KH v RH

¶ 1 2 3 4 ## CAUSENO.FAM0122OF2018 <!-- image --> | 5 | BETWEEN: | KH | | |------------------------|----------------------------|-----------------------------------------------------------------------------------------|-----------------------------------------------------------------| | 6 7 8 9 10 11 12 13 14 | AND: RH Appearances: | Ms.SheridanBrooks Q.C.of Brooks&Brooks for thePetitioner Respondent in Person | PETITIONER RESPONDENT | | 17 | Before: | | The Hon. Justice Cheryll Richards Q.C. 13thand23rdSeptember2019 | | 18 19 | Hearing: | | | | 20 21 | Draft Judgment Circulated: | 7th February 2020 | | | 23 24 25 | | FamilyLaw-Final Ancillaries,applicableprinciples,Inferencestobedrawn fromnon-disclosure | | | 27 | JUDGMENT | | | | 28 | | | | | 29 | | | | | 30 | | | | ## THEGRANDCOURTOFTHECAYMANISLANDS FAMILYDIVISION T 2 3 4 5 9 7 8 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ## INTRODUCTION <!-- image -->

¶ [1] Thisis an applicationforadecision onFinal AncillariesfollowingthefilingofaPetition for divorce by KH, ("the wife") on the 27th April 2018. The Respondent RH, ("the husband") acknowledged service on the5th May 2018 and indicted an intention not to defend.ThePetition was ordered proved on the17th May 2018.

¶ [2] BothpartiesareJamaicannationals.Theyweremarriedonthe18thDecember2006in Kingston, Jamaica. This is a marriage of some twelve years. The husband is now forty years of age.The wife is four yearsyounger at thirty-six years of age.In 2008 they migratedtotheCaymanIslandswhere thehusband,whois ateacherbyoccupation,had securedemployment.Atthattimethewifedidnothaveadegreeinteaching.Overthe years she worked periodically at other jobs in schools,including as a Teaching Assistant, before completing her degree in teaching in early 2018.

¶ [3] The only child of the marriage is a daughter K who was born on the 27th August 2011. Sheisnow8yearsold andattends alocalpublicschool.ByConsentOrderdatedthe 11tApril 2019,made by Williams J.,a soleresidence order was made in favour of the wifewithflexiblecontactwithKtothehusband.Thetermsandfrequencyofcontact are to be agreed between the parties. By earlier Consent Order made by Carter J. Ag, on the 28th November 2018, the husband pays $250.00 per month for maintenance of K, and one half of the monthly mortgage, strata fees and household expenses in respect of the former matrimonial home (FMH) at Block 20D Parcel 408H53, Silver Oaks Apartment in George Town, Grand Cayman. 26 | 1 | 4. | In March 2018,the husband was granted Permanent Residency (PR) with the right to | In March 2018,the husband was granted Permanent Residency (PR) with the right to | In March 2018,the husband was granted Permanent Residency (PR) with the right to | |-------|------|----------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------| | 2 | | work. The wife and childwere named on his grant as his dependents.Following the | work. The wife and childwere named on his grant as his dependents.Following the | work. The wife and childwere named on his grant as his dependents.Following the | | 3 | | service uponhimof thedivorce Petition inMay2018,thehusbandadvised the | service uponhimof thedivorce Petition inMay2018,thehusbandadvised the | service uponhimof thedivorce Petition inMay2018,thehusbandadvised the | | 4 | | Department of Immigration of the breakdown of themarriage. He says that he did so in | Department of Immigration of the breakdown of themarriage. He says that he did so in | Department of Immigration of the breakdown of themarriage. He says that he did so in | | 5 | | accordance with his duties under s.30 (19) of the Immigration law. Consequently, the | accordance with his duties under s.30 (19) of the Immigration law. Consequently, the | accordance with his duties under s.30 (19) of the Immigration law. Consequently, the | | 6 | | wife has been removed as a dependent of his,while his daughter remains so named. | wife has been removed as a dependent of his,while his daughter remains so named. | wife has been removed as a dependent of his,while his daughter remains so named. | | 7 8 | 5. | The husband has two other children in Jamaica,a daughter A,born 13th January 1998, | The husband has two other children in Jamaica,a daughter A,born 13th January 1998, | The husband has two other children in Jamaica,a daughter A,born 13th January 1998, | | 9 | | now 22years old and a son R,born12th April 2005,now fourteenyears old.A is in her | now 22years old and a son R,born12th April 2005,now fourteenyears old.A is in her | now 22years old and a son R,born12th April 2005,now fourteenyears old.A is in her | | 10 | | final year of tertiary education and Ris inHigh School.These children residewith their | final year of tertiary education and Ris inHigh School.These children residewith their | final year of tertiary education and Ris inHigh School.These children residewith their | | 11 | | | | | | 12 13 | 6. | The wife does not seek spousal maintenance.The issuesfor determination are: | The wife does not seek spousal maintenance.The issuesfor determination are: | The wife does not seek spousal maintenance.The issuesfor determination are: | | 14 | | | i. The appropriate level of maintenancefor the child of the marriageK. | i. The appropriate level of maintenancefor the child of the marriageK. | | 15 | | | ii.The distribution of real property: | ii.The distribution of real property: | | 16 | | | a. | TheFMH atSilverOaks. | | 17 | | | b. | Two single familyresidences located atBridgeport,St Catherine | | 18 | | | | Jamaica. | | 19 | | | C. | Propertylocated atRiversideDrive,HarbourView,Jamaica. | | 20 | | | d. | An apartment on property located atMeadowbrook Estate, | | 21 | | | | Kingston, Jamaica. | | 22 | | | ii.Distributions of pensionentitlements and other assets. | ii.Distributions of pensionentitlements and other assets. | | 23 | | | iv.Distribution of motorvehicles. | iv.Distribution of motorvehicles. | | 24 | | | | | | 25 | | | | | <!-- image --> ## 1 THEPOSITIONSOFTHEPARTIES - 2 7. The singleitem of agreement between the parties is that each should retain their 3 respective motor vehicles.There are disagreements in all other areas. 4 - 5 8. Thewife'spositionisthatthehusband shouldpay$8oo.o0permonthformaintenance 9 of K; that subject to the husband paying any arrears of mortgage and strata payments, 7 theFMHshould be transferredtoherso thatshecancontinuetoresidetherewithK; 8 that the Bridgeport property should be transferred to her solely and if necessary she 6 would pay the husband his share of the equityin the propertywith bothbeingresponsible 10 for any arrears; and that the two other properties be retained by the husbandwith the 11 equity in each divided equally between them. It is her position that, should the above 12 arrangements be put in place, the respective pension amounts should be divided equally. 13 If the above arrangements are not put in place,her position is that the pension amounts 14 should bedivided equally. 15 16 17 18 19 20 21 22 23 24

¶ [9] The husband'sposition is that given the level of earnings of thewife and theneeds of K.,$5oo.o0is a reasonable sumfor themaintenance ofK.He agrees that theFMH and the property at Bridgeport are jointly owned by both of them and should be shared equally between them by one paying the other. He says that the properties at Riverside Drive andMeadowbrook are theproperties of hisfamilyin Jamaicawho havemade contributions to them and arenotmatrimonial property.TheRiversideDriveproperty wassoldinearly2018unknowntothewifeandthereismuchdisputeaboutthe circumstancesofthe acquisitionandsaleofthisproperty. <!-- image --> | 1 | 10. | The husbandhasmadeofferstoresolvethematter.Hehassuggested tothewifethatshe | |-------|------------------------|--------------------------------------------------------------------------------------------| | 2 | | should retain the formermatrimonial home and hewould retain theBridgeport property. | | 3 4 | 11. | Thewifeargues thatthehusband’sofferfailstotakeaccountofthefactthatall the | | 5 | | properties are infact matrimonial property and that it denies her the option of having an | | 9 | | incomegeneratingpropertyinJamaicawhichcanbeusedbyhertoassistwiththe | | 7 | | maintenance of Kpresently and,even more so,once the mortgage payments are | | 8 | | completed.It is herposition as suggested to the husband in cross examination that it | | | | would befairforhertohave theBridgeport propertyso thatshewouldhaveanincome- | | 10 | | | | 11 | | paymentswill notbe completed until2038and that presentlythe surplus income after | | 12 | | the rental amounts are put towards the mortgage is about CI$60.00. | | 13 14 | 12. | With respect to pensions and other assets,including motor vehicles,the husband’s | | 15 | | position is that each should retain their respective assets. | | 16 | | | | 17 | THESTATUTORYPROVISIONS | THESTATUTORYPROVISIONS | | 18 | 13. | The Court's powers in respect of these ancillary proceedings are contained in s.19 and | | 19 | | s.21oftheMatrimonialCausesLaw(2005Revision). | | 20 | | | | 21 | 14. | Section 19 provides that in dealing with all ancillary matters arising under this Law, the | | 22 | | Court shall have regard,firstof all, to the best interests of any children of a marriage | | 23 | | and,thereafter,tothereponsibilities,needs,financial and otherresources,actualand | | 24 | | potential earning power and the deserts of the parties. | 25 <!-- image --> | 1 | 15. | Section21providesthatatthe timeofpronouncinga decreeunder thisLaw,theCourt | |---------------------------------|-------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 2 | | shall, as appropriate, make orders for: | | 3 | | | | 45 6 7 8 9 10 11 12 13 14 15 16 | | (0)， thecustody,careand controlofthechildrenofthemarriage; (b) thedispositionofmatrimonialproperty,includingthematrimonial home; () varyinganysettlementofthepropertyofthespousesmadein considerationofthemarriage,whethersuchsettlementwasmade beforeorupon thetreaty of thesaidmarriage. (P) (e) makingfinancialprovisionfromthepropertyofeitherspousefor thechildrenofthemarriageandfortheotherspouse; ( benefitofthechildrenofthemarriageandfortheotherspouse;and (g) costs." | | 17 | 16. | The subsections which are most relevant to this application are (b) and (e). | | 18 | | | | 19 | 17. | There is guidance from the CaymanIslands Court of Appeal(CICA)in the caseof | | 20 | | McTaggart v.McTaggart as to the interrelationship between these two provisions of | | 21 | | theLawand their application.Thisincludes thatacourtwillneed to considerwhether | | 23 | | | | 24 | | regard to their needs,the level of compensation and sharing.If disposition of | | 25 | | court shouldgoonto considerwhether tomake anorder under s.21(e) thatfinancial | | | | matrimonialpropertywillnotallowfortheappropriateprovisiontobemade,thenthe | | 26 | | | | 27 | | provisionbemadefrom thepropertyof either spouse.Acourt should notmake an order | | 28 | | for periodic payments under s. 21(f) without good reason.Such good reason would arise | 1 McTaggart y. McTaggart [2011](2) CILR 390 <!-- image --> | 1 | | where the combination oforders unders.21(b) and(e)areinsufficient tosatisfythe three | where the combination oforders unders.21(b) and(e)areinsufficient tosatisfythe three | |-------------------------------------------------------------------|-----|-----------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 2 | | strands of need, compensation and sharing2. | strands of need, compensation and sharing2. | | | | 3 | | | 4 | 18. | Additionally the appellate Court madeit clear that although the s.19factors areless | Additionally the appellate Court madeit clear that although the s.19factors areless | | 5 | | extensive than thoseinEnglandandWales,intheMatrimonialCauseAct1973as | extensive than thoseinEnglandandWales,intheMatrimonialCauseAct1973as | | 9 | | amended bytheMatrimonialandFamilyProceedingsAct1984,the approachinthe | amended bytheMatrimonialandFamilyProceedingsAct1984,the approachinthe | | 7 | | CaymanIslands should be the same asin that jurisdiction.A court in exercisingits | CaymanIslands should be the same asin that jurisdiction.A court in exercisingits | | 8 | | powers under thestatutory provisions should therefore consider all the circumstances of | powers under thestatutory provisions should therefore consider all the circumstances of | | 9 | | a case to include the following: | a case to include the following: | | | | 10 | | | 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 | | | (D), theincome,earning capacity,property and other financial resourceswhicheachofthepartiestothemarriagehasorislikely tohaveintheforeseeablefuture,includinginthecaseofearning ofthecourtbereasonabletoexpectapartytothemarriagetotake stepstoacquire; (b) thefinancialneeds,obligationsandresponsibilitieswhicheachof thepartiestothemarriagehasorislikelytohaveintheforeseeable future; () thestandardoflivingenjoyedbythefamilybeforethebreakdown ofthemarriage; (P) theageofeachpartytothemarriageandthedurationofthe marriage; (e) anyphysicalormentaldisabilityofeitherofthepartiestothe marriage; (# thecontributionswhicheachofthepartieshasmadeorislikelyin theforeseeablefuturetomaketothewelfareofthefamily,including anycontributionbylookingafterthehomeorcaringforthefamily; (g) theconductofeachoftheparties,ifthatconductissuchthatit wouldintheopinion ofthecourtbeinequitabletodisregardit; (h) in thecaseofproceedingsfordivorce...thevaluetoeach of the partiestothemarriageofanybenefitwhich,byreasonofthe | 2 McTaggart v. McTaggart [2011] (2) CILR 390 - Paragraphs 42 and 43 4Statutory Factors in England and Wales 3 McTaggart v. McTaggart [2011] (2) CILR 390 - Paragraph 39 <!-- image --> 35 ## 1 APPLICABLEPRINCIPLES - 2 19.In considering the division of matrimonial property pursuant to s.21 of the Matrimonial - 3 CausesLaw(2005Revision)acourtshouldfirstdeterminewhatconstitutesmatrimonial 4 property.s 5 - 9 20. The leadingcasesfromEnglandandWaleswhichhavebeencitedwith approval in this 7 jurisdiction are the casesofWhite andWhiteand Millerv.Miller,McFarlanev. 8 McFarlane.In White and White,Lord Nicholls of Birkenhead stated that fairness 9 requiresthecourttotakeintoaccountall thecircumstancesof thecase.Thelearned Judgeunder the headingof equality stated: - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 "But thereisoneprincipleofuniversalapplicationwhichcanbestatedwith confidence.Inseekingtoachieveafairoutcome,thereisnoplacefordiscrimination betweenhusbandandwifeandtheirrespectiveroles.Typically,ahusband andwife sharetheactivitiesofearningmoney,runningtheirhomeandcaringfortheir children.Traditionally,thehusbandearnedthemoney,and thewifelooked afterthe homeandthechildren.Thistraditionaldivisionoflabourisnolongertheorderof theday.Frequentlybothparentswork.Sometimes it is thewifewhoisthemoneyearner,andthehusbandrunsthehomeandcaresforthechildrenduringtheday. Butwhateverthedivisionoflabourchosenbythehusbandandwife,orforcedupon thembycircumstances,fairnessrequiresthatthisshouldnotprejudiceoradvantage eitherpartywhenconsideringparagraphf),relatingtotheparties'contributions. This is implicit in thevery language of paragraph (f):'..the contributionwhich each hasmadeorislikely...tomaketothewelfareofthefamily,includingany contributionbylookingafterthehomeorcaringforthefamily.'If,intheirdifferent spheres,eachcontributedequallytothefamily,theninprincipleitmattersnotwhich ofthemearnedthemoneyandbuiltuptheassets.Thereshouldbenobiasinfavour ofthemoney-earnerandagainstthehome-maker and thechild-carer." <!-- image -->

