Smith v. Baron

2010 BCSC 1272 Smith v. Baron IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Smith v. Baron, 2010 BCSC 1272 Date: 20100910 Docket: A890111 Registry: New Westminster Between: Kathleen Cynthia Smith Plaintiff And Mario Gerard Baron Defendant Before: Registrar Blok Reasons for Decision Appearing on her own behalf: K. Smith Counsel for the Defendant: G. K. Thomas Place and Dates of Hearing: New Westminster, B.C. November 2 and 3, 2009 and February 15, 2010 Place and Date of Judgment: Vancouver, B.C. September 10, 2010 I. Background [1] On May 30, 2008 Mr. Justice Groves ordered a reference to the registrar to determine the child support arrears, if any, owing by the defendant to the plaintiff. The order provides that the results are to be certified. [2] The parties were in a marriage-like relationship for eight or nine years, a relationship that ended in 1988. Their child Ashley was born on December 7, 1986. [3] A number of court orders were made after the break-up. The first order was made by Judge Hogarth (as he then was) on March 21, 1989, which required, among other things, that Mr. Baron pay Ms. Smith child support of $250 each month. It appears that this was an interim order pending trial. [4] In what seems to have been a final order, on October 17, 1990 Mr. Justice Boyle ordered the same amount of child support, $250 per month, and ordered that a home owned jointly by the parties be sold and the proceeds divided between the parties in a certain way. [5] The matter next came before Mr. Justice Truscott on April 30, 2004. Ashley had left home by this point and Mr. Baron sought orders ending his child support obligation and cancelling support arrears. Truscott J. granted the first order on the day of the hearing (effective April 1, 2003), but in reasons dated May 17, 2004 he declined to grant the second, noting the unsatisfactory state of the evidence from both parties relating to the amount owing. The issue of child support arrears was therefore adjourned. Truscott J. seized himself of the matter until further court order. [6] On May 30, 2008 the parties appeared before Mr. Justice Groves, who made the order referred to earlier. [7] The parties next appeared before Mr. Justice Burnyeat on September 16, 2008 on an application by Ms. Smith to "cancel" the order of Groves J., which to that point had not been entered. Burnyeat J. noted that the proper course was for the parties to either attend before the registrar to settle the order or to re-attend before Groves J. As it happens, the parties attended before me on January 14, 2009 and the order of Groves J. was settled at that time. [8] At the hearing before Burnyeat J., Ms. Smith also applied to have Mr. Larry Nixon authorized to act as her agent. Mr. Nixon, who was at one time a qualified lawyer but who no longer has that standing, has apparently assisted Mr. Smith over a number of years. Mr. Justice Burnyeat declined to make such a blanket order, stating that this should only be done on a "case-by-case basis", by which it is clear he meant "hearing-by-hearing basis". In this regard he said the following: [6] ... Second, I have considerable concerns about Mr. Nixon's recollection of the rules and the application of decisions relating to those rules such that I cannot be satisfied that it would be appropriate to give Mr. Nixon the ability to continue to represent Ms. Smith in these proceedings. [7] Much is said of the delay and this matter not proceeding in accordance with Rule 1(5) of the Rules of Court. In my opinion, that the [sic] delay has been caused by what has or has not been done by Ms. Smith, but more accurately by Mr. Nixon, who continues to attempt to assist Ms. Smith but has not in my opinion, been proceeding in what is in Ms. Smith's best interests. [9] At the opening of the present hearing Ms. Smith asked that Mr. Nixon be allowed to act as her agent (in effect, her counsel) for the hearing. I declined the request because I held the same types of concerns expressed by Burnyeat J., but I allowed Mr. Nixon to sit with Ms. Smith at the counsel table and assist her in that way. By the end of the hearing I was more than convinced that Burnyeat J. was right. Although it was clear that Ms. Smith has very limited ability to comprehend and manage legal matters and that she was very grateful for Mr. Nixon's involvement, it was also clear that Mr. Nixon was a poor choice of pilot to navigate her through legal waters. Most of the time his involvement was not helpful either to Ms. Smith or to her case. II. Evidence (a) Kathleen Smith [10] Ms. Smith said that the only time she received child support from Mr. Baron was when their jointly-owned home was sold. Inconsistently, however, she acknowledged that, as a result of monies received from that sale, child support was fully paid to April 25, 1991, and said that Mr. Baron made six further child support payments of $300 each from April 1991 to April 2003. [11] The end date for child support is April 1, 2003 (which is when Ashley left home), as provided for by Truscott J.'s order of April 30, 