Court File and Parties

Ontario Court of Justice

Date: September 18, 2020

Court File No.: D30664/03

Between:

Rhonda Gardiner Applicant

— And —

Ivan Buffan Respondent

Before: Justice Melanie Sager

Heard on: July 20, 23 and 31, 2020

Reasons for Judgment released on: September 18, 2020

Counsel

Rhonda Gardiner on her own behalf........................................................................ the applicant

Bradley Burns...................................................................................... counsel for the respondent

SAGER J.:

Introduction

1Mr. Buffan's Motion to Change raises two issues for the court to decide. First, whether Mr. Buffan should receive a credit of $60,000.00 towards arrears of child support owing by him to Ms. Gardiner for the parties' two children, Rachel Emily Gardiner born […], 2000 and Evan Joseph Gardiner born […], 2001; and, second, should Mr. Buffan receive a credit against his arrears of child support equal to the cost of providing a vehicle to Ms. Gardiner for her sole use between December 2016 and July 2018.

2The arrears of child support in question arise out of the order of Justice Stanley Sherr dated May 31, 2006, requiring Mr. Buffan to pay Ms. Gardiner child support of $1232.00 per month based on an annual imputed income of $86,000.00 and the Child Support Guidelines.

Brief Background of the Parties and the Previous Litigation

3The parties were involved in a relationship from May 28, 1999 until April 16, 2003, that resulted in the birth of Rachel and Evan. Ms. Gardiner has two other children from a previous relationship. The parties were involved in litigation regarding Rachel and Evan from June 2003 until May 31, 2006, the date of Justice Sherr's final order that Mr. Buffan is now seeking to vary.

4There is a long history of non-payment of child support by Mr. Buffan, as evidenced by the Statement of Arrears produced by the Family Responsibility Office (FRO) and relied upon by both parties at trial. The FRO commenced default proceedings against Mr. Buffan in December 2009 and on March 23, 2011 a final default order was made by Justice Sherr. The final order fixes Mr. Buffan's arrears of child support at $72,844.08 and requires Mr. Buffan to pay $1268.00 per month towards arrears of child support in addition to his ongoing child support obligation of $1232.00 per month.

5In July 2012, after Mr. Buffan failed to comply with the terms of the final default order, the FRO brought a motion for a Warrant of Committal and a hearing proceeded before Justice Robert Spence on November 28, 2012. On December 13, 2012, Justice Spence ordered a Warrant of Committal be issued for written reasons provided.

6In December 2008 Mr. Buffan commenced a Motion to Change Justice Sherr's order of May 31, 2006. On June 26, 2009, Justice Sherr dismissed Mr. Buffan's Motion to Change. On August 5, 2009, Justice Sherr ordered Mr. Buffan to pay Ms. Gardiner costs of the failed Motion to Change fixed at $10,000.00.

7Mr. Buffan issued the current Motion to Change Justice Sherr's order on November 30, 2018. On June 12, 2019, an order was granted on consent providing that child support for Rachel terminates on July 1, 2018 and child support for Evan terminates on January 1, 2019.

Mr. Buffan's Position

8Mr. Buffan says that on October 27, 2016, after reaching an agreement with Ms. Gardiner, he gave her a lump sum of $60,000.00 in cash in full satisfaction of his arrears of child support owing at the time. He did not obtain a receipt from Ms. Gardiner to confirm the payment but says that as he gave her the funds directly the FRO balance should be adjusted to provide for a credit for the payment.

9Mr. Buffan also asks the court to order the rescission of child support arrears owing to Ms. Gardiner for the period of December 2016 to July 2018 as the parties agreed that in lieu of monthly child support, Ms. Gardiner would have the sole use and enjoyment of a vehicle at Mr. Buffan's expense.

Ms. Gardiner's Position

10Ms. Gardiner says at no time did Mr. Buffan give her $60,000.00 or pay any child support to her outside of the FRO.

11Ms. Gardiner acknowledges that she had use of a vehicle paid for by Mr. Buffan between December 2016 and June 2018 but says there was no agreement for her to have use of the car in lieu of child support but rather that Mr. Buffan gave her the use of a vehicle after the parties resumed a friendly relationship.

