Ontario appeal court sets aside retroactive support for years spouses shared a home

Ontario’s Court of Appeal has set aside a $313,554.79 retroactive child and spousal support award for years when separated spouses continued living together, while emphasizing that sharing a home does not itself prevent a support order.

In El Sherif v. Bakr, 2026 ONCA 752, the court allowed Essam Bakr’s appeal in part on October 23. It rejected his principal challenges to property equalization and the income attributed to Azza El Sherif, although agreed corrections increased the equalization payment to $319,012.62.

Notice and household expenses mattered

The parties separated in August 2019 but remained in the matrimonial home with two of their children until a trial that began in November 2024. The trial judge found that Bakr continued paying the family’s expenses during that period, as he had during the marriage.

El Sherif’s 2020 application sought child and spousal support beginning when the parties lived physically apart. She maintained that position until trial, and the appeal court found no indication that she had earlier given notice that her needs or the children’s needs were not being adequately met.

Writing for the unanimous panel, Justice Madsen concluded that the absence of notice was sufficient to set aside the retroactive support order. The broader circumstances also did not support the award.

The court acknowledged El Sherif’s strong entitlement to spousal support and the substantial income gap between the parties. But Bakr’s payments were roughly comparable to applicable support amounts, his net worth had not substantially increased, and the trial judge had made no finding that the family’s needs were not substantially met. The appeal court also identified a potential windfall to El Sherif and a realistic concern about hardship to Bakr.

The overturned award covered January 2020 through December 2024 and comprised $189,213 in child support and $124,341.79 in net spousal support. The court also set aside the related $71,358.29 post-separation adjustment and El Sherif’s $20,949.53 retroactive contribution to the children’s special expenses.

Sharing a roof does not decide entitlement

The court distinguished interim support during ongoing cohabitation from a claim made later for that period. An interim assessment generally considers whether existing payments maintain the family’s accustomed standard of living, alongside entitlement, support amounts and the parties’ circumstances.

A retroactive claim requires a fuller assessment of entitlement and the purposes of child and spousal support, as well as the established principles governing retroactive awards. Covering daily expenses may not achieve those purposes, particularly where a high-income spouse accumulates savings while the other continues to experience economic disadvantage.

The court’s guidance calls for consideration of incomes, expenses, changes in net worth, notice, conduct, potential windfalls and hardship. It cautioned against treating the exercise as a dollar-for-dollar accounting.

Admissions and equalization challenges rejected

Bakr also argued that El Sherif’s failure to answer a request to admit facts should have determined disputed property issues in his favour. The court concluded that, viewed in the context of the record, the trial judge had permitted withdrawal of the deemed admissions.

The appeal court advised that requests to admit should focus on useful factual issues, avoid compound questions and disproportionately onerous demands, and be addressed early. It said a ruling on withdrawal at the outset of trial would help clarify what evidence could be called.

The court upheld the $40,000 annual income imputed to El Sherif for support purposes. Agreed arithmetic corrections and reassignment of a vehicle’s value produced the revised $319,012.62 equalization payment owed by Bakr. The balance of El Sherif’s cross-appeal was not properly before the court.

Because success was divided, the court made no order for appeal costs. The reasons establish the revised obligations; they do not establish that payment has occurred.

Source: El Sherif v. Bakr, 2026 ONCA 752.