ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: )
Khalid Nasery
– and –
Lindsey Kawatra
Applicant )
Respondent )
Diana Aoun and Jessica Bazor, for the Applicant
Felicity Sattan and Jessica Dileo, for the Respondent
) HEARD: November 24, 2025 to December 5,
2025 and January 15, 2026
JENSEN J.
Introduction
1This is Part Two of a two-part decision following a trial that was heard from November 24, 2025 to December 5, 2025, with closing submissions on January 15, 2026.
2Part One, which was released on February 18, 2026, dealt with the names of the children, travel and passports, parenting time and decision-making responsibility for the two children, Veer (short for Dharmaveer) and Mukti. Part Two deals with child and spousal support and section 7 expenses.
3In Part One, I transferred primary care of the children to Mr. Nasery and stopped his child support payments to Ms. Kawatra. I requested the involvement of the Children’s Aid Society of Ottawa (the Society) in the transfer of care. I required the parents (and the Society if need be) to return before me after the children had spent one month in Mr. Nasery’s primary care, without any contact with Ms. Kawatra, to provide me with a report on the children’s progress. I indicated that the parenting time schedule with Ms. Kawatra would be based on the parties’ submissions and the report on the children’s progress and well-being. I also indicated that the goal was to eventually reach a shared parenting arrangement.
4In Part One, I granted Mr. Nasery sole decision-making responsibility on a final basis and dismissed his request for the children’s names to be changed except for Mukti’s last name. I ordered that Mukti’s last name be changed to Kawatra-Nasery. Finally, I ordered that neither party would be permitted to travel or take out passports for the children without further court order or written agreement by the parties.
5In Phase Two, I conclude that Mr. Nasery’s income from 2020-2021 should be imputed to reflect rental income that he received from a tenant who was renting his condominium from January 1, 2020, to April 30, 2022. I dismiss Ms. Kawatra’s claim that Mr. Nasery was earning unreported cash income from his pizza business and that he was withdrawing pre-tax corporate earnings from the business.
6I find that Mr. Nasery owes Ms. Kawatra $3,860.00 in child support arrears and $8,136.98 in section 7 arrears.
7Ms. Kawatra is entitled to compensatory spousal support at the mid-range from December 24, 2021. Counsel are required to provide submissions on questions that I raise at the end of these reasons. A decision will then be rendered on the quantum and duration of spousal support.
8Mr. Nasery was 75% successful on his Application. He is entitled to recovery of that portion of his costs on a partial indemnity basis. Counsel are to discuss quantum and if they fail to reach an agreement, may provide submissions on this issue.
Factual Background
9The parties were married on March 7, 2017, and separated on or about January 1, 2020. They did not co-habit prior to their marriage. Their co-habitation period was two years and ten months.
10The parties have two children of the marriage, Veer (DOB: Jan 27, 2018), and Mukti (DOB: December 7, 2019).
11The children have special needs. Veer has been diagnosed with Autism and Pathological Defiance Disorder. Mukti has been demonstrating severe anxiety and behavioural problems.
12Mr. Nasery is part owner of a Gabriel’s Pizza franchise in a small town outside of Ottawa. Ms. Kawatra does not work outside of the home. She had partially completed her PhD in Political Science before giving birth to the first of their two children.
13Ms. Kawatra has had primary parenting time with the children since they were born. Mr. Nasery has not had regular parenting time with them since they were born. There were sporadic periods of time when he had parenting time, but that has not been consistent.
14Since even before the parents separated, Ms. Kawatra has made use of babysitters to assist her with the children. Although she has always lived with her mother, Ms. Wesa, she still needed to have babysitters to assist her to meet the needs of the two children.
15Veer has received speech therapy, counselling and occupational therapy since he was very young to help him feed himself, speak clearly and deal with his anxiety. He has also attended preschool, music, soccer, karate, tennis and gymnastics lessons. Mukti has been involved in some extra-curricular lessons as well, although not to the same extent as Veer.
16On February 17, 2022, Justice Laliberté ordered Mr. Nasery to pay $750 per month in child support, commencing March 1, 2022, based on a projected annual income of approximately $50,000 against which half of the monthly fee for supervised parenting time was offset.
17On January 1, 2024, following the exchange of his 2023 Income Tax Returns and Notices of Assessment, Mr. Nasery began paying child support in the amount of $824 per month based on his 2023 income, on the consent of the parties.
18Mr. Nasery is employed as a manager by Gabriel's Pizza and is a 50% shareholder of 2320025 Ontario Inc., carrying on business as a franchise of Gabriel's Pizza. According to his Personal Income Tax Returns and Notices of Assessment, Mr. Nasery's income for 2024, 2023, 2022, 2021, and 2020 was
$54,080, $52,000, $54,080, $53,497, $31,200 respectively.
19Mr. Nasery owns a condominium. From January 1, 2020, to April 30, 2022, that property was rented to a tenant who paid $1450 per month. Mr. Nasery now lives in the condominium.
20Ms. Kawatra’s last paid employment was as a part-time Teaching Assistant at Carleton University while working on her PhD. That was from 2012 to 2017.
21Ms. Kawatra received social assistance benefits from 2020 to present. Her income for 2024, 2023, 2022, 2021 and 2020 was $12,684, $12,684, $12,684, $12,684, $7,129 respectively.
22In October 2024, Ms. Kawatra had a serious accident and broke her pelvis. She was hospitalized and then required bed rest for some time after the accident.
The Issues
23The issues in the present case are as follows:
(i) Should an income be imputed to Mr. Nasery for the period from January 1, 2020 to present?
(ii) Should an income be imputed to Ms. Kawatra from January 1, 2020 to present?
(iii) Did Mr. Nasery make child support payments to Ms. Kawatra from January 1, 2020 to March 1, 2022, and if so, how much?
(iv) Does Mr. Nasery owe child support arrears for the period from January 1, 2020 to February 18, 2026 and if so, how much?
(v) What section 7 expenses were incurred for the children? Did Mr. Nasery pay the appropriate portion of the section 7 expenses? If not, what are the arrears of section 7 expenses owing by Mr. Nasery?
(vi) Is Ms. Kawatra be entitled to spousal support and if so, how much spousal support should be paid and for how long?
(vii) Is Ms. Kawatra required to pay child support in light of the new parenting schedule and if so, what amount?
Analysis
i. The Imputation of Income to Mr. Nasery
24Section 19(1) of the Child Support Guidelines1 authorizes the Court to impute income where a spouse has failed to provide information when under a legal obligation to do so or has diverted income.
25Ms. Kawatra asserted that Mr. Nasery’s income as reported on his tax returns was inaccurate. She testified that there were many clues that Mr. Nasery’s income was higher than he reported, which included the following:
(a) Mr. Nasery financially supported his family by paying for their overseas trips, wedding gifts, rent, etc.
