COURT FILE NO.: FC-07-246-3
DATE: 2022/08/25
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: In writing
COSTS ENDORSEMENT
Corthorn J.
Introduction
[1] The parties are the parents of CAC, born August 8, 2003 (“the child”). In 2007, a final order was made on consent of the parties (“the Order”). The Order required Mr. Cunningham to pay monthly child support of $625. The Order did not provide for any adjustment to the amount of child support payable over time.
[2] Mr. Cunningham brought this motion to change, requesting that his child support obligations be reduced for the period from March 2016 to August 2021. The child turned 18 in the latter month. As of the date on which the motion to change was argued, the child was not pursuing post-secondary education.
[3] In summary, Mr. Cunningham asked the court to make findings with respect to his income in the years 2016 to 2021 that would ultimately support a conclusion that either he had overpaid child support in those years or that the arrears should be reduced to nil. Mr. Cunningham was not successful on his motion to change. The court concluded that, as of December 16, 2021, the arrears of child support were $10,731.25: Morgan v. Cunningham, 2022 ONSC 3964 (“the Ruling”). Mr. Cunningham was ordered to pay the arrears in the amount of $560 per month: Ruling, at para. 166.
[4] The parties were to make written submissions with respect to costs in the event they were unable to resolve the issue. The deadline for the parties’ submissions was July 22, 2022. Only Ms. Morgan filed written submissions.
[5] Although Ms. Morgan is self-represented, she was assisted by legal counsel. Ms. Morgan submits that she was successful in opposing the motion to change. Ms. Morgan seeks costs, on a full indemnity basis, in the amount of $5,243.76.
[6] The issues to be addressed in this endorsement are entitlement to (including the applicable scale) and quantum of costs.
Entitlement to Costs
[7] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”) creates a presumption that the successful party on a motion is entitled to their costs.
[8] Ms. Morgan was successful in opposing the motion to change. She was not entirely successful in that the court did not impute income to Mr. Cunningham in the amounts requested by Ms. Morgan. I find, however, that the lack of success on the specific issue of imputation of income does not detract from Ms. Morgan’s overall success in opposing the motion. Ms. Morgan is therefore entitled to her costs of the motion.
[9] I find that Ms. Morgan is entitled to her costs of the motion on a full indemnity basis. My reasons for ordering that costs be paid on that scale include the following aspects of Mr. Cunningham’s behaviour (a) as a support payor under an existing order of the court, and (b) as a litigant:
• Mr. Cunningham’s behaviour in relation to the issue of child support from March 2016 forward (s. 24(5)(a) – “behaviour in relation to the issues from the time they arose”). That behaviour is described in the Ruling. I shall not repeat that description here. In summary, Mr. Cunningham’s behaviour in that regard includes his failure, throughout more than five consecutive years, to voluntarily make regular child support payments in any amount; and
• The extent to which Mr. Cunningham was repeatedly unprepared at the various steps on the motion to change (s. 24(7) – the court is mandated to award costs against an absent or unprepared party unless it is in the interests of justice for the court to order otherwise). That lack of preparedness is described in the court’s November 2021 and January 2022 endorsements (Morgan v. Cunningham, 2021 ONSC 7555 and 2022 ONSC 549, respectively) and in the Ruling. Mr. Cunningham’s lack of preparation contributed to delay and an increase in the expenses incurred by Ms. Morgan for the assistance of legal counsel.
[10] Rule 24(4) gives the court discretion to order that a successful party that has behaved unreasonably during a case be (a) deprived of all or a part of their own costs, or (b) ordered to pay all or part of the unsuccessful party’s costs. This rule is not applicable to the circumstances of the case. The rules does, however, highlight that there is a distinction between “unreasonable” behaviour and conduct in “bad faith”.
[11] Delineating between “unreasonable behaviour”, within the meaning of s. 24(5) and “bad faith”, within the meaning of s. 24(8), can be challenging. In D.D. v. H.G., 2020 ONSC 191, 40 R.F.L. (8th) 393, conduct which included failing to file material on a motion, requesting an adjournment to serve and file proper material (resulting in delay of the proceeding), and thereafter failing to file their materials was found to fall within the scope of “bad faith” behaviour.