12The trial of this matter was heard over three days on July 20, 23 and 31, 2020. The parties gave evidence in chief by affidavit and were subjected to cross-examination. In addition to the parties, a representative of the FRO gave evidence.

The Law

13Mr. Buffan's Motion to Change is brought pursuant to subsections 37(1), 37(2.1) and 37(2.2) of the Family Law Act, which provides:

37 (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.

Powers of Court: Child Support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.

Application of Child Support Guidelines

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. 1997, c. 20, s. 6.

14The onus is on Mr. Buffan to demonstrate on a balance of probabilities, that he gave directly to Ms. Gardiner the sum of $60,000.00 in cash and that the payment was intended to be applied to his arrears of child support. It is also his onus to demonstrate that between December 2016 and July 2018 the parties agreed that Mr. Buffan would provide Ms. Gardiner with the use of a car in lieu of his obligation to pay child support.

Analysis of the Evidence

Issue #1: Did Mr. Buffan Give Ms. Gardiner $60,000.00 in Cash in Satisfaction of the Arrears of Child Support Owed to Her as of October 27, 2016?

15Mr. Buffan's evidence can be summarized as follows:

(a) In March 2015, Ms. Gardiner approached Mr. Buffan to discuss a possible payment of the arrears he owed her in child support. As a result of their conversation, Ms. Gardiner wrote a letter to the FRO dated March 27, 2015 advising that she wished to withdraw from the FRO once the arrears owing to her were paid in full;

(b) When he met with Ms. Gardiner in March 2015 he believed he owed "approximately $65,641.93" in child support arrears at the time. He says she agreed to accept the amount of $60,000.00 in satisfaction of the debt owed to her. Upon receipt of the funds he says Ms. Gardiner agreed to withdraw from the FRO;

(c) Mr. Buffan says that the letter Ms. Gardiner wrote to the FRO on March 27, 2015 is evidence of their agreement;

(d) Mr. Buffan did not make the payment to Ms. Gardiner until October 2016 as he did not have the money available in March 2015;

(e) Mr. Buffan says that Ms. Gardiner insisted that the money be given to her in cash in order to avoid having to repay any amount to the City of Toronto as a result of being in receipt of social assistance. Mr. Buffan said with Ms. Gardiner"it was always her way or the highway";

(f) Mr. Buffan says after transferring money from his line of credit into his bank account, he went to the bank on October 24, 2016 and withdrew $60,000.00 in cash from his account;

(g) On October 27, 2016, Mr. Buffan carried the money to Ms. Gardiner's home in a bag. He says after giving her the money they signed a document withdrawing from the FRO;

(h) Mr. Buffan says that after sending the Notice of Withdrawal to the FRO, the parties called the FRO together and during this call Ms. Gardiner advised them of the monies she had received directly from Mr. Buffan. He said the FRO agent called Ms. Gardiner back to verify it was her. When Ms. Gardiner verified the information, Mr. Buffan's evidence is that the FRO would send out a receipt and "they sent out something saying there is zero balance.";

(i) The Notice of Withdrawal acted on by the FRO is dated October 31, 2016;

(j) On November 15, 2016, the FRO processed the Notice of Withdrawal dated October 31, 2016, and zeroed out the child support arrears, as demonstrated by the Statement of Arrears provided by the FRO dated October 31, 2018;

(k) After the Notice of Withdrawal was sent to the FRO it was Mr. Buffan's understanding that his arrears of child support were considered paid in full;

(l) Mr. Buffan claims that he believed signing the Notice of Withdrawal was satisfactory evidence of his payment in full of the arrears of child support owing to Ms. Gardiner. As a result, he did not obtain a receipt from Ms. Gardiner evidencing the payment;

(m) It was not until June 2018 when Ms. Gardiner refiled with the FRO and requested collection of the $65,641.93 in arrears of child support owing as of October 27, 2016 when he claims to have given her $60,000.00, that he learned that the Notice of Withdrawal from the FRO did not amount to a receipt confirming payment of the $60,000.00; and,

(n) Mr. Buffan was forced to bring this Motion to Change to obtain credit for the $60,000.00 he paid directly to Ms. Gardiner.