(b) Mr. Nasery always had a wad of cash on hand that looked to be a lot of money.
(c) Mr. Nasery’s sworn Financial Statement in the present litigation consistently showed higher expenses than income received.
(d) Mr. Nasery received rental income from January 1, 2020, to April 30, 2022, which was not reported on his income tax returns.
(e) Mr. Nasery’s bank account statements showed cash deposits totalling $190,000 over the period in question that were unaccounted for. Mr. Nasery refused to provide the requested explanation for deposits of $500 and over to counsel for Ms. Kawatra.
(f) Mr. Nasery failed to provide the documents required by the income valuator in this case to perform a complete income evaluation.
26Ms. Kawatra asserts that these factors indicate that Mr. Nasery’s income is $141,000 per year, as calculated by the chartered accountant, Anna Barrett, whom she retained to complete an income valuation for Mr. Nasery.
Anna Barrett’s Report
27Anna Barrett, a Chartered Professional Accountant, prepared an expert report, analyzing Khalid's income from 2020 to 2024. Ms. Barrett was retained by Ms. Kawatra to calculate Mr. Nasery’s income from 2020 to 2024.
28Ms. Barrett developed three scenarios for Mr. Nasery’s income: Scenario One was based on Mr. Nasery’s reported income plus an estimate of his unreported net rental income, plus an income tax gross-up.
29Under Scenario One, Ms. Barrett assumed that Mr. Nasery’s 50% ownership did not provide him with financial control over the company during the period under review. Accordingly, she did not attribute any of this company's pre-tax corporate income to Mr. Nasery, under Scenario One.
30Under Scenario One, Mr. Nasery’s Income would be as follows:
| 2024 | 2023 | 2022 | 2021 | 2020 |
|---|---|---|---|---|
| $54,080 | $52,000 | $60,104 | $69,855 | $46,737 |
31Under Scenario Two, Ms. Barrett added Mr. Nasery’s share of the pre-tax corporate income of
Gabriel’s Pizza to his income under Scenario One.
32Under Scenario Two, Mr. Nasery’s Income would be as follows:
| 2024 | 2023 | 2022 | 2021 | 2020 |
|---|---|---|---|---|
| $54,080 | $73,176 | $65,896 | $91,326 | $75,632 |
33For Scenario Three, Ms. Barrett began with the Scenario Two income and added the estimated unreported annual cash income and related gross-up. The amount of estimated cash income was $60,000 per year.
34Under Scenario Three, Mr. Nasery’s income would be as follows:
| 2024 | 2023 | 2022 | 2021 | 2020 |
|---|---|---|---|---|
| $141.080 | $161,176 | $157,896 | $184,326 | $160.632 |
35Under Scenarios Two and Three, Ms. Barrett assumed that Mr. Nasery has control over the company as manager and the only shareholder involved in the business.
36Ms. Barrett stated in her report that there were amounts withdrawn from the company in the years that Gabriel's Pizza had deficient working capital. Accordingly, she attributed Mr. Nasery’s portion of the company's pre-tax corporate income to his personal income in each year. Ms. Barrett did so on the assumption that the other shareholder, Mr. Nasery’s business partner, was not involved with the business. She also did this on the basis of Ms. Kawatra’s allegation that Mr. Nasery earned unreported cash from the business, which he would likely only be able to do if he controlled the finances of the company.
Analysis of Scenario One
37On consent, Ms. Barrett was qualified as an expert in income valuation at trial. Ms. Barrett testified that the document that Mr. Nasery provided regarding the rental income he received from January 1, 2020, to April 30, 2022 had numerous errors. For example, there were months where no rent was reported and the calculations were inaccurate. She asked for a corrected statement and did not receive one. She also noted that he deducted principal payments on the mortgage from the calculation of rental income, which is not permitted under the Child Support Guidelines.
38Therefore, Ms. Barrett conducted her own analysis of Mr. Nasery’s rental income. Ms. Barrett testified that she took the rent of $1450 per month, which Mr. Nasery reported as receiving. She assumed that he received this amount every month, even though the document he prepared showed months without any rental income and the bank statements seemed to support that.
39From the rental income, she deducted condo fees, insurance and interest on the mortgage. The interest was estimated because Mr. Nasery did not provide her with a copy of the mortgage documents. Ms.
Barrett testified that she did not deduct property taxes because she was not given a statement of the property taxes. She admitted that if she had been aware of the property taxes she would have considered them in her calculation. This would have reduced the rental income Mr. Nasery received.
40Mr. Nasery did not report gross rental income on his 2020, 2021, or 2022 income tax returns. He testified that he gave all of his receipts and expenses to his accountant who prepared his income tax return for him.
41Mr. Nasery testified that he was losing money on his rental property and did not think it necessary to require his accountant to enter the gross rental income on his income tax returns. He gave evidence that the mortgage payments were $1800-$1900. In addition, there was $400 in condo fees. He testified that he paid another $400-$500 in maintenance fees. There was no net income from the rental property as a result.
42It is problematic that Mr. Nasery did not provide the documentation requested by Ms. Barrett and that the document he provided had errors. On the day of Ms. Barrett’s testimony, counsel for Mr. Nasery provided a document that showed he paid his property taxes as part of his mortgage payments. Ms. Barrett candidly admitted that this would have lowered the rental income, but she did not say by how much, nor was she asked that by counsel for Mr. Nasery. The failure to provide timely and accurate documents causes me to question Mr. Nasery’s evidence on this issue.
43Mr. Nasery did not provide a satisfactory explanation for his failure to report his gross income from the rental income on his Income Tax Returns. If he did in fact have a loss from that property during those years, he may have been able to deduct that amount from his income, unless the rental was not an arms-length rental. He did not provide a rental agreement, which may mean that there was a verbal agreement to pay part of the rent in cash and the other by etransfer. That would explain, to some extent, the reason that Mr. Nasery had cash on hand at that time. I realize that this is somewhat speculative, but Mr. Nasery’s failure to provide timely disclosure and complete evidence on this issue causes me to question his cursory explanation.
44Therefore, I find it more likely than not that Mr. Nasery’s rental income was higher than he stated and that Ms. Barrett’s calculation of his income from the property is reasonable. I will attribute the following income to Mr. Nasery:
| 2024 | 2023 | 2022 | 2021 | 2020 |
|---|---|---|---|---|
| $54,080 | $52,000 | $60,104 | $69,855 | $46,737 |
Scenario Two
45In Scenarios Two and Three, Ms. Barrett attributed part of the company’s pre-tax corporate income to his personal income. This was done on the assumption that Mr. Nasery’s business partner was not involved with the business and that Mr. Nasery was the one making financial decisions. Typically, it is not assumed that a 50% shareholder would have this kind of control over the business, but Ms. Barrett stated it could be the case if the partnership agreement allowed for that kind of responsibility to be placed in Mr. Nasery’s hands.