[12] Mr. Cunningham’s behaviour, as described in para. 9, above, and without a finding of “bad faith” on his part, is sufficient on its own to support an award of costs on a full indemnity basis. Regardless, I find that Mr. Cunningham acted in bad faith and that his bad faith conduct is further basis for an award of costs on a full indemnity basis. Mr. Cunningham’s bad faith conduct during the litigation includes the following:
• Mr. Cunningham’s failure to be completely forthcoming with the evidence available with respect to both his employment status and income earned in the years 2016 to 2021 (Ruling, at paras. 67, 72, 81, 89, 99, and 105);
• Mr. Cunningham’s unilateral decision to file redacted copies of his bank statements (Ruling, at paras. 107-108); and,
• Mr. Cunningham’s failure to produce copies of the relevant pages of his passport (Ruling, at paras. 133, 135).
[13] Based on the behaviour described immediately above, I find that Mr. Cunningham was deliberately deceptive in his approach to materials on the motion.
[14] In summary, based on one or both of Mr. Cunningham’s unreasonable conduct prior to and during the litigation (para. 9, above) and his bad faith conduct during the litigation (para. 12, above), Ms. Morgan is entitled to her costs on a full indemnity basis.
[15] I turn next to the quantum of costs to which Ms. Morgan is entitled.
Quantum of costs
[16] Ms. Morgan claims costs in the total amount of $5,243.76 broken down as follows:
Fees $ 4,375.00
HST on fees $ 568.76
Disbursements $ 51.47
Total $ 4,995.23
[17] The difference between the $5,243.76 claimed by Ms. Morgan and the $4,995.23 calculated immediately above is $248.53. That amount is approximately the same as the $300 in fees and disbursements, over and above $4,995.23, that Ms. Morgan’s counsel estimated would be incurred by Ms. Morgan (a) to have the final order taken out, and (b) for the preparation of costs submissions.
[18] Ms. Morgan includes as attachments to her costs submission, copies of invoices received from the office of counsel by whom she was assisted. Only $525 (out of $4,375) in fees was incurred for work done by counsel; the remainder of the fees is for work done by a legal assistant, a law clerk, and a senior law clerk.
[19] I find that the work done on Ms. Morgan’s behalf was delegated in a responsible manner and carried out efficiently.
[20] Minimal fees were charged for work done by a legal assistant ($200). It is open to counsel to charge a client, on an hourly basis, for work done by a legal assistant. The fees for that work are not, however, payable by an opposing party.
[21] I find that as a result of the assistance that Ms. Morgan received from counsel, she was prepared and her materials were helpful to the court. The broader result was that Ms. Morgan’s preapredness, with but few exceptions, contributed to the efficiency of the proceeding.
[22] I fix Ms. Morgan’s costs on a full indemnity basis at $5,000 (including fees, disbursements, and H.S.T.).
[23] The costs incurred by Ms. Morgan are the direct result of Mr. Cunningham’s failure to meet his child support obligations over the years and his behaviour as a litigant, some of which contributed to delays in the completion of the proceeding. Mr. Cunningham has, for years, had the benefit of monies that he should have been paying towards child support. I see no reason to grant Mr. Cunningham an indulgence in the form of time to pay Ms. Morgan’s costs. The order made below provides that costs are payable, in full, within 30 days of the date of this endorsement.
Summary
[24] The costs payable by Mr. Cunningham relate entirely to child support. As a result, the costs payable are enforceable through FRO.
[25] I therefore make the following order:
The respondent, Curtis Cunningham shall, within 30 days of the date on which this endorsement is released, pay the applicant, Tammy Morgan, full indemnity costs in the amount of $5,000.00 inclusive of fees, disbursements and H.S.T.
The payment of these costs is enforceable through the Family Responsibility Office (FRO).
Madam Justice Sylvia Corthorn
Released: August 25, 2022
COURT FILE NO.: FC-07-246-3
DATE: 2022/08/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAMMY MORGAN
Applicant
– and –
CURTIS CUNNINGHAM
Respondent
COSTS ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: August 25, 2022