2004. [12] Ms. Smith enrolled in the Family Maintenance Enforcement Program ("FMEP") in 1999. She confirmed that the FMEP statement was accurate. The FMEP statement shows a June 1999 opening balance of $29,850. It also shows payments totalling $18,045 having been made from June 1999 to October 2003. [13] Ms. Smith acknowledged that Mr. Baron paid sums totalling $9,658 into an account in her (Ms. Smith's) name, commencing in 1998 when Ashley was 11 years old, but she said that there was no discussion or agreement between them about this method of payment and Ms. Smith herself never used this account. Instead, she obtained a debit card for Ashley and Ashley accessed the account directly. Ms. Smith said that these payments should not be credited towards Mr. Baron's child support obligation. [14] Ms. Smith had a detailed list of these deposits. They vary in amount from $40 to $500, with most being in the $100 to $300 range. For each year the totals are as follows: Year Number of Deposits Total 1998 6 $ 480.00 1999 13 1,723.00 2000 29 4,410.00 2001 18 2,885.00 2002 1 160.00 Total $9,658.00 [15] In arguing that these deposits ought not to be credited towards Mr. Baron's child support obligation, Ms. Smith placed considerable reliance on the following comment by Truscott J. in his reasons for judgment of May 17, 2004, found at 2004 BCSC 655: [22] I will also not be taking into account on the issue of arrears, any monies that the defendant paid directly to his daughter, as his obligation by the court order was to pay to the plaintiff directly for the child, and not to the child directly. [16] In cross-examination Ms. Smith repeatedly and categorically denied that Mr. Baron ever paid child support. This was despite the fact that a direction to pay, prepared for the sale of the couple's home in 1991 (pursuant to the court order of Boyle J. of October 17, 1990), which was signed by Ms. Smith, provided for payment of "outstanding maintenance payments as agreed in the sum of $1,250.00". Had Mr. Baron made no child support payments to that date (April 25, 1991) his arrears would have totalled $6,500 (26 months x $250 per month). Ms. Smith merely said "that's what they gave me", and said that she had been unaware that child support had been included in the cheque she received from the property sale. [17] Ms. Smith's steadfast position that Mr. Baron did not pay child support to her at any time was maintained despite the following: (a) the receipt of $1,250 for outstanding child support as evidenced by the 1991 direction to pay, as noted above; (b) her acknowledgment that Mr. Baron paid her $300 per month in six payments made in 2003; (c) the mention of $500 having been paid in 1990, contained in a letter dated September 19, 1990 from Mr. Baron's lawyer to her lawyer. [18] Despite having acknowledged the accuracy of the FMEP statement, which shows payments totalling $18,045 (about half of which is shown in the statement as "payment made directly by payor to recipient"), she denied that Mr. Baron made any child support payments to her through FMEP, saying that any payments received were "for Ashley". [19] The order of October 17, 1990 provided for the sale of the couple's jointly-owned property and for the net proceeds to be divided equally, save that Mr. Baron was to pay $5,000 to Ms. Smith out of his share. Ms. Smith said that this was to pay for putting a bathroom in the basement of her house so that she could rent it out. She denied that this payment was on account of future child support. [20] Ms. Smith agreed that she was the mother of two other children that she had with Jeffrey Fee. A trial of various family law issues between Mr. Fee and Ms. Smith took place in 2004 and Crawford J. issued reasons for judgment in the case on August 31, 2004. In his reasons (2004 BCSC 1148) he said: [40] On 26 June 2001, Ms. Smith swore her application in support of an order for child support. [41] An order was made that same day. Mr. Fee was not present. The court imputed Mr. Fee's income to be $40,000. Mr. Fee was ordered to make payments for three children, namely, Leeanza Fee, Colin Fee and Ashley Smith. Ashley was a daughter of Mr. Baron and Ms. Smith and was already receiving maintenance from Mr. Baron. The court apparently was not informed of that. Mr. Fee was ordered to pay $745 a month for the support of the three children. Under the Federal Child Support Guidelines, for two children, the amount would have been $566. [21] Crawford J. went on to fix child support payable by Mr. Fee on the basis of two children, not three. [22] Ms. Smith denied misleading the court respecting child support for Ashley on that earlier occasion, stating that she did not tell the court she was receiving child support from Mr. Baron "because I never did". [23] Ms. Smith also categorically rejected any suggestion that Mr. Baron had exercised any access to Ashley while she was a minor. She insisted that Mr. Baron did not see Ashley at any time after 1989 (leaving aside the possibility that he saw her after she turned 19) and she utterly rejected any suggestion