16Ms. Gardiner's evidence can be summarized as follows:

(a) In March 2015 Mr. Buffan called her and told her he had cancer. He told her that he wanted to have a relationship with his children, who were 15 and 16 years old at the time and who he had not seen in a while. He urged her to withdraw from the FRO as he was having financial difficulties;

(b) Ms. Gardiner sent a letter to the FRO on March 27, 2015, advising that she wished to withdraw from the program once the arrears of approximately $120,000.00 were paid in full;

(c) Ms. Gardiner says that she eventually agreed to withdraw from the FRO in October 2016 because she had "built up a relationship" with Mr. Buffan who she felt bad for as he said he was having financial difficulties. In addition, Mr. Buffan had maintained regular contact with their children and she wanted to support him having a relationship with them after having little contact for several years;

(d) Ms. Gardiner denies that Mr. Buffan ever gave her $60,000.00 or any money outside of the FRO. She denies that the parties ever had an agreement that he would pay her $60,000.00 in satisfaction of the child support arrears owed to her;

(e) Ms. Gardiner says that Mr. Buffan's description of a telephone call they had together with a FRO agent is a complete fabrication and never occurred;

(f) Ms. Gardiner's evidence is that the children were 15 and 16 years of age at the time she agreed to withdraw from the FRO in October 2016 and she was not concerned about receiving child support from Mr. Buffan as she had never received regular payments anyway. In addition, she had developed a friendship with Mr. Buffan with whom she was spending a lot of time;

(g) After Mr. Buffan failed to maintain a relationship with his children as he promised to do, Ms. Gardiner re-enrolled with the FRO and filed a statement of arrears seeking collection from Mr. Buffan of the $65,641.93 that was owing to her when the parties withdrew from the FRO in October 2016;

(h) Ms. Gardiner acknowledges that her re-enrolling with the FRO may appear vindictive but that Mr. Buffan never paid the child support that is owed to her children; and,

(i) Ms. Gardiner acknowledges that she was in receipt of social assistance at various times but only for a few months in between jobs. She says that she always advised her worker of any income she earned while in receipt of social assistance which resulted in deductions from the monies she received.

17At the request of the court, Mr. Buffan called a representative of the FRO to give evidence. That evidence can be summarized as follows:

(a) In order to withdraw from FRO enforcement, the FRO must receive a Notice of Withdrawal signed by at least the recipient; a letter is not sufficient;

(b) When a recipient withdraws from FRO enforcement, they zero out arrears owing to the recipient on their system but any monies owing to a third party remain enforceable by the FRO;

(c) The witness confirmed receipt of a letter from Ms. Gardiner dated March 27, 2015 and that no action was taken as a result of that letter;

(d) A Notice of Withdrawal signed by both parties on April 4, 2015 was received by the FRO on April 7, 2015. A retraction notice was received on April 30, 2015 before any action was taken by the FRO to zero out the arrears in their system;

(e) On October 7, 2016 the FRO received another Notice of Withdrawal signed by both parties. A retraction notice was received on October 11, 2016 before any action was taken by the FRO;

(f) A Notice of Withdrawal signed by both parties was received by the FRO on October 31, 2016;

(g) On July 23, 2018 the FRO received a request to re-file from Ms. Gardiner;

(h) A case worker would, in the normal course of business, call a recipient to confirm whether monies were received if such an allegation was made by the payor and verbal confirmation would be sufficient to provide a credit to the payor;

(i) The witness confirmed there was no note on the file of a FRO agent contacting Ms. Gardiner to confirm receipt of any payments outside of the FRO;

(j) The witness confirms that discussions between FRO agents and Ms. Gardiner were about Notices of Withdrawals, not about changes to the balance or amount owed to Ms. Gardiner; and,

(k) The payor was the subject of a default proceeding and a final default order was made on March 23, 2011 which contained a committal term for failure to comply with the payment terms.

Credibility Issues

18In oral testimony, Mr. Buffan provided evidence that was extremely important information and conspicuously missing from his affidavit evidence in chief. In addition, Mr. Buffan's oral testimony was at times inconsistent with his affidavit evidence in chief and at other times contradictory. Finally, there were several instances where Mr. Buffan's evidence simply made little to no sense. The following are some examples of the significant problems with Mr. Buffan's evidence:

(a) Mr. Buffan's evidence in chief is that Ms. Gardiner contacted him in March 2015 and asked to meet with him. She told him that she no longer wanted the child support enforced by the FRO "as FRO was not giving her all the funds, that apparently money was going to Ontario Works." In his oral testimony Mr. Buffan said that he did not know Ms. Gardiner was on social assistance until after he gave her the $60,000.00 in cash.

