keep himself informed as to the availability of work through the Union office”. I question whether Mr. Cunningham was pursuing work in a meaningful way in late 2019 – the period during which he admits, in para. 11 of his December 2021 affidavit, that he was “waiting for union to call to work”.

[123] Also included as an exhibit to Mr. Cunningham’s December 2021 affidavit is a copy of a LIUNA form that appears to be dated November 7, 2021 (i.e., not July 11, 2021). In that form, Mr. Cunningham informs LIUNA that he finished work. The form requires the individual completing it to identify the date on which he finished work and the name of the employer for whom he was working; Mr. Cunningham did not provide either the date or the employer’s name.

[124] The form includes an acknowledgement from Mr. Cunningham that his name will be removed from “this list” – which I infer to be the out of work list – if he fails to comply with the Rules. The form requires the signature of the LIUNA member. Based on the manner in which the form was completed, I draw an inference and find that Mr. Cunningham did not personally sign the form; rather, he spoke with someone over the phone who acknowledged that phone call in the signature portion of the form.

[125] There is no evidence from Mr. Cunningham as to what jobs, if any, he was offered and refused (in either 2019 or in 2020). Rule 5 provides that, “A member who refuses a job without just cause will have his name struck from the list and must wait seven (7) regular days before he is able to request that is name be place[d] on the bottom of the out of work list.” There is no evidence from Mr. Cunningham as to whether he was sanctioned, pursuant to Rule 5, during the relevant years.

[126] A member who wishes to be considered unavailable for a period may request that their name be placed at the bottom of the “out of work list” (Rule 4). There is no evidence as to whether Mr. Cunningham ever requested that (a) he be considered unavailable, and (b) his name be placed at the bottom of the out of work list.

[127] Last, I note that there is no evidence as to whether, during the relevant period, Mr. Cunningham ever faced sanctions for quitting a job, requesting a layoff, or being fired (Rule 11), giving/selling a referral slip for work to another member or person (Rule 12), or falsifying employment information (Rule 14).

[128] There is no evidence as to when Mr. Cunningham became a member of LIUNA. He does not rely on his status as a union member in an effort to explain his lack of work at any time prior to November 2, 2019. I therefore draw an inference and find that (a) Mr. Cunningham was not subject to the Rules for any period prior to November 2019, and (b) the Rules did not in any way contribute to Mr. Cunningham not being employed at any time between January 1, 2016 to November 1, 2019.

[129] The evidence from Mr. Cunningham with respect to the Rules, his compliance with them, and the extent to which work may have been available to him from late 2019 through October 2020 is incomplete. Mr. Cunningham was given sufficient direction from the court to enable him to understand the type of evidence required.

[130] Based on the lack of complete evidence with respect to his work through the union, I draw an adverse inference and find that Mr. Cunningham was intentionally unemployed, even at times when he was a member of LIUNA.

[131] Before making a finding with respect to component question (i), there is one remaining aspect of Mr. Cunningham’s evidence – or, more accurately, lack of evidence – to consider.

Mr. Cunningham’s Passport

[132] As noted in an earlier section of this ruling, the November 2021 endorsement required Mr. Cunningham to serve and file “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”. In his December 2021 affidavit, Mr. Cunningham says that he is unable to produce those pages because he “misplaced” his passport. When he was before the court in November 2021, Mr. Cunningham did not inform the court that he anticipated any difficulties in producing copies of the relevant pages from his passport.

[133] In her submissions on the motion, Ms. Morgan informed the court that it is her belief that FRO seized Mr. Cunningham’s passport on December 16, 2021. Given the amount of the arrears set out in the FRO document before the court, it is entirely possible that FRO took the step of seizing Mr. Cunningham’s passport. It is, however, not necessary for me to make a finding based on a submission (i.e., not evidence) from Ms. Morgan in that regard.

[134] Mr. Cunningham was well aware, many months prior to late 2021, of Ms. Morgan’s position in response to his motion. He was under no illusion that she would not be relying on the argument that he follows a deliberate pattern of employment which includes travel outside the country for several months each year.

