CITATION: Morgan v. Cunningham, 2022 ONSC 549
COURT FILE NO.: FC-07-246-3
DATE: 2022/01/26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: TAMMY MORGAN, Applicant (Responding Party)
-and-
CURTIS CUNNINGHAM, Respondent (Moving Party)
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Tammy Morgan, self-represented (Responding Party)
Curtis Cunningham, self-represented (Moving Party)
HEARD: January 14, 2022 (By Zoom)
ENDORSEMENT
Introduction
[1] The parties are the parents of CAC, born August 8, 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 therein pursuant to which Mr. Cunningham is required to pay child support in the amount of $625 per month.
[2] Mr. 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 the child having graduated from high school and beginning to earn an income as an employee of Costco. Last, Mr. Cunningham relies on a verbal agreement, which he alleges was reached with Ms. Morgan in April 2016. Mr. Cunningham’s position is that the verbal agreement provided for a reduction of his child support to $300 effective in early 2016.
[3] Ms. 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] A detailed history of this motion is set out in the court’s November 2021 endorsement: Morgan v. Cunningham, 2021 ONSC 7555 (“the Endorsement”). I shall not repeat that history here. The parties’ appearance before the court in November 2021 was at least the third return date for Mr. Cunningham’s motion. The motion was adjourned both in October 2020 and March 2021 because not all of the relevant evidence was before the court.
[5] The motion was adjourned again in November 2021. The Endorsement listed in detail the additional documents Mr. Cunningham was to serve and file no later than December 10, 2021. The Endorsement also provided a timetable for the delivery of materials thereafter.
The January 14, 2022 Return Date
a) Ms. Morgan receives Mr. Cunningham’s materials after December 10, 2021
[6] Ms. Morgan’s submission is that she did not receive Mr. Morgan’s additional evidence until December 13, 2021. Regardless, she delivered a responding affidavit. On the return of the motion on January 14, 2022, Ms. Morgan did not rely on the alleged missed deadline to object to Mr. Cunningham being entitled to rely on the additional evidence filed.
b) Leave granted to Mr. Cunningham to rely on his December 7, 2021 financial statement
[7] In reviewing the confirmation forms and the additional evidence with the parties, it became clear that Mr. Cunningham wished to rely on his December 7, 2021 financial statement, even though he had not identified that document in his confirmation form. At para. 5(a) of her December 23, 2021, Ms. Morgan refers to “section 11 of the Respondent’s Financial Statement”. Ms. Morgan informed the court that the reference to the financial statement is an error; she intended to refer therein to paragraph 11 of Mr. Cunningham’s December 7, 2021 affidavit.
[8] Ms. Morgan consents to the court granting Mr. Cunningham leave to rely on his December 7, 2021 financial statement for the purpose of this motion.
c) Mr. Cunningham declines the potential to adjourn the motion
[9] The court reviewed with the parties their respective burdens of proof. For example, Mr. Cunningham’s request for a reduction in his child support obligations is based, in part, on a verbal agreement which he alleges was reached with Ms. Morgan in April 2016. Ms. Morgan, on the other hand, is asking the court to impute income to Mr. Cunningham.
[10] Mr. Cunningham’s evidence in support of the existence of the alleged verbal agreement includes the following. First, at paragraph 7 of his affidavit, Mr. Cunningham says, “in April 2016 the applicant and I had come to a mutual verbal agreement that I will pay $300/month in addition to half dental fees and extracurricular activities” for the child. Mr. Cunningham relies on a series of monthly bank statements and documents from the Family Responsibility Office as evidence of the amount of child support he has paid since January 1, 2016. Those documents are attached as exhibits to Mr. Cunningham’s December 7, 2021 affidavit.
[11] The court informed Mr. Cunningham that (a) without additional evidence there is a risk of a finding being made that no verbal agreement was reached in April 2016 for the reduction of his child support obligations, and (b) it was prepared to grant a final adjournment to permit Mr. Cunningham to consider whether he wished to provide additional evidence with respect to the alleged verbal agreement.
[12] Mr. Cunningham was informed that the motion has been proceeding and continues to proceed on the basis of affidavit evidence only because the parties had not requested that the matter proceed to a trial with the parties permitted to give oral evidence. It was made clear to Mr. Cunningham that he will not have the opportunity to give oral evidence on the return of the motion.
[13] The potential shortcomings in Mr. Cunningham’s evidence with respect to the alleged verbal agreement were reviewed with Mr. Cunningham several times. As part of that review, the court advised Mr. Cunningham several times that it was prepared to adjourn the motion a final time. On each such occasion, Mr. Cunningham declined the adjournment and stated that he preferred to proceed with the motion.
[14] Mr. Cunningham also informed the court that he intends to rely on his “disability” in support of his request for a reduction in his child support obligations. Once again, Mr. Cunningham was advised by the court of (a) the minimal, if any, evidence in support of a finding that he is unable, because of a disability, to be gainfully employed to the same degree as he was in 2007 when the original child support order was made, (b) the potential, in absence of better evidence, for the court to reject, in whole or in part, his submissions with respect to his alleged disability, and (c) the opportunity for the motion to be adjourned a final time to permit Mr. Cunningham to provide the court with additional and/or better evidence in support of his alleged disability. Once again, Mr. Cunningham declined the adjournment and the opportunity to submit additional evidence with respect to his alleged disability.