¶ [21] Thisimportantprinciple that there isno placefor discrimination betweena husband and wife and their respective roles in considering division of financial property was reiterated 5SeeWightv.Wight [2010] CILR60 and MTaggart v.MTaggart [2011] (2)CILR390-paragraph34,B-Hv.H. [2009] CILR185 [2006]UKHL24 [2000]UKHL J1026-3 - 1 in the caseofMillerv.Miller,McFarlanev.McFarlane.Thehomemakerroleshould - 2 be given equal weight.Additionally a court should consider the three strands of need, - 3 compensationandsharingwhichshouldguidethecourtin arrivingatafairdivisionof 4 property on the dissolution of a marriage. 5 9 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

¶ [22] In his judgment in that case, Lord Nicholls of Birkenhead stated that fairness requires that when a partnership ends,each partner is entitled to an equal share of the assets of the partnership unless there is good reason to depart from equality. The learned Judge emphasized that the yardstick of equality is not a rule but an aid.8

¶ [23] The learnedJudge further stated that there isareal differencebetween matrimonial property andnon-matrimonial property andpointed to the difference beingthe source of the acquisition.Propertywhich is acquired during the marriage otherwise than by inheritance or gift would usually be matrimonial property.Matrimonial property is the "financialproduct oftheparties'common endeavor."Astothematrimonial home,the Learned Judge said this: <!-- image --> "Theparties'matrimonial home evenifthiswasbroughtintothemarriage at theoutsetbyoneoftheparties,usuallyhas a centralplaceinany marriage.Soitshouldnormallybetreatedasmatrimonialpropertyforthis purpose.Asalreadynoted,inprinciple the entitlement ofeachpartytoa shareofthematrimonialpropertyisthesamehoweverlongorshortthe marriagemayhavebeen."

¶ [24] The Learned Judge went on to say that the position is different with regard to nonmatrimonialproperty.This ispropertywhichthepartiesbringwith them intothe property,thedurationofthemarriagemaywellberelevantalthoughthismaytake secondplace to theneedsof theparties. Miller v.Miller,McFarlanev.McFarlane[2006]UKHL24-Paragraphs16and17 - 1 25. In discussing the approach which should be taken to the question of contributions, - 2 BaronessHaleofRichmond in herjudgmentinthesaidcase concluded that theseshould - 3 be approachedinmuch thesamewayasconduct,towit thatitwasofsuchalevel thatit - 4 wouldbeinequitabletodisregardit.ThelearnedJudgestated: 56７ 9 8 10 11 12 13 14 15 16 17 18 19 20

¶ [26] In McTaggart v. McTaggart'°, the Appellate Court provided guidance as to the way in which a Court should approach the issue of what is matrimonial property under s.21 of the Law: 21 "It canbe seen thatthesection gives recognition totheconcept of 22 "matrimonialproperty."Thatconcept isnot definedin the Matrimonial 23 CausesLaw,butitisgenerallyunderstood inthesensedescribed byLord 24 NichollsofBirkenheadin Millerv.Miller(5),thatistosay,it comprises 25 "propertyacquiredduringthemarriageotherwisethanbyinheritanceor 26 gift" ([2006] 2 A.C. 618, at para. 22). Its distinguishing feature is that it is 27 "thefinancial product of theparties'commonendeavour11 28 - 29 27. The Court further stated: 30 "It isnecessary thereforetoidentifythoseassetswhich areownedorunder 31 thecontrolofoneorother（orboth)ofthepartiesasatthedatewhenthe 32 orderismadeandthentoidentifywhichofthoseavailableassetsare 33 34 s.21(6).12 9Miller v.Miller,McFarlane v.McFarlane2006] UKHL 24-paragraph 146 10[2011] 2CILR377 Taggat vTaggart,ura atPa "ColeridgeJ'swordswererightlyinfluential inthelaterretreatfromtheconcept ofspecialcontributionsinLambertv.Lambert[2003]Fam103.It hadalreadybeen madeclearinWhitev.White[2001]1AC596thatdomesticandfinancial contributions shouldbe treatedequally.Section25(2)6)ofthe1973Act doesnot refertothecontributionswhicheachhadmadetothepartiesaccumulatedwealth buttothecontributionstheyhavemade(andwillcontinuetomake)tothewelfare ofthefamily.Eachshouldbeseen asdoingtheirbestintheirownsphere.Onlyif thereissuchadisparityintheirrespectivecontributionstothewelfareofthefamily thatitwouldbeinequitabletodisregarditshouldthisbetakenintoaccountin determining their shares."9 <!-- image --> <!-- image --> Thepowerconferredunders.21(b)oftheLaw isa power"to make anorder for thedispositionofmatrimonial property."Thereisnorequirement under theLawthatthedispositionshouldgiveeffecttoanequaldivisionofthe matrimonialpropertyasbetweentheparties;andthereisnoinvariablerule thatthepowershouldbeexercisedinamannerwhichachievesthateffect. Therequirement—imposedbys.19of theLaw—isthat,inexercising the power,thecourtshallhaveregardtotheresponsibilities,needs,financial andotherresources,actualorpotentialearningpower andthedesertsofthe divisionof the matrimonial propertyas between the parties.The ordermade inWightv.Wight(1l)—andupheldinthis court—provides anexampleof such a case.InMiller(5) ([2006]2A.C.618atpara.16),Lord Nichollsobserved that"theyardstickofequality istobe appliedasan aid,notarule."But,as Lord Nichollshad pointed out in Whitev.White(10)([2001] 1 A.C.596,at 605)—in a passage expressly adopted by Lord Cooke of Thorndon (ibid., at 615)—as ageneralguide,equalityshould bedepartedfrom only if,and to theextent that,thereis good reason for doingso." ## 28.In Valerie Gordon v. Jefferson Watlerl3, the Appellate Court stated: "The correct approach, as I have indicated, was to ask what provision shouldbemadeforthewifeinordertorecognisethethreestrandsofneed compensationandsharing.Ifadivisionofthematrimonialpropertycould meet thoseneeds,then it was unnecessary togofurther.But if andsofar as adivisionofthematrimonialpropertycouldnotmeetthoseneeds,thenit wouldbenecessarytoconsiderwhethertomakeanorderundersection21 (e)inrespect ofthe husband's other assets." ## 29. On theissue of contributions,the Court stated: "If she were going to take that course,she needed to have in mind the observationsoftheCourtofAppealofEnglandandWalesinCharmanv Charman(No4).Inthejudgmentofthecourt,deliveredbySirMarkPotter, Presidentof theFamilyDivision,it wasexplained(atparagraphs[78]- 13CICACivil13/2014-22ndAugust20140 "There may be cases (of which, as I shall explain, the present provides an exampleinrelationtothehusband'spotentialretirementbenefits)wherean assetwhichdidexistatthedateoffinalseparationdoesnotexist—ordoesnot existinthesameform—atthedateofthehearing.Insuchcasesitwillbe necessarytoconsiderwhethertheformerassetcanbetracedintoanafteracquiredassetwhichcanitselfbetreated(inwholeorinpart)asmatrimonial property;and,ifnot,whethersomeotherorder(say,unders.21(e))shouldbe madetoreflectthefactthattheformerassethasceasedtoexist. whichthewealthwassolargethattherecould benoquestionbutthatequal divisionwouldmorethanprovidefortheelementsofneedand compensation.Insuchacaseitmightbeappropriatetodepartfrom the principleofequalsharingwhichwouldgovernnormallytheapproachto thesharingelementofthethreestrandsincircumstanceswhereequity requiredsomerecognitiontobegiventothespecialcontributionmadeby onepartyortheother.ThecourtreferredtothedecisionofLordJustice ThorpeinLambertv.Lambert[2002]EWCACivil1685,2003,1FamLR 139atpara.[52];inwhichit hadbeenpointedout that theremaybecases wheretheproductalonejustifiestheconclusionofaspecialcontribution, but that,absentsomeexceptional andindividualqualityinthegeneratorof thefortune,acaseforspecial contributionmust behard to establish... - In the case of B-Hv. Hl, the parties had been married for 12 % years and had two children.The issue for the Court was to identify whatwas matrimonial property in circumstances where each party had brought properties of their own into the marriage and had acquired more thereafter.They had maintained separate financial affairs during the course of the marriage.Foster J.(Actg.) reviewed a number of local and English cases and said this: "In my opinion, it is clear, both from the remarks made in the various authoritiesandasamatterofcommonsense,thatindeterminingwhether particularpropertyistobeconsideredmatrimonialproperty ortheseparate propertyofoneofthespousesforthesepurposes,thecourtmusthave regard to all thecircumstancesrelatingto thepropertyconcerned.Such circumstancesincludebutarenotconfinedto,thecircumstancesandtiming ofitsinitialacquisition,thepartybywhomandhowitwasacquired,the apparent intentions ofthepartieswithregardto and theuse oftheproperty duringthemarriage,amongstotherfactors.Forexample,itdoesnot,inmy opinion,automaticallyfollowthatjustbecausethepropertyconcernedwas gift orinheritance,and thetitleremained throughoutthemarriage inthe name of that spouse,the property may not nonetheless in some circumstancesbe considered tohave become matrimonial property—"put into themeltingpotofthemarriage"(seeLevers,J.atfirstinstanceinWight v.Wight (10) (2006 CILR 1,at para.55))." 14 [2009] CILR 185 <!-- image --> 14

