Court File and Parties
Court File No.: FC-20-1208 Date: 2025-09-02 Ontario Superior Court of Justice
Re: Azza El Sherif, Applicant And: Essam Bakr, Respondent
Before: Justice Engelking
Counsel:
- Self-represented Applicant
- Enoch Anekwe, for the Respondent
Heard: November 25-29, 2024, December 2-6, 2024, and February 3-5, 2025
Reasons for Decision
Introduction
[1] The Applicant, Ms. El Sherif commenced her application on August 13, 2020. The parenting claims were resolved by Final Order of Justice MacEachern dated June 19, 2023. The divorce was severed from the corollary issues and the parties were divorced by Final Order of Justice MacEachern dated September 17, 2024. At the time of trial in November of 2024, the remaining issues were:
- The parties' incomes for support purposes;
- Child support and section 7 contributions;
- Spousal support;
- Equalization;
- Post-separation adjustments, and;
- Disposition of the matrimonial home.
[2] For the reasons which follow, there shall be a final order imputing income to Ms. El Sherif of $40,000 per annum; imputing income to Mr. Bakr of $262,000 for 2020 through 2022, and of $247,716.19 for 2023; set-off child support payable from January 1, 2020, spousal support payable by Mr. Bakr from January 1, 2020; proportional contributions to section 7 expenses of the children based on the parties' imputed incomes; an equalization payment of $307,697.14 payable by Mr. Bakr to Ms. El Sherif; a post-separation adjustment of $71,358.29 payable to Mr. Bakr by Ms. El Sherif; and an order for the sale of the matrimonial home, effective January 1, 2026.
Background Facts
[3] Ms. El Sherif and the Respondent, Mr. Bakr, both have dual Canadian and Egyptian citizenship.
[4] Mr. Bakr came to Canada in 1997. He and Ms. El Sherif married in Egypt on July 11, 2000. Ms. El Sherif came to join Mr. Bakr in Canada in January of 2001.
[5] Three children were born of their marriage, Zeyad Bakr, born on October 21, 2001, Marwan Bakr, born on June 16, 2004, and Razan Bakr, born on September 2, 2007. The children also have dual Canadian and Egyptian citizenship. Essentially, the parents continued to jointly parent the children at home, Marwan and Razan, after separation while living separate and apart in the same residence. By Final Order dated June 19, 2023, Justice MacEachern ordered shared decision-making authority over Razan, the only remaining minor child at that time, as well as equal parenting time on alternating weeks once the parents reside in separate residences.
[6] Although there was some early controversy about the date of separation, at a settlement conference on October 4, 2024, the parties agreed that it would be August 6, 2019, for the purposes of the trial. Ms. El Sherif was a few days short of 45 years of age at the date of separation; Mr. Bakr was a month short of 49 years old.
[7] The parties continued to live separate and apart in the matrimonial home, which is located at 1024 Marconi Avenue, Kanata, Ontario, and was jointly purchased on January 15, 2015, from the date of separation to the time of the trial.
[8] Ms. El Sherif graduated from the University of Fine Arts in Egypt in 1997. Prior to marriage, Ms. El Sherif worked as an interior designer in Egypt for three years. During the marriage, Ms. El Sherif was a homemaker and stay-at-home mother. Commencing in 2011, Ms. El Sherif began offering her services as a tutor in fields of the Arabic language and teachings of the Quraan. In 2013, Ms. El Sherif obtained a master's degree in philosophy. From 2017 to 2019, Ms. El Sherif did religious studies in Arabic at the Islamic University of Minnesota and obtained her PH D. in Religion. Since obtaining her PH D. Ms. El Sherif has written two books on religious studies, the publisher of which has confirmed that no income was generated from their sale.
[9] Ms. El Sherif's declared income for the years since separation are as follows:
- 2019 - $0 according to her 2019 Income Tax Return
- 2020 - $0 according to her 2020 Notice of Assessment
- 2021 - $1,180 according to her 2021 Notice of Assessment
- 2022 - $1,600 according to her 2022 Notice of Assessment
- 2023 - $10,316.02 according to her Financial Statement sworn on February 5, 2024
[10] Mr. Bakr was always the breadwinner of the family. He has a master's degree in computer systems and has been the Vice President - Sales Operations of Lumine, which is the parent company of Incognito Software Systems, since 2019. Mr. Bakr's income consists of a base salary, as well an annual bonus, which is discretionary and comes in the form of cash, some of which must be used to purchase shares in Constellation Software Inc.
[11] According to his Notices of Assessment for the years 2019 through 2023, Mr. Bakr's line 15000 annual income has been:
- 2019 - $197,633
- 2020 - $298,128
- 2021 - $312,396
- 2022 – $417,653
- 2023 - $281,499
[12] However, these amounts included bonuses paid out without deducting the amount used to purchase shares. The 2020 Line 15000 income also includes a one-time, non-recurring bonus from Incognito Software Systems Inc. in the amount of $50,185.
[13] Mr. Bakr has always paid for all the family's expenses and has continued post-separation to pay for such expenses as the mortgage on 1024 Marconi Avenue, the property taxes, and home insurance. He has also continued to support the children financially, including Zeyad, who has lived independent of the family since 2018.
Positions of the Parties
[14] Ms. El Sherif's position is that she is entitled to spousal support on compensatory and non-compensatory grounds, she is entitled to child support on a set-off basis regarding the children Marwan, who is in university but continues to live at home and Razan, who is in secondary school, and she is entitled to an equalization payment of $422,109.85. Ms. El Sherif's further position is that Mr. Bakr's income is higher than he states due to a business interest in Egypt which she alleges has made a profit in recent years.
[15] Mr. Bakr does not dispute Ms. El Sherif's entitlement to spousal support, or to child support once the parties live independently of each other, but he seeks that an annual income be imputed to her of $52,690 on the basis that she is voluntarily under-employed or unemployed. Mr. Bakr's further position is that he owes Ms. El Sherif an equalization payment of $16,108.43. Mr. Bakr believes that he has overpaid support for the children, especially as it relates to section 7 contributions, and he should be credited for Ms. El Sherif's share of the payments made to date. He also seeks post-separation adjustments as well as makes a claim for occupation rent. Mr. Bakr also seeks an order for the sale of the matrimonial home if neither Ms. El Sherif nor he are buying out the interest of the other in it, for which to date there has been no agreement.
Incomes of the Parties for Support Purposes
[16] Ms. El Sherif seeks to have an income imputed to Mr. Bakr which includes $72,000 CND per year for the years 2021 through 2023 representing Mr. Bakr's share of the profits from an Egyptian company with which he is involved, "Elaqsa Office for Supplies, Import and Export".
[17] Mr. Bakr seeks to have income imputed to Ms. El Sherif for the years in question based on her being voluntarily under-employed or unemployed.
Mr. Bakr's Income
(a) Expert Income Report of Richard Evans
[18] An expert report on Mr. Bakr's income available for support purposes was prepared by Mr. Richard Evans dated July 31, 2023. Mr. Evans calculated Mr. Bakr's available income for support for 2020, 2021, 2022 and 2023 to be as follows:
- 2020 - $221,000
- 2021 - $256,000
- 2022 - $309,000
- 2023 Estimate - $268,000
[19] Mr. Evans determined that Mr. Bakr's average income over the years 2020 to 2022 was $262,000 and estimated that Mr. Bakr's income in 2023 would be $268,000. It was Mr. Evans' expert opinion that this was reasonable income to attribute to Mr. Bakr.
[20] Mr. Evans arrived at Mr. Bakr's income by taking his Line 15000 income for each year under review and reducing it by the un-vested amount of his CSI stock.
[21] Bonuses are paid each year at the sole discretion of Constellation Software Inc. and consist of a cash distribution (net of applicable taxes), a portion of which must be used to purchase common shares of CSI stock. For 2020 through 2022, employees in receipt of bonuses were required to reinvest 50% in CSI stocks. In 2023, they were required to reinvest 75% of their bonus in CSI stocks.
[22] At page 6 of his report, Mr. Evans indicated the following:
CSI shares have certain restrictions with respect to selling the shares until a predetermined period has elapsed "Vesting Period". The CSI shares purchased as part of the CSO Stock Investment Allocation Percentage will "vest" over five (5) years at one third (1/3) per year in years three (3), Four (4) and five (5). Any "unvested" shares will not be eligible to be sold. Further details can be found in the vesting acknowledgement.
Incognito includes 100% of the yearly bonus in Mr. Bakr's employment income, including the un-vested portion.
Since Mr. Bakr does not have access to and control of the unvested stock, we have not included the unvested amounts in Mr. Bakr's income available for the years under review.
When the CSI stock bonus amounts vest, they will be included in Mr. Bakr's income available.
[23] In 2020 and 2023, Mr. Bakr allocated 100% of his bonus to CSI stock, while he was only required to allocate 50% to same. Therefore, Mr. Evans added 50% of Mr. Bakr's bonuses back into his income in those years as available for support purposes.
[24] Mr. Evans also included in his estimate for Mr. Bakr's 2023 income available the portion of the 2020 CSI stock that vested in 2023.
[25] As a starting point, I find that it is reasonable that Mr. Bakr's income for support purposes for 2020 through 2022 was $262,000.