that there were access visits by Mr. Baron where Ashley was exchanged through meetings at a McDonald's restaurant near Lougheed Mall. Perhaps needless to say, Ms. Smith also denied that she had insisted that Mr. Baron bring child support money at the time of these exchanges. [24] Evidently Ashley is in the United States and was unavailable as a witness for this hearing. [25] Ms. Smith acknowledged that Mr. Baron paid monies totalling $9,658 into a bank account but said that these monies were for Ashley, not for herself. Ms. Smith said that the account was a savings account and she conceded that the account was in her own (Ms. Smith's) name. She also said that she gave the bank account numbers to Ashley so that she could give these to Mr. Baron. According to Ms. Smith there was no communication between Mr. Baron and herself concerning this account. She said that she never mentioned these payments from Mr. Baron in earlier affidavits because this was Ashley's money and therefore there was no need to bring it up. (b) Mario Baron [26] Mr. Baron repeated some of the general background already described. He said that the 1990 order of Boyle J. included a provision that he be given reasonable access to both Ashley and to her sister Tania (born 1974). He said that prior to 1990 he exercised access a minimum of once per month. After 1991 the exchange place was the McDonald's restaurant located at the intersection of Lougheed Highway and North Road, where he would meet Ms. Smith. [27] On these occasions Mr. Baron brought child support with him and gave it to Ms. Smith. Sometimes it was the whole amount, sometimes it was less than the whole amount and sometimes it was more. [28] Mr. Baron went through a variety of photographs taken on some of these access visits, showing Mr. Baron and Ashley sharing various activities in 1991, 1993, 1996, 1997, 1998 and 1999. [29] Mr. Baron was involved in a car accident in April 1992. He had been drinking, his car hit a telephone pole and a transformer fell from the pole and killed a bystander. As a result he was convicted of criminal negligence and spent a year in jail from January 1994 to January 1995. [30] Mr. Baron also had his driver's licence suspended from April 1992 to January 2000, and as a result, he exercised his access visits with Ashley with the help of someone else who would drive. From 1993 onward this help was provided by his girlfriend, Melody Poirier. [31] Mr. Baron said that he has suffered injuries in two different accidents. In 1990 he fell out of a truck and bent a metal rod that had been inserted in his spine in his youth to correct a congenital condition. This accident was covered by WCB, and so for a number of years he received WCB benefits. He also received retraining benefits because he could no longer work as a truck driver. He spent two years retraining in computer electronics, telecommunications, fibre optics and related subjects. In 1993 he was a passenger in a car that was rear-ended by a commercial truck. He received temporary total disability benefits (no-fault benefits) for a time, and obtained a sum of money by way of a settlement from the insurer just before he was released from jail in January 1995. [32] Mr. Baron's income tax notices of assessment for 1989 and 1990 shows that he claimed as deductions "alimony" (as described in the printout) of $2,500 and $2,550, respectively, in those taxation years. "Alimony" was child support, because he was never under any obligation to pay spousal support. He said that he did not file income tax returns after that because there is no income tax payable or deducted for WCB or no-fault benefits. He produced his T4 equivalents for the WCB payments he received in 1992, 1993 and 1995 to 1999 (he was in jail in 1994). I took the purpose of this evidence, and the evidence of his accident settlement, as showing that he had the means to pay child support during these years. [33] Mr. Baron said that $1,250 was paid to Ms. Smith out of the proceeds from the sale of their house in order to bring his child support obligations current to April 1991. An additional $5,000 was paid to Ms. Smith at that time for future child support payments because Ms. Smith was moving and was worried about money. Mr. Baron denied that this was to finish a bathroom; he said that he had finished the basement himself and all Ms. Smith did was add a shower. [34] Mr. Baron said that he paid child support for the balance of 1991 (May to December). He also paid child support in 1992. He said that if he did not pay child support Ms. Smith would not let him see Ashley. [35] Mr. Baron testified that Ms. Smith denied him his rightful access to Ashley for Christmas 1991 and as a result he retained counsel. In February 1992, following negotiations between the lawyers for the two parties, Mr. Baron secured an agreement on access. [36] Mr. Baron said he paid child support in 1993, but none in 1994 as he was in jail. When he got out of jail in 1995 he went to see Ashley right away and at that time he paid Ms. Smith $1,000. This access visit started at Ms. Smith's