[135] I rely on Mr. Cunningham’s failure to produce copies of the relevant pages of his passport – both before and after the November 2021 endorsement – and draw an adverse inference against him as further support for the finding made with respect to a deliberate pattern of employment.

Summary

[136] I find that for the years 2017, 2018, 2019, and 2021 Mr. Cunningham engaged in a deliberate pattern with respect to his employment. That pattern includes that Mr. Cunningham (a) chose to rely on one of social assistance, EI benefits, or the CERB as income during at least the first half of the year, and (b) worked for between 16 weeks and approximately five months during the latter half of the year.

[137] There are two ‘outlier’ years – 2016 and 2020. For 2016, I (a) rely on Mr. Cunningham’s failure to provide any evidence as to the basis for his entitlement to social assistance benefits and the precise period during that year in which he received such benefits, (b) draw an adverse inference and find that Mr. Cunningham did not make a meaningful effort to find employment, and (c) conclude that Mr. Cunningham was intentionally under-employed or unemployed in that year.

[138] For the 2020 calendar year, I (a) rely on Mr. Cunningham’s failure to provide a complete explanation with respect to his employment and income in that year, (b) draw an adverse inference with respect to his efforts to secure employment and find that he did not make a meaningful effort to find employment, and (c) conclude that Mr. Cunningham was intentionally under-employed or unemployed in that year.

[139] With respect to the adverse inferences drawn against Mr. Cunningham, I note the following. He has had more than ample opportunity to marshal the relevant evidence. On more than one occasion, Mr. Cunningham was granted an indulgence to permit him to gather the evidence required to support the relief he requests and in response to Ms. Morgan’s request that income be imputed to him. Yet, Mr. Cunningham failed to gather the relevant documentary evidence and/or provide the narrative evidence required to comply with the court’s endorsements over time.

[140] In summary, I find that Mr. Cunningham made a deliberate choice in each of the years 2017 through 2021 not to work for several months each year, and to rely on one or more of social assistance, EI, and the CERB, when he could otherwise have been gainfully employed. I find that Mr. Cunningham was intentionally under-employed or unemployed in the years 2017 through 2021.

ii) If Mr. Cunningham is under-employed or unemployed, are his circumstances the result of his reasonable health needs?

[141] Mr. Cunningham asks the court to find that, for at least a portion of the time from January 1, 2016 to December 2021, he was unable to work because of a disability. There is, however, no evidence of any kind whatsoever to support a conclusion that Mr. Cunningham was disabled from working at any time during those six calendar years.

[142] For the years in which Mr. Cunningham earned employment income, the evidence is, in fact, to the contrary. He was able to hold down physical labour jobs for anywhere between 16 weeks and five months.

[143] I also note that Mr. Cunningham did not raise the issue of a disability until February 2022 in oral argument.

[144] Based on the lack of evidence in support of the existence of a disability that prevented him from working and when Mr. Cunningham first raised that issue, I draw an adverse inference and find that Mr. Cunningham’s employment (and unemployment) circumstances in the years 2016 through 2021 were not the result of health needs.

iii) If Mr. Cunningham is not under-employed or unemployed and his circumstances are not the result of his reasonable health needs, then what income is appropriately imputed to Mr. Cunningham?

[145] Ms. Morgan asks the court to maintain child support at $625 per month for March 1, 2016 to August 8, 2021. She relies on the income figure of $67,600 which appears in the Order. Ms. Morgan’s evidence is that, when the Order was made (in 2007), Mr. Cunningham was earning that income as a unionized construction worker.

[146] Ms. Morgan’s position is that, through the extrapolation of Mr. Cunningham’s Line 150 income, there is evidence to support imputing income of $67,600 to Mr. Cunningham in each of the relevant years. I disagree.