(b) Elaqsa Office Supplies, Import and Export
[26] Elaqsa Office for Supplies, Import and Export is a company owned by Mr. Bakr's Egyptian friend, Mr. Hassan Salem Hassan Mahmoud Aboucheira. The company is a sole proprietorship registered in Alexandria, Egypt. On April 14, 2014, Mr. Hassan and Mr. Bakr (through his Power of Attorney to his brother, Ashraf Aaty, entered into a contract, entitled an "Agreement and Contribution Contract for Murabaha [cost-plus financing] System Based on Sharing Losses and Profits". The certified English translation of the contract provides in the Preamble:
Third : The Second Party [Mr. Bakr] expresses the desire to contribute to the activities of the office owned by the First Party [Mr. Hassan] by increasing the operating capital, under an arrangement where profits and losses will be shared based on a percentage ( Murabaha system)
[27] Under the heading of "First Clause", the following is noted: " Second : The Second Party expresses the desire to invest its funds in the export office activity owned by the First Party, based on a profit and loss sharing (Murabaha system), with an estimated rate of 40% ."
[28] Under the heading of "Second Clause", the contract indicates: "The Second Party has handed over an amount of 650,000 EGP (six hundred and first thousand Egyptian pounds) to the First Party for investment in the office's activities."
[29] Under the heading of "Third Clause", it states: "The two parties have agreed that the Second Party's share in the profits and losses is 40%."
[30] Under the Fifth Clause, Mr. Bakr was not permitted to request the return of his investment for five years, or until April 13, 2019, though he was free to contribute additional capital if he desired, "following the same profit and loss percentage".
[31] Under the Sixth Clause, Mr. Hassan was to maintain annual books "recording the value of the invested transactions and the amounts paid by Mr. Bakr, duly signed by Mr. Hassan's legal accountant".
[32] Clause Eleven provides: "The Second Party shall bear his proportionate share of losses resulting form accidents or force majeure events that impact the management of the activity."
[33] Mr. Bakr's evidence in respect of this contract and the activities of Elaqsa was that he entered the contract with Mr. Hassan in April of 2014, in part to use some of the funds he states he received from the sale in 2011 of a villa purchased by him in 2008, more about which I will speak later. Mr. Bakr invested 650,000 EGP in Elaqsa, which was the equivalent of approximately $101,000 CND at the time. Mr. Bakr indicates that the company made money in 2014, 2015 and 2016. However, in 2017, an uprising erupted in Egypt and the company experienced losses in 2017, 2018 and 2019. Additionally, the value of the Egyptian Pound plummeted against the US dollar. Financial Statements for Elaqsa produced by Certified Chartered Accountant Hany Hegazy for the years 2014 through 2019 were filed as exhibits to the trial. Mr. Hegazy did not appear as a witness.
[34] Mr. Bakr's further evidence was that the company was discontinued in 2020. On July 26, 2020, Mr. Bakr received a letter from Mr. Hegazy stating, inter alia , "we hereby inform you that the company has decided to cease its operations due to increasing debts. Accordingly, the contract between you is considered terminated from the date of this letter. Please contact us at you earliest convenience to settle your outstanding debts to the company."
[35] On March 4, 2021, Mr. Hegazy wrote a further letter to Mr. Bakr requesting that he settle his outstanding debt based on the April 14, 2014, contract and "the letter sent to you on July 16, 2020 [sic]" . On October 2, 2023, Mr. Bakr and Mr. Hassan signed an "Agreement" settling the outstanding debt; the agreement references the April 14, 2014, contract and "the letters sent by the company's chartered accountant on 25/6/2022, 16/7/2020, and 4/3/2021 regarding the debt owed by the first party."
[36] The Agreement sets out under the heading "Second Clause":
The parties agreed to settle the debt amount as follows:
1 – An immediate payment after signing the settlement contract, amounting to 101,062 Egyptian pounds
2 – Ten (10) quarterly installments, the first of which begins three (3) months after paying the first installment. The value of each installment is 228,000 Egyptian pounds
[37] The total debt owed by Mr. Bakr to Mr. Hassan, according to this agreement, is 2,381,062 EGP. Mr. Bakr testified that he has been paying this debt, stating that he paid the upfront amount in 2023, and has made incremental cash payments either directly when in Egypt or by leaving cash with his brother for this purpose. Mr. Bakr indicated that a cash receipt is issued each time he pays, but no such receipts were produced for trial. Nor did he state how much he had paid of the debt to date.
[38] Both Mr. Bakr and Mr. Hassan testified that the company ceased to operate in 2020 due to accumulated debt, prior to the COVID-19 pandemic. Mr. Bakr's evidence is, therefore, not only did the company not make money in 2020, 2021, and 2022, as alleged by Ms. El Sherif, such that 40% of its profits during those years should be attributed to his income, but also that he had a debt of approximately $210,000 CND to Elaqsa as of the date of separation which he seeks to include in his net family property statement, again more about the latter of which I will speak later.
[39] Ms. El Sherif, on the other hand, presented evidence at the trial purporting to show not only that no debt existed in August of 2019, but also that the company began making a profit in 2020, which continued to the time of trial. Ms. El Sherif's evidence for this consisted mainly of purported taxation filings of Elaqsa for the years 2005 through 2022. Ms. El Sherif relied upon the opinion evidence of two experts, Dr. Mohamed Ali El-Sayed, who was qualified to give an expert opinion on Egyptian contract, commercial and real estate law, and Mr. Essam El Nady Mohamed, who was qualified to give an expert opinion on accounting in Egypt.
Dr. Ali
[40] Dr. Ali wrote a report, the date of which is not clear on its face, but which Dr. Ali testified was done in November of 2024. In the report, Dr. Ali identifies that in relation to Villa 282, he reviewed the original purchase contract dated January 17, 2008, and the sale contract dated April 9, 2011, as well as an appraisal report dated August 10, 2020.
[41] In relation to Elaqsa, Dr. Ali noted that: "There's no official proof of this partnership through a commercial register or validity of the informal partnership contract or the accountant's certificate, making these documents legally insufficient as evidence in proving the husband's financial status." Dr. Ali testified that each company in Egypt is to do tax declarations annually, and that these declarations are a good reflection of the status of the company. Dr. Ali indicated that if the losses of the company were as reported by its' accountant from 2016 to 2019, it should have no longer been functioning, citing Article 438 of the Egyptian Civil Code. Dr. Ali's report states:
Article 438, paragraph 1 of the Civil Code stipulates that: "If the company has lost all or most of its property, the company is unable to continue its activity, it shall expire accordingly. If the loss is partial, it depends on the importance of the remaining part of the company's ability to continue its activity. (3/4) Its capital, as well as the provision in article 690 of the Commercial Law concerning the Shareholding Company that if the Company's net asset has been reduced, the Directors shall prefer fixed losses in the account documents to the quarter (1/4) of its (the Company's) capital before the term fall.
He did not submit the budgets he submitted to the Egyptian Taz Authority that support this report, which was prepared by a private office. Therefore, only the decisions that were submitted to the government agencies are taken into account, which he did not submit to you.
[42] Dr. Ail testified that at the time of the writing of his report, he had only seen documents from Elaqsa's accountant showing losses from 2016 through 2019; he had not seen any "governmental evidence". However, Dr. Ali indicated that day before he testified, he was provided taxation documents for Elaqsa by Ms. El Sherif, which showed that the company was still functioning beyond 2020, which he indicated was not permitted by Egyptian law if the company's losses were as reported by the accountant between 2016 and 2019.
Mr. Al Nady
[43] Mr. Al Nady provided a report which he indicated was dated November 12, 2024, in which he states that he had obtained "original copies" of the company's tax returns from 2005 until 2023. According to these tax returns, the company is still active and had "achieved net profits for the years 2021 to 2023." Mr. Al Nady's report provides:
| Year | Annual revenue value | Annual net profit | Tax paid |
|---|---|---|---|
| 2021 | 463,455 | 196,354 | 31,396 |
| 2022 | 2,079,782 | 1,561,505 | 380,376 |
| 2023 | 4,573,441 | 1,920,880 | 498,242 |
| Total | 7,116,678 | 3,678,739 | 910,014 |
Mr. Essam Bakr's shar according to the contribution and partnership contract is 40% of the amount and value 1,471,496 L.E.
We have evidence and proof form the Tax Authority: indicating that the company is still submitting tax returns and has not stopped operating and that it has achieved net profits for the years 2021 to 2023.
[44] Mr. Al Nady provided an Arabic summary of the tax declarations of Mr. Hassan for Elaqsa for the years commencing January 2, 2005, through to December 31, 2022, based on the tax filings he had reviewed. Ms. El Sherif provided an English translation of same. This document shows the dates for which tax filings were done but does not show company profits or losses. Mr. Al Nady was able, however, to access tax returns for the years 2009, 2011, 2012, 2013, 2014, 2017 and 2018, all of which contained zero income, zero expenses and zero gains. Mr. Al Nady did not see the 2019 tax return but indicated that the company made gains as of 2020 as set out above.
[45] If Mr. Al Nady's evidence is to be believed, it would demonstrate both that Mr. Bakr had no debt to Elaqsa as of August 6, 2019, and that he had access to additional income for support purposes in 2020, 2021 and 2022. However, Mr. Bakr questioned the ability of Mr. Al Nady to obtain the documents upon which he was relying, as well as their authenticity. When questioned about his ability to obtain the documents, Mr. Al Nady indicated that he requested the assistance of a legal accountant connected to the tax authority, who obtained them and sent them to him. Mr. Al Nady acknowledged that he would require Mr. Hassan's authority to obtain the documents himself from the tax authority directly. When questioned further about the legality of accessing and obtaining someone's tax returns without their permission, Mr. Al Nady stated that it was not him that did so directly, and therefore, it wasn't he "who ran behind that one to get it".