(b) In his affidavit evidence in chief, Mr. Buffan said that when the parties met in March 2015, he believed that his arrears of child support were $65,641.93. He did not understand why Ms. Gardiner believed the arrears to be $120,000.00 as stated in her letter to the FRO dated March 27, 2015. When asked how he came to know how much he owed Ms. Gardiner in arrears of child support, Mr. Buffan said it was set out in the FRO's statement of arrears. When it was pointed out to Mr. Buffan that the arrears as of March 27, 2015 were actually only $54,074.27 he was unable to explain the discrepancy.

(c) Mr. Buffan was unable to explain why he would agree to give Ms. Gardiner $60,000.00 in satisfaction of his arrears of child support as of March 2015 when, according to the FRO statement of arrears, he only owed $54,074.27 in arrears at that time.

(d) In his affidavit evidence in chief, Mr. Buffan says that after he gave Ms. Gardiner the $60,000.00 in cash on October 27, 2016, the parties signed and submitted a Notice of Withdrawal form to the FRO. In his oral testimony he said that after submitting the Notice of Withdrawal to the FRO in October 2016, the parties called the FRO and spoke with someone who confirmed Ms. Gardiner's identity and received the information that Mr. Buffan had given Ms. Gardiner $60,000.00 directly. This is extremely relevant evidence that one would expect to be in his affidavit evidence in chief but was not.

(e) The witness from the FRO found no notes to confirm a call took place that involved both parties and confirmation that Ms. Gardiner received $60,000.00 in cash from Mr. Buffan.

(f) Mr. Buffan's evidence in chief is that in October 2016, Ms. Gardiner agreed to accept the sum of $60,000.00 in lieu of the $65,641.93 that was owed to her. Mr. Buffan did not explain why the arrears owing to Ms. Gardiner as of October 2016 would be the exact same amount that he thought was owing in March 2015.

(g) Mr. Buffan could not explain where he obtained such a specific amount for the arrears owing to Ms. Gardiner of $65,641.93, when she agreed to receive the sum of $60,000.00 in full satisfaction for the amount owing, whether it be in March 2015 or October 2016. He also could not explain why he believed the amount of arrears owed to the mother as of October 27, 2016 when he claims to have delivered the $60,000.00 in cash was $65,641.93 when, according to the FRO statement of arrears, the amount was actually $75,018.00.

(h) Mr. Buffan acknowledged in his oral testimony that the figure of $65,641.93 is the amount that was reinstated as his arrears of child support when Ms. Gardiner refiled with the FRO in July of 2018. He further admitted that he would only have known this was the amount owed to Ms. Gardiner in October 2016 when they withdrew from the FRO in July 2018 when she refiled with the FRO and the amount was reinstated and not before as claimed in his affidavit evidence.

(i) Mr. Buffan was unable to provide a reasonable explanation for why he did not just simply pay the $60,000.00 to the FRO so that he would have proof of the payment which would have been the prudent choice to make in the circumstances.

(j) Mr. Buffan was unable to explain why he would pay Ms. Gardiner directly without obtaining a receipt after being subject to default proceedings by the FRO in 2011 which eventually resulted in him spending a night in jail in September of 2012.

19Mr. Buffan appeared to be adjusting his oral evidence which resulted in him contradicting his evidence in chief. As a result, Mr. Buffan did not come across as being truthful on this issue. I find Mr. Buffan's evidence to be unbelievable. I find that Mr. Buffan's version of what occurred is a complete fabrication based on the following:

(a) Mr. Buffan did not owe Ms. Gardiner $65,641.93 in March 2015 when he says she called him and asked him to pay her the arrears directly as opposed to through the FRO. It is clear that Mr. Buffan is not being truthful when he states that in March 2015 when he met with the mother he believed his arrears of child support were $65,641.93.