¶ [31] FosterJ.(Actg.)held that thepartieshadseen theirrelationshipasapartnership and that viewedinthatlight thethreepropertiesbroughtintothemarriagewouldbecategorized asmatrimonialassetssincetheyhadbothbenefittedfromthemasmatrimonialhomes andusedthemtoraisemoneytofinancepurchaseofotherpropertyandspentmoneyon themandgenerallytreatedthemasassetsforthebenefitofbothofthem."

¶ [32] In the case of Billes v.Anco',the sole issue was whether the husband had an interest in thematrimonialhomewhichhadbeenpurchasedbythewifewithherownfundsand wasregisteredinhersolename.Shecontended thatthehusbandhadmadenofinancial endeavor of the parties. Smith J (Actg.) considered that although it had been purchased with the inherited wealth of the wife, it was acquired during the marriage for the welfare the family.Additionally,there was evidence from a pre-nuptial agreement that the parties intended as at the date of separation to share thematrimonial home equally. <!-- image --> 15 16 17 18 19 20 21 22 23 24

¶ [33] Inowturn to consider theissuesandfactsintheinstantcasewiththegeneralprinciples in mind while noting that each case must be decided on its ownfactswith the objective being to arrive at financial arrangements which are fair to both parties. ## EVIDENCEINTHECASE

¶ [34] Itisnotdisputedthatforthemostpart,thewifewas eitherunemployedorreceived a muchlowerincomethanthehusband.Inthefamily,thehusbandwasthemainincome earnerandthewifecarriedouttheimportantroleofhomemaker.Forthedurationof themarriageshehastaken careofthehouseholdwithout the assistanceofahelper.The 15[2011] 2CILR74 Judgment:FAM0122/2018:KHvRH.Coram:JusticeCheryll Richards Q.C.Date:14.02.2020 1 2 3 4 5 9 7 8 12 <!-- image --> 13 14 15 16 17 18 19 20 21 22 23 24 25 26 evidenceisthatwhilethehusbanddidsomeof thecookingand theywouldsharethe ironing chores,thecleaning choreswere always herresponsibility.Withsome assistance fromthehusband,shehastakencareoftheirdaughterfollowingherbirth andcontinues to do so. The husband agrees that she is a good mother to K. She will have the primary careof hergoingforward.

¶ [35] InJamaicawhilethehusbandwas employedtoahighschool,shewas employed at a basic school. She describes her salary then as'meager'. She was unable to and did not GOU8) contributefinanciallyto theirrelocationtotheCaymanIslandsortheirshoppingtripto theUnitedStatesmadeonroute.After their arrival in GrandCaymaninAugust2008 she wasemployed between November 2008and June 2009.She commenced employment againin2010.Thiswasatapre-schoolwheresheworked until2016.She earned between$1000.00and $2000.00permonth.

¶ [36] In2016shewasemployedasanAssistantTeacherandhersalaryincreased.Shewas able to completeherdegreein2018.Shepaidfor her degreeon a monthlybasisfrom hersalaryanddidnothaverecoursetoastudentloan.Inthisitisclearthatshewas stronglysupportedbythehusbandwhosaysthathehimselfforwentfurtheringhisown educationby notpursuinga Master'sin educationsothatshecould complete herstudies.

¶ [3] 37.The wife states that from her earnings, in addition to paying for her studies she also paid K's school fees at the time and would sometimes send money to assist her mother who is resident in another jurisdiction.She would buy food for the household and on travelling,would purchase supplies for the family.She states that as her salary has increased,shehasmademore financial contribution to thehousehold.Thehusband acceptsthatshedidmakesomefinancialcontributionbutsaidthatshespentmostofthe 11 <!-- image --> | 1 | funds which she earned on herself.He agreedin cross examination that had this not | |---------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 2 | been the case, he would have had to provide her with funds for these purposes. | | 3 4 5 9 | 38. The husband took care of all thehousehold expenses and he it was whomade arrangementsfor thepurchase of thevariousproperties,inmostcasesmaking down payments throughloansfromlendinginstitutions andsecuringlongtermmortgagesfor | | | 39. It is against the background of these guiding legal principles that in considering all of | | 30 | | 1 2 3 4 5 9 7 8 9 10 11 <!-- image --> 16 17 18 19 20 21 22 23 24 25 is matrimonial property,whether the wife made any financial contribution from money circumstances that there is noproper basis to departfrom theyard stick ofequality in respect of the sharing of any matrimonial property in this case.I do not consider that any financial contributionmadebythehusbandin thecontextof thiscaserises tothelevel whereitwouldbeinequitabletodisregardit.

¶ [40] Eachsideaccusestheotherofsomekindofmisconduct.Thehusband accusesthewife of threatening violence,and mentions one incident where she threatened to hit him with a perfume bottle. The wife accuses him of damaging the FMH. She produces pictures and a police report which refers to any damage seen as minor.While I have considered each and everyallegationmade,overallinconsideringtheconductoftheparties,there was no evidence of any conduct whichrises to the level such that it would be inequitable todisregardit.Indeed,neithersidefocusedontheseaspectsoftheAffidavitevidencein thecourse ofcross examinationor oralevidenceorsubmissions.To the extent thatthese accusationsbearupon thiscase theygomoretoshowingthe levelof acrimonybetween thepartiesandtheclearneedforacleanbreak

¶ [41] It appears that matters between the parties came to a crisis point in January 2018. In Decemberof2017,thehusbandhad thecommencementofan unrelatedlegal case against him.Thiscontinuedintolate2018.Hewassuspendedfrom his employment as a result of this but continued to receive his full salary. In the said January 2018, he movedoutoftheFMHforashortperiodoftime.Hehadalargelegalbillofsome $16,ooo.0o.Heindicated tothewifethat hecouldnolonger afford tomake thefinancial contributions which he previously made. He did not pay strata or mortgage payments for - 1 theFMHforsomemonths.Thishasled toa continuing disputebetween theparties as - 2 towhoisresponsibleforthesearrears. 3 4 5 9 7

¶ [42] Hereturned totheFMH,shortly afterleavingit andbothpartiescontinue toresidethere inseparaterooms.Thewife describeshisresidence asbeingintermittent.However,in accordwiththeConsent Ordersmade,he contributes toonehalfof themortgage and otherexpensesofthehousehold. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ## THESUBMISSIONS

¶ [43] By way of general submissions,Counsel on behalf of the wife submitted that the Court in consideringthethreestrandsofneeds,compensation and sharing,shouldnote thatthe wifehasneedsforherself and theminorchildK.Counsel submittedthatthehusband has alsodemonstrated thatinthe absenceofa Court orderheisnotpreparedtoassistthe wifeandchild.Thisisevidentbecauseof theapplicationwhichthewifehad tomake when he left the FMH and refused to make any payment.Secondly Counsel asked the Court toconsiderunder the heading of compensation that thewifewas thehomemaker and also contributed funds to household expenses. On the sharing aspect Counsel asked the Court tobear in mind both the actual earnings and potential earnings of the husband. The husband asked the Court to consider each person''s ability to pay, the actual needs ofKand theextensivecontributionswhichhe hasmadeto theacquisitionof the propertiesinquestion. <!-- image --> ## 1 IDENTIFYINGMATRIMONIALPROPERTY ## 2 SilverOaksApartment(FMH) <!-- image --> - 3 44. The FMH at Block 20D Parcel 408H53 (Silver Oaks Apartment) was bought on the 9th 4 April 2015andisjointlyownedbytheparties asshown on theproperty title.Inorder 5 topurchasethetwo-bedroom,two-bathroomproperty,bothpartiesobtained amortgage 9 from alocalbankin the amountof$123,000.00.In order tocomplete thepurchase,the 7 husband obtained an additional loan of $13,080.80 in respect of which he paid $500.00 8 permonthfor 40 months.Thewife started contributing directly to one half of the loan 6 payments inJanuary 2018,seven months before the completion of the additional loan. 10 - 11 45. The payoff amount on the mortgage as at the date of the hearing was $111,706.24.A 12 valuationreportobtained bybothpartiessubsequentto thehearingshowsthatasatthe 13 25thSeptember 2019,the market value of the unfurnishedproperty is CI$215,000.00. 14 The potential equity in the home is therefore CI$104,981.93. The husband has also 15 providedquotationsfrom alocal appliancecenterandafurniturestore as at the26tand 16 27th September 2019 respectively which indicate the approximate costs for new 17 appliances and furniture as being $18,307.00. 18 - 19 46. There is no dispute between the parties that the FMH constitutes matrimonial property 20 andthat they areeachentitled to anequal shareinthe equityinthisproperty. 21 - 22 47. Thewife seeks theproperty tobe transferred to her so that she andKwill have aplace 23 tolive.Thehusband agrees to this and argues that thevalueof and equityinthisproperty 24 isgreater than thatin theBridgeport property. 25 1 2 3 4 5 9 7 8 6 10 11 12 13 <!-- image --> 18 19 20 21 22 23 24 25 ## RiversideDrive - 48.'The property at Riverside Drive, Harbour View, Jamaica was purchased for JMD 7.2 millioninJuly2011.Aformal valuationreport dated 6thOctober2010gave themarket valueof thepropertyasJMD8million.On thepurchase,it wasregisteredin the husband's sole name.The wifeproduced documents indicating thatit was advertised for sale in2018 at a price ofUS$107,041.00,orJMD13.5million.It is a 4-bedroom,2bathroomproperty.

¶ [49] The husband's evidence in relation to this property is that it was purchased with a down paymentof someJMD2millionwhichmoneycameindirectlyfromhisfather.Hesays that this money had been lent to him by his father in 2008when he was first travelling toCaymantocommenceemployment.In2010whenhewasabouttorepayhisfather, his father declined to accept the repayment and told him to invest the money in a residential propertyforthebenefitofhisgrandchildren.Thehusbandfurthersaysthat in 2018,hisfather asked him to sell the propertybecause of a needfor funds to defray medical and otherexpensesrelated tothedeathofhiswife andofhissonin law.Hesold the property and gave all the money to his father.Some of the funds received were used todefray thecostsofworkdone to theBridgeportpropertywhere amountswere outstandingtoworkmen.