home; Ms. Poirier was with him and she knocked on the door while he stayed by the car. [37] Mr. Baron said he was current for child support in 1995. He was also current for child support in 1996, at least by the end of the year. He was seeing Ashley "probably twice a month" that year. It was the same situation in 1997 and 1998. [38] Mr. Baron said that in these years (generally, the 1990s) he sometimes paid less than the required amount of child support, and sometimes more. In any event, he said that by the end of each year (other than 1994) he was current with his child support payments. [39] Mr. Baron said that if on any access visit he was not current with his child support payments Ms. Smith would not let him see Ashley. If he did not have the money at the time of the exchange Ms. Smith would "throw a scene" in the parking lot. He said he was always accompanied on these exchanges by Ms. Poirier. Later in the hearing Mr. Baron testified that on some of these occasions Ms. Smith told him to take the money and buy clothes for Ashley instead. [40] In 1999 FMEP became involved. Mr. Baron said he was shocked that Ms. Smith had alleged that he was behind in payments. He had paid child support in cash, as usual, from January to April 1999 but he then moved to Vancouver Island and so after that he made child support payments by making deposits to Ms. Smith's account. These deposits continued through 2000 and 2001. [41] Mr. Baron said that he did not have any discussion with Ms. Smith about Ashley's use of these funds. He said he had no idea Ms. Smith was giving this money to Ashley. [42] Around this time FMEP put a "lien" on his driver's licence, but this restriction was removed after Mr. Baron sent receipts to FMEP showing the deposits to Ms. Smith's bank account. He asked FMEP how he could stop these difficulties and they suggested post-dated cheques. So thereafter Mr. Baron provided post-dated cheques of $300, consisting of $250 for child support and $50 towards the arrears. These payments started in September 2001. [43] Mr. Baron said that he did not keep all the receipts for the bank account deposits. He said that the receipts he does have show payments totalling $8,030, paid between 1998 and 2001, an amount that is actually lower than the $9,658 recorded by Ms. Smith. [44] For 2003 Mr. Baron provided 12 post-dated cheques to FMEP but cancelled the remaining cheques when he found out Ms. Smith had "kicked Ashley out of the house". He learned that Ashley was in a safe house, having endured some terrible setbacks. He visited Ashley there and found out that Ashley had started living outside Ms. Smith's home in 2000, staying with friends. Meanwhile, Ms. Smith had continued to cash his cheques. He paid up to October 2003 but cancelled all cheques after that. [45] Mr. Baron said that other amounts were paid to Ms. Smith but he could not find any receipts for these. For example, he paid $500 to Ms. Smith so that she could get a puppy for Ashley, but Ashley never got a puppy. He had a list of other payments, all from 2002 and 2003, made for Ashley's benefit, including $1,500 paid to help Ashley get back on her feet after being in the safe house. These additional payments total $3,850. [46] Mr. Baron said that, over the years, he had tried to get receipts from Ms. Smith for his child support payments but every visit seemed fraught with conflict and he could never get a receipt from her. [47] In cross-examination Mr. Baron said that any documents or receipts he had for pre-1996 child support payments were destroyed in a 1996 fire. He said to that point he had paid more than $3,000 per year. (c) Melody Poirier [48] Mr. Poirier first met Mr. Baron in December 1991. She has been in a permanent relationship with him for a number of years. [49] Mr. Baron lost his driver's licence, so Ms. Poirier drove Mr. Baron as needed, including to his access visits with Ashley, which took place at least once each month. The exchange location was the McDonald's restaurant across from Lougheed Mall. There, they picked Ashley up from Ms. Smith. [50] On these exchanges Mr. Baron usually had money to give to Ms. Smith. Often Ms. Smith had said in advance to "bring money". Tempers flared on several occasions. On one occasion Mr. Baron did not have the money Ms. Smith expected and she screamed at him, calling him names, saying she would call FMEP and they would believe her, not him, because "he was a murderer". [51] Ms. Poirier said that she had direct knowledge of child support payments being made because "quite often" she loaned Mr. Baron the money and on several occasions she saw Mr. Baron give Ms. Smith money for child support. On one occasion in early 1995 they drove to Ms. Smith's house and she saw Mr. Baron give Ms. Smith a sum of money, although she could not say how much. Ms. Poirier had loaned Mr. Baron $1,000 earlier that day. [52] Ms. Poirier saw Ashley twice in 1994, when Mr. Baron was in jail. Again, the same McDonald's restaurant was used as the exchange point, by arrangement between Ms. Smith and Ms. Poirier. [53] In cross-examination