[147] In answer to component question (i), I found that Mr. Cunningham had the potential to earn income as set out below for the years 2017, 2018, 2019, and 2021:

2017 $ 49,889

2018 $ 59,770

2019 $ 63,375

2021 $ 79,325

[148] Ms. Morgan has not provided the court with evidence to support a finding that specifically when employed, Mr. Cunningham was in some way under-employed. On the other hand, there is no evidence from Mr. Cunningham to support a finding that he is capable only of seasonal work. His employment in the years 2017 through 2021 (excepting 2020) spanned the spring, summer, and/or fall months.

[149] I therefore impute income to Mr. Cunningham in the above-noted years, based on the figures set out above (i.e., as extrapolated from the other evidence as to Mr. Cunningham’s income and periods of unemployment in those years).

[150] I find that it would be unreasonable to impute income of $67,600 to Mr. Cunningham for the year 2016. There is no evidence from Ms. Morgan as to what Mr. Cunningham was capable of earning specifically in that year. I note that 2016 is seven years after the year in which the Order was made. I do, however, take into consideration the pattern of increase in income from year-to-year for 2017 to 2019 and 2021.

[151] I find that in 2016, Mr. Cunningham had the potential to earn slightly less income than he earned in 2017. I impute income of $50,000 to Mr. Cunningham for 2016.

[152] For 2020, I consider that the COVID-19 pandemic started in mid-March and continued throughout the year. There is no evidence from either party as to the impact of the pandemic on the availability of employment in the fields in which Mr. Cunningham is capable of working. There is no evidence from Ms. Morgan as to the income that Mr. Cunningham had the potential to earn, even in light of the pandemic. There is no evidence upon which the court might base an inference in that regard.

[153] In the complete absence of evidence with respect to available employment and/or income potential for Mr. Cunningham in 2020, there is no basis upon which to impute income to Mr. Cunningham. Child support for that year shall therefore be based on his Line 150 income from his 2020 notice of assessment ($9,449).

[154] Pursuant to the Guidelines, child support for the period from March 1, 2016 to August 8, 2021 is set in the following amounts:

2016 $ 50,000 $ 461

2017 $ 49,889 $ 460

2018 $ 59,770 $ 553

2019 $ 63,375 $ 591

2020 $ 9,449 Nil

2021 $ 79,325 $ 739

[155] Under Issue No. 3, immediately below, I determine the amount of arrears, as of December 16, 2021, based on (a) the figures set out above, and (b) the evidence of child support paid between March 1, 2016 and December 16, 2021.

Issue No. 3 - Has Mr. Cunningham overpaid or underpaid child support to August 8, 2021 (and, if so, in what amount)?

[156] As an exhibit to her December 2021 affidavit, Ms. Morgan attaches a copy of the most recent Statement of Arrears which she filed with FRO. In her affidavit she confirms, as set out in the Statement of Arrears, that she is claiming arrears from September 1, 2016 forward. Based on the child support determined above under Issue No. 2, the child support payable from September 1, 2016 to August 8, 2021 (when the child turned 18 and became gainfully employed) is $26,576. That amount is based on the following calculations:

2016 4 x $461 $ 1,844

2017 12 x $460 $ 5,520

2018 12 x $553 $ 6,636

2019 12 x $591 $ 7,092

2020 Nil Nil

2021 (7 + 8/31 x $739) $ 5,364

Total $ 26,456

[157] As of the date of the motion, the Order was being enforced through FRO. Child support as ordered in this ruling shall also be enforceable through FRO unless the matter of enforcement is withdrawn from that office.

[158] The total of $26,456 does not in any way account for post-judgment interest at 6 percent per year as prescribed by the Order. I leave it to the parties and/or FRO to determine (a) the post-judgment interest that has accrued based on the date of each default (or shortfall) in payment, and (b) the total of arrears and post-judgment interest owing.

[159] As to the child support paid from September 1, 2016 forward, the FRO payment summary identifies that there were no payments tracked between April 19, 2016 and November 27, 2020. Mr. Cunningham asks the court to consider, as evidence of child support paid, entries in the bank documents which he has check marked. Mr. Cunningham’s submission is that the check-marked entries represent transfers of funds from his bank account to either Ms. Morgan’s bank account or the child’s bank account.