¶ [50] In cross examination it was suggested to the husband that this salewas in the middle of theseproceedings,that heknew thathiswife was claiming theproperty,and,that he neverthelesssoldit.Hedeniedthis andsaidthat hewasservedwiththedivorcePetition on the1st May2018.Thedepositon thesaleof thepropertywas received inFebruary orMarch of the sameyear.Thesalewasthereforeeffectedbeforethedivorce 1 2 3 4 5 7 8 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - proceedings commenced. He said that he had not known that the wife was going to serve such papers despite being aware that things might not have been goingwell between them.Hesaid thathedidnotmention tothewifethat hewassellingpropertybecauseit had nothing todowith her.He said thatfrom theget go she knew it had nothingto do with her orwith us.It was for both of mykids".His evidence was that the sole reason for the timing of the salewas that his father had some difficulties,with his health,his sister's husband's health, and deaths in the family.

¶ [51] It was suggested to him that he had been less than open about the sale when he had appeared before the Court at the case management stage of this matter and that he had not told the Court about the sale.He replied that he had not been asked whether he had sold the property.He agreed thathe hadbeen asked byMr.JusticeWilliams if heowned property atRiversideDriveand hehadreplied thathe didnot.He then said: "I did not tell him itwas sold.You started mentioning the property so that I had madeit known that the property isnotmatrimonial."

¶ [52] He said that he did not have a Sales Agreement for the property.The sale price was JMD 13.5 million although the property had been insured for some 16 million. He explained this discrepancy by saying that in Jamaica,property is usually insured for higher than the actual value because of the 80% insurance recovery rule. He said that there had been a mortgage on the property. He is not sure how much it was. He thinks that he had signed aPowerofAttorneyeither tohisfatherortothelawyerwhohandledthesale.He repeatedthathedidnotreceiveanyoftheproceedsofthatsale. <!-- image --> 22

¶ [53] Heagreed thathisfather'sname hadnotbeenon thepropertybutsaid thathisfatherhad beeninstrumentalinhimobtaining thepropertybecauseofthedeposit.Everythinghad been in his solename including therental agreement and the insurance.He said that he could try toobtaina copyofthesedocuments.Subsequenttothehearingheproduced documents indicating that a cash offer on the property was received on the 28thMarch 2018 for JMD 13.5 million and a deposit of JMD 2 million had been paid.

¶ [54] Hisfathergaveoralevidence that heloanedthehusbandJMD2milliondollarsin2008. He said that he loaned him the money so that he"would not suffer"on his arrival in Cayman and would have funds to settle in. At the point of being offered repayment, he asked his son to invest the money in a propertyfor his grandchildren rather than pay him back.He explained that hehad provided similar investment supportfor his daughter so hefeltthatheshoulddothesameforhisson.

¶ [55] Whenquestioned astohowhewasable tohavethismoneyinthefirstplace,thefather explained that he had previously resided and worked in the United Kingdom. Having returned to Jamaica from the United Kingdom, he purchased rental properties. One such property was at Nelson Road inKingston,a building which had eleven apartments.He soldthispropertyanditwasfundsfrom thissale thathehadbeenabletoloanhissonin 2008. <!-- image --> 23 24 25

¶ [56] Thefathergave detailed evidence as tohisneed forfundsin 2018.Hehimself had medical billsfromhisfightwithcancer.Hiswifehadbeenill.Shehadmedicalbills whichneededtobepaid.Hissoninlawbecameill.Bothhiswifeandson-inlawdied in early 2018.This led to more expenses involving the burials.He said thathe asked <!-- image --> | 1 | the husband to sell the property and the husband did so, giving him funds. He does not | |------|---------------------------------------------------------------------------------------------| | 2 | know how much thepropertywas sold for and says that the son handled everything. | | 3 4 | 57. The wife's evidence is that the property was in the husband’s sole name because of a | | 5 | plandiscussedbetweenthemtouseherbenefitsbywayofaloanentitlementfromthe | | 9 RD | National HousingTrustofJamaicatowardsthepurchase ofanotherproperty.As the | | 7 | applicableprinciplefor that institution is that suchbenefits areonlypaid topersonswho | | 8 | own a single home,and the husband did not want her to be on record as owning a | | | property,it was agreed that her namewould not be included on thepurchase of the | | 10 | RiversideDriveproperty. | | 11 | | | 12 | 58.The wife's evidence is that at no point did the husband mention to her that the property | | 13 | wasfor hisfatherandofhisfather’sstatement thatitwasforhisgrandchildren.Thefirst | | 14 | timeshebecame awareof thiswasonreadingtheAffidavitof hisfatherwhichwasfiled | | 15 | in these proceedings. The property was bought for the sole purpose of it being rented. | | 16 | Thewifesaidthatshehadbeeninvolvedin therentalofthepropertybecausethe | | 17 | husbandhad askedhertodowrittenagreementsforsomeof thetenants.Shewasnot | | 18 | listed as a landlord onthese agreements. | | 19 | | | 20 | 59. Inmyview,theissueiswhether thepropertyfallsinto thecategoryofmatrimonial | | 21 | property such that the wife shouldreceive apercentage of the equity in thehome after | | 22 | deduction of any funds paid towards the purchase on behalf of the father. | | 23 | | | 24 | 60.It was submitted by Counsel on behalf of thewife that it is matrimonial property and | | 25 | wasmeant tobejointproperty and that thewife hasgivenanexplanation astothereason | | 26 | for thepropertybeinginthesolenameofthehusband.Thiswasapurchasewhichwas | 1 2 3 4 5 9 7 8 6 10 14 <!-- image --> 15 16 17 18 19 20 21 22 23 24 25 26 made in2010/2011 in themiddle of themarriage.The presumption is that property is matrimonial propertyif itispurchasedduring themarriage.It is urged thatonehalf of theproceedson thesaleofthepropertyshouldbepaid tothewife.

¶ [61] Counsel alsopointed toaconflictbetween theevidenceofthefather and husband.The husbandgaveevidencethathewouldtrytoobtainacopyofthePowerofAttorneyused toeffectthesalebecausehisfatherwasresponsibleforthesale.Theevidenceofthe fatherwas thatthehusbandwasresponsiblefor the saleand that hehimself,hasno documents.Thefatherdeniedknowingwhetherthewifewasfully awareofthesituation with respect to the property. In contrast to the statement made in his undated Affidavit filed 14t January 2019,his oral evidence was that he did not know whether she was awareofthis and hadleft it uptothehusbandastotheinformationprovidedtoher.The husband claimed in response toRequests for Further and Better Particulars that thefather wasrefusing toprovide documentsrelative tothesaleof thepropertyand thedisposal of thefunds obtainedfromthesalebecause thiswashisprivate affair.Thefatherin his evidence deniedrefusing to provide documents and said that his son took care of everything andwould have any documentation.

¶ [62] Counsel alsodrewtheCourt's attentiontoanumberofemailssentbythehusbandtothe wife about theproperty.One emailsent10thMay2012 at8:06am,beganwiththe commentforthemashuphouseonHarbordrivethatMariotookthepicturesof..they "10hMay2012,12:40pm Market value of $9,140,000.00.The forced sale value is $7, 312,000.00, the building aloneisvaluedat$6,640,000.00 Theymightacceptanofferof8.5million - 1 63. On the 13th July 2011, at 9:57pm, the husband copied her in on correspondence from an 2 attorneyindicatingthatlettersofpossessionhadbeen receivedfor thepropertywhich 3 weretobehandedovertohim. 4 - 5 64. Counsel argues that these email discussions by which he waskeepingher abreast of 9 ongoing arrangements,showthat it was ajoint acquisition.It is said that therewasno 7 otherreasonforhim tosend these emailstoher.Theonlyreasonhedidsowasbecause 8 it was a property beingbought by both of them. 6 <!-- image --> 14 15 16 17 18 19 20 21 22 23 24 25 - COURT 65. Counsel submitted that even if the father is correct as to the loan, any interest he could have in the property would be limited to the extent of the deposit of JMD 2 million which he is said to haveprovided.There isno documentation to indicate thepercentage of the purchasepricewhich this amounted to.Counselnoted thataloanhad tobeobtainedin order to purchase the property and that the rent did not pay all the mortgage. Additional funds would have therefore been required.Any supplemental funds put into the property had tobematrimonial funds and anyrentalincomewasmatrimonial income.

¶ [66] Counselfurthersubmittedwithsomeforcethatatthetimeof thehearing therewasa lackof information about theproperty.Therewas no evidence as to howmuch it had beensoldfor,no documentarymaterialwasproduced and therewasno evidence that the grandchildren received any funds from the property.Requestsfor Further and Better Particularsincludingforascheduleofrental income andschedule ofdisbursementsof theproceedshadbeenrefusedbythehusbandonthebasisthatthedocumentationwas withhisfatherwhorefused toprovide anysuchdocumentation.Thisdespite thefactthat thepropertyhadbeenregisteredin thesolename of thehusband. | 1 | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | Counsel submitted thatwhere thereisnon-disclosure,certainnegativeinferences can be | | |-------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------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| 2 | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | drawn Reliance was placed on the case of Glennis Hydes v, Halfrank Hydes, in which | | | 3 | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | FosterJ.stated: | | | 45 9 7 8 6 10 11 | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | “In exercisingitsdiscretionpursuant tosection19,oftheLaw,itisclear thatwherethereisgeneralfailurebyahusbandtogivefullandfrank disclosureinthecourseofthecasetheCourtmayinfertheexistenceof assetsdeniedbysuchhusbandtoexistorwhichhehasfailedtodisclose (seeBakerv.Baker[1995] 2FLR829).It is alsoclear that theCourt may takeintoaccountahusband'searningpotential andfundraisingcapability, on thebasisofhisapparentbusinessacumen exhibitedinthepast,tomake afair andproperprovisionforawife.Insucha case theCourtdoesnot havetobeinapositiontoquantifytheassetsdissipatedortheexistenceof whichhasnotbeendisclosedordeniedortoquantifythefutureprospects butmaydrawoninferencesmadeonthisbasisforthepurposeofmakinga fairandproperdivisionbetweentheparties(seeRyev.Rye[200o]2FLR 981 referred to inB.b.B.[2007] EWHC594)." | | | 19 20 | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | and courtesy.He said that he has no documentsto show themortgagepaidon that | | | 21 | | | | | | | | | | | | | 22 | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | inconsistenciesintheevidencebetweenfather and son.Thehusbandclaimed thathis father hadhandled at least some aspects of the sale.Thefather said ithadall been | | | | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | handled by the son.The entirety of these inconsistencies cannot be explained by possibly | | | 27 | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | poor memory on the part of the father. Notwithstanding his age, he presented as an | | | | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | answerstoquestionsasked. | | | 29 | | | | | | | | | | | | | | property. | property. | property. | property. | property. | property. | property. | property. | property. | property. | | | 23 | | | | | | | | | | | | | 24 25 | | | | | | | | | | | | | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | intelligent,coherent and thoughtful gentleman who gave definitive rather than vague | | | 28 | | | | | | | | | | | 16CauseNo.D23/2007,4uhMarch2009 30 <!-- image --> - 1 70. Itisunfortunate thattherewasnoevidenceuptothetimeof thehearingtoshowthe 2 actual saleprice of theproperty andhowmuch hadbeengivento thefather todefray 3 billsandhowmuch ifanyfundshadbeenretained bytheson. 4 5 9 7 8 6 10 11 12 13 14 <!-- image --> 18 19 20 21 22 23 24 25

¶ [71] Ididnotethatthewifewasaskedmorethanonceinre-examination,whatwasthe intentioninrelation tothisproperty.Shestated thattheintentionwas thatthehusband wouldbethesoleowner.Itwastoberegisteredinhisname.Shestated thatatthetime hesaid toher thathewanted themtoget anotherpropertyin thefuture.Hesaid thathe wouldget thispropertynow and thenin thefuturetheywouldgetothers.