46Mr. Nasery testified that he did not have financial responsibility for the company. The financial decisions are made jointly, but his business partner had the final say. It was his business partner who loaned the business money on two occasions when the business was having trouble during the pandemic.
47Mr. Nasery testified that he does not have access to the retained earnings or the pre-tax corporate income generated by the company. In 2023, that amount was $56,539. He testified that he was not paid half of that money. It was kept in the business to pay for unexpected expenses. For example, if a pizza oven is broken it may cost upwards of $20,000 to replace it. This must be done because without the oven, the business cannot operate. Therefore, the company keeps the pre-tax corporate income in the business and does not pay it out to the shareholders.
48I find that it would not be appropriate to attribute half of the retained earnings to Mr. Nasery’s income. He did not have control over the financial decisions of the business. It was his partner who provided the financial stability to the business and who told Mr. Nasery how to manage the financial part of the business. In cross-examination, Ms. Barrett admitted that if Mr. Nasery’s business partner provided loans to the company, that would mean Mr. Nasery did not have control of the company and attributing the pre-tax corporate income to him in 2020 and 2021 would not be appropriate. She did not explain whether it would be appropriate to do so in 2022, 2023 and 2024.
49Ms. Barrett also declined to comment on whether it would be prudent to keep some of the pre-tax earnings in the company to meet emergency expenses. She stated that she assumed that because that money was available each year, the shareholders withdrew about the same amount each year or that it was available for them to do so.
50However, in the Statements of Income and Retained Earnings for 2020 to 2024 that were entered into evidence, it appears that the retained earnings were carried over each year and not withdrawn from the
company. The retained earnings were included in the lines detailing the Shareholders’ Equity. There were
no years in which the retained earnings appeared to have been withdrawn, according to the Statement.
51Although the company’s General Ledger would have provided more detailed information about the use of the pre-tax corporate income, I accept Mr. Nasery’s testimony that his company does not use the General Ledger system. I also accept his testimony that he did not receive any of that income as personal revenue.
52Therefore, I find that Scenario Two is not a reasonable estimate of the income that should be attributed to Mr. Nasery. It is not supported by the evidence.
Scenario Three
53Scenario Three was essentially Scenario Two plus the attribution of cash earnings to Mr. Nasery’s income. As noted above, Ms. Kawatra testified that Mr. Nasery always had bundles of cash on hand. She gave evidence that he earned cash income from his pizza franchise, and he used that to pay expenses, to give gifts to his family and to subsidize his lifestyle. Ms. Kawatra estimated that Mr. Nasery received approximately $5,000 per month in unreported cash income.
54In cross-examination, Ms. Kawatra admitted that she had not worked at Gabriel’s Pizza and that Mr. Nasery kept his finances a mystery. With some hesitation, Ms. Kawatra admitted that she did not know how much a pizzeria takes in in cash on a daily basis. However, she stated there was always a lot of cash “floating around”. She admitted that she had no evidence to support the figure of $5,000 per month, nor any evidence that the cash came from the pizzeria as opposed to a loan or from his bank account. She never counted the cash but thought that the rolls looked like a lot of cash.
55Ms. Barrett did not just take Ms. Kawatra at her word. She undertook an analysis to determine whether it was reasonable to assume that Mr. Nasery was earning $5,000 per month in cash. To do this, she first noted the difference between his reported income and his expenses in the Form 13 Financial Statement.
56Next, Ms. Barrett reviewed his personal bank account statements and found that there were cash deposits. She stated that this was a possible indicator of cash income being earned. She asked Mr. Nasery to provide an explanation for all cash deposits over $500. Mr. Nasery did not provide the explanation. From 2020-2024, those deposits amounted to $190,000.
57Finally, Ms. Barrett looked at the profit margins and benchmark data from other pizza stores and
compared them to Mr. Nasery’s store. For example, the cost of goods sold at Mr. Nasery’s pizzeria was
50% of revenue. Ms. Barrett testified that her analysis showed that the typical margin in businesses like his was 38%. She stated that the differential suggested that there might be additional profit that was being taken in cash.
58Ms. Barrett stated that having cash income of about 5% of total sales, which is what $60,000 per year would be, is not unusual in the pizza business. Ms. Barrett stated that the cash sales would not be recorded through the point-of-sale system and therefore, would not be reported to the franchise headquarters.
59Based on this analysis, Ms. Barrett felt confident in attributing an extra $60,000 per year to Mr. Nasery’s income. However, in cross-examination, Ms. Barrett acknowledged that in his Financial Statement, Mr. Nasery had listed a debt of $100,000 owed to his business partner. She acknowledged that if there was evidence that all or part of the $190,000 in deposits came from loans and not unreported income, that would change the analysis of whether it was reasonable to assume he received that money in unreported cash income.
60Mr. Nasery testified that since separation, he has taken personal loans from family and friends to make the payments to Ms. Kawatra and to the bank for his mortgage and his credit card debt. He admitted that from November 8, 2022, to December 8, 2022, he deposited $4,000 over and above his pay cheques. Mr. Nasery also agreed that on September 8, 2023, he made five separate deposits totaling $2,500 in one day. On January 1, 2024, Mr. Nasery deposited $4,900 into his account.
61Mr. Nasery further admitted that throughout the 4-year period in question there were many other such deposits of several thousand dollars that might have totaled $190,000. However, Mr. Nasery steadfastly maintained that the money he deposited into his account came from loans from friends and family.
62Mr. Nasery testified that there was essentially no way to take unreported cash income from the pizzeria. He gave evidence that every purchase is entered into the point-of-sale device. All orders, other than orders made when people walk into the store, are taken by head office. Only about 5% of all sales come through walk-ins. Mr. Nasery testified that those sales are all entered into the point-of-sale system that is then relayed to Gabriel’s headquarters. Mr. Nasery provided evidence that if a customer cancels an order, he is questioned and must provide proof of the reason that the order was cancelled. He also testified that there are inspectors who come regularly to inspect the store. All the banking is done through one bank that handles all financial transactions for all Gabriel’s Pizza franchises.
63Mr. Nasery testified that the head office carefully oversees “every dollar” that goes through the business because they get a percentage of it and therefore, they are motivated to make sure all income and expenses are reported.
64Mr. Nasery was shown a text he sent to Ms. Kawatra in which he stated that the delivery people were quitting because they could no longer get paid by cash, and they did not want to get paid by cheque. According to Ms. Kawatra, this was proof that purchases were being made by cash and that Mr. Nasery was receiving cash income from the business. However, Mr. Nasery explained that during the pandemic when touchless purchases were required, the delivery people were not getting paid their tip money in cash on a daily basis. It would be paid to them later by cheque and they were not happy with that. So, they were quitting because the government was paying them $2,000 - $3,000 per month in Covid benefits to stay home.