[46] Second, when Mr. Al Nady was questioned about the fact that each tax return filed and reviewed in cross-examination was dated October 10, 2024, he acknowledged this, stating that "it appears that someone notified the legal accountant that there is a fine for late tax declarations and that is why he filed them all in one day."
[47] Third, when Mr. Hassam testified and was asked about the tax returns in question, his position was that they were forged documents. He stated that he had never provided Mr. Bakr with tax returns for Elaqsa because Mr. Bakr was only an investor of capital and was not entitled by the contract to see bank statements or tax returns. He did, however, provide Mr. Bakr with the company's financial statements for the years 2014 to 2019, which were made exhibits to the trial. While Mr. Hassam stated at trial that he would be prepared to provide tax returns for Elaqsa to the court, he never did.
[48] Mr. Bakr also relied on his own expert, Ms. Sahar Mosaad Abu El-Abbas, who was also qualified as an expert in contract, commercial and real estate law in Egypt.
Ms. El-Abbas
[49] Ms. El-Abbas provided a report dated November 4, 2024, the English translation of which was made an exhibit to the trial. Ms. El-Abbas testified that the type of contract entered into between Mr. Hassam and Mr. Bakr (contract under Murabaha terms) is common and legal in Egypt. She noted in her report that Mr. Bakr was "not a partner in the company in the traditional sense and has no right to manage the company, sign its bank accounts or act on its behalf." Ms. El-Abbas noted further:
Third: Article 438, Paragraph 1 of the Egyptian Companies Law states that a company is to be dissolved if it cannot sustain its activities any further. On cases where the damage is partial, the decision to continue operations hinges on the viability of the remaining assets. The legislature has established specific thresholds for asset damage applicable to different types of companies. Article 589 of the Commercial Code permits companies to persist in their operations despite incurring losses, fostering the possibility of recovery without necessitating immediate dissolution.
[50] In other words, Elaqsa was permitted by Article 589 of the Commercial Code to continue operating despite its losses, with the hope that it may recover from those losses, and this is what likely occurred. Ms. El-Abbas opined that otherwise, nearly all Egyptian companies would have been dissolved because of the uprisings and COVID pandemic.
[51] Ms. El-Abbas was also of the opinion that the tax documents relied on by Mr. Al-Nady were not authentic as they lacked the official stamp of the Egyptian government; she also noted that only the person who is entitled to get the tax documents may retrieve them, and not anyone else.
[52] It is, frankly, very difficult to determine on the record before me:
a. Whether losses to the company claimed by Mr. Hassam (and relied upon by Mr. Bakr) occurred in the years 2016 to 2019 as set out in the company's Financial Statements as prepared by Mr. Hegazy;
b. Whether net profits to the company claimed by Ms. El Sherif occurred in the years 2020 to 2022 as set out in the report and testimony of the Mr. Al-Nady;
c. Whether the documents relied on by Mr. Al-Nady, obtained potentially illegally from the tax authority, were authentic or not;
d. Whether Mr. Bakr was entitled to any net profits to the company which may have occurred after 2020, given he was advised by letter dated July 26, 2020, that the contract between him and Mr. Hassam was "considered terminated";
e. Whether Mr. Bakr owed a debt to Elaqsa on the date of separation, and if so what the value of that debt was on August 6, 2019; and,
f. Whether Mr. Bakr has in fact paid or continues to pay the identified debt, as the schedule of payments set out in the October 2, 2023, agreement continues to April 2, 2026.
[53] In Cronier v. Cusack, 2023 ONCA 178, the Ontario Court of Appeal has found at paragraph 20 that "as with any evidence presented to the court, a trier of fact can accept none, some or all it".
[54] Based on the above, I do not accept the evidence that Elaqsa made net profits from 2020 onwards, such that Mr. Bakr's income for support purposes should be increased in accordance with a 40% entitlement to same. Mr. Bakr's income for support purposes will be as set out by his expert, Mr. Evans, for the years 2020 through 2022, or $262,000.
[55] On February 11, 2023, Mr. Bakr received a letter from Lumine confirming that a) his base pay for 2023 is $225,000, his CSI Bonus factor increased to 125%, and the Stock Investment Allocation Package increased to 75%. Applying the same methodology for 2023 as Mr. Evans did for the years 2020 through 2022, that is by reducing it by union dues, other permitted employment expenses, and the unvested CSI stock, and adding the vested CSI stock, results in an annual income for Mr. Bakr for 2023 of $247,716.19.
Ms. El-Sherif's Income
[56] Mr. Bakr seeks to have an income imputed to Ms. El Sherif for support purposes. In support of his position, Mr. Bakr retained the services of a vocational evaluator, Ms. Jennifer Griffiths, who was qualified as an expert, to critique a report done by a vocational evaluator retained by Ms. El Sherif, Mr. Peter Campbell on August 2, 2023, with an addendum dated September 7, 2023. Ms. El Sherif did not call Mr. Campbell as a witness, nor tender his report(s). However, in her critique of Mr. Campbell's report(s), Ms. Griffiths noted that Mr. Campbell's opinion in his August 2, 2023, report was that Ms. El Sherif's earning capacity was between $34, 417.38 and $42,000 per year.
[57] Ms. Griffiths did not obtain the consent of Ms. El Sherif to do her assessment, nor did she meet with or interview Ms. El Sherif, notwithstanding that Mr. Bakr attempted repeatedly to obtain a suitable time for her to do so. Ms. El Sherif sought an email address from Mr. Bakr to communicate with Ms. Griffiths before agreeing to anything. Mr. Bakr did not provide her with Ms. Griffiths' email address, and Ms. El Sherif did not provide Mr. Bakr with a time when she would meet with Ms. Griffiths, hence she did not participate in the assessment.
[58] Ms. Griffiths nevertheless testified that it is very common in her field to conduct an assessment via a file review. Ms. Griffiths' report dated April 11, 2024 sets out the documents which she reviewed in her assessment, which included, inter alia , the assessment and addendum of Mr. Campbell, Ms. El Sherif's resumes from 2005 and 2012, advertisements posted by Ms. El-Sherif for tutoring services, notices of sales of two books by Ms. El-Sherif, transcripts of questioning between the parties, and certain job postings.
[59] Ms. Griffiths conducted a transferable skills profile of Ms. El Sherif and found that she fit into two groupings: administrative support work group and vocational/school instructor group.
[60] In relation to Ms. El Sherif's earning capacity, Ms. Griffiths found at page 27 of her evaluation report:
In regard to the referral request, I will endeavor to opine on an earnings capacity for Ms. El Sherif. Based on my research, there would be a suitable range that could be expected given her lengthy and transferable work and volunteer experiences, management skills, office support experience, and organic non-profit organization management. As a result, I have recommended two key occupational groupings that I deem suitable, including religious/language/cultural instructor and administrative support clerk.
[61] After reviewing potential job postings and their commensurate renumeration, Ms. Griffith concluded at page 29 of her report:
In regard to earning capacity, I have recommended a range of earnings based on two positions I see being most viable for her which will also give her flexibility she may need with some physical limitations. These are teaching religious/language/cultural concepts and administrative support. The range of earnings was impugned from $36,000 to $69,381.
[62] Based on Ms. Griffiths' report, Mr. Bakr seeks to have income imputed to Ms. El Sherif of $52,690, that being the medium of the range identified by his expert.
[63] The onus of establishing the income which should be imputed to a spouse lies with the individual seeking the imputation. In this case, there are some difficulties with the court's ability to accept Ms. Griffiths' opinion.
[64] The first is that Ms. Griffiths did not meet with Ms. El Sherif. While I recognize that this was an assessment conducted by way of a file review, and a critique of a previous assessment at that, I find that it is problematic for Ms. Griffiths to draw conclusions about Ms. El Sherif's ability to work in the English language. Ms. Griffiths noted at page 26 of her report:
As noted in the VE completed in August of 2023, Mr. El Sherif scored lower in English language tasks. These scores were lower than expected, considering the English instruction she had in secondary and post-secondary school, and her "advanced" status in ESL upgrading when she immigrated to Canada. She may need to spend a short time upskilling her English skills.
[65] Ms. Griffiths recommended more than once in the report that Ms. El Sherif obtain "short-term language and computer upskilling." On a practical level, however, Arab language interpreters were required throughout the entire duration of the trial for the benefit of Ms. El Sherif, counsel for Mr. Bakr and the court. Not having met with or interviewed Ms. El Sherif, I am uncertain as to whether Ms. Griffiths opinion as to her earning capacity may have been different, although she did opine that there may be sufficient opportunities, both within Canada and without, for her to work exclusively in Arabic and still fall within the range set out.
[66] The second difficulty, however, is that Ms. Griffiths appears to have accepted Mr. Bakr's description of the work Ms. El Sherif was supposed to have done for his or the family business. Indeed, it is from there that Ms. Griffiths finds that Ms. El Sherif has transferrable skills in administration. However, Ms. El Sherif's testimony was quite different. She denied doing any meaningful work for Mr. Bakr, and in fact at one point made a report to the police about Mr. Bakr "fraudulently" claiming with the Canada Revenue Agency that she was an employee of his. What I could gather from her testimony is that Mr. Bakr was likely practicing some income splitting for income tax purposes, which was at the time permissible, but that she did not agree either that she did any meaningful work for the company or that she was an employee. Indeed, she indicated that Mr. Bakr was the person who incorporated the Not-For-Profit Corporation, the International Institution of Humanities, referenced in Ms. Griffiths report, and not her.
