Court File and Parties
NEWMARKET COURT FILE NO.: FC-09-032371-02 DATE: 20190704 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Kathleen Michaud Applicant – and – Bill Kasali Respondent
Counsel: Unrepresented (Applicant) Unrepresented (Respondent)
HEARD: June 25, 2019
Reasons for Decision
Factual and Litigation Background
1The parties were married on October 2, 1993.
2The father’s full name is Biliamiau Owolabi Kasali. He uses the names William and Bill.
3There are two children of the marriage: Tina Kasali, born August 23, 1996, and Anthony Kasali, born March 6, 1999.
4The parties separated on September 26, 2006.
5The parties entered into a separation agreement of all issues on February 2, 2009. The separation agreement was filed with the Court.
6The parties were divorced on December 10, 2009.
7On February 27, 2017 Mr. Kasali filed a Motion to Change the order of Justice McGee dated July 4, 2016. He requested an order reducing the support payable to $300 per month retroactive to January 1, 2013.
8On March 27, 2017 Ms. Michaud filed her Response to Notice to Change and requested a variation of child support retroactive to 2013 and a variation of section 7 expenses to be 90% for Mr. Kasali and 10% for Ms. Michaud retroactive to 2013.
9This is not the parties’ first rodeo. There have been extensive and multiple court proceedings on the issue of child support. At issue, consistently, is Mr. Kasali’s lack of disclosure and, consequently, the challenge in determining his income.
Trial: November 2013
10On April 28, 2011 Ms. Michaud brought a Motion to Change the terms of the separation agreement. A trial was held before Justice McGee for four days in November 2013 on the issue of child support retroactive to 2009.
11The vast majority of the time appears to have been devoted to a determination of the father’s income.
12Justice McGee made the following observations in Michaud v. Kasali, 2013 ONSC 7475 (unreported):
Failure to Disclose
18The applicant’s pleadings served on May 14, 2011 requested the respondent’s income tax returns, notices of assessment and re-assessment for 2007 to 2010. The December 16, 2011 agreement of the parties before Dispute Resolution Officer B. Solomon required disclosure of both parties by February 28, 2012. That agreement was incorporated into the September 16, 2013 court order of Justice Kaufman.
19At all times, Mr. Kasali has been under an obligation to provide the listed financial disclosure, inclusive of updated documentation such as his 2011 and 2012 Notices of Assessment. He is financially astute and capable of organizing and providing such disclosure. He describes himself during the trial as the former leader of a global, enterprise wide program at Bank of Montreal, often representing Canada as a panel member at international forums. Ms. Michaud confirmed in her testimony that he was always a careful record keeper during the marriage, and that he would need to keep his tax documents for mortgage applications.
20Significant documents for this proceeding have not been disclosed. Examples are the mortgage applications, [4] any financial statements or records for Knightsbridge Corporation, termination/severance reporting letters from the Bank of Montreal, banking records and credit card statements.
21The failure to produce any statements for Knightsbridge is puzzling. Mr. Kasali’s financial statement, sworn June 7, 2011, and every financial statement filed in this proceeding thereafter, states that he is self-employed, carrying on business as Knightsbridge Group of Companies. The respondent represented to Officer Solomon that Knightsbridge was a corporation launched in 2011. He has never disclosed any information concerning this company.
22At trial Mr. Kasali gave evidence that Knightsbridge Group of Companies was not a corporation, but a personal company started in May of 2011. He gave three different start years for the business: 2011, 2012 and 2013. At one point he stated that it was started in late 2013 and thus, it was too early for financial statements. When confronted with the conflict in his testimony, he provided an unsatisfactory response.
23Mr. Kasali provided certain statements for two of four accounts held in his name: 2012 statements for a U.S. chequing account ending in *293, and 2011 statements for his personal chequing account ending in *816. Within those statements, significant months were missing. The two accounts not disclosed were investment accounts ending in *605 and *717, from which monies were deposited to the chequing accounts.
24The amount of $328,000 was deposited to the personal chequing account in 2011. Some of those amounts were from redemption of savings, but without the investment accounts, one cannot determine how much. There were also a number of U.S. cash purchases during 2011 and 2012.
25Mr. Kasali provided a record of employment, dated January 5, 2011, showing his position as Senior Manager of Finance at the Bank of Montreal ending January 8, 2011. His total insurance earnings for 2010 were $162,567. A letter from BMO, dated December 6, 2010, speaks to the elimination of his position based on changing market conditions. He is encouraged within the letter to seek alternative positions within BMO and advised that failing such placement, he will receive a severance package based on total compensation – defined as base salary and an average of incentive plan payouts.
26Mr. Kasali has never provided a copy of that severance package. Rather, he points to a deposit of $40,716.90 noted as “Direct Deposit B/M PAY” on January 21, 2013 from the Bank of Montreal, without any evidence of whether this amount was his 2010 incentive plan payout or his severance. He only states that this was a taxable lump sum from the bank. In the absence of any evidence as to the terms of his severance package, I find that the amount of $40,716.90 is incentive pay.
