DATE: 20021206

DOCKET: C37627

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

RE: DIANA LYNN DALTON (Plaintiff/Appellant) v. WILLIAM HOWARD CRAIG (Defendant/Respondent)

BEFORE: O’CONNOR A.C.J.O., LASKIN and BORINS JJ.A.

COUNSEL: Chris Arnold

for the appellant

John Merner

for the respondent

HEARD: November 22, 2002

On appeal from the judgment of Justice Jennifer Mackinnon dated December 19, 2001.

E N D O R S E M E N T

[1] In our view, the trial judge erred in concluding that there was no evidence that a portion of the settlement was attributable to income replacement. Ms. Ralph’s letter makes it clear that some part of the total settlement was for past and future income loss. The parties are in agreement that the amount of $122,000, paid for statutory accident benefits, was for income loss. Beyond that, there is disagreement.

[2] It will be difficult and expensive to determine precisely what amount should be attributed to income. The parties have proposed a number of different options for addressing the issue. Each of those options makes assumptions that are contested by the other.

[3] In the end, we consider that the interests of justice and the interests of the parties will be best served if this court determines what we consider to be a fair amount for retroactive child support. In doing so, we have considered the circumstances of the parties and the amount that is clearly attributable to income.

[4] In the result, we allow the appeal and direct that the respondent pay to the appellant $10,000 on account of retroactive child support with prejudgment interest at 2 percent per annum from May 1, 1998 to today. We fix the costs of this appeal in the amount of $2,500.

“Dennis O’Connor A.C.J.O.”

“John Laskin J.A.”

“S. Borins J.A.”