Gunn J
```html <table> <tr> <td>1</td> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>2</td> <td>HOLDEN IN GEORGE TOWN</td> </tr> <tr> <td>3</td> <td>CAUSE NO. FAM 116 OF 2016</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>AB</td> <td>Petitioner</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>AND</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>SB</td> <td>Respondent</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>Appearances：</td> </tr> <tr> <td>15</td> <td>The Petitioner in person/Mrs Brooks-Hurst QC amicus</td> </tr> <tr> <td>16</td> <td>Miss Stacy Thompson for the Respondent</td> </tr> <tr> <td>17</td> <td>Before：</td> </tr> <tr> <td>18</td> <td>Gunn J (Actg)</td> </tr> <tr> <td>19</td> <td>Heard：</td> </tr> <tr> <td>20</td> <td>23rd and 24th January 2018 and 16th February 2018</td> </tr> <tr> <td>21</td> <td>Petitioner's written</td> </tr> <tr> <td>22</td> <td>submissions filed：</td> </tr> <tr> <td>23</td> <td>24th January 2018 and 2nd March 2018</td> </tr> <tr> <td>24</td> <td>Respondent's written</td> </tr> <tr> <td>25</td> <td>submissions filed：</td> </tr> <tr> <td>26</td> <td>2nd March 2018</td> </tr> <tr> <td>27</td> <td>Circulation of</td> </tr> <tr> <td>28</td> <td>Draft Judgment：</td> </tr> <tr> <td>29</td> <td>26th March 2018</td> </tr> <tr> <td>30</td> <td>Date of Judgment：</td> </tr> <tr> <td>31</td> <td>16th May 2018</td> </tr> <tr> <td>32</td> <td>Date of Revised</td> </tr> <tr> <td>33</td> <td>Judgment：</td> </tr> <tr> <td>34</td> <td>22nd May 2018</td> </tr> <tr> <td>35</td> </tr> <tr> <td>36</td> <td>This Judgment was delivered in private，but the Judge hereby gives leave for it to be</td> </tr> <tr> <td>37</td> <td>judgment is being delivered</td> </tr> <tr> <td>38</td> <td>The this matter attributed by name or 40</td> </tr> <tr> <td>39</td> <td>adult members of their family must be strictly preserved.</td> </tr> <tr> <td>40</td> </tr> <tr> <td>41</td> </tr> <tr> <td>42</td> </tr> <tr> <td>43</td> </tr> </table> <sup>1</sup> Mrs Brooks-Hurst QC appeared on 24th January and 16th February and remains amicus curiae for the delivery of the judgment. Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 1 of 36 ```
```markdown # HEADNOTE Financial Provision - Ancillary relief - conduct - bigamy Financial Provision - Ancillary relief - special contribution Financial Provision - ancillary relief - spousal maintenance - clean break Financial Provision - variation of maintenance pending suit ## AMENDED JUDGMENT²
The court is dealing with - (i) The Respondent's summons for enforcement of the order made March 2017 for maintenance pending suit ("MPS"); (ii) The Petitioners application for a downward variation of the MPS; and (iii) the remaining issues of ancillary relief within divorce proceedings. ## THE BACKGROUND/PROCEEDINGS
The parties, to whom for convenience (and without intending any discourtesy or disrespect) I shall refer to respectively as "the husband" and "the wife", were married on 15th September 1985. Six children were born of this marriage; the youngest, twin daughters age 15, are the only minor children and reside with their mother. The parties resided in the FMH until December 2011, at which time the husband left the matrimonial home and the parties ceased living as husband and wife. --- ² See paragraphs 79 and 86. Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 2 of 36
On 9th March 2017, by a consent order, the wife withdrew her answer to the husband’s petition, and both the husband’s petition and the wife’s cross-petition were proved. The matters pleaded are therefore deemed facts (see Mercer v Harmans [2003] CILR 510), namely that –
(i) The husband and the wife quarrelled frequently. On at least one occasion the police were called;
(ii) The wife stopped working 25 years ago and has refused to return to work since, despite being physically able to do so;
(iii) The husband has repaid funds unlawfully taken by the wife from her employers.
On that same date Williams J ordered the husband to pay split child maintenance and spousal maintenance of CI$1,937 per month ($968.50 on the 1st and 15th of every month commencing 15th March 2017), to maintain the mortgage payments for the FMH and pay the utilities bills up to a total of CI$310.00 per month.