27Mr. Kasali has provided only handwritten working papers for his 2011 and 2012 income tax returns, and only on October 26, 2013 – after the trial management conference, and less than three weeks before the sittings - did he provide notices of assessment for 2011 and 2012. He provided them by email to Ms. Michaud and the attached copies were faint and grainy. So much so that she could not print them from the email attachment.
28At trial, those faint and grainy copies were placed by the husband into evidence. Under cross examination, it became apparent that neither the previously provided copy of his 2009 notice of re-assessment, nor the 2011 notices of assessment were true copies. The fonts differed within the same sections. For example, the date of the 2011 notice of assessment is in a markedly different font than that of the balance of the document.
29The 2009 notice of re-assessment was missing the line of data showing the reassessed figures. The 2011 notice purported to show $0 income for a taxation year in which Mr. Kasali had earlier testified that he received a taxable payout from the Bank of Montreal, (the $40,716.90) and had redeemed RRSPs. Mr. Kasali gave no satisfactory answer on any of these points.
30When pressed by the court on the second day of trial - Thursday November 14, 2013, as to the authenticity of the documents, he acknowledged that he had only copied certain parts of page 3 of his 2009 notice – those he considered relevant. The court then directed Mr. Kasali to bring with him the next morning the original of his notices of assessment. It was also suggested that he could also obtain copies on-line through the Canada Revenue Agency (“CRA”) portal.
31On Friday November 15, 2013, Mr. Kasali stated that he had looked for his originals, but did not find them. He advised that he could get them on line – after obtaining his PIN number which he had applied for the prior evening. He advised it would take five to ten business days to obtain the PIN. It was suggested that he could attend that day at a CRA office to obtain originals of the documents. Trial was adjourned to Tuesday November 19, 2013 and I endorsed:
Order to go that the Respondent shall deliver to the Trial Coordinator the original Notices of Assessment for the taxation years of 2009, 2010, 2011 and 2012 by 1:00 Monday November 18, 2013.
The Respondent is also to provide within a Brief, the Income Tax Returns and attachments filed with CRA, not the working papers, and the documents set out in Schedule A [5] attached. The materials are to be then brought to my attention, trial to continue Tuesday November 19 th , 2013.
32No materials were received from Mr. Kasali on Monday November 18, 2013. When trial resumed on November 19, 2013, Mr. Kasali appeared with an agent for a lawyer who requested an adjournment of the trial. The adjournment was granted to November 28, 2013 and was marked as pre-emptory.
33On November 28 th , Mr. Kasali appeared without counsel. He did not have originals of any of his notices of assessment, income tax returns or attachments, or any of the documents within Schedule A. He gave a lengthy explanation as to why CRA was not able to assist him within the time provided. He did not give a satisfactory answer as to why he could not get the documents on-line [6]. He offered no satisfactory explanation as to why he could not produce original notices of assessment given that he had served copies of those documents only one month prior [7].
34Copies of the 2009 and 2011 notices of assessment provided by Mr. Kasali are to be struck from the record. Mr. Kasali has been given an opportunity to remediate his circumstances by filing the original documents. He has failed to do so.
Dismissal of the Respondent Father’s Form 15B Claim
35In accordance with Rule 13(4.2) of the Family Law Rules, I dismiss the respondent father’s claim to vary the terms within the separation agreement, dated February 2, 2009. He is in significant breach of orders for disclosure, dated September 16, 2013 (agreed to be provided on December 16, 2011) and November 15, 2013. He has been on notice to produce his income tax returns and notices of assessment from the time he was served with this proceeding in May 2011. He was required to provide those same documents annually within the terms of the February 2, 2009 separation agreement.
36At trial, Ms. Michaud worked through the following evidence:
(a) A picture of the New Jersey license plate X21 CDV on Mr. Kasali’s Mercedes Benz;
(b) An internet search of New Jersey properties showing 9 Tiger Drive, Hunterdon County, New Jersey owned by Bill Kasali. Last sold on April 26, 2012 for $835,000; with property taxes of $19,945 annually;
(c) An internet search of Hunterdon County Land Sales, showing that Richard Sullivan sold property to Bill Kasali at 9 Tiger Drive for $835,000 on June 21, 2012;
(d) A white pages listing for Bill Kasali at 9 Tiger Drive, New Jersey;
(e) A September 2013 listing for the sale of 9 Tiger Drive, for $1,045,000;
(f) An internet search showing that there is only one Bill Kasali in the United States;
(g) A December 2012 reverse phone number listing, showing the address for Mr. Kasali’s cell phone as 9 Tiger Drive, New Jersey. He acknowledges that it is his cell phone number and that the children call him on that number;
(h) Copies of text messages between the applicant mother and the parties’ daughter, while she was in New York with her father, on Saturday January 5, 2013, the relevant portions of which are:
Ms. Michaud: Why is your Dad not bringing you home. He lives in Richmond Hill? Are u flying 1 st class?