¶ [72] Inresolvingthisissue,Iconsideredtheevidenceof thefatherwithsomecare.Inoted hisexplanationofhowhecame toacquirethefundstobeabletolendmoney to the husband in 2008. I alsonoted that it was agreed by the wife andby daughter A that the husbandhadinfactlostmoneyin aninvestment schemeknown as CashPlus,shortly before he was to travel to the Cayman Islands. In these circumstances while the absence of documentary material is noted, I accept that the father did lend him the money as claimed.Ialso accept thefather as a truthful andcrediblewitnesswhen hesaid that he had told the son to use the funds to make a down payment on a home. In summary, I came awaywith the distinct impression thatfunds belongingto thefatherhadinfact been invested in this property.

¶ [73] The timing of the sale of the property was referred to on behalf of the wife as being suspicious.It was suggested to the husband that he had sold the propertyto avoid it being taken into account as part of these proceedings. The husband denied this. Having assessed bothfather and sonin terms of their credibility,and the father inparticular 1 2 3 4 5 9 7 8 9 <!-- image --> bearinginmindtherelationshipandpossiblemotivetosimplysupport hisson,I accept that the need of thefatherwas thereason for the sale of the property rather than it being anattemptbythehusband tocircumventtheseproceedings.Iconsidered thattheun denied andindependentlyprovablefactoftheseriesofdifficultcircumstancesfaced by the father in early 2018 supported his credibility on this point. I accept his evidence that therewasaneedforfundsandassessedhimtobeacrediblewitnesswhenhesaysthat followingthesale,hereceivedfundsfrom thehusband.

¶ [74] Whilethefathersaidhewasaged70yearsatthetimeandwouldhavebeenunableto obtain a mortgage as a reasonwhyhis namewould not have been involvedwith the property,I do find it questionable that there is no mention of the grandchildren in any document produced.The absence of accounting documentation is even more questionable.I considereditsignificant that the emailswhich thewifeproduceddonot ISLAIS refertothehousebeingpurchasedforthechildren. 14 15 16 17 18 19 20 21 22 23 24 25

¶ [75] The fact that the subsequent purchase of the Bridgeport propertywas donewith thewife usingherNHTbenefitstoeffect thepurchase,supportsher account and the explanation whichshegives.Thatshewasinvolvedbybeinginformed atthestageofthepurchase andsubsequentlydealingwithtenants alsosupportsherversionofevents.Ifound the wifetobeacrediblewitnessonthisaspectandpreferredherevidencetothatofthe husband.OnbalanceIthinkitmorelikelythannotthatthiswasajointprojectbythe twoofthemusing thefather's repayment moneyastheinitial downpayment.Thiswould havebeensometwoyears aftertheir arrivalintheCaymanIslands.Thereisnoindication ofanyseparationbetweenthepartiesatthistime.Inconsideringallthecircumstances, I concludethatthispurchasewas thecommon endeavoroftheparties.Myviewof the 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | 1 | | husbandisthathelikely thought thathecoulddoashewishedbecausehisnamewas | |-----|-----|--------------------------------------------------------------------------------------------| | 2 | | thesolenameon thetitle.Hisfocusthroughout this casehasbeen onmeasuringthe | | 3 | | financial contribution of thewife. | | 4 | | | | 5 | | 76.I also accept the submissions made on behalf of the wife that any additional funds put | | 9 | | into thispropertybythehusbandconstitutedmatrimonialfunds.Thepropertywassold | | 7 | | for almost twice the amount of thepurchasepricein 2010 and thus this must have | | 8 | | generated a significant amount following payment of the outstanding mortgage. It is | | 9 | | difficult to accept that the husband would not know the mortgage balance and the exact | | | | amountreceivedafterpaymentofthis. | | | 77. | By Consent Order dated 11th April 2019, the husband was to provide his replies to a | | | | Request for Further and Better Particulars by the 2nd May 2019. By Order dated 23rd May | | | | 2019, which had a penal notice attached, the husband who had failed to provide his | | | | replies was ordered to provide such replies by the 30th May 2019. On the 30th May 2019, | | | | heprovided somereplies butnotinrelation to thisparticularissue.Theinconsistencies | | | | in the evidence,thefailure toproduce a schedule of accountsdespiterepeatedrequests | | | | form the wife suggest that he is seeking to conceal the sum received. I do draw a negative | | | | inference against him in this regard. | | | | The wife is entitled to onehalf of the amount receivedby thehusband followingpayment | | | | of theoutstandingmortgageanddeductionof thecontributionmadebythefatherby | | | | wayoftheloanrepayment.Assessingthis asbest I can ontheinformationprovided,the | | | | property was purchased at a price of JMD7.2 millionwith a down payment of JMD2 | | | | millioncontributedby thefather,just under one third.ItwassoldforJMD13.5million. | | | | Allowingfor mortgagerepayment and thereafter deduction of the amount due to the | <!-- image --> 1 fatherofabout one third,it isverylikely that thehusbandreceivedsomeJMD5million. 2 Allowingforpaymentofoutstandinginvoicesforworkmenasmentioned aboveand 3 taking a conservative approach,I would assess the entitlement of the wife asbeingJMD 4 2 million. ## 5 Bridgeport Property 9 7 <!-- image --> - Thispropertywaspurchased in orabout July2013.The marketvalue at the timewasJA $7.8 million. Initially it was a 2-bedroom, 1-bathroom property A single one-bedroom apartment was added to the rear of the property after the purchase.The cost of the from thelocal Credit Union.Hehasbeen making loanre-payments of CI$167.00 per monthtowardsthis.

¶ [80] Itwasinitiallypurchasedwithtwoloans.Oneofthesewasaloanobtainedbythewife using her benefits in the NHT. She had been contributing to the institution by salary deduction inJamaicaandcontinued tomakevoluntarycontributionswhilein the CaymanIslands.ThismeantthatshewasabletoobtainaloanofsomeJMD4.5million fromthatinstitution to assistwiththepurchase oftheproperty.Thesecondloanwas enteredintojointlybythepartieswithanotherinstitutionforthebalanceofthepurchase price.The mortgage is for 25years and is scheduled to end in 2038.It has been rented to tenants since the purchase and the rent pays the mortgage.

¶ [81] The wife says that at first, the husband dealt with the financial aspects of the property but that in 2017 he asked her to take over themanagement of it.With his agreement, she openedabankaccountintowhichthetenantsweretomakedirectdeposits.Onthe changeoverofoneofthetenants,shesent thenewtenant an agreementwhichhadonly 1 2 3 4 5 9 7 8 6 10 11 <!-- image --> 16 17 18 19 20 21 22 23 24 hernameon it as landlord.Thehusband complained about this and accused herof fraud in sending out that tenancy agreement. The husband produces a number of past agreementsin their joint names and an agreement which is in the sole name of the wife which is dated1st June2018.Thewife sought to explain inherAffidavit evidence that therewasnoneedfor himtomake an allegationoffraudbecause themoneyfor therent would be paid into the account as agreed between them.I did not find this to be an entirely satisfactory response.I thought it surprising that after several rental agreements in which their names had bothbeen listed as the landlords,thewife should suddenly determine that her name was the only name which should be on the agreement.I was even less impressed with what she did next. Having been contacted by the tenant and advised that the bank had closed the account, she did nothing and did not respond. She said that she saw themessage and didnotrespond because of the accusationsmade by the husband against her in various correspondence to the tenants.The husband quite rightly asked in the course of the hearing, how she expected the mortgage to be paid if therewasnointervention to ensure that therentwasreceived.Hegives evidence that as a result he had to make direct monthly mortgage payments in order to prevent the property from going into foreclosurel7.

¶ [82] CBwas called by thehusband togive evidence.Sheisone of the current tenantsof the property. Her evidence was that she entered into occupation of the property in February 2017 upon signing a rental agreement with the wife and husband as her landlords. For thefirsteightmonthsorsoshewasdealingwiththehusband andwouldpay therent to hissister.InNovemberorDecember2017,shewas told that thewifewouldbetheone handling the tenancy andwasgiveninstructionstopaytherent toan account at a bank. 17Paragraph11ofAffidavit dated5September 2019 1 2 3 4 5 9 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 She did so until November2018when on going into the bank topay the rent shewas unabletodoso.Shetriedtogetincontactwiththewifetotell herthattheaccountwas closedatthebankandwasnotabletodoso.Shethenmadecontactwiththehusband whoafteradayortwoadvised hertoresumepayingtherent tohissister.

¶ [83] Thewife's evidence supported by bank documentation is that as at the 6th June 2019, These arrears accrued during the period oftheir disagreement because ofthe accusations of fraud against her.

¶ [84] All the evidence points to the fact that this propertywas obtained byway of the common endeavoroftheparties.Thispropertyconstitutesmatrimonialpropertyand theparties been accumulated by the neglect of thewife torespond to the account issue raised by the tenant.She should bear responsibility for payment of these arrears. ## MeadowbrookApartment <!-- image -->

¶ [85] Thiswifes evidence is that theMeadowbrookpropertywaspurchased in2017at a sale priceofUS$125,395.40orJMD17million.Sheassertsthatthiswasboughtwith matrimonialfundsandthatthehusbands'assertionsthatitisthepropertyofhisfamily cannotbetrueasmembersofthehusband'sfamilyarenotemployedexceptforhissister and donothavesufficientincome tobe ableto assistwith thepurchase.Sheasksthat theequityin thepropertybetakenintoaccountforthepurposeofthedistributionof matrimonialassets.

¶ [86] The husband's evidence is that this property belongs to himself and his family and is not matrimonialproperty.HestatedthatinApril2017,heasked thewifetocontribute tothe purchase of the apartment in Meadowbrook Estate in Kingston, Jamaica and she "flatly refused". In his Affidavit of 14th January 2019, he says that instead of contributing to thepropertyshe saidthatshewoulduseher fundstogoonacruisewhichshe subsequentlydidl8.

¶ [87] Thewifeacceptedduringherevidencethatsherefused tobecomeinvolvedin thesaid purchase.It appeared that she sought to explain her refusal by saying that she was asked toassistbeforeheremploymentwithanother employerbegan andatatimewhenher salarywasonly$1200.00per month19.In crossexamination thehusbanddrewher attention to aletter exhibited toherAffidavitof 30August2019.Thisis a salaryletter dated 3rd January 2019 from that employer which indicated that her employment commenced on the 26th September 2016.Thewife then said in evidence that shewas not surewhen the depositwasmadetoward theproperty and thehusband hadfirstput the matter toher beforeshegot thatjob.The husband suggested to her that thefirst time that ISLANT correspondence was sent to the vendor's attorney on the property was in April 2017 and the wife started workingwith that employer in 2016.

¶ [3] Itwas atthispointthatthewifeexplainedthatsherefusedtobecomeinvolvedwiththe purchase of the property because there had been a motor vehicle accident in August 2017. She and daughter K had been travelling in the only car which the couple owned at thetimewhentheaccidentoccurred.Therightfrontofthevehiclewas damaged.She saidthatshewassurprisedatthehusband'sreactionwhenshetoldhimoftheaccident. <!-- image --> 18Paragraph33 19Emailsntbywifnth17March0at4:9xhibitdtfdavitfhusbanddatd1thptme0H6 1 2 3 4 5 6 7 8 10 <!-- image --> Hehadnot eveninquired as towhether theywerebothunharmed.Insteadhe toldher that she was going to have to repair the car.She felt that he was putting material things overhisfamily.Shesaidthatwhenthereafterheaskedhertobecomeinvolvedinthe purchasingproject,shetold himshewasnotinterested.Sheagreed thatthefirsttimeshe heard about the project was in 2017.

