DATE: 20050705
DOCKET: C42693
COURT OF APPEAL FOR ONTARIO
RE:
TIMOTHY SCOTT GARVEY and CATHERINE DARLENE CHIARELLI
BEFORE:
WEILER, MOLDAVER and LANG JJ.A.
COUNSEL:
Timothy Scott Garvey
the appellant
in person
Joseph M. Pellizzari
for the respondent
HEARD & RELEASED ORALLY:
July 5, 2005
On appeal from the judgment of Justice C. Herold of the Superior Court of Justice of Guelph, dated October 26, 2004.
A P P E A L B O O K E N D O R S E M E N T
[1] The father appeals the order of Justice Herold primarily on the issues of custody and access. After considering the evidence and the positions of the parties, the application judge concluded that there had been no change in the child’s circumstances and no evidence of a denial of access by the mother. Indeed, the evidence before the application judge showed that Vanessa, then age 17, was doing well in her mother’s care. We see no error in the application judge’s refusal to vary custody and access. Accordingly, we would not give effect to this ground of appeal.
[2] The father also appeals the application judge’s variation of child support and the costs awards against him. We also see no error on the part of the application judge on these issues.
[3] The mother cross-appeals seeking retroactive child support for 2003 in addition to the retroactive support ordered by the application judge for 2004. While the application judge gave no reasons for limiting retroactive support, it seems to us that in the circumstances of this case, including the father’s responsibility toward an autistic child of a subsequent relationship, and other financial obligations of the husband, it was within the application judge’s discretion to make his order on both the retroactivity of child support and on the quantum ordered. Further, we see no basis for interfering with the application judge’s limitation on any further application by the father regarding Vanessa until the father has paid the then outstanding costs.
[4] The mother was successful on the appeal, but unsuccessful on the cross-appeal. Accordingly, although she seeks costs of $1,000, we award the respondent mother costs of $500 inclusive of GST and disbursements.