Tina: No we’re not and how do you know he lives in Richmond Hill he won’t tell us where his new house is. And he has to be in New York for a meeting so he would have to land in the airport in Toronto, drive us back home and then drive back to the airport.
(Further exchanges about travel arrangements omitted)
Tina: I done with him were staying at his house in New York its 9 Tiger Road. I tried to put in the hotel but he told me not to and to put in friends or family but I told him not to. But he told me to do it anyway so then it asked us to put in the address of our friend or family in New York and I pressed the back button because we didn’t have any and he shoved me out of the way, I almost fell over my bag. I am not doing this again.
37Mr. Kasali vigorously denies owning property outside of Canada. He says it is not him.
38He states that the New Jersey plate is not his – but does not provide evidence of his plate number. He acknowledges that he drives the Mercedes Benz, but states that it belongs to a friend. His vehicle is a 2006 Porsche Carrera. He does not give information on the friend/owner of the Mercedes. He acknowledges that his cell phone is the same as the one with the reverse phone number address of 9 Tiger Court, New Jersey and cannot explain the connection.
39Although no findings turn on the father’s residence, the nature and the manner of the father’s testimony calls into question his credibility. The court found his blanket denials concerning the New Jersey property bizarre. The evidence of a U.S. residence, a U.S. chequing account, the internet title search, the MLS listing, the cell phone and significant absences from the children was significant. Coupled with the obstreperousness testimony on any Ontario residence, it was clear to the court that Mr. Kasali’s circumstances were not what he portrayed.
13In Michaud v. Kasali, 2013 ONSC 7475, para. 60 (unreported) Justice McGee made an order that Mr. Kasali’s income for the purpose of determining child support was as follows:
2009 $162,512 2010 $162,512 2011 $203,228 2012 $ 59,838
Trial: November, December 2015
14Ms. Michaud brought a Motion to Change and requested an order that Mr. Kasali pay child support from 2012 forward.
15A trial was held in 2015. Again, a great deal of time was devoted to a determination of Mr. Kasali’s income.
16Justice McGee made the following observations in Michaud v. Kasali, 2016 ONSC 443 (unreported) under a heading titled “The Patterns Continue”:
14The pattern of contradictory CRA documents continued through this trial. Ms. Michaud had been served with a copy of Mr. Kasali’s 2012 Assessment, but not the original as previously ordered. The copy served on her did not show Mr. Kasali’s filing as an Immigrant. That space was blank – or as is now apparent, was whited out.
15During this trial, three separate versions of Mr. Kasali’s 2012 filings were marked as Exhibits:
Exhibit #1: A very poor photocopy of a 2012 NOA issued September 19, 2013. Line 150 shows income of $59,836. This was the NOA tendered in the November 2013 trial.
Exhibit #3: A 2012 Assessment dated April 10, 2014, showing line 150 income of $139,679 (severance and pension income totalling $57,104 and other employment income of $82,572).
Mr. Kasali filed this Assessment on August 22, 2013 as an Immigrant. His date of birth is stated as August 20, 1953. His actual birth date is August 20, 1952.
Within this Exhibit is his 2013 Assessment filed April 30, 2014 as an Immigrant. His 2014 Assessment filed March 17, 2015 no longer shows a filing as an Immigrant.
Exhibit #9: A handwritten 2012 T1General showing line 150 income of $142,410, and the attached T4s.
16Mr. Kasali testified during this trial, that in November 2013 he knew that he had the bank shares coming to him, but he had not yet decided what to do with them. He testified that he sold the shares after the trial for $82,572; and only then did CRA require that the shares be included in his 2012 Income.
17This cannot be true. The evidence in this November 2015 trial shows that three months prior to the November 2013 trial (August 22, 2013) Mr. Kasali filed his handwritten 2012 return showing line 150 income of $142,419 (Exhibit #9 above) subsequently assessed as $139,679 (Exhibit #3 above). The amount of $139,679 includes the $82,572 of shares under “other employment income.” Exhibit #3 was not a reassessment.
18He did not list the bank shares in his November 1, 2013 Financial Statement. [8]
19I find that Mr. Kasali’s 2012 assessed income was $139,679 and that he submitted a false 2012 Notice of Assessment into evidence in the November 2013 trial. The submitted copy has a number of different fonts. The actual 2012 Notice now in evidence was not even issued until April 10, 2014.
20Ms. Michaud claims that later Notices of Assessment also have suspicious omissions: no SIN #, different fonts, no commission of oath. Mr. Kasali denies anything is out of order. Alternatively he cannot explain it. He blames the CRA website which he stated during this trial “prints differently every time.” None of the Notices are originals. What then is the court to make of the computer print-outs in the absence of the originals?
False Addresses
21Mr. Kasali’s false representation of his address continued through this trial. All the 2012 to 2014 CRA documents bear the address of 14 Aukland Lane, King City - a home that he sold on January 31, 2012. When pressed, he testified that he continues to use this mailing address for banking statements and CRA “because of the fluidity of his situation.” He has an agreement with the King City Post Office to forward his mail.