[67] While I accept the range of earning capacity identified by Ms. Griffiths, I find that due to Ms. El Sherif's challenges with communicating adequately in English and to the uncertainty as to the degree of her administrative skills and/or experience, I would put her on the lower end of the range.
[68] I find that an annual income of $40,000 is reasonable to impute to Ms. El Sherif for support purposes.
Child and Spousal Support
[69] Given Mr. Evans' income report, and the situation on the ground whereby Mr. Bakr was paying all expenses for the family, it is logical that no support, or conversely, post-separation adjustments, be payable to December 31, 2019. However, commencing January 1, 2020, Mr. Bakr should be paying spousal support and Ms. El Sherif should be paying her share of their joint expenses, except for the mortgage on the MH. Additionally, the parties should be paying set-off support to each other for two children, Marwan and Razan from January 1, 2020.
[70] Mr. Bakr argues that although he lives independently, Zeyad remains a child of the marriage pursuant to section 3 of the Federal Child Support Guidelines. Mr. Bakr relies on Zeyad having been found to have some mental health challenges by his physician, Dr. Zareef by letter dated April 23, 2021, and by Zeyad's application for accommodation at Carleton University based on Mental Health Disability dated September 26, 2019. While Zeyad may suffer from some difficulties which affect his ability to work while at university and/or the pace at which he may complete his program, the fact of the matter is that Zeyad has lived independently for many years, albeit with Mr. Bakr assisting him with his rent. I do not find that Zeyad remains a child of the marriage for s. 3 of the FCSG's purposes. However, I do find that the parties remain obliged to contribute to his s. 7 expenses.
Equalization
[71] The largest discrepancies between the parties from their comparative net family property statement dated November 24, 2024, consist of:
Ms. El Sherif is of the view that Mr. Bakr owned a villa in Egypt as of the date of separation with a value of $339,348. Mr. Bakr's position is that he sold the villa in 2011.
Ms. El Sherif attributes $101,404 to Mr. Bakr under the category of "Bank Accounts and Savings, Securities and Pensions", while Mr. Bakr's position is that he did not have such on the date of separation.
Ms. El Sherif suggests that Mr. Bakr had money owing to him at the date of separation in the form of loans of $5000 from his brother, Ashraf, and $13,197 from his friend, Yasser, while Mr. Bakr states no such loans existed on the date of separation.
Mr. Bakr claims a negative business interest of $191,096 in Elaqsa, owing to his 40% interest in its profit and loss sharing ("Murabaha system") contract, while Ms. El Sherif states no such negative interest or debt existed.
Mr. Bakr claims a date of separation debt of $53,106 to his friend, Yasser Awad, while Ms. El Sherif states that its value was $44,073.73. The debt is agreed to be $40,000 USD, but the converted value to Canadian dollars is disputed.
Mr. Bakr claims a date of separation debt of $28,892.45 to his brother, Ashraf Abdel Atty, while Ms. El Sherif's position is that no such loan existed.
Mr. Bakr claims a dated of marriage value on his apartment in Egypt of $59,574, while Ms. El Sherif's position is that it was valued at $34,300.88.
[72] Other less extreme discrepancies also include the value of Ms. El Sherif's jewelry and Mr. Bakr's car, the treatment of the Mahr, the value of cemetery plots owned by Mr. Bakr, the date of separation mortgage balance on the matrimonial home, the value of the Bell mobility debt and the notional taxes attributable to Mr. Bakr's RRSPs.
[73] Mr. Bakr has amply demonstrated the values of his car, the Bell mobility debt, the cemetery plots owned by him and the mortgage balance at the date of separation, and those values will be included in the NFP. Mr. Bakr has similarly obtained an expert opinion from Mr. Guy Martel, which was not disputed by Ms. El Sherif, confirming that the nominal tax rate on his RRSP investments is 19.1%. As of August 1, 2019, the value of Mr. Bakr's RRSP with TD was $318,770.37.
[74] Ms. El Sherif has provided appraisals from Noura's Fine Jewelry Appraisal dated October 29, 2024 for certain jewelry in her possession which shall be used for the NFP value. Mr. Bakr disputes that this is the only jewelry in Ms. El Sherif's possession, and estimates that her jewelry should be valued at $20,000. However, he provided no photographic or other evidence to support his supposition, and the court is unable to find in his favour in this regard.
[75] Regarding "general household items and vehicles" owned by each at the date of the marriage, Ms. El Sherif claimed $10,000 and Mr. Bakr claimed $13,000. However, neither of them provided any evidence or documentary confirmation of property owned at the date of marriage (other than Mr. Bakr's apartment in Alexandria). Therefore, neither claim is allowed.
[76] With respect to the Mahr, the "Document of Marriage Contract" dated July 11, 2000, provides for a deferred dowry of 7000 EGP. The proper treatment of a mahr is for it to be included as money owed to the wife at the date of separation, and a debt to the husband. However, in the comparative NFP, under the heading "(f) Money Owed to You", Ms. El Sherif has only put "TBD" in her side of the ledger, and Mr. Bakr has put $20,000 in Ms. El Sherif's column and (-$20,000) in his column on his side of the ledger. However, neither provided any evidence as to the date of separation value of a deferred dowry of 7000 EGP from July of 2000. I am unable, therefore, to attribute a value to it, positive to her and negative to him, for equalization purposes. Nevertheless, the marriage contract does exist, and I assume that Mr. Bakr continues to have an obligation which he is expected to otherwise fulfill in relation thereto.
[77] Additionally, while Ms. El Sherif has alleged that Mr. Bakr purchased a condo in Ottawa that should be included in his NFP, the evidence was abundantly clear that he only did so well after the date of separation, and that he did not own it on August 6, 2019.
Villa No. 282, Street No. 20, Antoniadis District, Alexandria, Egypt
[78] On January 17, 2008, Mr. Bakr purchased a residential villa in the "Alex West" district of Alexandria from a builder/developer named "Barons Court Sports & Leisure for Tourism". The contract in which he entered provided for a purchase price of 751,110 Egyptian Pounds ("EGP") with payments to be made on an installment basis. EGP 225, 335 was paid up front, and the remaining EGP 525,775 was to be paid in 14 installments by post-dated cheque, with the last cheque for EGP 37,625 due on July 15, 2011.
[79] Article 7 of the contract provided:
Transfer of Ownership
Due to the distinguished nature of the project, the Purchaser may not transfer or sell the villa purchased under this contract until the full payment has been made, unless the Company provides written consent for such transfer, the Purchaser shall pay the Company 3% of the total sale value as administrative fees.
[80] That Mr. Bakr bought the villa in 2008 is not contentious. Ms. El Sherif's position is that Mr. Bakr still owned the villa at the date of separation, and its value should be included on his side of the ledger of the net family property statement. Mr. Bakr's position is that he sold the villa in 2011, and no value for same should be included in his NFP.
[81] In August of 2020, Ms. El Sherif caused the villa to be appraised to determine its date of separation value. Mr. Mohamed Saad Elsyed Ali Rashed, a qualified real estate appraiser in Egypt, provided a report dated August 10, 2020, in which he determined that the value of the villa as of that date was EGP 4,062,000 or $339,348 in Canadian dollars ("CAD"). Mr. Rashed testified that he attended on that date and photographed property from the exterior. He did not enter the unit but appraised it based on his knowledge of the interior of the villa, having seen the interior of another villa in the same complex and based on comparable fair market values for other villas in the area. Mr. Rashed also took a photograph of a sign on the front of the property, a copy of which is contained in his report, which stated: "Name: 282 Villa, Villa of Engineer Essam Mohamed Abdulati", which to him appeared to have been there for "a long time".
[82] Ms. El Sherif also obtained a court order in this proceeding from Justice MacEachern dated June 20, 2024, which provided as follows:
- The Respondent, Essam Bakr, shall cooperate with the production of disclosure from Alex West Builders relating to the property known as Villa No. (282) Model "8", located in Street No. 20 – Antoniadis District – Abu Talat District – Mehwar Al Taameer Road – International Costal Road – Alexandria Governorate, to the Applicant by:
a. Making an immediate written request to Alex West Builders requesting they provide a letter stating the ownership history of the property from 2008 to the present, including to whom they have invoiced maintenance/villa fees to [sic] for this period; providing a copy of this letter to the Applicant immediately upon it being sent, and a copy of any response thereto from Alex West, and all subsequent communications, forthwith upon receipt.
b. Providing the Applicant with a notarized authorization for the Applicant to obtain directly from Alex West Builders and tax authorities information, including copies of documents, related to any interest the Respondent may have in the property for the period from 2008 to present, including his ownership of the property and any transfer of his interest in the property to others. This authorization shall be authenticated by the Egyptian Embassy, located at 150 Metcalfe Street, 11 th floor, Ottawa, ON K1N 6R3. This authorization shall be written in Arabic. Both parties shall attend the embassy together to issue the necessary authorization and have it executed in accordance with applicable laws and regulations and
c. Any costs associated with subparagraphs 'a' and 'b' shall be borne by the Applicant, without prejudice to who should ultimately pay this cost, which is reserved to the trial judge.