(b) Mr. Buffan could not explain how he knew what the amount of his arrears were when he met with Ms. Gardiner in March 2015. For example, he did not call the FRO or obtain a statement of arrears. Mr. Buffan's evidence is that in March 2015 he believed his arrears were "approximately $65,641.93". In oral testimony he acknowledged that he obtained this number from the statement of arrears as of July 2018 when Ms. Gardiner re-enrolled with the FRO. Therefore, Mr. Buffan had no basis for his belief in March 2015 or October 2016 that the arrears were $65,641.93 which is further evidence of Mr. Buffan working backwards from July 2018 based on the information in the FRO's statement of arrears generated after Ms. Gardiner re-filed with them.

(c) In October 2016 when the parties filed a Notice of Withdrawal with the FRO the total arrears of child support owing by Mr. Buffan was $75,018.00 of which $10,608.00 was owed to a third party assignee, the City of Toronto. Therefore, had Mr. Buffan contacted the FRO in October 2016 when he claims to have given the mother $60,000.00 to settle his debt to her, he would have been advised that the total arrears were $75,018.00 and not the $65,641.93 he claims he believed was owing both in March 2015 and October 2016 when he met with the mother to discuss paying her a lump sum directly.

(d) It is clear that Mr. Buffan is not being truthful when he states that when he paid Ms. Gardiner $60,000.00 in cash on October 27, 2016, he believed the arrears of child support to be $65,641.93.

(e) Mr. Buffan admitted that he obtained the figure of $65,641.93 from the FRO statement of arrears as of July 2018 when Ms. Gardiner refiled with the FRO. Then how could Mr. Buffan have thought in March 2015 or October 2016 that his arrears of child support were $65,641.93? Had Mr. Buffan made any enquiries with the FRO about the amount owing to Ms. Gardiner as of October 27, 2016, he would have been advised that the arrears were $75,018.00, not $65,641.93 as he claims.

20I find support that it is more likely than not that when preparing his Motion to Change, Mr. Buffan used the specific figure of $65,641.93 he obtained from the statement of arrears created by the FRO after Ms. Gardiner re-filed in July 2018. He mistakenly used this figure as the amount of his arrears as of October 2016 when the parties withdrew from the FRO failing to add back in the $10,608.83 he paid to the third party assignee in November 2016. In fact, at no time in question prior to July 2018, was the total sum of arrears of child support owing by Mr. Buffan to Ms. Gardiner $65,641.93.

21For clarity, I find that the sequence of events that occurred is as follows:

(a) On October 31, 2016 the parties executed a Notice of Withdrawal and sent it to the FRO. On October 31, 2016, the FRO Statement of Arrears showed the amount of $75,018.00 owing by Mr. Buffan to Ms. Gardiner;

(b) On November 15, 2016 the FRO processed the Notice of Withdrawal. Included in the $75,018.00 of arrears was the sum of $10,608.83 that was owed to the third party assignee, the City of Toronto. As the Notice of Withdrawal does not discontinue enforcement of arrears owned to a third party assignee, the FRO zeroed out the sum of $65,641.93, the amount owing to Ms. Gardiner and maintained the sum of $10,608.07 owing to the City of Toronto;

(c) In November 2016, upon learning that the FRO would continue to collect the amount owing to the City of Toronto, Mr. Buffan paid the FRO the sum of $10,560.33 and satisfied his debt to the third party; and,

(d) In July 2018 when Ms. Gardiner re-enrolled with the FRO, the amount of $65,641.93 was reinstated as the arrears owing by Mr. Buffan to Ms. Gardiner.

22I find that if Mr. Buffan was being honest, his evidence would have been that in October 2016 the mother agreed to accept the sum of $60,000.00 in satisfaction of the child support arrears that were owed at that time, which were $75,018.00, as set out on a FRO statement of arrears obtained at the time. Or, his evidence would have been that he and/or Ms. Gardiner contacted the FRO and learned that the arrears owing at that time were $75,018.00 but that $10,608.07 was owed to the City of Toronto, so she agreed to accept the sum of $60,000.00 to settle the amount owed to her of $64,409.93, and, he would pay $10,608.07 to the City of Toronto. But that was not his evidence.

23Mr. Buffan also could not adequately explain why he would take the risk of paying the mother the significant sum of $60,000.00 directly and in cash and not obtain a receipt. Mr. Buffan provided no reasonable or rational explanation at all to justify giving the mother an extraordinarily large sum of money in cash that he could just as easily forwarded to the FRO which would have resulted in his having evidence of the payment being made.