[160] The TD documents include check marked entries for transfer to at least three different bank accounts. There is no evidence as to which of the bank accounts is Ms. Morgan’s, is the child’s, or is in the name of another individual. Ms. Morgan’s submission is that Mr. Cunningham appears to have gone through the documents and simply check marked any entry that is for a transfer from one bank account to another – without regard for whether the transfer is truly relevant to the issue of child support paid. It is not necessary for me to make a specific finding in that regard. It is sufficient for me to find, and I so find, that Mr. Cunningham has not provided the court with evidence upon which it may base findings with respect to child support paid.

[161] In her December 2021 affidavit, Ms. Morgan admits that in 2016 she received a total of $800 in child support from Mr. Cunningham (for the months of September through December). In the same affidavit, she admits that in each of 2017, 2018, 2019, and 2020 she received $200 per month ($2,400 per year) from Mr. Cunningham. Those payments are not apparent from the FRO payment summary, as they were made directly to Ms. Morgan.

[162] The FRO payment summary does, however, reflect payments made in 2021 through what is listed as “FOAEA Diversion”.

[163] Based on the FRO payment summary, I find that the arrears as of April 2016 had been reduced to nil. It is therefore possible to fix the arrears, as of December 16, 2021, based on the support ordered in this ruling, Ms. Morgan’s admissions, and the FRO payment summary as to child support paid from January 1 to December 16, 2021.

[164] I fix the arrears as of December 16, 2021 at $10,731.25, calculated as follows:

Year	Child Support	Amount Paid	Arrears
2016	$1,844	$800	$1,044
2017	$5,520	$2,400	$3,120
2018	$6,636	$2,400	$4,236
2019	$7,092	$2,400	$4,692
2020	Nil	$2,400	($2,400)
2021	$5,364	$5,324.75 *	$39.25

• This figure is based on the amounts paid, in 2021, as reflected in the “Receipt FOAEA Diversion” entries in the FRO Payment Schedule included in the record. The FRO Payment Schedule also refers to an “SOA SR PMT” for a “GL Date” of December 29, 2020. The FRO Payment Schedule shows a “Credit Amount of $10,400 for that date. That amount is $200 more than the “Amount Paid” in total for the years 2016 through 2020 reflected in the chart above. It is incumbent upon Ms. Morgan to deal with FRO to ensure that their records accurately reflect the arrears found in this ruling.

[165] The calculations set out above do not take into consideration post-judgment interest at the rate of 6 percent per year, as prescribed by the Order.

[166] The arrears shall be paid at the monthly rate of $560. That amount is based loosely on the average of the monthly child support amounts for the years 2016 to 2019 and 2021.

Issue No. 4 - What additional terms, if any, are required to address child support?

[167] There are several additional matters to address in the order with respect to child support. First, both parties acknowledge that there remains the potential for the child to commence and pursue post-secondary education. At para. 14 of his July 2021 affidavit, Mr. Cunningham acknowledges that if the child pursues post-secondary education, he is responsible to contribute towards the expenses in that regard. There are, however, two shortcomings in Mr. Cunningham’s acknowledgement in that regard.

[168] First, Mr. Cunningham commits only to pay for tuition. He does not address expenses such as books, computer equipment, accommodation (residence or otherwise), and travel (if applicable). Second, Mr. Cunningham commits to pay 50 percent of tuition. Mr. Cunningham’s share of the expenses (tuition and more) would be a pro-rata share based on his income and Ms. Morgan’s income in the relevant years.

