How Far Back Can You Go to Claim Child Support Arrears?

"My ex hasn't paid me what they should have for years. Their income went way up and they never told me. Is it too late to do anything about it?"

This question is one we have frequently heard from parents who've been raising kids alone while a former partner quietly earns more than what their support order was based on.

The Quick Answer

You can generally go back three years, but there can be circumstances where you can go back longer. 

Ontario courts can order retroactive child support, and in the right circumstances they can reach back beyond the standard three-year window, particularly where the payor hid income or failed to disclose. The rules are governed by the Supreme Court of Canada's framework in Colucci v. Colucci, 2021 SCC 24, and Michel v. Graydon, 2020 SCC 24.

In this post, we'll walk through a recent Ontario Court of Justice decision that applied those rules, explain how the three-year presumption works, and show you what can extend that window when a payor hasn't been straight about their income.

Sarreye v Sheikamed: The Case Explained

Sarreye v. Sheikhamed, 2023 ONCJ 525 was a decision of Justice S.B. Sherr released December 1, 2023. The parties married in 1988 and separated in 2007. They had seven children together. After separation, the mother raised all seven on her own; five are now adults and university-educated, while two remained eligible for child support at the time of the trial.

The Original Court Order Ruling

A 2010 court order required the father to pay $275 per month in child support based on his stated annual income of $14,500. That order also required him to send the mother his income tax returns and notices of assessment every year. He never did. 

The Father’s Hidden Income

By his own admission at trial, he worked as a certified electrician in Ontario from 2011 to 2013 earning about $40,000 a year. He never told the mother. In 2013, he moved to Alberta and, according to the mother, disappeared from the family's life entirely until December 2021. He claimed he earned nothing between 2016 and 2019, said he lived off $28,000 in savings, and provided no evidence of job searches despite being trained as both an electrician and a mechanic. By 2023, he was earning roughly $73,000 a year doing mechanical work.

What Brought The Matter To Court

After the Family Responsibility Office started enforcement proceedings against him. He brought a motion asking the court to retroactively reduce his support to zero for the years 2016 to 2019 in March of 2023. The mother cross-applied for a retroactive increase based on his actual income.

The Court's Decision

Justice Sherr dismissed the father's motion entirely and increased his support obligation retroactively, adding $20,193 to his arrears. The court found there had been a material change in circumstances. The father's income had gone up significantly twice, two of the children were no longer eligible for support, and the eldest dependent child was now in university in Ottawa. But the key issue was the father's complete failure to disclose.

The Court’s Reasoning

The court was direct about the father's behaviour: his payment history on a support order based on a "very modest income" was, in the judge's words, "abysmal." He had breached the disclosure requirement in the original order, hidden two significant income increases, and accumulated savings while the mother was on social assistance and the children were using food banks. By contrast, the court described the mother's conduct as "exemplary", a single mother who raised seven children, six of whom went on to university, with almost no help from the father.

Even though the mother only formally asked for an increase in July 2023, the court reached back to January 1, 2022, to recalculate support based on the father's true income.

What Are Retroactive Child Support Arrears?

Retroactive child support is support that should have been paid in the past, calculated based on what the payor's income actually was at the time, not what the old order said it was.

Two main statutes and one Supreme Court framework govern this in Ontario:

• Family Law Act, s. 37(2.1) — Gives Ontario courts broad power to change a support order prospectively or retroactively, suspend or discharge it, and rescind or reduce arrears.

• Federal Child Support Guidelines — Set out how the dollar amount of support is calculated based on the payor's income and the number of children.

• Colucci v. Colucci, 2021 SCC 24 — The Supreme Court of Canada's framework for when courts should order retroactive changes and how far back they should go.

The default rule from Colucci is that retroactive support, whether increasing or decreasing, can generally be ordered back to the date of "effective notice," up to a maximum of three years before the formal court application. "Effective notice" means the moment one parent meaningfully raised the issue of changing support with the other.