22On the second day of this trial, the court directed him to provide his current Driver’s Licence. It also is issued on an address of 14 Aukland Lane. The address on his pleadings is 42 Doncaster Avenue, an address that by his own admission, he only uses as a mailing address for court documents.
23Mr. Kasali’s current residence is unknown.
24Mr. Kasali’s oral evidence on his residence was evasive. He continues to deny that he has ever resided outside of Canada. He has no explanation why he filed his 2012 and 2013 Income Tax Returns as an Immigrant.
25Ms. Michaud does have an explanation. As tendered in the November 2013 trial, and again during this trial, an Internet print-out from www.mycentraljersey.com records the sale of 9 Tiger Dr., Califon, New Jersey to Bill Kasali on June 20, 2012, for $835,000. An Internet print-out from www.zillow.com shows the sale of 9 Tiger Dr., Califon, New Jersey on March 31, 2014, for $964,500.
26Almost all of the furniture seen in the on-line interior pictures of 9 Tiger Dr. match furniture shown in the sale brochure for the parties matrimonial home [9] – including a picture of his two children. Ms. Michaud filed a Carfax report showing that Mr. Kasali’s vehicle was leased in June 4, 2012 in New York, New Jersey. It was registered in Califon in August of 2012. Registration was updated to Ontario in February of 2015.
27CRA Assessments showing an “Immigrant” filing for 2012 and 2013, support her submission that Mr. Kasali purchased 9 Tiger Dr., Califon, New Jersey in 2012 using the net proceeds of sale from 14 Aukland Lane: $167,598. Those net proceeds of sale do not appear in his November 1, 2013 Financial Statement.
28The profit from the 2014 sale of 9 Tiger Dr., Califon would be a capital gain included in his T1General – unless it was his principal residence.
29There is no credible explanation for Mr. Kasali’s refusal to disclose his address, or to provide originals of tax documents. Perhaps it is for some collateral purpose unrelated to this proceeding. A comparison of his 2013 and 2015 sworn Financial Statements show significant unfunded expenses.
30Ms. Michaud believes that Mr. Kasali must have a very large income indeed, to go to this much trouble to hide it. Sometimes she doubts that he is even retired. Five years of litigation have brought no certainty to his circumstances. She has been told that he lives in a grand four garage home with a swimming pool.
31She has not investigated further, trusting that a revelation of Mr. Kasali’s falsehoods would be sufficient to win a continuation of support at his preretirement income.
32This is a most unusual case.
33Ms. Michaud has caught Mr. Kasali in the proverbial “catch-me-if-you-can” litigation chase.
17The July 4, 2016 order of Justice McGee determined that Mr. Kasali’s income for the purposes of determining child support for 2012 was $139,679. Further, Justice McGee imputed income to Mr. Kasali, for the purpose of determining child support in the amount of $54,909 per annum on a temporary basis.
Current Trial
18On February 27, 2017 Mr. Kasali filed a Motion to Change the order of Justice McGee dated July 4, 2016. He requested an order reducing the support payable to $300 per month retroactive to January 1, 2013.
19On March 27, 2017 Ms. Michaud filed her Response to Notice to Change and requested a variation of child support retroactive to 2013 and a variation of section 7 expenses to be 90% for Mr. Kasali and 10% for Ms. Michaud retroactive to 2013.
20On September 17, 2018 leave was granted to permit Ms. Michaud to amend her Response to the Motion to Change and seek retroactive support 2007. Support was terminated for the two children effective September 1, 2018 on a without prejudice basis. Mr. Kasali was permitted to argue he paid too much – from January 2017 – to September 2018.
21On December 3, 2018 Ms. Michaud amended her Response to the Change Motion following the order of Justice Jarvis dated September 17, 2018 that permitted her to seek further retroactive orders. In her Amended Response to Notice to Change Ms. Michaud requested a number of orders including a variation of child support retroactive to February 2, 2009 and a variation of section 7 expenses to be apportioned retroactive to February 2, 2009.
22At the beginning of this trial I indicated to both parties that we were not re-litigating all of the issues that were before Justice McGee in the first two trials. Rather, any new or additional information that was unavailable at the time of the first two trials was all that I would consider.
Law
23The starting point for determining the amount of child support under the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) is section 3, which established the following presumptive rule respecting the amount of child support:
- (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).
24Section 19(1) of the Guidelines states:
Imputing income
- (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Analysis
25The very same issues of lack of financial disclosure by Mr. Kasali surfaced here as happened in 2013 and 2016.
26On September 28, 2017 Justice Jarvis made an order that Ms. Kasali provide his income tax returns and notices of assessment by October 6, 2017; copies of all bank accounts set out in his financial statement by October 27, 2017, and an updated RESP statement. He did not do so.
27On December 20, 2017 Justice Bennett made an order that Mr. Kasali execute CRA authorizations and IRS authorizations allowing Ms. Michaud to obtain his notice of assessments and IRS documents for the years 2013, 2014, 2015, 2016 and 2017. The IRS statements were to be provided within 10 days after delivery. He did not do so.