¶ [89] The husband said that he paid the deposit on the property from a loan from the Credit Union.Hegaveevidencethathehadsecuredtheloaninthelatterpartof2016.Hehad thenbeen consideringpurchasing a different property.That propertywasnot acquired. Hekept the money in his account.In April 2017,he saw the property inMeadowbrook. He had$4,600.00 from that loan and some cash he had, and he made the deposit which he thinks was 10% of the purchase price.He paid thefull deposit and was the only one whopaidanythingin2017.Hewasunabletocompletethetransactionin2018due to financial hardship. He approached his family members, being his daughter A, his father and his sister,G.Each paidJMD200,000.00.The titlewas registered in thenames ofall four persons on the 3rd September 2018.It has a 20-year mortgage in the sum of JMD11.615millionwhichwillendin2038.Therecencyofthepurchasemeansthat there is almost no equity in this property.

¶ [90] The husband's daughter, A was cross examined about her ability to provide JMD 200,0oo.00 when she is a student,in her final year at a University in Jamaica.Her tuition costfortheyearis$246,000.00.ShereceivesUS$500.00permonthfromherfather. Sheexplainedthatinadditiontoattendingschoolfulltime,shedoespromotionalwork, as a brand ambassador for companies.In the summers she does summerjobs after practicums,andalsoworkswithGovernmentagencies.Inordertohelpwithmoney,she does cake sales,sells clothing online,sells customized jewelry and snacks from her Judgment:FAM0122/2018:KHvRH.Coram:JusticeCheryllRichardsQ.C.Date:14.02.2020 C 1 2 3 4 5 9 7 8 6 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 home. She says that she does anything that she can find to do.Her major source of incomeis themoneyfromherfather.Hermother alsosupportsherbutshecannot quantify this as she resides with her. She uses the money from her father to buy supplies. Last summer she made JMD 55,0o0.00 working with Government agencies.Her earnings vary, sometimes business is good, and sometimes it is bad. In her best month she would earn JMD 180,000.00 to JMD 190,000.00 inclusive of all income streams. Fromherearningssheinvestsin stocks.

¶ [91] She also gave evidence that she was told by her father that hewasgoing to purchase the apartment at Meadowbrook.She asked whether she could be a part of the purchase and whetherhernamecouldbeon thetitleforwhenshegetsolder.Shesaidthatshegave e $200,000.00 to his lawyer.She thinks that this was earlier in 2019. She said that she wenttohislawyer'sofficewhichisonOxfordroad,neartotheBranchLibraryin Kingston and signed a document there.

¶ [92] Counsel for the wife rightly highlighted an inconsistency in the evidence between the husband and daughterinwhich thehusbandsaid thathehad asked hisfamilymembers to assist him because he was in financial difficulty and the daughter said her father did notandwouldnever askherfor money,it was shewho asked to be involved in the project.

¶ [93] I accept that this is a clear inconsistency.However,while it may well be explained by thenature ofthe approachmade,whetheritwasdirectorindirect,I didnotconsiderthat it affected theimportantissuewhichiswhether thedaughterhad themeansandinfact contributed to the purchase of the property.I found the daughter to be an entirely credible 1 2 3 4 5 9 7 8 <!-- image --> 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 - witness.Sheappearstobeahardworkingyoungladywhomakeseveryefforttoearn whatshecan.Idonotdisbelievethatshewouldhavebeenabletofindthe$200,000.00.

¶ [94] Counselforthewifesuggestedtoher thatshewasmerelyreturningtothefatherthe moneywhichhehadgiventoher.Ithinkthatherhardworkingandcreativeeffortsto earnmakehercontributionfarmorethanthat.

¶ [95] The husband's father also gave evidence of contributing $200.000.00 to this property. Whilenodocumentationwasproduced astohowhecould afford this,heexplainedthat in thepast,hehasinvestedinpurchasinggold coins,whichheis abletosellperiodically asandwhentheneedarises.WhileI thoughtthis abilitytohavefundsfrom thismeans possiblyinconsistent with the need tosell theRiversideDrive property early in2018,on balanceandweighinghisevidence,I didnotdisbelievehimonthispoint.

¶ [96] Itwassubmittedby Counsel onbehalfofthewifethatitisnotconclusivethatthewife indicatedthatshewasnotinterestedinthepurchaseof thepropertyand thatsucha declaration does not mean that it is not matrimonial property. Counsel pointed to the fact that notwithstanding the subsequent registration of title in the four names, the husband wastheonlypersonlisted asthepurchaserontheinitialdocuments.

¶ [97] I found the husband's father and daughter to be both credible witnesses.I accept their evidence that they each contributed to the acquisition of theproperty.I accept the evidenceof thehusband as tohow thepropertycametobepurchasedwith the loan obtainedfromthelocal CreditUnion.Thereisnoevidencethatthehusbandused the fundsfrom any joint savings account or other jointly owned asset.The fact that he was facedwithcostsinrelationtothelegal issueswhichhehadissupportedbyinvoices produced.Thesesupporthisclaim ofwhathedescribesaspoorfinancial circumstances <!-- image --> | 1 | | by the time the closing costs and other fees were required to be paid on the property. It | |-------|-----|----------------------------------------------------------------------------------------------| | 2 | | isinthiscontextthathisclaim thatheturnedtohisfamilyforfinancialassistanceis | | 3 | | more likely than not tobe true.The wifewas employed with increased earnings than in | | 4 | | the past and could have assisted and chose not to do so.Indeed,shehad made it very | | 5 | | cleartohimthatshedidnotwanttobepartofitandinessencetoldhimthathewason | | 9 | | hisownwiththepurchaseofit. | | 7 | | | | 8 | 98. | Anumberofquestionsariseincludingastotheintentionofthepartiesthemselvesand | | 9 | | the nature of the funds used to effect the purchase. This was not a property being | | 10 | | purchased with the agreement of both or with the intention that it would be used in any | | 11 | | | | 12 | | purchasewascompletedaftertheseparationofthepartieswith thedivorcePetition | | 13 | 5.4 | having been filed in April 2018.I have taken account of all the submissions made by | | | | Counsel on behalf of the wife in respect of this matter. I cannot see how in considering | | AN 15 | | theentiretyofthecircumstances,thepurchase of thispropertycanbesaid tohavebeen | | 16 | | the common endeavor of both parties. It is clearly not. I conclude upon weighing all of | | 17 | | theevidence thattherewasnocommonintentionorcommon endeavourinrelationtoits | | 18 | | acquisition and thusthat thispropertyisnotmatrimonialproperty. | | 19 | | | | 20 | | 99.I conclude that three of thefour properties constitute matrimonial property.Only two | | 21 | | oftheseremainavailablefordistribution. | | 22 | | | | 23 | | 100.In the absence of agreement between the parties, the powers to be exercised by the Court | | 24 | | undersection21oftheLawaretobeexercisedsoastoenabletheCourttomake | <!-- image --> | 1 | financial arrangementswhicharefairandwhichhaveregard asafirstconsiderationto | |-----|-------------------------------------------------------------------------------------------------| | 2 | the best interestsof any children of amarriage. | | 3 | | | 4 | 101. In thiscase,itisinthebestinterestsofK,firstandforemost thatsheshouldhaveastable | | 5 | home.Sheissettledhere andis attending school as a dependent of thefather.Thewife | | 9 | shouldnothavetosearchforarentalpropertytoprovidehousingforherorfacethe | | | uncertaintyofseekingtopurchaseanewhomeforthemtoreside.Theprovisionof | | 8 | stable housingforK.is theprimary reasonfor my conclusion that thewife should with | | | the approval of the mortgagor remain in theFMH and acquire sole ownership of it.I will | | 10 | considerbelowanypaymentswhichsheshouldseektomakeandthepaymentof | | 11 | outstandingfees. | | 12 | | | 13 | 102. There remains then theBridgeport property inJamaica.While thewife seeks an income | | 14 | producingpropertyinJamaica,thereis only onesuchproperty available. | | 15 | | | 16 | 103. It hardly seemstometobe an equitable and fairdistributionof the assets of themarriage | | 17 | forthewifetohavebothofthematrimonialpropertieswhichremain. | | 18 | | | 19 | 104.I conclude that fairness requires that subject to the consent of the mortgagor, the husband | | 20 | should retain theBridgeport propertybut this should only be on payment to thewife of | | 21 | one half of the equity in that home,less arrears on the mortgage.Secondly he should pay | | 22 | toheralumpsumbeingtheassessedsumofJMD2millioninrespectoftheRiverside | | 23 | Drive property.These payments would ensure that the wife has a lump sum which she | | 24 | | | 25 | | | 26 | 105.Idonote thatit isthehusbandwhowillhavetosecurerental accommodationinthe | | 27 | CaymanIslandsandseek topurchase anotherhomehereif hewishes todosointhe | - 1 future.Based onhishigherlevel ofincome,despite hisgreater levelof expenses,he 2 will have more resources to do so than the wife.More to the point, given his history of 3 investing in the property markets over the years, he clearly has the capacity and acumen 4 torecovermorequicklythanthewife. 5 9 7 8 ６ 10 - 11 107. The husband's own evidencewas that he stopped making strata and mortgagepayments 12 because of his legal cost issues.Heacknowledges thatwhen he left theFMH inJanuary 13 14 15 16 17 18 - 2018, he ceased to pay all contributions to the home.He said that his case took priority. He asked the wife to"pick up the slack" during this period. He explains in exhibited correspondence thathavingmadeall thefinancialcontributions overtheyears;it was not unreasonable forhim to ask this of her.It appears that instead of doing so,the wife filedan applicationformaintenancein Courtwhichresultedinthesecond Consent Order mentioned above. 19 20 21 22 23 24 25 ## OUTSTANDINGSTRATAFEES

¶ [106] Thewifegaveevidencethatthereisanamountof CI$702.50outstandingonthestrata feesfor theFMH as at29thAugust2019 and that thiswascaused by thehusband not paying his half of the strata fees for some time.She states that her half was paid.