24I also find Mr. Buffan's explanation that Ms. Gardiner insisted he pay her outside of FRO in cash so that monies cannot be diverted to the City of Toronto to be completely unbelievable. Mr. Buffan gave oral evidence that he did not know Ms. Gardiner was in receipt of social assistance until after he gave her the $60,000.00. This evidence contradicted his affidavit of evidence in chief in which he deposes that Ms. Gardiner wanted him to pay her outside of the FRO so that monies are not deducted and paid to the City of Toronto.

25Mr. Buffan's explanation for giving the mother cash is nonsensical because there is no trade off, no benefit to Mr. Buffan for giving in to Ms. Gardiner's demands and paying her cash. It simply makes no sense at all.

26Mr. Buffan wants the court to believe that he is an unsophisticated person who did not take adequate steps to protect himself when dealing directly with Ms. Gardiner and giving her $60,000.00 in cash. This has to be considered in the context of the history of this and previous litigation between the parties and between Mr. Buffan and the FRO.

27Mr. Buffan has been a party to litigation with the mother on three separate occasions; in 2003-2006, 2008-2009 and 2019-2020. Mr. Buffan was ordered to pay the mother costs of $10,000.00 following his failed Motion to Change between 2008 and 2009.

28In addition to the litigation between him and Ms. Gardiner, Mr. Buffan was the Respondent in a proceeding commenced by the FRO that resulted in a hearing and a final default order on March 23, 2011. This order contained a committal term for non-compliance with the payment terms of the order. After failing to comply with the final default order, Mr. Buffan participated in another hearing to determine whether a Warrant of Committal should be issued. Mr. Buffan admitted to spending a night in jail in 2012 and was only released after $26,000.00 was paid to the FRO on his behalf.

29Considering Mr. Buffan's experience in court proceedings since 2003, his having to spend a night in jail due to nonpayment of child support, and his description of Ms. Gardiner being very difficult to deal with, his story is incomprehensible. In all of the circumstances, I do not believe that Mr. Buffan would give Ms. Gardiner $60,000.00 in cash without having concrete proof of doing so.

30Even though I have found Mr. Buffan's testimony to be unreliable, it is important to note that I found the mother's evidence to be reliable given that she answered questions in a straight forward manner and made statements that were contrary to her interests. She made it clear that she withdrew from the FRO never expecting Mr. Buffan to pay the child support arrears he owed and that she decided to re-file when he did not maintain a relationship with their children as promised. She acknowledged that her actions are vindictive but she maintains the father never gave her $60,000.00 and she never formally forgave the arrears.

31In addition to the straight forward manner in which Ms. Gardiner gave evidence, there was no other evidence to suggest she was not being truthful. In the course of the litigation she was required to provide financial disclosure to Mr. Buffan. The court was not provided with any bank statements or other documents to support the allegation that she received $60,000.00 in 2016. She does not own a home or a car. There was no evidence of any lavish gifts, travel or expenses that would support Mr. Buffan's claim that Ms. Gardiner received $60,000.00 in cash from him in October 2016.

32Mr. Buffan suggested Ms. Gardiner was not being truthful when she gave evidence that she did not own a car as she is the registered owner of a Toyota Camry. Ms. Gardiner explained that she co-signed a car loan for her daughter and as a result was required to be included as an owner on the registration. She explained that her daughter bought and has maintained the car with her own money. I believe Ms. Gardiner on this issue.

Conclusion re: Issue #1

33Mr. Buffan submits that a review of the evidence can only lead the court to one logical conclusion. He says that in March 2015 the parties met and Ms. Gardiner agreed to withdraw from the FRO if the arrears were paid in full. He says that as the arrears were not paid at that time, Ms. Gardiner did not withdraw from the FRO. Then in April 2015, Ms. Gardiner filed a Notice of Withdrawal with the FRO and a retraction 26 days later. The father repeats his submission that as he did not pay the arrears, Ms. Gardiner retracted the Notice of Withdrawal. Then the exact same thing happened in early October 2016. Ms. Gardiner submitted and retracted a Notice of Withdrawal with the FRO between October 7th and 11th, 2016 because Mr. Buffan did not make the promised payment. Finally, on October 27, 2016 Mr. Buffan gave Ms. Gardiner $60,000.00 and she filed a Notice of Withdrawal on October 31, 2016 that was not retracted this time because the money was actually paid.