28On January 23, 2018 Justice Jarvis noted that the CRA authorizations were signed at court that morning.
29At the trial scheduling conference on May 8, 2018 disclosure was still outstanding.
30On the first day of trial, on May 16, 2018, Justice DiTomaso adjourned the trial and made an order that Mr. Kasali provide Ms. Michaud with the signed IRS authorizations within 10 days.
31The IRS authorizations were signed on May 25, 2018. Mr. Kasali then withdrew the authorization consents for IRS on July 3, 2018 indicating that Ms. Michaud had only six months from the date of the December 20, 2017 order to access the records. The December 20, 2017 order did not provide a deadline.
32On September 17, 2018 Justice Jarvis made an order that Ms. Michaud could amend her Motion to Change retroactive to 2007. She did amend her Motion to Change but she made a claim retroactive to 2009. Ms. Michaud was given until September 28, 2018 to serve a request for information.
33On September 27, 2018 Ms. Michaud made an extensive request for disclosure. She requested CRA and IRS authorizations for both personal and business tax filings, bank statements (both Canada and US), credit card statements, year-end financial records for his three businesses, and lines of credit.
34Despite the lengthy list of disclosure requested and the number of court orders meant to effect same, Mr. Kasali did not provide full disclosure.
35In addition, during this trial it became clear that Mr. Kasali’s sworn financial statements were completely defective. One example is that his financial statement did not include assets like his Mercedes. When questioned, he stated that he thought he was selling the Mercedes so he did not put it on the financial statement. The explanation is not only inadequate, it hardly explains why it was also left out of his financial statements sworn 2013, 2015 and 2018.
36In addition, the lack of expenses listed on his financial statement were also questionable. There were no vehicle repairs for the Mercedes. There were no expenses for rent or mortgage, and no utilities. In testimony Mr. Kasali stated that he lives in a basement apartment at the home of Katherine Ferguson. He testified that he paid no rent and, in return, would complete chores around the home including grass cutting and looking after the pool. In cross-examination he acknowledged that he previously stated that he was paying $500 per month to Ms. Ferguson. When pressed he stated he stopped paying rent in January 2019. It is an unusual date when there would be no grass cutting or pool maintenance. Regardless the $500 in rent was not present in his financial statement sworn April 15, 2018. Like in his previous trials, Mr. Kasali’s residence is suspicious. Similarly there were no expenses for clothing or hair care although Mr. Kasali attended court everyday well groomed and sharply dressed.
37Mr. Kasali shows no bank accounts on his financial statement. Under questioning he stated that he closed all of his bank accounts in October 2018. He testified that he now brings his cheque from his pension and cashes it at BMO each month. It is an unusual action to take. It is 2019. The days of cash transactions are waning. As a former bank executive Mr. Kasali is well aware of the limitations of cash transactions. I find it very difficult to believe that he has no bank accounts.
38Mr. Kasali did not provide disclosure for his three businesses. The first business is Knightbridge Lane Consulting Group. It was started in 2011. Mr. Kasali testified that it has no income.
39The second business is Kipling Knights Capital Group. It was registered in August 11, 2014. According to Mr. Kasali it is an active business. It was set up for investment purposes. He testified that it has no income. Two income tax returns were provided for the taxation years August 11, 2014 – September 30, 2014 and October 1, 2015 – September 30, 2016. No income was reported in the tax returns.
40The third business is Advanced Corporation Group. Mr. Kasali stated that it was registered September 19, 2016. According to the website, it was set up as a financial services company specializing in receivable factoring, invoices discounting and structured settlement financing. He testified that it has no income.
41Mr. Kasali testified that none of his businesses ever had any income. Specifically there was no income for any business in 2011, 2012, 2013, 2014, 2015 2016, 2017 and 2018. It begs the question why would someone pay for incorporations of businesses that have no income.
42Ms. Michaud presented a webpage for Knightsbridge Lane Consulting Group which listed the cell phone of Mr. Kasali and an address at 69 Montgomery Street in New Jersey. Mr. Kasali confirmed the number was his cell phone but denied ever operating the business in Jersey City or living there. In the November 2013 trial, when confronted with a New Jersey licence plate on his Mercedes, he testified under oath that the Mercedes was not his and was a friends. The friend was not identified. Evidently he forgot that testimony as he now acknowledges he owned the Mercedes but he failed to explain the license plate.
43Mr. Kasali denied ever owning a property on Tiger Drive, Califon, New Jersey. In the trial before Justice McGee in November 2013 a text message from his daughter to her mother confirmed she was at her father’s home at 9 Tiger Drive when visiting her father in the United States.