[83] Ms. El Sherif then obtained the assistance of Dr. Ali, referenced above, who ensured Justice MacEachern's order of June 20, 2024, was translated into Arabic and provided to the legal department of Alex West Builders in Alexandria. In response to the receipt of this order, Alex West Builders provided a letter or "certificate" to Ms. El Sherif dated October 17, 2024, the certified English translation of which reads:
To Whom it May Concern
Barons Court Sports and Leisure for Tourism hereby certifies that Mr. Essam Mohamed Abdel Aaty Bakr , of Egyptian nationality, holding National ID No. 270090060200431 , residing at 58 Sayed Radwan Street, Miami, Alexandria Governorate , purchased Villa No. 282, Model (8), in the Antoniadis area, Tourism Project (Alex West) , with an area of 325.4 square meters, in 2008 . The villa was handed over to him in 2018 . During this period, the full price of the villa was paid, and he has been retaining ownership of the property until now. Ownership has not been transferred to any third party, as stipulated in Clause 7 of the contract, which states that the buyer is not permitted to dispose of or relinquish the villa until the full price has been paid and a written approval from the company has been obtained. In the event that the company accepts a relinquishment, the buyer shall pay 3% of the total sale value as administrative expenses to the company.
Mr. Essam Mohamed Abdel Aaty Bakr still pays the maintenance expenses and taxes. It has been registered by the buyers in the Real Estate Registry in accordance with the company's obligation. The real estate tax for the villa was paid on 16/10/2024 , as evidenced by receipts from the Real Estate Tax Authority, Ajami Office, Alexandria .
This certificate is issued upon request without any responsibility by company.
Issued on: 17/10/2024.
[84] Ms. El Sherif did not call upon anyone from Alex West to testify in the trial, and this document is technically hearsay and not admissible in the trial for the truth of its contents. However, it is admissible in so far as it supports the narrative, and the steps taken by Ms. El Sherif, or others on her behalf, to demonstrate Mr. Bakr's continued ownership of Villa 282.
[85] While it was Dr. Ali who delivered Justice MacEachern's order to the legal department of Alex West Builders, it was Ms. El Sherif's friend, Ms. Sahar Abdul Azim Mahoud, who testified that she personally picked up the October 17, 2024, letter from Alex West. Ms. Mahoud also received a copy of the tax receipt of October 16, 2024, from a Mr. Abdullah Raheem at the tax agency branch in Algamy, which is responsible for Alex West properties.
[86] The tax receipt in question demonstrates that on October 16, 2024, the Ministry of Finance Real Estate Tax Authority provided a "Notification of estimated renal value on built property" to Mr. Essam Mohamed Abdel Aaty Bakr for Villa 282, at 42 Alex West, B20st., in the district of Algami, showing that tax of 523.25 EGP was due. Ms. El Sherif testified that she paid this tax bill, which is in Mr. Bakr's name, and that it evinces that the villa was as of that date still owned by Mr. Bakr. For his part, Mr. Bakr took issue with Ms. El Sherif paying the bill, suggesting that she had no authority to do so. However, regardless of who paid the bill, that objection misses the point that the property taxes were still in Mr. Bakr's name.
[87] Additionally, Ms. El Sherif relies on a "Customer Consumption Statement" of the Holding Company of Drinking Water and Sewage from 30/08/2014 to 09/09/2023 in the customer's name of Essam Mohamed Abdul- 'Aati to demonstrate that until at least September of 2023, Mr. Bakr was paying the water bill for Villa 282.
[88] Ms. El-Sherif additionally produced some emails between Mr. Bakr and Alex West Builders in April of 2012 when Mr Bakr was asking about the delivery date for the unit, and from May of 2012 when Mr. Bakr was selecting ceramic designs and sanitary fixtures for the unit.
[89] Ms. El-Sherif also relied upon a document referred to as a "Negative Certificate" dated November 2, 2024, provided by Mr. Bakr, which she states supports the fact that the property has never been transferred from Mr. Bakr's ownership after 2008. The certificate states:
Based on the request of Ashraf Mohamed Abdel Aaty , a search was conducted in the registry books of this office. It has been confirmed that there are no registrations or restrictions against or in favor of Essam Mohamed Abdel Aaty Bakr regarding Villa No. 282 in Alex West Village, Abu Talat , located in Abu Talat District, Al-Amiriya Centre, Alexandria Governorate, Arab Republic of Egypt, for the period from 01/01/2011 to 20/10/2024 .
[90] Ms. El-Sherif also relies on the fact that the family stayed at the villa in July/August of 2019 when they were in Alexandria, Egypt immediately prior to separation to support that Mr. Bakr still owned the villa at that time. Ms. El-Sherif disputes that the villa was rented for the family's use, and stated, moreover, that Mr. Bakr's apartment in Alexandria was also available so it would not have been necessary to rent a villa in Alexandria.
[91] Mr. Bakr's evidence, on the other hand, is that he sold the villa in 2011. He produced a contract dated April 9, 2011, between Mr. Bakr, through his Power of Attorney, Ashraf El Atty Bakr, and a Mr. Ahmed Abd El Monem Tawfek Abd El Monem, by which Mr. Bakr is purported to have sold Villa 282 in Alex West Village to Mr. El Monem for 650,000 EGP.
[92] Ms. El Sherif disputes the validity of this contract, based in part on the evidence outlined above which she submits demonstrates Mr. Bakr's continued ownership of the property, but based also on barriers to the villa's sale contained in the original purchase contract dated January 17, 2008, particularly Article 7 outlined in paragraph 79 above. According to Article 3 of the contract, the last payment by installment of EGP 37,625 was only due on July 15, 2011. Ms. El Sherif's position is that Mr. Bakr could not have sold the villa in April of 2011 because he had neither finished paying for it nor had he received the consent of Alex West to sell it as per the requirements of Article 7 of the 2008 contract. She was also of the view that it did not make sense for Mr. Bakr to sell the unit for 101,110 EGP's less than he paid for it, with many improvements having been done between 2008 and 2011.
[93] Mr. Bakr's position is that he legitimately sold the property in 2011. Mr. Bakr stated that he sold it for less than he bought it because he was nervous about the "Arab spring" in Egypt, and because Mr. El Monim was willing to pay cash. He did not want to risk losing more money if he would be unable to find another willing buyer. Mr. Bakr states that because he had provided post-dated cheques for all the installment payments at the time of the original contract, he considered the property to be paid in full as of the date of the sale. In other words, Alex West would still be depositing his final installment payment in July of 2011 without being the wiser about his contract for sale, and it would not be affected. It was Mr. Bakr's further position that Article 7 did not require that he obtain the consent of Alex West so long as the property was paid for in full. Mr. Bakr testified, however, that he never told Alex West about the sale because he did not want to incur the 3% penalty referenced in Article 7.
[94] Mr. Bakr questions the legitimacy of the document which Ms. El Sherif produced from Alex West dated October 17, 2024. It is unclear why Mr. Bakr would have this position if, as he states, he did not advise Alex West of his sale of the property. If that is the case, then it makes sense that Alex West would be of the view that Mr. Bakr is the registered owner of the property and that it has never been transferred to someone else.
[95] With respect to why the water and tax bills remain in his name, Mr. Bakr indicated that upon sale of the property, it is up to the new owner to transfer the services into his name, and until such time as he does so, they will remain in Mr. Bakr's name. It is also the responsibility of the new owner to register the property in his name with the Real Estate Registry, which he apparently has never done.
[96] Mr. Bakr testified additionally that precisely (and coincidentally) Villa 282 was rented, via his brother Ashraf, for the family's use in July/August of 2019. Mr. Bakr never provided any documentation regarding the rental; neither did Ashraf Aaty provide any documentary, or indeed verbal, evidence in relation to this alleged rental in 2019. The only document relied upon by Mr. Bakr was an email from him to a "kandy cing" dated July 1, 2019, setting out the family's itinerary for their trip from July 29 to Aug 7. There is reference in the email to "arrival in Alexandria villa" on July 29, and times in "Alex" from August 2 to 6, however, unlike the references to the requirement for hotel accommodations in Cairo and Matrouh on other dates, there is no reference to the accommodations in Alexandria being rented.
[97] Both parties' experts weighed in on the validity or non-validity of the April 9, 2011, contract for the sale of Villa 282, Alex West, and/or Mr. Bakr's continued ownership of the villa.
[98] Dr. Ali's opinion was that pursuant to Article 7 of the contract, the villa could not be sold in advance of the purchase price being paid in full and/or without the consent of Alex West to the sale, neither of which were existent in April of 2011.
[99] Dr. Ali's legal opinion of a Negative Certificate is that it certifies that there has been no action on the property since its original purchase by Mr. Bakr in 2008. Dr. Ali's view of the Negative Certificate assumes that the property is registered with the Real Estate Registry in Mr. Bakr's name, and that no other transfers have occurred since its purchase by Mr. Bakr.
[100] Ms. El-Abbas's opinion was that the necessary conditions for a valid contract were met with respect to the April 9, 2011, contract. These included the contractors being eligible (of legal age), there being consent between them, there being offer and acceptance, the property existing, there being an agreement on price, and there being an inspection. Ms. El-Abbas indicated that it is up to the buyer to register the property in his name if he wishes, and the property would move from one owner to the next via the registration. Due to the prohibitive cost to and complexity of registration, the buyer may choose not to register the property, in which case, the property would "be proven by taking possession, owning and residing in the property". Ms. El-Abbas opined that sale of the property was not prohibited by the outstanding installment payment, but registration of it would be delayed until the payments were made in full. Ms. El-Abbas opined further that the contract was valid, but that failure by Mr. Bakr to make the last installment payment could render it void.