34Mr. Buffan argues that the facts support only one logical conclusion. He says it is not a coincidence that four days after he withdrew $60,000.00 from his bank account the FRO received a Notice of Withdrawal signed by both parties which was not retracted.

35Ms. Gardiner argues that the father lacks credibility and that the court should accept her evidence over his. She says his story changed as the case and his evidence went on. She says that the evidence of the FRO agent confirms there was no telephone conversation confirming she received any money directly from Mr. Buffan.

36I disagree with Mr. Buffan's argument that there is only one logical conclusion available to the court. The evidence of $60,000.00 being withdrawn from Mr. Buffan's bank account on October 24, 2016 and a Notice of Withdrawal signed by the parties on October 31, 2016 and sent to the FRO the same day, in all of the circumstances of this case, is insufficient to persuade the court that the $60,000.00 withdrawn from his bank account was given to Ms. Gardiner in satisfaction of $65,641.93 owed to her in arrears of child support.

37Mr. Buffan has not met the onus of demonstrating on a balance of probabilities that he gave Ms. Gardiner the sum of $60,000.00 towards his arrears of child support. As a result, Mr. Buffan's request for a rescission of arrears of child support owing to Ms. Gardiner in the amount of $60,000.00 is denied.

Issue #2: Did Ms. Gardiner Agree to the Use of a Car Paid for by Mr. Buffan in Lieu of Monthly Child Support Payments Between December 2016 and July 2018?

Mr. Buffan's Evidence

38Mr. Buffan is a licensed auto sales person. This allows him to sell and lease cars. After the parties withdrew from the FRO in October 2016 and maintained a relationship, Mr. Buffan provided Ms. Gardiner with the use of a GMC Terrain for which he was paying the lease between December 2016 and July 2018.

39According to Mr. Buffan, Ms. Gardiner came to him in December 2016 and asked him to buy her a car in lieu of child support. He says Ms. Gardiner agreed to receive use of a 2013 GMC Terrain for which he would make the lease payments in lieu of child support. Mr. Buffan says that in addition, Ms. Gardiner asked him to contribute towards various expenses for the children which he did.

40Mr. Buffan added Ms. Gardiner's name to the plate portion of the ownership and Ms. Gardiner arranged for car insurance. Ms. Gardiner drove the vehicle until June 2018 when the car was vandalized and required repair. In order for Ms. Gardiner's insurance to cover the cost of the repair, the insurance company required a formal lease agreement. At this point the parties executed a lease. Mr. Buffan says Ms. Gardiner prepared the lease while she says he did.

41After the repairs were completed, the parties learned that the car was not drivable due to sugar being put in the gas tank. When the insurance company refused to pay for the cost of the repair associated with sugar in the gas tank, Mr. Buffan says Ms. Gardiner cancelled the insurance and refused to pay the $1000.00 deductible to the body shop. As a result, Mr. Buffan says he took back the car and refused to provide Ms. Gardiner with another vehicle. He says as a result, she made a police report claiming the car was stolen and she re-enrolled in the FRO.

42Mr. Buffan's evidence is that the parties agreed that he did not have to pay ongoing child support while he provided Ms. Gardiner with the use of the vehicle, paid for brakes and tires for the car and he would purchase items for the children when asked.

Ms. Gardiner's Evidence

43Ms. Gardiner acknowledges that when her car was rear ended and not repairable, she asked Mr. Buffan to find her a replacement vehicle to purchase. She says Mr. Buffan offered her the use of a 2013 GMC Terrain to drive while he looked for a car for her to purchase. She says that she offered to buy the car but that Mr. Buffan told her that she could not purchase it as it was leased. She says he never tried to find her another car after she began driving the GMC Terrain.

44Ms. Gardiner's evidence is that at the time she had use of the GMC Terrain, she did not expect child support from Mr. Buffan but that they did not explicitly agree that use of the GMC Terrain was in lieu of child support. Rather, she says, that he let her use the car as they were in a relationship. Despite Mr. Buffan being married, Ms. Gardiner said they spend a lot of time together.