44In the trial before Justice McGee in 2015 the issue of 9 Tiger Drive came up again. There was overwhelming evidence that he resided there. Indeed, Justice McGee made an order dated July 4, 2016 that was supplemental to her trial decision dated January 25, 2016 that states, in part: “As set out in reasons released January 25, 2016, the Respondent realized capital gains of $143,000 (converted from $129,500 USD) from the sale of 9 Tiger Dr., Califron, New Jersey.” … “The Respondent’s submissions persuade me that the capital gain on 9 Tiger Dr., Califon is not taxable.” Google searches filed with the court also confirmed an association between Mr. Kasali and both 69 Montgomery and 9 Tiger Drive. It is puzzling why Mr. Kasali continues the ruse.
45It is Mr. Kasali’s obligation to provide accurate financial disclosure. I find that he has failed to do so while under a legal obligation per Rule 19(1)(f) of the Guidelines.
New Financial Information
46Since his retirement the only income Mr. Kasali acknowledges is his pension income. That income, he reports, has been: $10,556 in 2013; $10,768 in 2014; $12,085 in 2015; $11,948 in 2016 and $12,034 in 2017.
47Despite all of the obstacles confronting her, Ms. Michaud was tenacious. She was able to obtain financial information from the IRS for a Bill Kasali / Bill L. Kasali.
48First, because Mr. Kasali indicated he never worked in the United States, he said he had no Social Security Number. Ms. Michaud hired a private investigator. By providing the name and birthdate (August 20, 1953) of Mr. Kasali as well as the two US addresses linked to him, (9 Tiger Drive and 69 Montgomery Street, New Jersey) she was provided a social security number.
49In the brief window that the authorizations were effective, she was able to obtain from the IRS, using the social security number, the following information:
(a) The IRS statement for 2012 for a Bill L. Kasali shows income of $332,613 US and taxable income for 2012 in the amount of $276,497 US.
(b) The IRS statement for 2013 for a Bill L. Kasali shows income in the amount of $334,499 US and taxable income for 2013 in the amount of $296,009 US.
(c) The IRS statement for 2014 for a Bill Kasali, 69 Montgomery Street, Jersey City, New Jersey shows income of $252,509 US and taxable income for 2014 in the amount of $224,866 US.
(d) The IRS statement for the 2015 tax year for a Bill Kasali, 69 Montgomery Street, Jersey City, New Jersey shows income of $34,315 and taxable income in the amount of $24,554 US.
(e) The IRS statement for the 2016 tax year for a Bill Kasali, 69 Montgomery Street Jersey City, New Jersey shows income of $24,396 and taxable income in the amount of $9,674 US.
(f) The IRS statement for 2017 for a Bill Kasali, 69 Montgomery Street, Jersey City, New Jersey shows no taxable income for 2017.
50Mr. Kasali indicates the income tax returns from the IRS belong to someone other than him. No explanation is offered to explain the remarkable coincidence other than to suggest there is another Bill Kasali, that has the same birthdate, living in the US, associated with 9 Tiger Drive and 69 Montgomery Street.
51Also unexplained is the Google search for the name William Kasali which indicates the two street addresses associated with the name at 9 Tiger Drive and 69 Montgomery Street. There were no other William Kasali’s in the US that came up on the Google search.
52What is most persuasive in determining that this is the same Mr. Kasali is the CRA Notice of Assessment for Mr. Kasali for the tax year (2013) which indicates that there was, in addition to his $10,556 income, “Foreign Net World Income while not a Canadian Resident” in the amount of $344,761. The $344,761 of foreign income is very close to the IRS statement of $334,499 income for Mr. Kasali.
53No foreign income is reported in Notices of Assessment from CRA going forward. One can only conclude that CRA was not advised. Not surprisingly, given the history of this case, Mr. Kasali did not disclose the $344,761 of foreign world income at the 2013 trial nor at the 2015 trial when his income was scrutinized.
54Mr. Kasali attempted to provide an explanation for the $344,761 foreign income. He stated that it was money from an investment as he was part of a pool that purchased houses. He provided not one document in support of this assertion.
55On a balance of probabilities, I conclude that Mr. Kasali was working in the US as either an employee or operating a business. Mr. Kasali has a graduate degree in finance and worked in the banking field in a senior capacity for many years. His testimony that he applied for many positions without success and that he continues to apply for positions was not supported by an updated résumé nor a list of businesses and locations that he applied for work. It seems that after 8 years of search an individual with his experience and education should have been able to find a position in some capacity. Mr. Kasali is 65 years old. His financial statement does not reflect any CPP or OAS. It is counter-intuitive to think that someone on such a modest pension would not avail himself of the opportunity to collect his CPP. This explains the evasiveness in his financial documentation, the hiding of his US residence, the uncertainty over any Canadian residence, the closing of his bank accounts, the New Jersey license plate on his Mercedes, and his daughter’s text about their location.
56In that same 2013 CRA Notice of Assessment, there is a notation for $88,000 owed in taxes. In testimony Mr. Kasali provided a convoluted, sometimes contradictory, explanation of the $88,000. Initially he testified that it was five years of bonuses that he had not paid taxes on. Later he explained that it was simply tax deferral of reported income. I do not have a sufficient evidentiary record to conclude that this was income not already reported and I am not satisfied that it is from the years subject to review.