[101] Ms. El-Abbas' opinion was also that receipts for tax bills or water bills do not necessarily prove ownership. Because it is costly to register property in one's own name with the tax and service authorities, it is common for a purchaser to not do so, but to reimburse the seller for any taxes or service bills paid out by him. It is also possible for the buyer to pay the taxes and/or water bill while it is still in the name of the purchaser (just as Ms. El Sherif did).
[102] Ms. El-Abbas' opinion of the Negative Certificate was that Villa 282 had never been registered in Mr. Bakr's name, and therefore, the certificate demonstrated that there had been no activity on the villa period, meaning that ownership remained with "- in this case, the original company", or Alex West Builders. Ms. El-Abbas indicated on the second page of her report:
Fifth: Article 934 of the Egyptian Civil Code specifies that, for real estate matters, ownership and other property rights are not transferred between contacting parties or in relation to third parties unless the procedures outlined in the Real Estate Registration Organization Law are adhered to. As ownership transfer in real estate is established through registration with the Real Estate Registry, and it has been confirmed that the unit in question is not registered in Mr. Essam Mohamed Abdel Aaty Bakr's name, an official certificate from the Real Estate Registration and Documentation Authority was submitted regarding the villa under dispute. This negative certificate confirms that the unit is not registered to Mr. Essam Mohamed Abdel Aaty Bakr , thereby establishing that he does not legally own it.
Sixth: the Real Estate Registry and Documentation Authority, Alexandria Office, confirmed that a search of the Real Estate Registry records, covering the period from January 1, 2011 to October 20, 2024 , found no registration of Villa No. 282, Alex West Village, Abu Talat, in the name of Mr. Essam Mohamed Abdel Aaty Bakr . This indicates that he ownership of the villa has not transferred to Mr. Essam and has not been registered in his name to date, meaning he is not legally recognized as its owner under the law. As per Article 9 of Law 114/1946 on real estate registration, failure to register leaves ownership with the entity disposing of the property – in this case, the original company.
[103] This opinion is in keeping with that of Dr. Ali, in that a Negative Certificate confirms no activity on a property registered in the Real Estate Registry. Ms. El-Abbas' conclusion that the property was never registered in Mr. Bakr's name, however, is contrary to the October 17, 2024, "To Whom It May Concern" letter from Alex West, which specifically states: "it has been registered by the buyers in the Real Estate Registry in accordance with the company's obligation." Indeed, Article 4 of the original contract dated January 17, 2008, provided: "The Purchaser acknowledges that the registration of the contracted unit will be completed as part of a collective registration for the entire project". If the statement of Alex West is true, which this court has no way of knowing, then Dr. Ali's opinion of the Negative Certificate would prevail. Ms. El-Abbas' opinion also begs the question as to how Mr. Bakr could to enter a contract to sell Villa 282 if he was not its registered legal owner.
[104] What I take the Negative Certificate to mean is that there was no activity on the property in the name of Mr. Bakr from January 1, 2011 to October 20, 2024 , which is consistent with Mr. Bakr's own evidence that Mr. El Monim has not yet registered the property in his name with the Real Estate Registry.
[105] Notwithstanding Ms. El-Abbas and Mr. Bakr's evidence with respect to services potentially remaining in the name of a seller of property, if indeed Mr. Bakr sold Villa 282 in 2011 as he states, it will have remained in his name for thirteen years since it was sold. No one gave evidence as to whether a property remaining in the name of a seller for that length of time post sale of the property was considered "normal" in Egypt.
[106] Additionally, why Mr. Bakr was making decisions in relation to finishings in the property in April and May of 2012 remains unexplained. One would think that it would be up to Mr. El Monim to choose the finishings that he would prefer for his own property. Mr. Bakr's own evidence, moreover, was that possession of the property was delivered to him in 2014.
[107] Mr. Bakr could have put this issue to rest by: first, calling a witness from Alex West to clarify his ownership of the property, especially if he was disagreeing with the content of their letter dated October 17, 2024, produced by Ms. El Sherif; second, providing proof of the registration (or non-registration) in his name of Villa 282, Alex West Village in the Real Estate Registry for Alexandria, Egypt; third, calling Mr. El Monim to give evidence not only regarding his purchase of the property, but also about why he has not registered the property in the Real Estate Registry in his own name for the past 13 years, and/or why he hasn't transferred the services into his name, as well as about when (and how) he took possession of and/or resided in the property; and fourth, providing proof of his rental of the property (and from whom) in 2019. Mr. Bakr did not do any of these, and the totality of the evidence leads the court to the conclusion that Mr. Bakr remained the legal owner of the villa at the date of separation. Obviously, this court does not have the authority to require Mr. Bakr to do anything specific with the property in Egypt. However, this court can attribute a value to it for the purposes of the NFP. The value as appraised by Mr. Rashed shall, therefore, be included in Mr. Bakr's side of the ledger in the NFP.
Elaqsa Office for Supplies, Import and Export
[108] As indicated above, and for the reasons set out above, I find that the evidence in relation to the value of Mr. Bakr's interest in Elaqsa as of August 6, 2019, is unclear. Mr. Bakr claims that because of the losses the company experienced between 2017 and 2019, and its winding up in 2020, he owed Mr. Hassam approximately $216,000 CND. However, in the comparative NFP dated November 24, 2024, relied upon by the parties at trial, Mr. Bakr did not have an entry under "Debts and Liabilities" of a $216,000 debt to Elaqsa. Rather, the statement contained an entry under "Business Interests" of (-191,096.00). It is unclear to me from where this figure comes.
[109] According to the Agreement dated October 2, 2023, Mr. Bakr owed Elaqsa or Mr. Hassam 2,381,062 EGP. As indicated above, it is equally unclear to me whether Mr. Bakr has paid or is continuing to pay that alleged debt. Additionally, the Financial Statements filed by Mr. Bakr for Elaqsa demonstrated that the company made profits for the years 2014 through 2016, with 2017 being the first year showing a loss. The court received no evidence as to whether Mr. Bakr realized his 40% share in the net profits of 199,665 EGP in 2014, 300,000 EGP in 2015, and 359,000 EGP in 2016, or whether his share of those profits was accounted for in the final reckoning in 2023. Overall, the evidence is too conflictual for the court to conclude that Mr. Bakr can claim a debt of $216,000 CND as of the date of separation.
[110] Additionally, according to his own expert, Ms. El-Abbas, the company "likely" continued under Article 589 of the Commercial Code, including with Mr. Bakr's involvement. Mr. Bakr seeks to rely on the existence of a debt of $216,000 CND at the date of separation but submits that the court place no reliance on the existence of post-2020 net profits by the company to which he is entitled a 40% share. He cannot have it both ways. There will be no date of separation debt to Elaqsa, just as there will be no post-separation imputation of income to Mr. Bakr based on his interest in the alleged profits of Elaqsa.
[111] This logic continues with respect to Ms. El Sherif's claim that Mr. Bakr had $101,404 worth of capital in Elaqsa as of the date of separation. As indicated, the evidence in relation to what existed in Elaqsa as of August 6, 2019, is conflictual, and just as I could not find on the totality of the evidence that a debt of Mr. Bakr of $216, 000 existed, I cannot find that an asset of $101,404 existed.
Money owed to Mr. Bakr
[112] Ms. El Sherif claims that Mr. Bakr was owed money on the date of separation in the form of two separate loans he made, one to Ashraf Aaty in the amount of $5000, and another to Yasser Awad in the amount of $13,197. Mr. Bakr disputes that any money was owing to him by these individuals on the date of separation.
[113] Ms. El Sherif relies on a "wire to customer" made by Mr. Baker from his TD Canada Trust Account ending in 077 on October 24, 2019, for $30,130.60, which she asserts is a transfer to Mr. Bakr's brother. Regardless, it is after the date of separation, and would not, therefore be an amount owing to Mr. Bakr as of August 6, 2019.
[114] Ms. El Sherif also relies on an email from Mr. Bakr to her from June 6, 2019, in which he included information about the "Zakat", or alms giving file. According to Ms. El Sherif, all Muslims annually put 2.5% of their earnings towards assisting others. The Zakat file notes in the "out" column: "13187 Yasser" and "5000 Ashraf". Mr. Bakr testified that this is not money that has been loaned, but money that is not available for donation. In other words, it is money that is being held back from the Zakat for one reason or another. In the case of Mr. Awad, for example, Mr. Bakr indicated that the $13,187 was noted as the amount he had amassed to that date to pay towards the $40,000 USD he owed Mr. Awad. It was, therefore, unavailable for the Zakat.
[115] With respect to the $5000 earmarked to Mr. Aaty, Mr. Bakr stated that he often sent money to his brother to pay for things on his behalf in Egypt, which is distinct from when either of them loaned money to the other. If he sent money to Mr. Aaty at that time, it was not in the form of a loan or money that was owed to him. Rather, it was money Mr. Aaty would use to pay for things Mr. Bakr required. He stated by way of example that he sent Mr. Aaty $5000 to use as a deposit on the original purchase of the villa in 2008.