¶ [108] The husband said that as long as supporting documentation is produced he will pay arrearsofstrata.I accept theevidenceof thewifeonthis aspectandconcludethatthe husband has outstanding strata bills in the stated sum which he should now pay. <!-- image --> ## 1 OUTSTANDINGMORTGAGEPAYMENTS - 2 109. There is also an amount outstanding on the mortgage for the FMH of $2,894.81. The 3 wife says that thisis because thehusband neglected to payhis half of the mortgage over 4 theperiodof timereferenced above.Thehusbandinhisoral evidenceagreedtonon5 payment for thereason stated above,but disputed this amount,saying that thefigures do 9 not add up.He said that themortgage of$950.00 divided by onehalffor threemonths 7 wouldnotequatetothis and thatifasmuch asafull threemonths isowed,thismust 8 mean that themortgage arrears are owedbyboth of them.Heexpressedawillingness 6 topayonehalfofthe amountstated.Thebankaccountrecordssubsequentlyproduced 10 by the husband show that on the 27th August 2018, the balance in the savings account 11 whichserviced theloan was$269.91.Thewifemade deposits asfollows: | Year | Date | | |--------|---------------|--------| | 2018 | 25th June | 700.00 | | | 25th July | 700.00 | | | 26thSeptember | 350.00 | | | 26thOctober | 460.00 | | | 28thNovember | 480.00 | | | 19thDecember | 500.00 | | 2019 | 16th January | 500.00 | | | 23rd January | 380.00 | <!-- image --> The first deposit into the account other than by her over this period was on the 29h January 2019.Six,of these payments,June,July,September,October and December 2018,and January 2019 correspond with receipts produced by the wife. The wife produces a seventh receiptfor24tAugust2018fora deposit of$475.00totheloan accountofthehusband.This isnot a deposit to the savings account servicing the loan as are the other deposits and isnot reflected in the deposits to that account.Despite this, the factual position from the documentationproduced appearstobethatotherthanthedepositmadebythewife,between the 25thJuly 2018 andApril 2019,nootherpaymentsweremade to the account servicing 12 13 14 15 16 17 18 19 20 - 1 the loanby anyoneother than thewife.Thecarryforwardbalanceon the accountswas - 2 insufficient to cover the other half of themortgage. Correspondence from the bank exhibited - 3 totheAffidavit of thehusbanddated27thNovember2018indicatesthatbythe26thOctober - 4 2018,the account was already 2 months in arrears.The records appear to support the wife's - 5 contentionthatthehusbandmadenopaymentsforaperiodwellinexcessofthreemonths - 9 hencethecumulativebalance.Heisthereforeresponsibleforpaymentoftheoutstanding - 7 arrears of mortgage which are due to his non-payment during 2018 and early 2019. He should - 8 nowpay this amount. ## 9 MAINTENANCEFORK. <!-- image --> - 10 110. Thehusband earns$5,573.00permonth.Hemakes$1027.00permonthmore than the 11 COURY s ND 12 maintenanceforKwhichhesays thathecan afford asitisonehalfofthe excess of his 13 salary.The wife seeks $800.00 per month.Her evidence is that no proper evaluation of the husband's financial position was made at the time of the making of the Consent 15 Order.The amount of $250.00 was accepted on the basis that the husband would also be 16 assistingwithonehalfof theotherbills.Thewife'spositionisthatgoingforwardwhen 17 this assistance ceases,an increased level of maintenance will be necessary. 18 19 20 21 22 23 24 - 111.In response the husband states that although his earnings are greater than the wife, he hasmore expenses.He said that hemaintains twootherchildrenwhoareinJamaica as well as his elderly father who is suffering from cancer.His father requires a special diet and a caregiverwho hastobe paid.While his sister sometimes assistswith the care of thefather, shehas her own challenges in having to carefor two autistic children so most of the responsibility falls on him.He points out that the wife does not have such <!-- image --> 4 5 9 7 8 9 10

¶ [112] Hesaysthat thewifeisearningatleast20timesmorethan themotherof hissonin Jamaica andthathisdaughterK.attends a publicschool whichis almostfree,andwhere the costs arenot as high as theywould be for a private school.He urges that $10o0.00 per month would be a reasonable maintenance for her and that shared equally with the wife,thiswould be$50o.o0eachforher.Hesaid thatK's expenses arenotgreater than $400.00per month and her needs do not rise to the level of $1,600.00 permonth. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 maintenanceobligations andsays alsothathehasrepaymentstomakeonaloanfora accommodation.

¶ [113] Counselonbehalfofthewifesuggested tohimincrossexaminationthatin arrivingat arriveatanamountof$302.00whichdoesnotactuallyreflecttheamountofmoneyto be spent on her.He agreed that this amount was essentially for K's extra-curricular activities. ## THEINCOMEANDEXPENSESOFTHEHUSBAND - 114.The husbandwas cross examined as to thepotential for himto earn extra income.In the past he has beenpaid a duty allowance of $5oo.oo.He explained that he used tobe paid this amount in 2015 as a subject teacher.However in August 2015,he received a promotion and became a part of the management team.Now he no longer receives a duty allowance and receives a higher salary at a flat rate.It was also suggested to him that he has the abilitytoprovidelessonsasatutor and tomakeextraincome if notnow,in the future.He explained that in the past he used to do additional work as a tutor but that goingforwardaspart of the conditionsofhisresumingemploymentfollowinghis - 1 suspension from duties, this is work which he can no longer do. This will not change 2 evenif he changes his assignment locations ashis employerwill remain the same.In 3 contrastthewifedoesnothavea similarrestriction andinthepastshehas andwill be 4 abletoearnextraincomebyprovidingtutorial lessonsifshesowishes. 5 - 9 115.I assessed the husband to be credible and honest on this aspect.He gave some detail as 7 to the legal matters and circumstances surrounding his resumption ofemployment which .8 make clear the reason for the change in his earning potential.I accept his evidence as 9 truthful in its entirety on this point. I accept that the wife will have the capacity to make 10 extramoneywhile he will not. 11 - 12 116.The evidence shows that the wife is well on her way to independent living. Following 13 the completion of her degree, she is in a good earning position financially.She has the 14 ability tomaintainherself and to contribute towards expensesfor K. 15 - 16 117.While the husband has urged that if the wife remains in the FMH and assumes 17 responsibility for the mortgage payments, he will be the one with increased expenses as 18 intheshorttermhewillhavetoobtainrentalaccommodationandinthelonger term 19 purchase another property if he is able. I take note that both will have increased expenses 20 asthewifewill nowhavetobearthefullcostofthemortgageandalltheutilitypayments 21 forthehome. 22 - 23 118.With an income of $5,573.00 per month, the husband gives his monthly expenses less 24 contributionsto themortgageand stratafeesfor theFMH asfollows. 25 26 27 <!-- image --> ## L MonthlyExpensesofthehusband: | | $ | |-------------------|---------| | Groceries | 300.00 | | Water | 50.00 | | Electricity | 175.00 | | School fees for K | 65.00 | | Gas | 100.00 | | Car insurance | 55.00 | | Car licensing | 18.00 | | Phone | 100.00 | | Personal grooming | 150.00 | | Personal loan | 167.00 | | Car loan | 386.00 | | DaughterA | 400.00 | | Son R. | 400.00 | | Father | 400.00 | | Credit card | 250.00 | | Entertainment | 150.00 | | MISC | 100.00 | | | 3266.00 | 2 - 3 119. To this amount,he seeks to add the amount of $1400.00 as estimated rental expenses 4 for the month.His total expenses would therefore be$4,666.00per month,leaving a 5 possible surplus of $907.00. 6 - 7 120. The husband's evidence as tohis additional obligationsis supported by evidence from 8 hisfather andfrom hisdaughterA. 9 ## 10 EVIDENCEOFSW 11 - 12 121. SW is the mother of the husband's 14-year-old son.They reside in Jamaica. Her 13 evidence was that each month the husband provides her with US$500.o0 for 14 maintenance for R. She testified that this is given to her by hand by various person, Judgment:FAM0122/2018:KHvRH.Coram:Justice Cheryll RichardsQ.C.Date:14.02.2020 <!-- image --> 10 11 12 13 14 15 16 17 18 19 20 21 22 23 <!-- image --> | 1 | | friends or strangers sent to her by the husband.Whoever he finds to give it to her, it may | |-----|------------------------------|------------------------------------------------------------------------------------------------| | 2 | | be the same person twicebut not the same person all the time and that this is done every | | 3 | | monthincash.Sometimeshewouldgivethepersonhernumberorgivehertheperson's | | 4 | | numbersothatcontactcouldbemadeand thefundscollected.Shecouldnotremember | | 5 | | the date inDecember 2018 that shereceived a paymentfrom thehusband but sheknows | | 9 | | that she received this money every month.Sometimes he pays in advance if he is not | | 7 | | goingtobe availablethereafter. | | 8 | | | | 6 | 122. | Theplans arefor the son tomigrate to the CaymanIslands to livewith hisfather as he | | | | isgettingolderandneedshisinfluence andeducational assistance.Theseplanswhich | | | | havebeenmadeforsome timenow,havestill notbeenfinalisedbecause thehusband | | | | hastobe settledwhichhepresentlyisnot andnoeducationalarrangementshaveyet | | | | beenmadeforthechild. GRAND | | | EVIDENCEOFTHEHUSBAND'SFATHER | EVIDENCEOFTHEHUSBAND'SFATHER | | | 123. | Thehusband’sfather alsogaveevidence.Hetestified that thehusbandprovides himwith | | | | US$500.00permonth.He said thatin thepast,hewould receiveUS$400.00but this has | | | | been increased.He uses themoney topay ahelper about JMD$7,00o.00perweek.He | | | | attestedtosimilaradhocdeliveryarrangementsasdidthewitnessSW.Hesaidthathe | | | | does not receive money from any other source, as his daughter G, does not assist | | | | regularlygiven hercircumstances andresponsibilities. | | 24 | | 124.On balance I had some difficulty accepting the evidence as plausible that for every single | | 25 | | month of twelve out of each year and continuing over a period of years, the husband | - 1 sendsthesumofCI$1200.00tothreedifferentmembersofhisfamilyinJamaica.This 2 isnotbecauseofthesum statedbutbecauseofthe allegedmethodofdelivery.All three 3 recipients testified that thiswas by the hand of different people.Theimpression is that 4 itwould besentwithvariouspersons travellingtoJamaicafrom theCaymanIslands 5 whichseems a less thancertainmethod of delivery.I hope that thereference to this ad 9 hocroute was not designed to avoid the inevitable requestfor production of receipts had 7 thetransfermethodbeenmoreformal. 8 - 6 125. Nevertheless,havingweighed all theevidenceIaccept that thehusband does have these 10 responsibilitiesandendeavorstomeetthemfromhisincome.Thewifehasmentioned 11 assistinghersistersbutdoesnotclaimsuchassistanceasbeingconsistentfinancial 12 obligationswhichshemeets. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 - 126. - Counselonbehalfofthewifedrewthesharpdistinctionbetweenthetreatmentsofthose persons by the husband in that his evidence is that he made these payments consistently over2018whileheceasedmakingpaymentsforK.andtowardstheFMH.Inotehis explanation that hefelt that thewifewasin a position tomeet thesepaymentsfor a short period given her financial circumstances compared to those of his elderly and ailing father andthelesserfinancialcircumstancesof themothersofhistwoother children. Whileitisregrettablethathedidnotendeavortomeethisobligationshere,Idonot consider that hewasseekingtodeny or avoidresponsibilityon alonger-termbasis. ## THEINCOMEANDEXPENSESOFTHEWIFE - 127.With an income of $4,546.00 per month the wife gives her expenses as follows: <!-- image --> ## 1 MonthlyExpensesoftheWife: | | $ | |---------------------------------|----------| | Extracurricular activities forK | 107.0020 | | Lunch for K | 80.00 | | Hair Grooming for K | 50.00 | | subtotal | 237.00 | | Groceries/food | 400.00 | | Mortgage | 950.00 | | Strata | 320.00 | | Gas | 60.00 | | Electricity | 200.00 | | Water | 50.00 | | Internet | 90.00 | | subtotal | 2070.00 | | Credit card | 400.00 | | Personal Loan | 35.00 | | ACServicing | 28.00 | | Car servicing | 40.00 | | Car insurance | 70.00 | | Car license and inspection | 20.00 | | Cell phone | 40.00 | | Personal grooming | 150.00 | | Entertainment | 150.00 | | | 3,305.00 | <!-- image -->

