Court of Appeal for Ontario

CITATION: Telles-Langdon v. Ashford, 2010 ONCA 509

DATE: 20100714

DOCKET: C51358

Feldman, MacFarland and Karakatsanis JJ.A.

BETWEEN:

Peter Telles-Langdon

Appellant

and

Anne Ashford

Respondent

Counsel:

Peter Telles-Langdon, in person

Iain Sneddon, for the respondent

Heard: June 28, 2010

On appeal from the judgment of Justice G. A. Campbell of the Superior Court of Justice, dated October 20, 2009.

ENDORSEMENT

[1] The appellant seeks to set aside the trial judge’s order for ongoing support, arrears and costs.

[2] The respondent concedes that the trial judge referred to the wrong columns in the Child Support Guidelines and therefore made a calculation error in the support payment and arrears. The appellant agrees that $277 is the proper amount for ongoing support, subject to the continued eligibility of the older son. The appellant will have to bring a motion in the Superior Court of Justice if he seeks to change the child support on the basis that the older son is now working full time and no longer in school. That issue was not before the trial judge and is not part of the decision appealed from.

[3] We are satisfied that, apart from the calculation error, the trial judge did not err in principle in his approach to s. 8 of the Child Support Guidelines and the order should be amended to reflect support in the amount of $277 per month.

[4] The appellant disputes the retroactive award by the trial judge. He takes the position that he has been supporting both children, including special expenses for the son living with his mother, the respondent. He submits that given the respondent’s household income, a retroactive award will unfairly create hardship for the younger son living with him as he will not be able to maintain the car payments or his son’s cell phone. The appellant did not give evidence at trial, although he was represented by counsel.

[5] On the evidence before him, the trial judge was entitled to make an order for support payments effective as of the date of the application, August 8, 2008. The trial judge made the award retroactive to July 7, 2007, the date on which one of the sons moved to live with the appellant.

[6] With respect to the support award retroactive from August 5, 2008 to July 7, 2007, the trial judge considered only the conduct of the appellant. He did not consider the other factors articulated by the Supreme Court for determining retroactive support in D.B.S. v S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231: (1) unreasonably delay by the recipient parent in applying for the retroactive support; (2) conduct of the payor spouse; (3) circumstances of the child; and (4) hardship occasioned by the retroactive award. Furthermore, it appears that he did not impute income to the respondent during this period, although he found it was appropriate to impute income to her and did so for subsequent periods.

[7] The order below is set aside and a new order shall issue for ongoing support of $277 per month effective August 5, 2008.

[8] Given that success below was divided, the respondent’s costs at trial should be reduced to $8,000. The appellant has been substantially successful on appeal and the respondent’s concession was made at the last moment. The appellant shall have costs of $4,000 on the appeal.

“K. Feldman J.A.”

“J. MacFarland J.A.”

“Karakatsanis J.A.”