[116] On the basis of the evidence before me, I cannot find that Mr. Bakr had money owing to him at the time of separation as claimed by Ms. El Sherif.
Debts of Mr. Bakr
[117] In or about 2011, Mr. Bakr borrowed $40,000 USD from his friend Mr. Yasser Awad, which loan Mr. Bakr indicated was outstanding at the date of separation. Mr. Awad testified as well and confirmed this to be the case. He relied on an email dated November 26, 2011, in which he was directing a Hosam Aly, copied to Mr. Bakr, "to get 40K US$ from my money and give it to Essam at your earliest convenience." Mr. Awad testified that he also owed Mr. Bakr approximately $3000 CND, but that he preferred to keep the monies separate. In other words, the expectation was that Mr. Bakr would pay him $40,000 USD, and he would pay Mr. Bakr $3000 CND. In support of the existence of this loan, Mr. Awad also relied on an email exchange between himself and Ms. El Sherif where she was asking about clarification of same, and in which he stated: "He is aware because the account between us is 40 not 35", meaning 40K USD. Mr. Awad paid Mr. Bakr "on a rolling basis", meaning he purchased goods or services for Mr. Bakr from time to time using the Canadian money owed to Mr. Bakr. Mr. Bakr paid Mr. Awad $40,000 USD by money transfer from his American dollar account in August of 2022. Based on this evidence, I find that Mr. Bakr is entitled to include a $40,000 USD loan from Mr. Awad in his debts and liabilities owing on the date of separation. The conversion value of $40,000 USD on September 6, 2019, is $52,864 CND, which sum shall be included in Mr. Bakr's NFP.
[118] Mr. Bakr also produced a document entitled "Cash Receipt" signed by him and by his witness on August 2, 2019, in which he acknowledged receiving 360,000 EGP as a loan from his brother, Ashraf Aaty. The conversion rate for this amount of $28,892.45 is claimed as a debt by him in his NFP. Both Mr. Bakr and Mr. Aaty testified as to the existence of this loan. Mr. Aaty testified that Mr. Bakr has since paid off that loan. I find that Mr. Bakr is entitled to include the sum of $28,892.45 in his debts and liabilities owning on the date of separation.
Date of Marriage value of Egyptian Apartment
[119] Prior to marriage, on February 23, 2000, Mr. Bakr had purchased an apartment at 57 Sayed Radwan Street in Alexandria for 80,000 EGP. Mr. Bakr testified that the apartment was uninhabitable at the time of purchase, as it required numerous finishings, including painting, kitchen cabinets, the installation of electricity, removal of a wall and a change of ceramic in one of the rooms. Mr. Bakr testified that he put another approximately 40,000 EGP into the apartment by July 2000. He estimated that the value of the apartment was approximately 120,000 to 130,000 EGP at the date of marriage. Mr. Bakr has the apartment appraised by a valuator but did not produce that person to testify. In the comparative NFP filed, Mr. Bakr based the value on the 80,000 EGP purchase price, and an additional 20,000 EGP, for a total value of $59,574 CND. Given Mr. Bakr's testimony regarding the improvements made to the property prior to marriage, I am prepared to accept that value as reasonable at the date of marriage.
[120] Based on my above findings, the net family property calculation from trial is as follows:
Assets on Valuation Date
| Item | Wife | Husband |
|---|---|---|
| 1024 Marconi Avenue, Ottawa (MH) | $250,000 | $250,000 |
| 57 El Sayed Radwan Street, Alexandria, Egypt | $28,872 | |
| Villa 282, Alex West Village, Alexandria, Egypt | $339,348 | |
| Azza's property in Egypt | $10,000 | |
| 2015 Lexus RX350 | $23,310 | |
| 2013 Sonata Hyundai | $5,663 | |
| Jewelry | $1,532 | |
| Computer | $500 | |
| Books | $400 | |
| TD Checking ***743 | $4,958.29 | $4,958.29 |
| TD Savings ***077 | $148,150.76 | |
| US Account ***616 | $26,846 | |
| TD Checking ***492 | $412.87 | |
| TD RRSP | $318,770.37 | |
| TD Spousal RRSP | $9,940 | |
| TFSA – Computer Share | $10,394.92 | |
| Two Cemetery Lots | $3,000 | |
| TOTAL | $283,406.16 | $1,140,255.42 |
Debts and Liabilities on Valuation Date
| Item | Wife | Husband |
|---|---|---|
| Mortgage on MH | $77,947.19 | $77,947.19 |
| Yassar Awad Loan | $52,864 | |
| Ashrab Aaty Loan | $28,892.45 | |
| RBC Auto Loan | $33,699.51 | |
| Credit Card Loans (CIBC, CTFS and AMEX) | $7,174.69 | |
| AE Costco Credit Card | $614.91 | |
| TD Credit Card 0888 | $1,454.30 | |
| Bell Mobility Contract | $2,524.37 | |
| Notional cost of disposition on RRSP | $60,885.14 | |
| TOTAL | $81,470.70 | $263,387.69 |
Assets on Marriage Date
| Item | Wife | Husband |
|---|---|---|
| 57 El Sayed Radwan Street, Alexandria, Egypt | $59,574 | |
| TOTAL | $59,574 |
Debts and Liabilities on Marriage Date
| Item | Wife | Husband |
|---|---|---|
| TOTAL |
Net Value of Property on Valuation Date (Assets – Debts and Liabilities)
| Wife | Husband | |
|---|---|---|
| $201,935.46 | $876,867.73 |
Net Value of Property on Marriage Date (Assets – Debts and Liabilities)
| Wife | Husband | |
|---|---|---|
| $59,574 |
Net Family Property (NFP) (Net Value of Property on Valuation Date – Net Value of Property on Marriage Date)
| Wife | Husband | |
|---|---|---|
| $201,935.46 | $871,293.73 |
Difference Between NFP
| Amount | |
|---|---|
| $615,358.27 |
Equalization Payment
| Amount | |
|---|---|
| $307,679.14 |
[121] Mr. Bakr, therefore, owes Ms. El Sherif an equalization payment of $307,697.14.
Child and Spousal Support
[122] As indicated, Mr. Bakr does not dispute Ms. El Sherif's entitlement to spousal support, on both a compensatory and non-compensatory basis. His position, however, is that while Ms. El Sherif was a stay-at-home parent for most of the marriage, he was also very involved with the care of the children while they were growing up. He was particularly involved with their education and was often the first point of contact with their schools. He is also of the view that Ms. El Sherif could work during the marriage, and indeed was working at times as a tutor. While he accepts that Ms. El Sherif has a compensatory claim to spousal support, it is his position that the compensatory basis is not particularly strong.
[123] Ms. El Sherif's evidence, on the other hand is that Mr. Bakr did not permit her to work, and that he also travelled frequently for his work, leaving the care of the children and the household to her. Mr. Bakr disputed this, stating that typically he travelled for work once or twice a year, and even then, he was contacted by the schools for the children while away. The evidence led supported that Ms. El Sherif start tutoring while still in the relationship. Moreover, she went to university at various times between 2013 and 2017. I find that while Ms. El Sherif does have a compensatory basis for her claim, it is reasonable that spousal support be payable to her at the mid-range of the SSAG's . Given that this was a 19-year marriage, and given Ms. El Sherif's age at the date of separation, this case falls under the "Rule of 65", and spousal support shall be payable indefinitely.
[124] Given Mr. Evans' income report, and the situation on the ground whereby Mr. Bakr was paying all expenses for the family, it is logical that no support, or conversely, post-separation adjustments, be payable to December 31, 2019. However, commencing January 1, 2020, Mr. Bakr should be paying spousal support and Ms. El Sherif should be paying her share of their joint expenses, except for the mortgage on the MH, based on their respective incomes of $262,000 and $40,000. Commencing January 1, 2023, these payments should be based on their respective incomes of $247,716.19 and $40,000. Additionally, the parties should be paying set-off support to each other for two children, Marwan and Razan from January 1, 2020. This shall continue until Marwan completes his first fulltime post-secondary degree while still living at home, and until Razan's 18 th birthday or until she completes her first fulltime post-secondary degree if she continues to live at home, whichever is applicable.
[125] Mr. Bakr argues that although he lives independently, Zeyad remains a child of the marriage pursuant to section 3 of the Federal Child Support Guidelines. Mr. Bakr relies on Zeyad having been found to have some mental health challenges by his physician, Dr. Zareef by letter dated April 23, 2021, and by Zeyad's application for accommodation at Carleton University based on Mental Health Disability dated September 26, 2019. While Zeyad may suffer from some difficulties which affect his ability to work while at university and/or the pace at which he may complete his program, the fact of the matter is that Zeyad has lived independently for many years, albeit with Mr. Bakr assisting him with his rent. I do not find that Zeyad remains a child of the marriage for s. 3 of the FCSG's purposes. However, I do find that the parties remain obliged to contribute to his s. 7 expenses to the extent that they are not covered by the application of RESP's or OSAP, including from 2019 onwards.
[126] Mr. Bakr has provided DivorceMate calculations for child and spousal support based on the variations of his own income and the income he sought to have imputed to Ms. El Sherif. He has also provided a chart demonstrating the outcomes of his calculations regarding child support, spousal support, section 7 expenses and post-separation adjustments. Those calculations in relation to child and spousal support will have to be redone as follows:
Commencing January 1, 2020 – Mr. Bakr to pay spousal support in the mid-range based on his annual income of $262,000 and Ms. El Sherif's annual income of $40,000. Each shall also pay to the other child support for two children based on the same incomes.