¶ [128] In cross-examination,the husband highlighted that over the course of her Affidavit evidence which shehadprovided on three occasions the wife has given different amounts for the servicing ofher car.She has also not provided any credit card statements to evidence the claimed expenditure.He drew attentionto thefact that she had initially claimed cell phone use of $25.00 and had increased this figure to $40.00.Thewife explained that thiswas due to her having initially omitted the amount for internet data on her phone. 20(Thetotal of $65.00,$17.00,and$25.00) Judgment:FAM0122/2018:KHvRH.Coram:JusticeCheryll RichardsQ.C.Date:14.02.2020 <!-- image --> | 1 | 129. | DespitereceivinganincreaseonhersalaryinlateSeptember2018orthereabouts,the | |-----|--------|-------------------------------------------------------------------------------------------------| | 2 | 129. | wifefiled an Affidavit on the19thNovember2018,inwhich shegaveher salary as being | | 3 | 129. | at theoriginalcontractual figurerather thatthe correctfigure at thetime(Sheclaimed a | | 4 | 129. | salary of $ 4,329.00per month sinceSeptember 2018). | | 5 | 129. | | | 6 | 130. | Shewascrossexamined and askedtoexplainwhyitwasthatonherstatementof means | | 7 | 130. | formC10filedinCourtonthe16tJanuary2018,shehadgiventhebalanceinherbank | | 8 | 130. | accountasCI$270.00whenthebankrecordwhichshesubsequentlyproducedshowed | | 9 | 130. | thebalance atthatdate as$2175.00.Sheacknowledged that thelatterwasthecorrect | | 11 | 130. | balance and sought to explain that she did not deliberately lie to the Court but that the | | | 130. | "banks have their way of doing their figures in giving statements". She acknowledged | | 12 | 130. | that she had failed toprovide her Credit Union savings account records although she had | | 13 | 130. | been asked toprovidethem.Shesaid thatthesehadbeenrequestedbuthadnotbeen | | 14 | 130. | receivedfromtheinstitution.Shehadreceivedsomedocumentsbuttheannualrecords | | 15 | 130. | werenotinthecorrectorder. | | 16 | 130. | | | 17 | | 131.I considered all of the discrepancies highlighted by the husband but did not find that they | | 18 | | wereofsuchanatureastocastdoubtonthelevelofexpenditureclaimedbythewifeor | | 19 | | on the amount of hersavings. | | 20 | | | | 21 | 132. | WithrespecttothelevelofmaintenanceforKwhichsheseeks,Counselonherbehalf | | 22 | 132. | submitsthat the husband is currentlypayingone half ofthe householdexpenses,of some | | 23 | 132. | $785.o0permonth.Thiswillcease on the conclusionof theseproceedingswhichwill | | 24 | 132. | be amount toless expenditureforhim.Itwasalsosubmitted that thewife'sagreement | | 25 | 132. | forhim topay$5oo.o0onwhich thehusband seekstorelywasmade at the time that his | - 1 legal case was on going and that this was specifically referenced in the correspondence. - 2 Copies of this correspondence has been provided in the trial bundle and support the 3 wife's contention. 4 5 9 7 8 9 10 11 12 13 14 15 16 17 <!-- image --> 22 23 24 25 - 133.In assessing the level of maintenance which should be set for K. I note that while the husband hasmore expenses and responsibilities,hisincome is greater andhe still has a surplusattheendofeachmonth.Ihaveconcludedthateachhastheabilityandshould contributetohermaintenanceinanequalproportion. - 134.Krequires shelter,food, clothing,school supplies and access to extracurricular activities. In addition, as and when they arise there will be costs for her medical, dental, optical visitsover and abovethose covered byinsurance.I haveused thefigureofonehalfof the cost of her extra-curricular activities,lunch and hair grooming, which is $118.50, onehalf the figure for grocerieswhich is $200.00and one half of each of the expenses listed,gas,lectricity,water andintrnetwhichmaybeclassifiedaspartial ousingand shelterexpenses,of $200.00for atotalof$518.50.Tothis shouldbeadded asmall monthlyamountofabout$55.ooforonehalfcontributiontowardsclothingand COURT incidentalmedical andother expensesoverand abovethosecovered byinsurance and for entertainmentandoccasionaltreats.Ithereforeassess themonthlymaintenance amounttobepaidbythehusbandas$575.o0.Inaddition,thehusbandshouldcontinue topayherschoolfeeof$65.00as adeductionfromhissalaryaspresentlyobtains.The suppliesanduniformsforher.Thislevelofmaintenancewill leavethehusbandwitha small surplus of$258.20forsavingswhichcanbeaugmentedby additionalsavingsfrom his budget. ## 1 OUTSTANDINGMAINTENANCEPAYMENTS 11 12 13 14 15 16 17 18 19 20 21 22 23 24 <!-- image --> | 2 | | 135.Inissuebetweentheparties iswhether thehusbandhas an outstandingmaintenance | |-----|-----------------------------------|---------------------------------------------------------------------------------------| | 3 | | payment of $250.00 which should have been paid on the 30t December 2018. The | | 4 | | husband'sevidence isthathemadehisfirstpaymentinJanuary2019.Thewife's | | 5 | | evidenceis thathestill hasnotpaidtheDecember2018payment.Inote thatinhis | | 9 | | Affidavit of 26thNovember201821,he states that having taken salary advancesfor | | 7 | | NovemberandDecember2018inordertomeethislegalfees,hewouldnotreceivea | | 8 | | salaryuntil January2019.Hesaidwhen hepaid inJanuaryhis balancewas zeroand on | | 9 | | everyoccasionsincethenthathehaspaid,thisisthebalancewhichdemonstratesthat | | 10 | | there isnothing outstanding. | | | | 136. Givenhis evidence that hepaid onemonthlate and thathe didnotmake a double | | | | payment in January,he would have been outstanding by onemonth.The wife has | | | | produced information from the Court's Office that the payments he made are on 18th | | | | August2019.Given thatinformationand thehusband’sown evidence astowhenhe | | | | began making payments,I conclude that he has an outstanding maintenance payment of | | | | $250.00whichheshould nowpay. GRAND | | | | C | | | PENSIONENTITLEMENTSANDOTHERASSETS | PENSIONENTITLEMENTSANDOTHERASSETS | | | 137. | Otherthanpensionentitlements,thereisnoevidencethateitherpartyhasanysubstantial | | | 137. | savings or other assets. Account records produced by the husband show that as at 23rd | | | 137. | September2019,thebalancein his savings account at the Credit Unionwas$2,908.71. | | | 137. | Following the hearing the wife produced her savings account records which confirm her | 21Paragraph14 1 2 3 4 5 9 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 balance as at the date of the hearing as being $5,000.00 and show that as at the 26th September 2019, she had a balance of $7,619.71,held in two accounts at the said institution.There isno evidence to support thehusband's contention that she has $40,0oo.00 in savings. Additionally, I note the smaller level of savings of the wife as at the date of separation in early2018which is the relevant date for the calculation of amounts to be shared as well as thefact that in in his Affidavit of 14t January 2019 the husbandstated: - "51.ThePetitionerhasbeenabletosaveasubstantialamount of cash over thepast few years, due to me paying the mortgage, majority of the bills (up until lately), buyingK'sclothes andpayingforherextra-curricular activities. - 521 am happy for her to keep these funds,although it could be considered matrimonialfunds." - 138.As at October 2018, the wife's pension amounts were $10, 651.09 and $8,293.02. As at the 16thSeptember2019,documentationfrom thehusband's pension providerindicates that thehusband'spensionentitlementis statedtobe $105,927.72.The combined pensionofthepartieswhichistobesharedequallyistherefore$124,871.83.Thewifes positionisthateach shouldretaintheirrespectivepensions22.Counselonherbehalf submits that this position is contingent on acceptance of her overall position with respect <!-- image --> ## 1 CONCLUSION - 2 139. The outstanding issue is whether the wife in acquiring the FMH, (subject to the 3 permissionofthemortgagor),shouldpaytothehusbandonehalfthe equityinthe home. - 4 The husbandindicated thatheisprepared toforego his share of the equityin the home 5 if instead of sharing pension entitlements, each party retains their own pensions.I 9 consider that this is a sensible solution given that the wife does not have access to a lump 7 sumand thiswillavoid theneedforhertoseektosecurealoan.Itis afairoutcome 8 given that the husband has the largershareof thepensionincome aswell as thefact that 6 the amount ofonehalf of pension entitlement isroughly equivalent to one halfof the 10 equity in the unfurnished home together with the possible value of furniture, appliances 11 and fittings. 12 13 14 15 16 17 18 19 20 <!-- image -->

¶ [140] Having considered the best interestsof the child of themarriage,the three strands of needs,compensation and sharing,and all the relevant factors as set out above,the conclusionsareasfollows:

¶ [2] i.The husband is to pay the sum of $575.00 as maintenance for K through the CourtFundsOfficeonor before the28thdayof eachmonth commencingon the 28th February 2020 and is to continue to pay her school fees of $65.00 per month or such other sum as may obtain, through his salary deduction. In accordance with section22of theMatrimonial CausesLaw(2005Revision),payments are to continue until Kreaches the age of 16years orcompletes hereducation up to the ageof21years,whicheveristhelater. - i.Any additional educational expenses and medical,dental and optical expenses forK.notcovered byinsurance aretobeborne equallyby theparties. - ii.The husband is to pay the arrears of maintenance for K., in the sum of $250.00 within onemonthofthedateofthisjudgment. - iv.The husband is to pay the arrears of, strata fees of CI$702.50 and of mortgage payments of CI$2,894.81, on the FMH, within one month of the date of this judgment.Thereafter subject to the approval of the mortgagor the house is to be transferred to the wife solely and she is to be responsiblefor paying all outgoings andexpensesrelatedthereto. - V.The husband is tovacate theFMH within one month ofthe date of this judgment. - vi.Eachpartyistoretain theirrespectivepensionentitlements. - vii.Subject totheapprovalofthemortgagor theBridgeportpropertyis tobe transferredtothehusbandsolelyandheistoberesponsibleforpayingthe mortgage and all outgoings and expensesrelated thereto. - vi.The wife is to pay the arrears of mortgage payments on the Bridgeport property ofJMD$149,227.68andJMD$175,463.83bywayof a reductioninher share of the equity in theproperty. - ix.Prior to the said transfer of the Bridgeport property, thehusband is to pay to the wife,one halfof the equityin theBridgeportpropertyless theamountof the outstandingarrearswithinonemonthofthedateofthisjudgment.Inorderthat the amount of the equityin thepropertyis accuratelydetermined,withinseven <!-- image --> 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 <!-- image --> <!-- image --> | 1 | daysofthedateof thisjudgment,thepartiesareto agree onaValuerwhoisto | |-----|--------------------------------------------------------------------------------------| | 2 | beinstructed toprovide avaluationoftheproperty and eachpartyistobear one | | 3 | halfthecostofthesaidvaluation.Thevaluationobtainedjointlybytheparties | | 4 | is to be used for the calculation of the equity in the property.Alternatively in the | | 5 | absenceofagreement astoaValuerwithin thetimeframe specified,thewifeis | | 9 | to obtain her ownvaluation of the said property and is to bear the cost of same. | | 7 | Thevaluationobtainedbyheristobeusedfor thecalculation of theequityin | | 8 | the property. | | 9 | | | 10 | | | | x.The husband is to pay to the wife a lump sum of JMD 2 million which is | | | the sale of the Riverside Drive Property.Payment is to be made within one | | | month of the date of thisjudgment. | | | xi.Eachpartyistoretain the title to theirrespective motorvehicles. | | | xii.Each partyis to retain thebalances in their respective savings accounts. | | | Datedthisthe14thdayFebruary2020 | | | Honourable Justice Cheryll Richards Q.C. Judgeof the Grand Court |