65Ms. Kawatra argued that it strains credulity for Mr. Nasery to assert that family members would give him thousands of dollars in cash multiple times per month for 4 years rather than by e-transfer, wire transfer or cheque. In fact, an examination of Mr. Nasery’s financial records does not demonstrate that he was given thousands of dollars in cash multiple times per month for 4 years. He certainly made cash deposits in some months, but these did not amount to monthly deposits. Furthermore, some of the deposits were made by etransfer and some appear to have been by cheque.
66I am persuaded by Mr. Nasery’s evidence that it would be very difficult, especially since the pandemic, to take $5,000 per month in unreported cash from the pizzeria. The controls that are placed on the franchise by head office would not permit that amount of revenue to be removed from the store. It would become apparent that supplies were being used that could not be accounted for in monthly revenue. While it is conceivable that Mr. Nasery and other employees could get away with the odd unreported cash transaction, it is not plausible that the money that was being deposited into Mr. Nasery’s account came from regular and unreported cash transactions in the amount of $5,000 per month.
67I find it more plausible that Mr. Nasery had a loan from his business partner and loans from his parents that were provided on an as-needed basis. He did not list all the loans on his Form 13 Financial Statement, and this is problematic. However, I found Mr. Nasery’s evidence about family support to be credible. I find it more probable than not that his family supplied him with money to keep him afloat during this difficult time in his life because he had, at one time, helped them out. It is plausible that a strict accounting was not kept of every dollar that was loaned and that some of the money may not have been considered a loan, but rather a gift, as Mr. Nasery testified.
68Therefore, I reject Scenario Three as an estimate of the income that should be attributed to Mr. Nasery. There are two reasons for this: (1) he did not have financial control of the business and could not decide to take half of the pre-tax earnings for himself; and (2) the evidence does not support that Mr. Nasery earned $5,000 per month in cash income.
Conclusion Regarding Imputation of Income to Mr. Nasery
69I find, on a balance of probabilities, that Mr. Nasery earned additional income from January 1, 2020 to April 30, 2022, from the rental property he owns. Therefore, his income will be adjusted to reflect an imputed income as follows:
| 2024 | 2023 | 2022 | 2021 | 2020 |
|---|---|---|---|---|
| $54,080 | $52,000 | $60,104 | $69,855 | $46,737 |
ii. Should an Income be Imputed to Ms. Kawatra?
70Mr. Nasery argued that Ms. Kawatra is intentionally unemployed and that an employment income should be imputed to her. He testified that there was no agreement when they married that she would sacrifice her career to stay at home with the children. He testified that Ms. Kawatra was intent upon completing her PhD so that she could pursue paid work. Mr. Nasery testified that it was his understanding that Ms. Kawatra would find work as soon as she finished her PhD. He argued that at a minimum, a yearly income at minimum wage should be imputed to her, given her qualifications.
71Ms. Kawatra testified that she has not had any time to work outside of the home. The children’s
needs are so great that she cannot do anything but attend to them.
72I find that it is not realistic to have expected Ms. Kawatra to have found employment, even as a part-time minimum wage earner. The issues she experienced in the marriage, with her health, Mr. Nasery’s work schedule, the litigation and her children’s needs have prevented Ms. Kawatra from working. She is now faced with a new parenting regime, which will take some time to adapt to.
73However, it is reasonable to expect Ms. Kawatra to become employed at some point in the future. Therefore, while I am not prepared to impute an income to Ms. Kawatra at this time, if the circumstances change sufficiently to justify a change, Mr. Nasery is of course, free to bring a motion to change.
iii. Did Mr. Nasery Make Support Payments to Ms. Kawatra from January 1, 2020 to March 1, 2022?
74Mr. Nasery testified that before and after separation, he gave Ms. Kawatra $1,000 per week for household expenses and to pay for the children’s needs. In cross-examination he stated that he gave Ms. Kawatra $1,000 per week in cash from April 2020 to November 2021 as well as paying for her groceries. He testified that she demanded this payment so that she could pay the babysitter and pay for the children’s expenses. Mr. Nasery testified that Ms. Kawatra would not let him see the children unless he paid her
$1,000 per week.
75Mr. Nasery stated that he got the cash from his account and gave it to her. He testified that he always gave Ms. Kawatra cash, even before they separated. In addition to getting loans from his friends and family, Mr. Nasery stated that he lived at a friend’s house for the first few years to save money.
76Ms. Kawatra did not provide her bank statements from 2020 to present as requested by counsel for Mr. Nasery and as was done by Mr. Nasery. These statements might have provided evidence as to whether she received support payments from Mr. Nasery.
77When asked about having received $1,000 every week from Mr. Nasery, Ms. Kawatra at first could not recall whether Mr. Nasery had been giving her cash. When subsequently asked about cash deposits that would have shown on her statements had they been provided, she noted that her parents were “also” giving her money. This statement suggests that she was receiving money from Mr. Nasery that was supplemented by money she received from her parents.
78When it was put to Ms. Kawatra that the cash payments would explain how she was managing expenses, she paused for a long time and then responded"in some ways". Ms. Kawatra then went on to deny that she had been receiving cash payments from Mr. Nasery, followed by a return to "I don't recall him giving me cash payments" when reminded that she was under oath. When presented with her Financial Statement acknowledging that Mr. Nasery was paying the expenses, Ms. Kawatra’s explanation was that there was "an error in this form". That “error” read as follows:
She [Ms. Kawatra’s mother] contributes to all of the expenses that can't be paid by the
applicant [Mr. Nasery], besides paying the other house expenses.
79Ms. Kawatra stated that instead of “applicant” the Financial Statement should have read
“respondent”. She acknowledged that she did not correct the error, stating that she had only now seen it.
80Ms. Kawatra’s evidence that she did not receive any support payments from Mr. Nasery from before he filed his Application was not convincing. She alternated between not remembering and stating that she did not receive any payments. In contrast, Mr. Nasery was very clear with the court and unshaken on cross-examination that he had to make those payments to Ms. Kawatra, or he would have been denied time with his children.
81Mr. Nasery provided an example of an occasion when he asked Ms. Kawatra if he could bring the money over when he picked up the children the next day. He testified that Ms. Kawatra refused this request stating that if he wanted to see his children, he needed to bring the money over and leave it in the mailbox that night. The specificity of Mr. Nasery’s memory stands in sharp contrast to Ms. Kawatra’s uncertainty on this issue and lends greater credibility to his testimony.
