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.

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