Baldwin v. Funston – Retroactive Child Support Revisited

Baldwin v. Funston is a recent decision of the Ontario Court of Appeal which deals with the issue of retroactive child support. In this case, the wife appealed the lower Court’s finding that child support should not be awarded retroactively. The parties were married 11 years and had 3 children together. In 1994, the couple entered into a comprehensive Separation Agreement which specified the quantum of child support. Between 1993 and 1994, the husband became unable to work as much as he previously did and, as such, his income decreased. In 1996, the husband’s income increased dramatically and it remained quite high since. The wife began her claim for retroactive child support in December, 2002, 5½ years after the Separation Agreement was signed. The Trial Judge dismissed the wife’s claim because the Separation Agreement did not overtly impose an obligation to disclose material increases in income. As such, the Trial Judge did not find the husband’s lack of disclosure in this regard to be blameworthy. Furthermore, the Trial Judge found that the needs of the children were being met during the period covered by the retroactive claim. The Trial Judge also found that ordering retroactive child support in this case, which would amount to a lump sum payment of $300,000.00, would be unduly burdensome for the father.

The Court of Appeal agreed with the Trial Judge that the Separation Agreement did not compel the husband to disclose material increases in income to the wife. After quickly disposing with this issue, the Court of Appeal went on to examine whether the Trial Judge’s assessment of the retroactive child support claim was in accordance with D.B.S., a recent decision of the Supreme Court of Canada dealing with retroactive child support.

Unlike preceding decisions, D.B.S. stated that retroactive child support should not be treated as exceptional orders to be made only in exceptional circumstances. The Supreme Court advocated for a holistic approach which looks at the following four factors;

  1. Reasonable excuse for the delay in seeking support;
  2. Conduct of the payor parent;
  3. Circumstances of the child; and
  4. Hardship caused by the retroactive award.

The Court of Appeal disagreed with the Trial Judge and found that the husband’s failure to disclose the increase in his income amounted to blameworthy conduct. The Court emphasized, however, that this is but one factor to be considered. Although the Trial Judge did not follow the Supreme Court’s to the letter, the Court of Appeal found that she did weigh all of the factors. For example, the Trial Judge found that the wife’s delay in bringing her claim was unreasonable, that the children’s needs were being met during the time period in question, and that such a high retroactive award would cause the husband a great deal of hardship. As such, the Court of Appeal did not see fit to interfere with the Trial Judge’s decision.

Andrew Feldstein

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This Post Has 3 Comments
  1. In my opinion, both the Court of Appeal and the Trial Court came to the wrong result in this case. I agree with the Court of Appeal’s finding that the husband’s failure to disclose the increase in his income was blameworthy conduct. This case deals with child support and, as such, the children are the ones who suffer from their father’s failure. The husband knew that the increase was substantial and, therefore, he should have disclosed it regardless of what the Agreement says.

    In any event, the husband should have set aside some funds each month to fund a potential, future claim for retroactive child support. If the husband had done so, the Court would not have been able to argue that forcing him to pay increased child support would be unduly hard on him. Notwithstanding the holistic approach set down in D.B.S., I don’t know that I agree with the emphasis the Judges placed on each of the factors in this case. Furthermore, it is interesting that only one of the four factors in the holistic approach takes the children themselves into account. Courts must not forget that child support, ultimately, is the right of the child.

  2. Baldwin v. Funston provides a wonderful example of the application of the holistic approach as enumerated in the D.B.S. case. This decision is fair and equitable in that the Court really considers the circumstances of both the parents and realistically weighs them against one another. For example, the Court was cognizant of the fact that, although the husband’s income increased in 1996, the wife waited to bring her claim until 2002. The Court also looked at the economic reality of the quantum of the retroactive child support award and recognized the husband’s inability to pay such a large sum.

    The purpose of Separation Agreements is to set out a scheme which will bring both parties to a state of self-sufficiency after the breakdown of the marriage. Courts should not interfere with such agreements lightly. Furthermore, parties need to be careful in terms of what they are signing. I think that the Court was correct in not penalizing the husband for poor drafting. If couples expect that financial disclosure will continue after their Separation Agreements are signed, they must state this. Otherwise there is no finality or certainty to Agreements and their purpose is severely diminished.

  3. I am curious as to what constitues “too long” with regards to a spouse looking for retroactive payment. Does the court recognize the fact that many women are intimidated by their former spouses and don’t bring the issue up fearing retribution. Fear is a powerful thing – sometime more powerful than the right thing.

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