82Mr. Nasery was vigorously cross-examined on the alleged payments he made of approximately
$4,000 per month to Ms. Kawatra during this time period. Counsel for Ms. Kawatra put it to him that if his 2020 Notice of Assessment was true and he made $31,200 in that year, this would mean that his payments to Ms. Kawatra ($48,000 in total) would be more than his stated income. He would have nothing left for his own needs. Mr. Nasery acknowledged this fact. He testified that he was desperate to see his children. He asserted that the only way he made it through that period was by maxing out his Mastercard and receiving loans from friends and family.
83As indicated above, Mr. Nasery’s income for that period was likely higher than he reported because of the rent he was receiving from his tenant, which he failed to report. However, that income would not have covered Mr. Nasery’s expenses and the payments of $1,000 per week for 2020. Either Mr. Nasery was receiving significant help from friends and family, or he was not paying the full $1,000 per week.
84There is no corroborative evidence to support Mr. Nasery’s statement that he faithfully made the payments every week. Given the tight state of Mr. Nasery’s finances and the fact that he was not earning additional money from the pizzeria beyond his monthly paycheques, I find it hard to believe that he never missed any weekly payments. It strains credulity that Mr. Nasery would have been able to make payments of $1000 every week, even with the additional rent money and loans from friends and family.
85Given this uncertainty, I am reducing the credit that Mr. Nasery is to be given for child support arrears for the period from April 2020 to November 2021 by one third. This reflects the fact that while I found Mr. Nasery generally credible on the issue of his payments, I find that it was an exaggeration to state that he consistently paid $1,000 every week. Therefore, he will be given credit for two thirds of the total
cash payments he made prior to filing the Application. This amounts to $24,000 in support payments for April to December 2020 and $29,333.33 for January to November 2021.
86Mr. Nasery also stated that he paid for groceries and other expenses for the children prior to filing his Application in 2022. However, I was not provided with evidence of the amount of these contributions. Therefore, they will not be included in the calculation of child support and section 7 arrears.
iv. Child Support Arrears for January 1, 2020, to February 18, 2026
87On February 17, 2022, Justice Laliberté ordered that Mr. Nasery pay child support in the amount of $750 per month, based on a “projected” annual income of approximately $50,000. Out of the monthly child support payment the costs of the supervised visits were to be deducted. I take this to mean that Mr. Nasery’s child support payment was $750, even during the period when Ms. Kawatra received only $395 per month because Mr. Nasery was paying for supervised visits out of the money designated for child support. However, the parties both asserted that in fact, Mr. Nasery paid $755 per month in child support up until January 2024.
88The court has discretion under section 37 (2.1) (a) of the Family Law Act to retroactively recalculate support based on the correct income information (as opposed to imputed income), once it has found that there has been a change in circumstances: Trembley v. Daley, 2012 ONCA 780. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Family Law Act now depends on the income of the payor and not on a highly discretionary balancing of means and needs: Kerr v. Baranow [2011] SCC 10, at para. 208.
89The change in circumstances in the present case arises from Ms. Barrett’s report and the evidence during the trial which supports the imputation of a different income to Mr. Nasery from the ones that have been used in the past to calculate child support. I find therefore that I have the authority to recalculate Mr. Nasery’s past child support obligations based on the imputed income that I have determined and the Child Support Guidelines.
90Based on the evidence at trial and the conclusions reached above, I find that Mr. Nasery has made the following child support payments:
2020: $24,000.00
2021: $29,333.00
2022: $7,550.002
2023: $9,0603
2024: $9,8884
2025: $9,064
2026: $2,4725
91Mr. Nasery’s imputed income is reproduced here for convenience:
| 2024 | 2023 | 2022 | 2021 | 2020 |
|---|---|---|---|---|
| $54,080 | $52,000 | $60,104 | $69,855 | $46,737 |
92The following is my calculation of the amount Mr. Nasery owes in child support arrears based on the Child Support Guidelines. The Divorce Mate calculations are attached as Appendix A to this decision.6
2020: Mr. Nasery owes nothing in child support because he paid $24,000. Under the Guidelines, he would have been required to pay only $8,436 ($703 x 12).
2021: Mr. Nasery owes nothing in child support for this year because he paid $29,333.00 and would have been required to pay only $12,768.00 ($1,064 x 12) under the Guidelines.
2022: Mr. Nasery would owe $3,454.00 in child support for this year because he paid
$7,550 and would have been required to pay $11,004 ($917 x 12) under the Guidelines.
2023: Mr. Nasery would owe $406 in child support for this year because he paid $9,060 and would have been required to pay $9,468 ($789 x 12) under the Guidelines.
2024: Mr. Nasery owes nothing in child support for this year because he paid $9,888, which is what he was required to pay under the Guidelines.
2025: Mr. Nasery has not completed his tax return yet for 2025, so there is no evidence of an amount owing at this time and the same is true for 2026.
93In Mr. Nasery’s closing submissions, counsel for Mr. Nasery did not request that Ms. Kawatra compensate him for any overpayments he made in child support. Therefore, I have not made any such order. Mr. Nasery proposed that he pay the amounts owing in child support arrears in installments of $500 per month. The calculations above show that Mr. Nasery owes $3,860.00 in child support arrears. I leave it to counsel to discuss payment of child support arrears in the context of the amounts owing for costs, section 7 arrears, spousal support and child support payments going forward.
Conclusion Regarding Child Support Owed by Mr. Nasery
94Based on the analysis above, I conclude that Mr. Nasery owes $3,860.00 to Ms. Kawatra in child support for the period from 2020 to 2024. There is no evidence at this point as to what might be owing for 2025 and the one and a half months of 2026 in which Ms. Kawatra had primary care of the children. If there are errors in my calculations, counsel may raise that issue with me.
v. Section Seven Expenses
95Ms. Kawatra asserts that she and her mother paid for numerous activities and services for the children which should have been shared on a proportionate basis by Mr. Nasery pursuant to s. 7 of the Child Support Guidelines.
96Section 7 of the Guidelines reads as follows:
In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or spouse who has the majority of parenting time;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or
for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
97Ms. Kawatra testified that Mr. Nasery did not pay his portion of all health-related expenses such as occupational therapy, psychotherapy and speech therapy. However, later in her testimony she said that Mr. Nasery had “finally” provided his credit card to pay for occupational therapy expenses, but she had “to go after him” for this. It was not clear from Ms. Kawatra’s testimony how much of the total of $950 in occupational therapy services Mr. Nasery paid. Mr. Nasery testified that he paid for the occupational therapy costs. I find that Mr. Nasery likely paid 75% of those costs.
98Ms. Kawatra testified that she paid $175.15 for an intake appointment for psychotherapy with Hannah O’Reilly on August 17, 2023. Mr. Nasery did not testify about this issue. I find that he is required to pay his portion of the psychotherapy intake cost since it is a health-related expense for Veer.