Commencing January 1, 2021 - Mr. Bakr to pay spousal support in the mid-range based on his annual income of $262,000 and Ms. El Sherif's annual income of $40,000. Each shall also pay to the other child support for two children based on the same incomes.
Commencing January 1, 2022 - Mr. Bakr to pay spousal support in the mid-range based on his annual income of $262,000 and Ms. El Sherif's annual income of $40,000. Each shall also pay to the other child support for two children based on the same incomes.
Commencing January 1, 2023 - Mr. Bakr to pay spousal support in the mid-range based on his annual income of $247,716.19 and Ms. El Sherif's annual income of $40,000. Each shall also pay to the other child support for two children based on the same incomes.
Section 7 Expense Contributions
[127] Mr. Bakr has also provided two lists of all contributions he has made to the children's section 7 expenses from 2019 to 2024, which he has amply demonstrated to be accurate via receipts, payments and evidence of the children's ability to contribute. The first is at Trial Exhibit #78 and comes to a total of $48,292.83; the second is at Trial Exhibit #79 and totals $11,616.47. Mr. Bakr has similarly calculated Ms. El Sherif's proportional share on the income he sought to have imputed to her. They will also have to be redone to reflect both parties' proper proportionate contributions based on the above noted incomes.
Post-separation Adjustments
[128] As indicated above, in addition to having paid for all the children's expenses, including post-secondary expenses after the application of the RESP's, Mr. Bakr has continued to pay for all the living expenses of the family post-separation. He has, again, created the following charts setting out what those expenses have been:
Trial Exhibit #80 – regarding medical insurance, the total of which is $23,075, but if reduced by $1,775 incurred prior to January 1, 2020, equals $21,300; and out-of-pocket medical expenses for Ms. El Sherif of $3,559.59, $2,560 of which was incurred prior to January 1, 2020, so should be $999.59
Trial Exhibit #81 – regarding property taxes totalling $26,842.32, $1,934.23 of which occurred prior to January 1, 2020, so should be $24,908.09
Trial Exhibit #82 – TD Annual Mortgage Statements for the years 2019, 2020, 2021, 2022, 2023 and mortgage account details as if August 1, 2024, from which Mr. Bakr arrived at the total mortgage amount paid to the date of the trial of $66,354, which would be reduced to $54,525.30 if the sum of $11,828.70 for 2019 is removed.
Trial Exhibit #83 – House/Auto insurance totalling $19,396, less $1,425 for pre-January 1, 2020, equals $17,971.06.
Trial Exhibit #84 – Utilities totalling $23,502.60, of which $2552.37 is pre-January 2020 for a total of $20,950.23
Trial Exhibit #85 – Car maintenance of $5,244.68, $240 of which is pre-January 2020, for a total of $5004.68.
Trial Exhibit #86 - House Maintenance of $10,741.76, $1,812.94 of which was pre-January 2020, for a total of $8,928.82.
Trial Exhibit #89 – TD and Capital One Credit Card payments totalling $15,541.07, $6,021.53 of which was pre-January 2020, for a total of $9,519.54.
Trial Exhibit #90 – Miscellaneous transfers/spending by Ms. El Sherif of $27,130.61, $13,000 of which was pre-January 2020, for a total of $14,130.61.
Trial Exhibit #92 – Mobile phones of $16,103.95.
[129] Mr. Bakr has, again, amply established that these expenditures on behalf of the family occurred by presenting invoices, receipts or bank statements. He also provided some other expenses, which included groceries, gas, e-transfers to the kids, and e-transfers to Azza, which I would not include in post-separation adjustments.
[130] Additionally, Mr. Bakr has made a claim for occupation rent, which I understood to be in the alternative of an order for post-separation adjustments. Given that an order for post-separation adjustments is being made, no quantum for occupation rent will be included.
[131] Finally, with respect to Mr. Bakr's claim that Ms. El Sherif is required to pay one half of the mortgage payments on the MH post-separation, Ms. El Sherif disputes this claim based on the fact that Mr. Bakr borrowed the mortgage not from the bank but from his own RRSP. As indicated above, the value of Mr. Bakr's RRSP existing at the date of separation has been equalized. For it to be fair to Ms. El Sherif, if she is going to be required to pay half of the mortgage post-separation, the full amount of the RRSP, including the amount loaned to Mr. Bakr would have had to have been added back into the value of the RRSP as of the date of separation and equalized. It was not. Therefore, Ms. El Sherif will not be required to pay one half of the mortgage as a post-separation adjustment. Mr. Bakr advises that there is an administrative fee applied by the bank of $50 per month to manage the RRSP loan/mortgage, and Ms. El Sherif will be required to pay one half of $2900 from January 2020 to the trial, for a total of $1,450.
[132] I find that the total applicable post-separation adjustments from January 1, 2020, to the date of the trial are $142,716.57. Ms. El Sherif owes Mr. Bakr one half of that amount for a total of $71,358.29 .
[133] The final equalization payment owing by Mr. Bakr to Ms. El Sherif may be adjusted by this amount, as well as the amount which may be owing by Ms. El Sherif once the proper spousal support, child support and section 7 expense contribution calculations have been completed.
Disposition of the Matrimonial Home
[134] Mr. Bakr seeks an order pursuant to the Partitions Act that the matrimonial home located at 1024 Marconi Avenue, Ottawa, Ontario, be listed for sale. Mr. Bakr expressed an interest in either having Ms. El Sherif purchase his interest in the matrimonial home or him purchasing her interest. Ms. El Sherif also expressed an interest in purchasing Mr. Bakr's share in the MH, but to date has not provided him with an approval for financing. It may be that she can obtain same with this order for equalization and spousal support, such that the parties can come to an agreement as to whether one of them will buy out the interest of the other in the MH. However, if they cannot come to an agreement by December 31, 2025, an order will issue that the MH may be listed for sale.
Order
[135] Based on the above, there shall be a final order as follows:
Commencing January 1, 2020, the Applicant's annual income for support purposes is imputed to be $40,000.
Commencing January 1, 2020, the Respondent's annual income for support purposes for the years 2020, 2021 and 2022 is imputed to be $262,000.
Commencing January 1, 2023, the Respondent's annual income for support purposes is imputed to be $247,716.19.
No child support, spousal support or post-separation adjustments shall be payable from August 6, 2019, to December 31, 2019.
Commencing January 1, 2020, the Respondent shall pay monthly spousal support to the Applicant in the mid-range of the SSAG's based on his imputed income of $262,000.
Commencing January 1, 2023, the Respondent shall pay monthly spousal support to the Applicant based on his imputed income of $247,716,19.
Spousal support is payable on an indefinite basis.
Commencing January 1, 2020, the Applicant shall pay to the Respondent monthly table child support for the children Marwan Bakr, born on June 16, 2004, and Razan Bakr, born on September 2, 2007, based on her imputed annual income of $40,000 and the Respondent shall pay to the Applicant monthly table child support for the children based on his imputed annual income of $262,000.
Commencing January 1, 2023, the Applicant shall pay to the Respondent monthly table child support for the children Marwan Bakr, born on June 16, 2004, and Razan Bakr, born on September 2, 2007, based on her imputed annual income of $40,000 and the Respondent shall pay to the Applicant monthly table child support for the children based on his imputed annual income of $247,716.19.
Table child support shall continue to be paid for Marwan Bakr until such time as he completes his first fulltime post-secondary program so long as he continues to live at home.
Table child support shall continue to be paid for Razan Bakr until she turns 18 years of age, or until she completes her first fulltime post-secondary program.
The children's section 7 expenses from August 6, 2019, to the date of trial are fixed at $59,909.30. The Applicant and the Respondent shall share in this expense proportionate to the Applicant's imputed income of $40,000 and the Respondent's imputed income of $262,000.
On a go forward basis, the Applicant and Respondent shall pay for the children's section 7 expenses proportionally based on the Applicant's imputed income of $40,000 and the Respondent's imputed income of $247,716.19.
Commencing in 2025 and in each year thereafter, the parties shall exchange their full T1 Income Tax Returns and Notices of Assessment (if available) by no later than May 31 st . The parties shall then adjust ongoing child support based on the Applicant's Imputed Income of $40,000 and the Respondent's Income from the prior taxation year adjusted for vested and unvested CSI stocks. The adjusted child support shall begin on July 1 of each year.
The Respondent shall pay to the Applicant an equalization payment of $307,697.14.
The Applicant shall pay to the Respondent $71,358.29 in post-separation adjustments from January of 2020 to the conclusion of the trial.
Effective January 1, 2026, there shall be an order pursuant to the Partition Act that the property known as 1024 Marconi Avenue, Ottawa, Ontario, shall be listed for sale.
[136] The parties shall ensure that new calculations for child support, spousal support and section 7 expense calculations are completed in accordance with this order. The equalization payment owing by the Respondent to the Applicant may be adjusted by any amounts owing by the Applicant to the Respondent because of these calculations. The parties shall provide the court with a draft final order through SCJ.assistants@ontario.ca . If any difficulties are encountered in doing same, a further appearance may be arranged before me through the office of the trial coordinator.
[137] If the parties are unable to agree on costs for the trial, they shall provide written submissions as per Rule 24(19) of the Family Law Rules.
The Honourable Justice T. Engelking
Date: September 2, 2025