57In assessing credibility, I found Ms. Michaud’s testimony to be straightforward and believable. She presented evidence of Mr. Kasali’s income supported by documentation.
58By contrast, throughout his testimony, Mr. Kasali was vague and evasive. He could not answer even the simplest questions in a manner that was straightforward and candid.
59Further, Mr. Kasali’s evidence at trial was inconsistent with his sworn testimony in earlier trials. In particular his evidence about his residence and the ownership of the Mercedes with New Jersey plates was contradictory.
60Justice McGee determined that in 2009 Mr. Kasali earned $162,512. No new or additional financial information was presented that would persuade me that this number should be altered.
61Justice McGee determined that in 2010 Mr. Kasali earned $162,512. No new or additional financial information was presented that would persuade me that this number should be altered.
62On December 17, 2010, Mr. Kasali received a severance package from the Bank of Montreal. The package bridged him to a 2012 retirement date. Justice McGee determined that in 2011 his income was $203,228. No new or additional financial information was presented that would persuade me that this number should be altered.
63Justice McGee imputed income to Mr. Kasali for 2012 in the amount of $139,679. I am satisfied on the evidence before me that his actual income for 2012 was $276,497 US plus $10,556 CDN.
64Justice McGee imputed income to Mr. Kasali for 2013 in the amount of $54,909. I am satisfied on the evidence before me that his actual income for 2013 was $296,009 US plus $10,556 CDN.
65Justice McGee imputed income to Mr. Kasali for 2014 in the amount of $54,909. I am satisfied on the evidence before me that his actual income for 2014 was $224,866 US plus $10,768 CDN.
66Justice McGee imputed income to Mr. Kasali for 2015 in the amount of $54,909. I am satisfied on the evidence before me that his actual income for 2015 was $24,554 US plus $12,085 CDN.
67Justice McGee imputed income to Mr. Kasali for 2016 in the amount of $54,909. I am satisfied on the evidence before me that his actual income for 2016 was 9,674 US plus $11,948 CDN.
68Justice McGee imputed income to Mr. Kasali for 2017 in the amount of $54,909. No new or additional financial information was presented that would persuade me that this number should be altered.
69Justice McGee imputed income to Mr. Kasali for 2018 in the amount of $54,909. No new or additional financial information was presented that would persuade me that this number should be altered.
70Section 20(1) of the Child Support Guidelines, SOR/97-175, provides that where a parent is a non-resident of Canada, the parent's annual income is determined as though the parent were a resident of Canada. In Bennett v. Bonatsos, 2014 ONSC 1048, at para. 22, Templeton J. provided guidance on the conversion of U.S. dollars to Canadian dollars for the purposes of determining income: “The highest and lowest exchange rates for each year are available on the Bank of Canada website. I find that it is reasonable to use an average of the highest and lowest rates for each calendar year to calculate the appropriate exchange rate to be applied to Mr. Bennett's income in order to convert it from American to Canadian currency.” Neither party provided submissions on the appropriate method of conversion. I agree with the approach of Templeton, J.
71The below chart indicates the low, high, and average exchanges rates used for the calculation of income attributed to Mr. Kasali for the years 2012 – 2018.
| Year | Low ER | High ER | Average | US Income | CAD Conversion | Add’l CAD Income | Total Income |
|---|---|---|---|---|---|---|---|
| 2012 | 0.0971 | 1.0418 | 1.0064 | $ 276,497 | $278,266.58 | $10,556 | $288,823 |
| 2013 | 0.9839 | 1.0697 | 1.0268 | $296,009 | $303,942.04 | $10,556 | $314,498 |
| 2014 | 1.0614 | 1.1643 | 1.11285 | $224,866 | $250,242.13 | $10,768 | $261,010 |
| 2015 | 1.1728 | 1.399 | 1.2859 | $24,554 | $31,573.99 | $12,085 | $43,659 |
| 2016 | 1.2544 | 1.4589 | 1.35665 | $9,674 | $13,124.23 | $11,948 | $ 25,072 |
| 2017 | $54,909 | ||||||
| 2018 | $54,909 |
72In terms of section 7 expenses, Ms. Michaud operates her own business which is a hair salon. In her order released in 2013 Justice McGee found the mother’s income to be $52,000 per annum. In her decision released January 25, 2016, Justice McGee citing evidentiary difficulties states “No order for the payment of a proportionate share of section 7 expenses can be made absent an after-tax budget for those expenses, proof of the mother’s income, and evidence of the daughter’s means to contribute.” [10] This evidence was not presented at this trial. Regardless, as will be seen below Tina’s support terminates effective January 1, 2017 and Anthony’s terminated April 30, 2018. Accordingly, I shall not make an order for section 7 expenses.
Termination Date for the Child Support Obligation
73Anthony graduated from high school and then enrolled at York University. He completed the 2017 – 2018 academic year. He then ceased being a full time student. He is interested in music production. Anthony turned 20 on March 6, 2019. He now works full time. Mr. Kasali’s obligation to support Anthony ended on May 1, 2018.