99Ms. Kawatra also provided the receipt for speech therapy services for Veer at ABC Pediatric Therapies for $405.00. These services were incurred in October 2020. She stated that she paid for the services herself. Ms. Kawatra’s evidence was contradicted by Mr. Nasery’s evidence. He testified that he paid for speech therapy for Veer. However, Mr. Nasery’s memory of the exchange of texts regarding this issue and his payment of the expense was not clear. I find that he did not pay for the speech therapy cost and that this expense is a legitimate s. 7 health-related expense incurred by Ms. Kawatra.
100Ms. Kawatra provided evidence of childcare expenses that she incurred for the two children. They consisted mainly of hiring babysitters who would come into the home to assist her with the children. She testified that she needed the assistance of the babysitters to manage the challenging needs of her children. She denied that she needed the childcare services for employment related reasons, stating rather that she needed the services for the well-being of her children. It was only in the Fall of 2024 after her accident that she needed the services of a babysitter to prepare food for the children because of her injury. However, there were no receipts produced for the babysitting services provided during the Fall of 2024. The childcare receipts were limited to 2020 and 2021.
101Mr. Nasery argued that in 2020 and 2021, he was begging Ms. Kawatra for more time with his children. He would have happily taken them during the time that she was engaging babysitters. In response,
Ms. Kawatra testified that she could not count on Mr. Nasery’s availability and therefore, she needed to
hire babysitters to help with the two children.
102I find that the childcare costs incurred by Ms. Kawatra in 2020 and 2021 were not section 7 expenses. Ms. Kawatra was not hiring babysitters at that time for the purpose of completing her thesis or finding work. Furthermore, the childcare costs were incurred during a time when Mr. Nasery was ready, willing and able to share parenting responsibility with Ms. Kawatra. I accept his evidence that he was willing and able to take time off work to be with the children when Ms. Kawatra needed to go out, but Ms. Kawatra would not permit him to replace the babysitters unless the children were sick. Mr. Nasery testified convincingly that he began to wish that the children were sick so that he could spend more time with them. Therefore, I find the childcare expenses for 2020 to 2021 are not s. 7 expenses.
103Ms. Kawatra testified that Veer attended preschool, which I assume was a reference to the Orchard View Montessori School. In her closing submissions, counsel for Ms. Kawatra stated that Mr. Nasery did not pay his portion of this educational program. Although the receipts for this expense were not entered into evidence, they were referenced in the child support and section 7 arrears table prepared by Ms. Kawatra, which was entered as an exhibit. I am prepared to accept that Ms. Kawatra paid for the fees for Veer to attend Orchard View Montessori school in 2020 and 2021. Those fees totaled $6,625. I find that the Montessori program was a reasonable expense because the program would meet Veer’s needs for greater independence from his mother and for developing his language and socialization skills. Therefore, I find that the fees for Orchard View Montessori school are a legitimate s. 7 expense and Mr. Nasery must pay his portion of that expense.
104There were other expenses for the children that were related to extracurricular activities, such as Parent and me classes, tennis, soccer, martial arts, gymnastics and music lessons.
105For extracurricular activities to qualify as a s. 7 expense, they must be both necessary and
reasonable. Additionally, the court must find that the expense is “extraordinary”. This term is defined in
s. 7(1.1) as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
106Mr. Nasery objected to the extracurricular expenses because he stated that he was never consulted about them and did not have a chance to express his views about whether they were necessary and reasonable. Ms. Kawatra testified that she thought Mr. Nasery had consented to the programs because he never objected. In other words, he acquiesced to the expense. I do not agree with Ms. Kawatra’s position on consent. To give consent to a new activity, a parent must be informed prior to the commencement of the new activity as towhat it is, why it is in the child’s best interest and what the cost is. The evidence establishes that Mr. Nasery was not provided with this information about the extracurricular activities in which the children engaged. Nevertheless, I think it is reasonable for him to have expected that Ms. Kawatra would enrol the children in some activities to promote their physical, social and mental development.
107The list of activities in which the children were engaged, and their total cost is as follows:
(i) Veer’s Tots Program – Parent and Me - $545.79
(ii) Veer’s Music Lessons - $430
(iii) Mukti’s gymnastics $293.80
(iv) Veer’s soccer - $999.07
(v) Veer’s Martial Arts - $1,375.49
108The total cost of these activities is $3,644.15. That is not an excessively high cost for four years of programming. It amounts to approximately $900 per year. Given the special needs of these children, I find that it was both reasonable and necessary to engage them in the above-noted extracurricular activities to promote their development and well-being. Although Ms. Kawatra testified that the children became
increasingly unable to let go of her enough to fully participate in some of the programs, the exposure to other children who were able to do so would have been beneficial. In addition, they did learn skills such as Gatka that are helpful in regulating emotions and are good life skills to have.
109The costs of the extracurricular activities were beyond Ms. Kawatra’s financial means even with the child support paid by Mr. Nasery. Although she failed to provide bank statements that would have given some insight into how she managed the expenses on such a limited budget, I accept Ms. Kawatra’s testimony that her mother helped her with the expenses, and she made use of savings that she had from the past.
110The next question is what percentage of the special expenses should Mr. Nasery be required to pay? Ms. Kawatra argued that he should pay roughly 84%, based on Scenario 3 from Ms. Barrett’s analysis.
111I disagree. I did not accept Scenario 3 as the appropriate income imputation for Mr. Nasery. Rather, I accepted Scenario 1. Based on his income in that scenario, Mr. Nasery must pay 75% of the section 7 expenses.
Conclusion Regarding Section 7 Expenses
112I conclude that Mr. Nasery has not paid his portion of the following s. 7 expenses: the intake appointment for psychotherapy with Hannah O’Reilly; speech therapy services for Veer at ABC Pediatric Therapies; the fees for Orchard View Montessori school and extracurricular activities. The total of these expenses for which Mr. Nasery must pay 75% is $10,849.30. Mr. Nasery’s portion of that is $8,136.98. He is required to pay $8,136.98 to Ms. Kawatra. If there are errors in my calculations, counsel may raise that issue with me.
vi. Spousal Support
113Neither of the two parties’ lawyers provided robust submissions on spousal support. As a result, I will set out my findings and the questions I have which need to be addressed by counsel before a decision on the quantum and duration of spousal support can be made.
114Since neither party has sought a divorce in these proceedings, section 30 of the Family Law Act
applies to the issue of spousal support.
115Section 33(8) of the Family Law Act sets out the purposes of a spousal support order in s. 33(8). They are as follows:
(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic
consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
116Canadian jurisprudence recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory support; (2) contractual support; and (3) non-compensatory support: Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 15.
117Compensatory support is intended to deal with the economic consequences following the breakdown of the relationship,7 whereas non-compensatory support is based on the financial need of a spouse.8
118In Thompson v. Thompson, Justice Chappel provided helpful guidance on the factors to consider when determining whether compensatory or non-compensatory spousal support is appropriate:
The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions.
Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay
support based on the other spouse’s economic need alone, even if that need does not arise
as a result of the roles adopted or sacrifices made during the marriage.9
119In the present case, I find that Ms. Kawatra is entitled to compensatory spousal support.
120The parties’ cohabitation was brief; they were together for only two years and nine months before separating. Veer was born ten months after they were married, with Mukti’s birth followed two years later. Ms. Kawatra breastfed the children and attended to all their needs. While I have found that she did so to the unhealthy exclusion of Mr. Nasery, the fact remains that she was and is a dedicated and attentive mother. Mr. Nasery’s work schedule was demanding and involved evening work. Ms. Kawatra was often on her own looking after the children and the home before the separation. Although Ms. Wesa was there to assist Ms. Kawatra at times, Ms. Wesa was caring for her husband, who was terminally ill during the parties’ brief cohabitation.
121I agree with Mr. Nasery that Ms. Kawatra is well educated and likely could have found work, had she not stayed at home with the children. Arguably, the children’s needs might have been better met by spending some time in daycare while Ms. Kawatra finished her PhD and then gone to work. However, this is speculation, and I am not prepared to find that it negates Ms. Kawatra’s entitlement to compensatory spousal support. She has clearly sacrificed productive work years to raise the children and care for the home. She should receive compensation for that.
122I find that Ms. Kawatra’s entitlement to spousal support is also justified on a non-compensatory basis. She has a much lower income than Mr. Nasery and would have difficulty entering the workforce now after many years out of it. Therefore, it is unlikely that she will immediately achieve economic self-sufficiency or bring her standard of living up to that of Mr. Nasery without spousal support.
123In terms of the amount and duration of spousal support that should be ordered, I must first consider the date on which spousal support should begin. In Kerr v. Baranow, 2011 SCC 10, Cromwell J. wrote that like in a retroactive child support analysis, the relevant factors for retroactive spousal support are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support, and any hardship the retroactive award may occasion on the payor spouse: see para. 207. At paragraph 211, Cromwell J. nevertheless cited MacKinnon v. MacKinnon (Ont. C.A.) for the proposition that the
“usual commencement date” is the commencement of a proceeding, absent a reason not to make the order effective as of that date.10 Cromwell J. said that where an order is sought from the commencement of the proceedings, this will be a significant factor in how the relevant considerations are weighed.
124Ms. Kawatra sought spousal support in her Answer to the Application. Her Answer was filed on December 24, 2021, and an Amended Answer was filed on October 25, 2025, in response to the amendment of Mr. Nasery’s Application. Thus, Mr. Nasery has been on notice since December 2021 that Ms. Kawatra was seeking spousal support. The question is whether the commencement date should be January 1, 2020, when the couple separated or December 24, 2021, when Ms. Kawatra’s Answer was filed.
125In the circumstances of this case, I find it is not appropriate to order spousal support from January 1, 2020 to December 24, 2021. As noted above, from April 2020 to November 2021, Mr. Nasery was paying Ms. Kawatra $1,000 per week. While I have found it unlikely that he paid $1,000 every week given his strained financial circumstances, I did find that he was providing that weekly amount at least two thirds of the time. That amount exceeds what he would have been expected to pay in child support and spousal support combined for the period from January 1, 2020, to December 24, 2021. Therefore, compensatory spousal support will be awarded effective December 24, 2021.
126In terms of the duration of spousal support, I am required to have regard to the factors set out in s. 33(9) of the Family Law Act, as well as the Spousal Support Advisory Guidelines (“SSAGs”).
127The factors in s. 33(9) of the Family Law Act as applied to the present case are as follows:
(a) The dependant’s and respondent’s current assets and means:
Mr. Nasery and Ms. Kawatra currently have modest assets and financial means. Mr. Nasery owns his own home, half the pizzeria franchise and has a modest income that he receives for managing the pizzeria. He has limited savings. Ms. Kawatra has even fewer financial resources. She receives social assistance payments, does not own a home and is indebted to her mother. Both Ms. Kawatra and Mr. Nasery have accumulated significant debt over the past several years.
(b) The assets and means that the dependant and respondent are likely to have in the future:
Both Ms. Kawatra and Mr. Nasery are young enough to be able to build equity and savings if Ms. Kawatra is able to find and maintain employment and Mr. Nasery is able to grow his business.
(c) The dependant’s capacity to contribute to his or her own support:
As noted above, Ms. Kawatra is well-educated and has some work experience that would lend itself to a teaching or policy analyst position. She has some health issues at present but none that would appear to prevent her from becoming financially self-sufficient in the future.
(d) The respondent’s capacity to provide support:
Mr. Nasery testified that the pizzeria business is growing 5-10% every year. It still has not resumed the level of profitability that it had before the pandemic, but it is steadily improving. Although Mr. Nasery is currently in difficult financial circumstances because of the debt load he is carrying and his primary responsibility for the children, this situation should improve in the future.
(e) The dependant’s and respondent’s age and physical and mental health:
Both parties are relatively young and in good health. Ms. Kawatra has residual health issues resulting from her accident, but they do not appear to be severe. She is clearly exhausted from the parental load she has been carrying but now that the parenting responsibilities have shifted, she should have time to engage in some self-care. Mr. Nasery appears to have no health issues that would affect his ability to work productively.
(f) The dependant’s needs, in determining which the court shall have regard to the
accustomed standard of living while the parties resided together:
The parties lived together in Ms. Wesa’s home. Ms. Kawatra is still living there but no longer has primary parenting responsibility. As a result, she is not receiving child support payments from Mr. Nasery and her social assistance payments have also likely decreased. Her standard of living has likely dropped well below what it was when she and Mr. Nasery were living together.
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures:
As noted, Ms. Kawatra has a high level of education and some valuable past work experience. However, she has been out of the paid workforce for some time now and will likely experience some challenges re-entering the workforce. In addition, she may need to complete her PhD thesis and graduate to be considered for better-paying work. This will require an investment of time and money.
(h) Any legal obligation of the respondent or dependant to provide support for another person:
Ms. Kawatra is currently living with her mother who is having more difficulties with memory as she ages. Section 32 of the Family Law Act imposes an obligation on adult children to care for their parents, to the extent of their ability. Ms. Kawatra will likely have increasing responsibilities with respect to the care of her mother.
(i) The desirability of the dependant or respondent remaining at home to care for a child:
Ms. Kawatra maintained that the children’s needs required her to remain at home with them. However, the social workers who testified during the trial stated that the children should attend in-person school where they would have the opportunity to improve their social skills.
The goal of the parenting arrangement will be to share parenting time equally between the parents. However, if the children are both in school during the day, the parents should both be able to work and make use of after-school daycare. If the children’s needs are such that full-time work for one or both parents is not feasible, adjustments will have to be made.