[169] The terms set out in the order made below reflect the following matters:

• A continuing obligation to pay child support in the event the child is pursuing post-secondary education – whether on a full-time or part-time basis – and is under age 27;
• A continuing obligation to pay child support in the event the child is, because of health reasons alone, not able to pursue either gainful employment or post-secondary education;
• A pro-rata sharing of the costs associated with the pursuit of post-secondary education (including, but not limited to, tuition, books, computer equipment, residence, travel, etc.); and
• The requirement for the parties to exchange their respective notices of assessment for any year in which the child is pursuing post-secondary education so that they may determine their respective shares of the relevant expenses for that calendar year.

[170] Ms. Morgan’s evidence is that the child has some challenges with learning, such that he has been on an Individual Education Plan (IEP) since he was in Grade 5. Attached as an exhibit to Ms. Morgan’s November 2021 affidavit is a copy of a form from St. Peter’s High School in Orleans. The form identifies that (a) the child has an IEP, and (b) he was permitted to make a substitution for what would otherwise have been a compulsory course. In the form, the substitution made is described as meeting the child’s educational needs. The form bears Ms. Morgan’s signature and that of a counsellor and the school principal.

[171] Ms. Morgan asks the court to consider that the child will likely require accommodation should he pursue post-secondary education and that he may require extra time (i.e. in months or years) to complete a post-secondary program. Ms. Morgan did not make any submission or provide any other evidence as to how much extra time the child might require to complete a post-secondary program.

[172] The child will turn 19 this year. Based on the child’s reliance on an IEP since Grade 5, I find it reasonable to look beyond age 25 as an endpoint for the child support obligation, on the condition that the child is pursuing post-secondary education. I find it reasonable to make age 27 the absolute endpoint for Mr. Cunningham’s child support obligation. Those findings are reflected in the terms set out below.

Disposition

[173] For the reasons set out above, the court makes the following order:

1. The respondent’s request for an order that child support be based on the alleged verbal agreement is dismissed.

2. For the period from March 1, 2016 to August 8, 2021, income shall be imputed to the respondent and monthly child support shall be payable pursuant to the Child Support Guidelines, set in the following amounts, namely: a) for 2016, on income of $50,000, the monthly amount of $461; b) for 2017, on income of $49,889, the monthly amount of $460; c) for 2018, on income of $59,770, the monthly amount of $553; d) for 2019, on income of $63,675, the monthly amount of $591; e) for 2020, on income of $9,449, Nil; and f) for 2021, on income of $79,325, the monthly amount of $739.

3. In accordance with the child support amounts set out at para. 3, above, the respondent shall pay to the applicant forthwith, arrears of child support as of December 16, 2021, fixed in the amount of $10,731.25, plus post-judgment interest at the rate of six (6) percent per year pursuant to the final order of Justice Mckinnon dated March 6, 2007.

4. The arrears set out in paragraph 3, above, shall be paid at the rate of $560 per month and shall continue to be paid until the total arrears, plus any post-judgment interest, calculated in accordance with the final order of Justice Mckinnon dated March 6, 2007, are reduced to nil.

5. The respondent shall have a continuing obligation to pay child support until the child reaches the age of 27, on the condition that the child is attending successful post-secondary education.

6. Commencing January 1, 2022, and provided that the child is pursuing post-secondary education in accordance with paragraph 5, above, the respondent shall pay child support in the amount of $739 per month based on imputed income in the amount of $79,325 and the Child Support Guidelines.

7. The respondent shall pay his proportionate share of the costs associated with post-secondary education (including, but not limited to, tuition, books, computer equipment, residence, travel, etc.) in accordance with his Line 150 annual income and the respondent’s Line 150 income for each year in which post-secondary education expenses are incurred.

8. By the 1st of June in each year in which child support is payable, the parties shall, a) exchange income tax returns and notices of assessment/re-assessment for the purposes of determining, i) the parties’ actual incomes for that calendar year; ii) the appropriate amount of monthly support payable in accordance with the Child Support Guidelines; and iii) the parties’ respective shares of the relevant post-secondary educational expenses and b) shall adjust the amounts accordingly for that calendar year.