But that three-year cap is presumptive, not absolute. Courts can go further back, and they regularly do, when the payor has engaged in what the law calls blameworthy conduct — most commonly, hiding income or refusing to disclose it.

Why the Court Reached Back in This Case

1. The father gave no effective notice. To stop the clock on retroactive support, a payor asking for a decrease has to clearly tell the other parent that their income has changed and back it up with documents such as pay stubs, tax returns, notices of assessment. The father failed to do so until he filed his motion in March 2023. The court treated his date of effective notice as the same date as his formal court filing.

2. The father's conduct was blameworthy. The original order required annual financial disclosure. He had two significant income jumps and stayed silent on both. He claimed he couldn't find work for four years but kept paying rent, running a car, and carrying insurance, leading the court to conclude he was likely working for cash. Under D.B.S. v. S.R.G., 2006 SCC 37, and Michel, that kind of conduct lets a court extend how far back a retroactive order can reach.

3. The children were harmed. The mother had relied on social assistance. The children had used food banks, missed school trips, and shared rooms without their own study space. The court treated this as a direct consequence of the father privileging his own interests over the children's right to support.

4. No real hardship to the payor. The father was now earning roughly $73,000. The court found that spreading the arrears over time — $100 per month while the children were still in school, then $1,000 per month after — would not cause him hardship. Hardship to the children and the mother from not ordering retroactive support would have been worse. 

When the Three-Year Cap Will Hold

Not every case ends with a court reaching back years. The presumptive three-year window holds when:

1. The payor disclosed properly. If the payor told the recipient about an income change and provided documents at the time, courts are far more reluctant to extend the window.

2. The recipient delayed without an understandable reason. A long, unexplained delay in raising the issue can cut the retroactive period short, though Michel makes clear that delay alone is rarely fatal, especially where social context explains it.

3. The change in income was genuine, continuous, and not a choice. A payor seeking a retroactive decrease has to show their drop in income was real and lasting, not a strategic decision to work less.

4. Ordering full retroactive support would cause real hardship. Even where the law would allow it, courts can adjust the amount or the payment schedule if collecting all the arrears at once would crush the payor financially.

What You Should Do If You're Owed Past Support

1. Raise the issue in writing and keep proof. A text message, email, or letter saying "I think your income has gone up and we need to talk about support" starts the clock on effective notice. Vague conversations are easier for the other side to deny later.

2. Ask for financial disclosure now. If your order requires annual exchange of tax returns and notices of assessment and you haven't been getting them, request them in writing. A documented refusal strengthens any future retroactive claim.

3. Don't wait too long, but don't panic if you have. The three-year window is presumptive, not a strict deadline. Where there's been blameworthy conduct on the other side, courts have reached much further back. But the further back you go, the harder the evidence becomes, both for you and for the court.

4. Talk to a family lawyer early. A short conversation early on can prevent years of unpaid support from quietly piling up. It can also help you decide whether to apply through the Family Responsibility Office, file a motion to change, or try a negotiated resolution first.

Final Words by Michael Iyore Law

Sarreye v. Sheikhamed is a useful reminder of something we tell clients often: the support system in Ontario is built around honesty about income. When a payor parent plays straight with disclosing their tax returns each year and flagging changes early, the rules tend to protect them from surprise retroactive orders. When a payor parent hides income or vanishes, the law gives courts the tools to reach back and correct the shortfall, sometimes by years.

For recipient parents, the message is more hopeful than many realize. If you've been short-changed for years and never said anything because you didn't think you could, you may still have options. The three-year presumption is a starting point, not a wall.

For payor parents, the lesson is just as direct. If your income has dropped, the right move is to disclose, document, and bring a motion to change promptly. 

At Michael Iyore Law, we help parents on both sides of child support disputes work through these questions clearly and without the panic that often comes with them. Whether you're worried about arrears you might owe or support you've gone too long without, we can help you understand where you stand under Ontario law.

Contact Us to schedule a consultation.

Disclaimer: This article provides general information only and does not replace personalized legal advice. For help with your specific situation, speak to a licensed family law lawyer.