45The parties agree that Mr. Buffan provided Ms. Gardiner with the use of a 2013 GMC Terrain from December 2016 to June 2018. They agree that Mr. Buffan paid the lease of approximately $1200.00 per month while Ms. Gardiner was responsible for her insurance. The parties also agree that in 2018 the vehicle was vandalized and that the parties had to sign a lease agreement so that Ms. Gardiner would be eligible to claim the repair through her insurance. An agreement was signed by the parties which provides that Ms. Gardiner is leasing the vehicle from Mr. Buffan's company and paying $1226.00 per month.

46It is also not contested that at some point in 2016 the parties developed and maintained a relationship. Both parties admitted that it became a sexual relationship on at least one occasion.

47Ms. Gardiner admitted that she no longer expected or wanted child support from Mr. Buffan when the children were 15 and 16 years of age.

48Something happened between the parties in 2018 that resulted in the breakdown in the relationship they enjoyed since 2016 and Mr. Buffan took the vehicle back from Ms. Gardiner. She re-enrolled with the FRO to enforce collection of the arrears of child support as well as prospective child support.

49Ms. Gardiner admits that she withdrew from the FRO in October 2016 and told Mr. Buffan she no longer expected child support from him. She admits that they agreed if the children needed anything, he would buy it for them but says that this never actually occurred. She acknowledges having use of the GMC Terrain at no cost to her other than the cost of insurance between December 2016 and June 2018.

Conclusion Regarding Issue #2

50I find that it is more likely than not that Ms. Gardiner told Mr. Buffan that he did not have to pay child support as of December 2016 and that use of the car, maintenance of the car and purchasing items for the children on an as needed basis would be acceptable to her. Mr. Buffan relied upon that agreement and paid for a car for Ms. Gardiner for 19 months at a rate of $1226.00 per month. Mr. Buffan should receive credit for this payment against his obligation to pay child support.

Order to Go as Follows:

51Mr. Buffan's request for an order rescinding $60,000.00 in arrears of child support is dismissed.

52Mr. Buffan shall receive a credit towards the arrears of child support owing by him to Ms. Gardiner as determined by the Family Responsibility Office in the amount of $23,294.00.

Costs

53If either party is seeking an order for costs, they shall serve and file their costs submissions with a Bill of Costs on the other party within 20 days of the date of this endorsement. The cost submissions shall not be more than 5 pages long not including attachments. The responding party shall have 20 days to serve their response on the requesting party. The responding cost submissions shall not exceed 5 pages not including attachments.

54The parties shall file their cost submissions with the trial coordinator by email to the following email address: 47Sheppard.OCJ.Family.TrialCoordinator@ontario.ca

Released: September 18, 2020

Signed: Justice Melanie Sager

Footnotes

1This information was obtained from the written reasons for Judgment of Justice Sherr dated May 31, 2006.

2The information at paragraphs 4, 5 and 6 of this judgment was obtained from the endorsement records for this matter and the case between the FRO and Mr. Buffan.

3Mr. Buffan provided documentary evidence to substantiate his claim that he withdrew $60,000.00 from his bank account on October 24, 2017.

4FRO's statement of arrears shows the amount owing as of March 4, 2015 to be $121,641.13.

5It is noteworthy that Mr. Buffan was referencing a Statement of Arrears dated July 2018, three years later.

6This information was also absent from the affidavit he swore on November 22, 2018 and filed in support of his Motion to Change on November 30, 2018.

7Mr. Buffan confirmed in reply evidence that he was involved in a default proceeding commenced by the FRO and spent one night in jail in September 2012. He was released when he paid approximately $26,000.00 to the FRO towards his arrears. The FRO Statement of Arrears shows the sum of $26,130.21 was received by the FRO on December 31, 2012.

8$48.50 was paid as a result of a federal garnishment and the balance of $10,560.33 was paid according to the FRO statement of arrears on November 21, 2016.

9I recognize that $65,641.93 + $10,608.07 = $76,250.00 and not $75,018.00, the amount stated in this judgment to be the total arrears owing as of October 20, 2016. The discrepancy is due to the accrual of child support owing as of November 1, 2016 of $1232.00 increasing the arrears to $76,250.00.

10It is important to note that Mr. Buffan is not arguing that the mother verbally forgave the arrears and he acted on that verbal promise.

11I have included the month of July 2018 when the car was in the shop for repairs due to damage caused to the vehicle while being driven by Ms. Gardiner.