9. If the respondent has underpaid the Table amount of his child support obligation for the applicable calendar year, he shall provide the applicant with the additional amount owing for the applicable calendar year within 90 days. If the respondent has overpaid the Table amount of his child support obligation for the applicable calendar year, the applicant shall provide the respondent with the additional amount owing for the applicable calendar year within 120 days. The number of days shall be calculated from the date on which the parties agree that there was an overpayment or an underpayment of child support for the given year.

10. Unless this order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.

11. With the exception of post-judgment interest on arrears, which continues at the rate of six (6) per cent per year, pursuant to the Courts of Justice Act, this order bears post-judgment interest at the rate of two (2) percent per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of the default.

[174] Given the significant delays on the part of the respondent to deliver materials in support of his motion to change and his failure, in the end, to comply with court orders in that regard, the applicant shall take the steps necessary to have an order, pursuant to this ruling, issued and entered. The requirement to obtain approval from the respondent, as to the form and content of the draft order, is dispensed with. The applicant shall file the draft order to my attention.

Costs

[175] If the parties are unable to resolve the issue of costs of the respondent’s motion, they shall each deliver written costs submissions as follows:

a) The parties’ submissions shall be limited to a maximum of four pages (excluding the bill of costs); b) Written submissions shall comply with the format prescribed by r. 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c) Copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with r. 4 of the Rules with respect to font size; d) Submissions, including copies of case law or other authorities, shall be filed with the court electronically in accordance with the most recent notice to the profession in that regard; and e) The parties shall deliver their respective written submissions by 4:00 p.m. on Friday, July 22, 2022.

[176] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to the costs of the motion and cross-motion.

[177] Prior to the date on which the respondent’s motion was argued, the applicant informed the court that she was incurring expenses for the services of a lawyer from whom she received assistance with respect to the preparation of materials and for oral submissions. Attached as an exhibit to the applicant’s December 2021 affidavit is a copy of a “Ledger Statement” from the office of the lawyer from whom the applicant received that assistant. The Ledger Statement is a listing of the invoices delivered to the applicant and paid by her from October 30, 2020 to December 2, 2021.

[178] The Ledger Statement does not provide the evidence as to costs incurred that the court requires to address the issue of the quantum of costs, assuming that the court finds that the applicant is entitled to her costs of the motion. If the applicant delivers costs submissions, better particulars of the fees, disbursements, and HST are required – including for services, if any, provided subsequent to December 2, 2021.

Madam Justice Sylvia Corthorn

Released: September 28, 2022

APPENDIX

September 28, 2022:

[1] At page 1, para. 1, the word “of” is added after the word “term” in the last line.

[44] At page 8, para. 44, reference to the child’s birthday has been removed.

[164] At page 28, para. 164, the “$10,652.50” amount for fixed arrears has been corrected to read “$10,731.25”. In the chart that follows, the sum of “$5,324.75*” has been added to the “Amount Paid” column for 2021, thereby requiring the amount of arrears for that year to be revised from “($39.50)” to “$39.25”.

At page 29, an explanation for the asterisk following the amount paid for 2021 (i.e., $5,324.75*) is then set out as follows:

• This figure is based on the amounts paid, in 2021, as reflected in the “Receipt FOAEA Diversion” entries in the FRO Payment Schedule included in the record. The FRO Payment Schedule also refers to an “SOA SR PMT” for a “GL Date” of December 29, 2020. The FRO Payment Schedule shows a “Credit Amount of $10,400 for that date. That amount is $200 more than the “Amount Paid” in total for the years 2016 through 2020 reflected in the chart above. It is incumbent upon Ms. Morgan to deal with FRO to ensure that their records accurately reflect the arrears found in this ruling.

[173] At page 31, point 3, the “$10,652.50” amount for fixed arrears has been corrected to read “$10,731.25”.

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

DATE: 2022/09/28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TAMMY MORGAN

Applicant

– and –

CURTIS CUNNINGHAM

Respondent

AMENDED ruling

Madam Justice Sylvia Corthorn

Released: September 28, 2022