Ms. Poirier rejected the Ms. Smith's suggestion that she and Ms. Smith had never met. III. Submissions (a) Ms. Smith [54] Ms. Smith's written submissions focused primarily on litigation history, the unfairness of the litigation process and credibility issues. On the core question of the amount of arrears she offered no actual calculation. Instead she submitted: (a) there were no arrears as of April 25, 1991; (b) Mr. Baron made no support payments whatsoever from April 1991 to June 1999; (c) Mr. Baron should not be given any credit for payments he made to Ms. Smith's bank account; (d) Mr. Baron is entitled to be credited for the payments reflected in the FMEP statement that are not associated with payments to the bank account; and (e) Mr. Baron is entitled to credit for the six $300 payments made through post-dated cheques from May 2003 to October 2003. [55] In the course of oral submissions Ms. Smith was asked to provide a calculation of arrears, which she had not provided. When she was taken through the numbers she agreed that from May 1991 to April 2003 the total amount Mr. Baron ought to have paid was $36,000 ($3,000 per year for 11 years, plus $2,000 for 1991 and $1,000 for 2003). She also said that Mr. Baron should be credited with payments totalling $11,100, leaving a balance owing of $24,900, plus interest. The latter payment credits were calculated by adding six payments of $250 (totalling $1,500) which she said she received through FMEP, six payments of $300 (totalling $1,800) that she received in 2003 and 26 payments of $300 that were reflected in the FMEP statement (totalling $7,800). [56] Ms. Smith conceded that Mr. Baron did not have to pay child support during the year he was incarcerated, as he had no income during that time. [57] In her oral submissions Ms. Smith reversed her earlier evidence that the FMEP statement was accurate because she submitted that total payments shown in that statement ($18,045), included sums Mr. Baron paid to Ms. Smith's bank account and were monies for Ashley's use, not hers. (b) Mr. Baron [58] Mr. Baron said that there are no arrears owing. He was fully paid up at the time of the house sale in 1991. He relied on his own evidence in stating that, thereafter, while he did not always pay the required amount each month he was always current with child support each year. Payments were made at the time of access visits. He questioned why Ms. Smith would have waited until 1999 to enroll in the FMEP program if he was supposedly years and years in arrears of his child support obligations. [59] In later years, he paid support amounts both through FMEP and to Ms. Smith through deposits to her bank account. The FMEP statement shows that the two types of payments total $18,045.00. [60] While Mr. Baron was content to rely on the FMEP statement for evidence of the payments he made, he said that the starting balance as of June 1999 shown in that statement -- $29,850 -- is incorrect. As Truscott J. noted in his reasons of May 17, 2004, even if Mr. Baron had paid no child support whatsoever from the time of the court order of October 17, 1990 until June 2, 1999 (the commencement date for the FMEP printout) the arrears would not exceed $27,000. IV. Discussion [61] The evidence in this case left a lot to be desired. There were substantial gaps in the documentary record, in particular from March 1989 to April 1991 and again from April 1991 to June 1999. Mr. Baron asserts that he paid his support obligations fully during these times, save for the year he was incarcerated, and that he has no documents because Ms. Smith would never provide him with receipts and because any other records he had were lost in a fire. By contrast, at the most extreme of Ms. Smith's variable evidence and submissions she asserted that Mr. Baron paid no child support ever, and certainly not during those years. [62] Both sides sought to fill the gap in the documentary record by their oral evidence. It is therefore necessary to comment on the credibility of the parties. [63] Ms. Smith was, to put it very bluntly, a terrible witness. Her evidence was so inconsistent it was difficult to know which of the several versions she wished to advance. Examples of this type of inconsistency are given at paragraphs 16-18 of these reasons. Ms. Smith was also adamant that Mr. Baron never exercised any access visits with Ashley, maintaining this evidence despite the photographs produced by Mr. Baron showing otherwise which, incidentally, would not have been a surprise to her as many of the photographs had been appended to affidavits used earlier in these proceedings. Her blanket rejection of even the possibility that Mr. Baron exercised any access visits with Ashley left her credibility in tatters, even leaving aside the many other problems with her evidence. Ms. Smith was sloppy, indifferent or careless in both her oral evidence and in the evidence contained in her affidavits, and she was evidently prepared to swear to things she did not understand. I did not conclude that she was deliberately lying but rather that she has a