74Tina finished high school and enrolled at the University of Toronto. She completed the 2014 – 2015 academic year while living at home.
75During the 2015 – 2016 academic year Tina was in residence during the fall semester and, in January 2016, she moved into an apartment. For two of her four semesters she took four out of five courses. Ms. Michaud testified that Tina spent a lot of time at home and that she contributed to her care and maintenance.
76During the summer of 2016 Tina took one summer course. Tina enrolled in studies in the fall of 2016. There was evidence that Tina experienced a personal tragedy that impacted her ability to concentrate in school. Her roommate committed suicide and this was extremely distressing for Tina who, in her recovery, spent a lot of her time at home with Ms. Michaud. As a result of her lack of attendance at school she failed her semester. She did not return to school for the winter semester in January 2017. I have determined that Tina was a dependent and deserving of support until the end of the fall semester in 2016. Mr. Kasali’s obligation to support Tina ended on January 1, 2017.
Order
77I make a Final Order that:
Commencing January 1, 2012 and payable on the first day of each month thereafter, Mr. Kasali will pay $3,743 per month for the support of Tina and Anthony in accordance with the Guidelines and on the basis of an annual income of $288,283 (CAD) which income was calculated using the average currency exchange rate of 1.0064 for 2012 and applied to Mr. Kasali's income of $276,497 (USD) plus his Canadian income of $10,556;
Commencing January 1, 2013 and payable on the first day of each month thereafter, Mr. Kasali will pay $4,051 per month for the support of Tina and Anthony in accordance with the Guidelines and on the basis of an annual income of $314,498 (CAD) which income was calculated using the average currency exchange rate of 1.0268 for 2013 and applied to Mr. Kasali's income of $296,009 (USD) plus his Canadian income of $10,556;
Commencing January 1, 2014 and payable on the first day of each month thereafter, Mr. Kasali will pay $3,409 per month for the support of Tina and Anthony in accordance with the Guidelines and on the basis of an annual income of $261,010 (CAD) which income was calculated using the average currency exchange rate of 1.11285 for 2014 and applied to Mr. Kasali's income of $224,866 (USD) plus his Canadian income of $10,768;
Commencing January 1, 2015 and payable on the first day of each month thereafter, Mr. Kasali will pay $650 per month for the support of Tina and Anthony in accordance with the Guidelines and on the basis of an annual income of $43,659 (CAD) which income was calculated using the average currency exchange rate of 1.2859 for 2015 and applied to Mr. Kasali's income of $24,554 (USD) plus his Canadian income of $12,085;
Commencing January 1, 2016 and payable on the first day of each month thereafter, Mr. Kasali will pay $377 per month for the support of Tina and Anthony in accordance with the Guidelines and on the basis of an annual income of $25,072 (CAD) which income was calculated using the average currency exchange rate of 1.35665 for 2016 and applied to Mr. Kasali's income of $9,674 (USD) plus his Canadian income of $11,948; Support for Tina ceases on January 1, 2017;
Commencing January 1, 2017 and payable on the first day of each month thereafter, Mr. Kasali will pay $506 per month for the support of the Anthony in accordance with the Guidelines and on the basis of an annual income of $54,909 (CAD);
Commencing January 1, 2018 and payable on the first day of each month thereafter until support ceases on April 20, 2018, Mr. Kasali will pay $506 per month for the support of the Anthony in accordance with the Guidelines and on the basis of an annual income of $54,909 (CAD).
Costs
78If the parties cannot agree on the issue of costs, I shall consider the request for costs. The Applicant shall serve on the Respondent and file in the Continuing Record her written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Respondent shall serve on the Applicant and file in the Continuing Record his written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle within 15 days thereafter. The Applicant’s Reply, if necessary, shall be within 5 days of the delivery of the Respondent’s written submission and limited to one page. If no submissions are received within the time period set out herein, there will be no costs.
Justice G.A. MacPherson
Date Released: July 4, 2019
Footnotes
4Never produced for the purchase of 14 Aukland Lane, King City, or 9 Tiger Court – although Mr. Kasali denies owning the latter.
5Schedule A required production of missed chequing account statements for both the U.S. chequing account and Mr. Kasali’s personal chequing account.
6He stated on November 28, 2013 that his request for a PIN was rejected because his address did not match that on record. If so, it is a dilemma of his own making. Since the sale of Aukland Lane, King City on Jan 31, 2012, his address has been reported differently to his employer, CRA, and this court.
7Mr. Kasali stated under oath to the court on November 28, 2013, that the original notices of assessment will read the same as the copies that he submitted. This is recorded for the purposes of any future review.
8$27,774 of other stocks were included in his November 2013 Financial Statement – see paragraph 38 below.
9The proceeds of which were divided between the parties. Mr. Kasali used his share to purchase 14 Aukland Lane, King City.
10Supra, footnote *, para. 64.