(j) A contribution by the dependant to the realization of the respondent’s career potential: During the brief period that the parties lived together in marriage, Ms. Kawatra supported
Mr. Nasery’s career by enabling him to work all the hours needed to operate his business.
(l) If the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited:
This was a short period of cohabitation of two years and ten months.
(ii) the effect on the spouse’s earning capacity of the responsibilities
assumed during cohabitation:
As noted above, the time spent caring for the children during the cohabitation, albeit brief, will likely have an impact on Ms. Kawatra’s earning capacity, at least initially. Even a short gap of time in one’s resume is a detriment in a tight job market.
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents:
This is not a factor in the present case.
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents:
This is not a factor in the present case.
(v) Any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in
performing that service in remunerative employment and were
contributing the earnings to the family’s support:
Neither Ms. Kawatra nor her mother, Ms. Wesa, provided evidence about other domestic services performed by Ms. Kawatra to maintain the home. Mr. Nasery testified that at least two or three times per week, he would get someone to cover him between lunch and supper at work, and he would come home to wash dishes, change diapers and take care of the children. Ms. Kawatra denied that this was the case, but I find that Mr. Nasery did in fact, contribute to the domestic work. However, it is probable that Ms. Kawatra did most of the domestic work, with some assistance from her mother and Mr. Nasery.
(vi) The effect on the spouse’s earnings and career development of the
responsibility of caring for a child:
As noted above, Mr. Nasery took time off work to assist in caring for the children. However, now that he has primary responsibility for caring for the children, the impact of childcare on his earnings and business development may be greater than it was when the parties cohabited.
(m) any other legal right of the dependant to support, other than out of public money.
This is not a factor in the present case.
128The SSAGs “with child” formula, the official commentary and the academic explanation indicate that marriages with dependent children raise strong compensatory claims based on the economic disadvantages flowing from assumption of primary responsibility for child care, not only during the marriage, but also after separation. Furthermore, for marriages with dependent children, length of marriage is not the most important determinant of support outcomes as compared to post-separation child-care responsibilities.11
129Based on these principles and my analysis of the factors under s. 33(9) of the Family Law Act, I find that Ms. Kawatra is entitled to compensatory spousal support as of December 24, 2021 at the low to mid-point of the range. She is a relatively young woman who is well-educated and articulate. Although Ms. Kawatra has been out of the paid workforce for some time now, she should be able to complete her thesis and apply for work now that primary childcare responsibilities do not rest solely with her. She has no serious health conditions that would prevent her from doing so. On the other hand, the very lowest end of the range
is not justified because of the financial needs she has and the sacrifices she has made to care for the children. It is likely that Ms. Kawatra will not be able to immediately transition from full-time childcare to full-time paid employment, given her level of emotional and physical exhaustion.
130Counsel for both parties provided me with Divorce Mate calculations for child and spousal support that showed Ms. Kawatra’s social assistance income as “employment income”. In my view, the more appropriate characterization of Ms. Kawatra’s income would be “social assistance (with spousal clawback)” given that from 2021 to 2026 Ms. Kawatra was receiving social assistance at the applicable rate for a primary parent of two children. She was not employed.
131To complete the calculation of spousal support owing for the past and going forward, I require counsel to provide me with written submissions including relevant case law and Divorce Mate calculations on the following questions:
(i) What is the appropriate characterization of Ms. Kawatra’s income for the purposes of
calculating spousal support?
(ii) What is the appropriate income for Mr. Nasery, upon which spousal support would be based, given that he had rental income only for the period from January 1, 2020, to April 30, 2022?
(iii) Should the change in the primary parenting role affect the spousal support amount to be paid to Ms. Kawatra? If so, how and by what amount?
(iv) What is the appropriate quantum and duration of spousal support, given my findings above?
132The written submissions are to be no more than five pages (11 point font, 1.5 spacing), excluding Divorce Mate attachments.
133Trial coordination will advise counsel if I have questions on the submissions and require an appearance. I will then render a final decision on spousal support.
vii. Should Ms. Kawatra be required to pay child support?
134The children have transitioned to Mr. Nasery’s primary care. They do not have parenting time at present with Ms. Kawatra, but the goal is to transition to a shared parenting time arrangement when it is in the children’s best interests to do so.
135I declined to impute an income to Ms. Kawatra. She is on social assistance presently. In the circumstances and at the present time, I find that Ms. Kawatra is not capable of paying child support to Mr. Nasery from her meager social assistance income.
Costs
136Mr. Nasery was 75% successful on this Application. Costs on a partial indemnity basis are appropriate. Counsel should endeavour to agree on the quantum, failing which they may make submissions to me in writing, which may be included with the submissions on spousal support. The costs submissions should be no longer than three pages, (1.5 spacing at 11 pt font) not including the Bill of Costs, which should also be provided.
Released: March 13, 2026
Justice K.A. Jensen
CITATION: Nasery v. Kawatra, 2026 ONSC 1561
COURT FILE NO.: FC-21-1897
DATE: 2026/03/13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KHALID NASERY
APPLICANT
-and-
LINDSEY KAWATRA
RESPONDENT
REASONS FOR JUDGMENT
Justice K.A. Jensen
Released: March 13, 2026
Footnotes
- O. Reg. 391/97
- $6,470.00 paid + adjustment for payment of Brayden Supervision cost per Order of Justice Laliberte of $1,186.50
- Mr. Nasery did not make child support payments in January and February 2022. In March 2022, he began paying $755 from which the supervised parenting fees were deducted. $7550 = 10 x $755
- $9,888 = $824 x 12
- $2,472 = $824 x 3
- Note that in the Divorce Mate application, I have broken out Mr. Nasery’s rental income from his employment income. I added the unpaid taxes as indicated in Ms. Barrett’s Report since Mr. Nasery did not report his rental income and therefore did not remit taxes on this income. I have also characterized Ms. Kawatra’s income as “social assistance (with spousal clawback), which is discussed later in these reasons.
- Moge v. Moge, [1992] 3 S.C.R. 813, at para. 43. While Moge deals with the issues of the specific language of the Divorce Act, the objectives and purposes of an order for support of a spouse under s. 33(8) of the FLA and s. 15.2(6) of the Divorce Act are similar: Juvatopolos v. Juvatopolos (1995), 8 R.F.L. (4th) 191 (Ont. S.C.), at para. 52; Russell v. Russell (2000), 180 Sask. R. 196 (C.A.), at para. 124.
- Lang-Newlands v. Newlands, 2024 ONSC 6285, at para. 833.
- Thompson v. Thompson, 2013 ONSC 5500, at para. 59.
- See also: Vanos v. Vanos, 2010 ONCA 876, at para. 9.
- Spousal Support Advisory Guidelines, 2008, at para. at para. 3.3.4: https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/p3.html#a33