remarkably limited comprehension, understanding or recollection of all that has gone on. She has convinced herself that Mr. Baron has never paid any support monies (despite her occasional limited concessions otherwise) and all of her evidence or submissions touching on that subject are tailored to support her convictions. [64] Mr. Baron was not the best witness either, although he was much better than Ms. Smith. He had a reasonably reliable (and consistent) recollection of events and tried his best to be accurate. I did find, however, that he had a tendency to state what he thought must have happened -- and what he had paid -- rather than what he recalled had actually happened. [65] Ms. Poirier was a credible witness and I found her evidence entirely believable. Unfortunately, Ms. Poirier was unable to say much on the essential issue before me, that is, the precise amounts Mr. Baron has paid towards his child support obligation. [66] There are five main payment issues that must be considered. The first is the most straightforward: the period from March 1989 to April 1991. Here, by reason of the direction to pay dated April 25, 1991, signed by Ms. Smith, I am satisfied that Mr. Baron had paid his child support obligations in full as of that date. This means that, for present purposes at least, the calculation of the total child support Mr. Baron ought to have paid starts on May 1, 1991 and ends on April 1, 2003, which is the termination date set out in Truscott J.'s order of April 30, 2004. The total support that ought to have been paid during that time is $36,000 (see paragraph 55 for the detailed calculation). [67] The second issue relates to the period of time Mr. Baron was in jail. Ms. Smith conceded that Mr. Baron should not have to pay child support during this year. However, there is no order to this effect and I conclude that I have to calculate the arrears based on the orders that were in place. If there is to be an adjustment for this year it is best made (if the court deems it appropriate) at the time Mr. Baron's application for reduction or cancellation of arrears is heard. [68] The other three main issues are: (a) the amounts Mr. Baron said he paid to Ms. Smith on the access visits; (b) the amounts paid to FMEP through post-dated cheques; and (c) the amounts Mr. Baron paid to Ms. Smith's bank account. [69] On the issue of the amounts paid to Ms. Smith during access visits, I conclude that Mr. Baron probably did pay monies to Ms. Smith on at least some, and perhaps many, of these visits. However, the evidence is not reliable enough for me to come to any proper conclusion about the amounts that were paid. There are no documents evidencing any payment amounts and I did not have enough confidence in the reliability of Mr. Baron's oral evidence to conclude that that by the end of each year (in the period from roughly 1991 to 1999) he was always current with his obligations, as he maintained. [70] On the issue of the amounts paid to FMEP by way of post-dated cheques, the parties seem to agree that the FMEP statement is accurate. Twenty-six payments of $300 each are shown on that statement, totalling $7,800. I am satisfied that Mr. Baron made these support payments. [71] The final issue concerns the payments made to Ms. Smith's bank account. I am satisfied that these payments ought to be credited to child support. Ms. Smith testified that she gave the account number to Mr. Baron (who by this point had moved, or was about to move, to Vancouver Island) by having Ashley convey that number to him. Both parties said there was no discussion between them about this account or the deposits that Mr. Baron was making to it. The bank account was Ms. Smith's account, not Ashley's. Mr. Baron made significant deposits to this account (totalling $9,658, according to Ms. Smith), from 1998 to 2002, when Ashley was between 11 and 15 years old. Mr. Baron's understanding was that these payments were for child support. In this I believe him; the amounts paid are far more than one would expect a parent would pay for the incidental or personal expenses of a pre-teen or young teenager in the circumstances of this case and of these parties. Also, the amount paid approximates the amount that ought to have been paid for child support, if one leaves aside the sporadic payment year in 1998 and the single payment made in 2002 (for the remaining three years the support obligation would have totalled $9,000 as compared to the $9,018 that was actually paid). [72] Ms. Smith insists that these monies were for Ashley's personal use only, yet admits that there was no discussion between the parties to this effect. The evidence establishes that Ms. Smith made the unilateral and undisclosed decision to let Ashley have all of the monies in this account, an account that was in Ms. Smith's name. [73] On a number of occasions Ms. Smith argued that Truscott J. has already ruled on the subject of this account. To be clear, he said: [19] The defendant also says that during this time, which I assume to be after he was released from prison some time in 1995 or 