[15] Last, the court noted that Mr. Cunningham had failed to comply with the order made in the Endorsement with respect to (a) the production of a copy of his passport, and (b) providing an explanation as to his employment status and income earned for the entire period from January 1, 2016 to the return date of the motion.
[16] With respect to his passport, Mr. Cunningham informed the court that he had relinquished the document to Immigration and Citizenship Canada. Mr. Cunningham said that he had done so in the context of enforcement proceedings being pursued by Ms. Morgan with respect to child support payments. The court informed Mr. Cunningham (a) that it was prepared to adjourn the motion a final time to permit him the opportunity to attempt to secure a copy of the document from Immigration and Citizenship Canada, and (b) of the potential for an adverse inference to be drawn (i.e., with respect to time spent outside the country) if he does not comply with the court’s November 2021 order and produce a copy of the document. Again, Mr. Cunningham stated his preference to proceed with the motion and declined an adjournment.
[17] At para. 11 of his December 7, 2021 affidavit, Mr. Cunningham provides a list of dates during which he was employed or unemployed from January 1, 2016 to the present. The list provided is not complete. There are several periods for which no evidence is provided. Those periods include January 21 to July 9, 2018; December 14 to 23, 2018; and June 11 to July 10, 2019. In addition, Mr. Cunningham therein identifies that he was “[w]aiting for union call to work” from December 15, 2019 to October 2020. Mr. Cunningham does not provide any additional evidence to explain his lack of gainful employment in that ten-month period.
[18] The gaps in his evidence were pointed out to Mr. Cunningham. The court again explained the potential for an adverse inference if the court concludes that he failed to comply with the terms of the Endorsement (i.e., with respect to explaining his employment status). Mr. Cunningham was again offered an adjournment of the motion to permit him the opportunity to deliver additional evidence with respect to his employment status, etc., from January 1, 2016 to the present. Mr. Cunningham again declined the opportunity to provide additional evidence and stated his preference to proceed with the motion.
d) The burden of proof with respect to imputation of income
[19] The court informed Ms. Morgan that she bears the burden of establishing (a) that there is a basis upon which to conclude that income is to be imputed to Mr. Cunningham, and (b) the basis upon which income, if imputed, is to be calculated. Ms. Morgan confirmed her understanding of that burden and informed the court that she is prepared to proceed on the basis of the record currently before the court.
e) The parties need to address the specific relief they are respectively seeking
[20] As Mr. Cunningham proceeded with his submissions, it became clear that he was not aware of the detail with which he is required to set out the relief he is requesting on his motion. For example, Mr. Cunningham did not initially know the month as of which he is asking the court to find that the reduction in child support to $300 per month is effective – April, January, or some other month in 2016.
[21] As another example, Mr. Cunningham did not initially know whether he is asking the court to reduce child support to $300 per month from 2016 to the present or he is asking the court to vary child support based on the fluctuation in his income in the years 2016 through 2021. Mr. Cunningham eventually informed the court that he is asking that his child support obligation fluctuate in accordance with the changes in his annual income.
[22] The court advised both parties that they are required to set out the specific relief they are seeking, including the following:
a) The month in which the reduction of child support to $300 is effective, based on the alleged verbal agreement;
b) The number of months for which Mr. Cunningham’s child support was to remain at $300 per month;
c) For each of the years 2016 through 2021, what Mr. Cunningham’s monthly child support obligation is and the annual income upon which the amount of child support is based; and
d) Where there is a request for imputation of income, the calculation of the income, as imputed, and the basis for that calculation.
[23] Both parties are required to address each of the matters listed in (a) to (d) above. If a party is not advancing the specific argument addressed, they are still required to respond to the argument. When the motion continues, the parties are shall advise the court of their respective positions with respect to items (a) through (d) in paragraph 22, above – either as part of their respective submissions or, for Mr. Cunningham, as part of his reply submissions.
[24] It was after dealing with the degree of specificity in relief requested that the end of the court’s day was reached – two hours into the motion.
f) Additional time required to complete the hearing
[25] Both parties filed a confirmation form for continuation of the motion on January 14, 2022. The confirmation form filed by Mr. Cunningham did not include any estimates of time with respect to the duration of his submissions or the duration of Ms. Morgan’s submissions. In her confirmation form, Ms. Morgan estimated that each party would require 20 minutes for their respective submissions.
[26] Out of an abundance of caution, and in an effort to ensure that when this matter is once again before the court the motion is completed, Mr. Cunningham’s motion is adjourned to Thursday, February 24, 2022 at 10:00 a.m. The full day is set aside for the hearing of this motion. It is important for all concerned that the hearing be completed.
Disposition
[27] Mr. Cunningham’s motion is adjourned to February 24, 2022 at 10:00 a.m., before me for the full day.
Madam Justice Sylvia Corthorn
Released: January 26, 2022
CITATION: Morgan v. Cunningham, 2022 ONSC 549
COURT FILE NO.: FC-07-246-3
DATE: 2022/01/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TAMMY MORGAN,
Applicant (Responding Party)
-and-
CURTIS CUNNINGHAM,
Respondent (Moving Party)
COUNSEL: Tammy Morgan, self-represented (Responding Party)
Curtis Cunningham, self-represented (Moving Party)
HEARD: January 14, 2022 (By Zoom)
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: January 26, 2022