1996, when he was going to school, the plaintiff indicated to him that she was content with not receiving regular payments as long as he helped when he could and was willing to keep his distance from her and her new life. [20] The plaintiff denies any such agreement in her affidavit. She says she never authorized the defendant not to pay the court ordered child support. She also denies ever authorizing him to pay the child support to the child directly. [21] On this issue of whether there was any such agreement between the plaintiff and defendant, I am unable to conclude on affidavit evidence who is telling the truth and as the onus is on the defendant to prove such an agreement relieving him of the responsibility to comply with the 1990 court order in full, he has failed to satisfy that onus. Consequently, I will not take into account on this issue any such agreement between the parties on the amount to be paid by the defendant on the 1990 court order. [22] I will also not be taking into account on the issue of arrears, any monies that the defendant paid directly to his daughter, as his obligation by the court order was to pay to the plaintiff directly for the child, and not to the child directly. [74] Truscott J. made it clear that he could not resolve the conflicts in the affidavit evidence. I have now had the benefit of hearing and seeing the witnesses and seeing their evidence tested under cross-examination. From the evidence it is now clear that the payments were not made to Ashley directly but were made to a bank account in the name of Ms. Smith and it was Ms. Smith who chose to grant Ashley full access to Ms. Smith's account without informing Mr. Baron or discussing it with him. [75] In short, I am satisfied that Mr. Baron made payments directly to Ms. Smith by way of deposits to Ms. Smith's bank account and that these payments should be credited to Mr. Baron against his child support obligation. [76] As for the amount paid into the account, I conclude that the most reliable figure is Ms. Smith's. Mr. Baron's records were incomplete and the FMEP statement reflected only what he was able to prove through documents, so it was not complete either. The amount to be credited to Mr. Baron for these payments is therefore $9,658.00. [77] There are some other payment issues. Ms. Smith conceded in her submissions, under questioning from the bench, that Mr. Baron should be credited with six payments of $300 each that were made in 2003, in addition to the 26 payments of $300 as reflected in the FMEP printout. But the six $300 payments that were made in 2003 are already included in the 26 payments. I conclude that her concession reflected her confusion on the subject and is inaccurate. [78] In her submissions Ms. Smith also conceded that Mr. Baron should be credited with six payments of $250 that she received through FMEP. It is difficult to know what to do with this since this did not accord with her evidence, which was that she received no child support payments from Mr. Baron through FMEP. Also, the FMEP statement discloses only two types of payments: (1) "payments made directly by payor to recipient", which presumably did not go through FMEP at all, and (2) the 26 payments of $300 each that both sides acknowledge. I conclude that I should not credit Mr. Baron with six further payments of $250 each because the evidence does not support it and the concession seems to be the result of confusion on Ms. Smith's part. [79] There are two more issues. Mr. Baron said that he made a number of payments directly to Ashley or for a gift of a puppy for Ashley. I conclude that these payments should not be credited towards Mr. Baron's child support obligation. Finally, Mr. Baron asserted that the $5,000 that was paid to Ms. Smith upon the sale of their jointly-owned property was for future child support. There were no documents to support this and I am not confident that I should rely on Mr. Baron's evidence on this point. I would observe that his evidence that the 1991 payment of $5,000 was for future child support seems inconsistent with his evidence that he continued to pay child support through 1991 and 1992. If the $5,000 had been for future child support this would have satisfied his obligation up until January 1993. I conclude that his assertion is unproven. [80] In summary, Mr. Baron was current with his child support obligations up to April 25, 1991. From May 1991 to April 2003 his child support obligation totalled $36,000. I am satisfied that he has paid $17,458 ($9,658 + $7,800). The balance outstanding is $18,542, excluding interest. [81] I recognize that the credited amount ($17,458) is less than that shown in the FMEP statement ($18,045). I did not attempt to reconcile the difference (nor, for that matter, did the parties make any attempt to reconcile any differences with the FMEP figures). The FMEP statement is based on information supplied by the parties, some of which has been found to be inaccurate, and instead I have relied on the information supplied to me directly through the evidence of the parties. "M. Blok"