On 10th May 2017 the husband filed a summons seeking a downward variation of the MPS.
On 5th June 2017 the wife filed a summons for arrears and Attachment of Earning’s Order
On 29th July 2017 Carter J judged that the husband was in arrears of CI$65.50. The wife was ordered to be paid CI$1,000th until the arrears were liquidated. The husband’s summons for variation was adjourned to allow him to produce details of his retirement options.
Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016
The matter was set down for hearing for final ancillary relief on 29th November 2018. Due to the late service of the notice of the hearing on the husband, the hearing was adjourned. The matter was set down for hearing on 23rd and 24th January 2018. The husband's application for downward variation of the MPS and arrears as ordered by Carter J (Actg.) was adjourned to 14th December 2017. On 14th December 2017 the matter returned to court for the hearing of the husband's application for downwards variation of MPS and the wife's application for arrears and AEO, which was filed in the interim. I heard the applications and found that the wife had failed to prove that the husband was employed for the purposes of an AEO. I made no finding on the matter of arrears, adjourning that matter together with the husband's application to vary the MPS and arrears to be heard at the final ancillary relief hearing. The adjournment was ordered so that the husband could obtain further evidence from his former employers and pension plan provider as well as up-to-date bank statements. It was also ordered that the husband was prohibited from selling any motor vehicles until further order of the court. The final hearing commenced on 23rd January 2018², but was adjourned on the second day for the wife to obtain valuations on the properties (having applied for legal aid for the purpose that same day). The matter returned to court on 16th February 2018, at which time I was provide evidence of the valuations obtained by both parties. I was advised that the husband was not calling in, and 'relinquish affidavit' was previously filed. The husband is 62 years old and the wife 57 years old. Both are Caymanian. --- ² Mrs Brooks-Hurst QC appeared in the afternoon of 24th January 2018 to act as amicus curiae for the husband Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 4 of 36
THE LAW AND PRINCIPLES TO BE APPLIED
The law pertaining to the making of periodical payment orders and to the division of matrimonial assets is governed by section 19 of the Matrimonial Causes Law (2005 Revision) (“the Law”), which provides: ``` "in dealing with all ancillary matters arising under this law the court should have regard first of all to the best interests of any children of the marriage and thereafter to the responsibilities and financial and other resources, actual and potential earning power and deserts of the parties."
Section 19 must be read in conjunction with section 21 of the Law. The relevant parts which apply to my consideration are as follows; ``` "at the time of pronouncing a decree under this law, the court shall, as appropriate, make order for; (a) The custody, care and control of the children of the marriage; (b) The distribution of matrimonial property, including the matrimonial home; (c) ... (d) ... (e) Making financial provisions from the property of either spouse for the children of the marriage and to the other spouse. (f) For periodical payments to be made for the benefit of the children of the marriage by either spouse. (g) Costs." ``` Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 5 of 36
Section 22(1) of the Law provides for the making of child maintenance orders until the child reaches the age of 21 if the child is receiving education.
Sections 19 and 21 of the Law give the court a wide discretion when it comes to financial provision and any awards made to the parties. In deciding whether to exercise its power under section 21, and in which manner, the court shall consider what is fair in all the circumstances of the case. In addition to those matters set out in section 19 of the Law, the courts in the Cayman Islands have also been guided by the relevant factors raised in section 25 (2) of the English Act\footnote{Matrimonial Causes Act 1973} which include: (i) the income earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future; (ii) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (iii) the standard of living enjoyed by the family before the breakdown of the marriage; (iv) the age of each party to the marriage and the duration of the marriage; (v) any physical or mental disability of either of the parties to the marriage; (vi) the deserts of the parties, including contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include contributions made by each of the parties to the welfare of the family (to include 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(vii) the value to either of the parties to the marriage of any benefit (for example a pension) which, by reason of the dissolution of the marriage, the party will lose the chance of acquiring; and (viii) the conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard.
The Court of Appeal in McTaggart v McTaggart [2011 2 CILR 366] set out the approach to be taken to the case law emanating from England and Wales:
We were referred by the parties, both in the skeleton arguments lodged on their behalf and in oral submissions made in the course of the hearing, to a plethora of judicial decisions in England and Wales and to a few decisions in this jurisdiction. Observations made by experienced judges are, of course, of assistance to an understanding of the application of section 19 factors; but it must be kept in mind that most cases in this field are decided on their own facts and that there is a risk that extensive citation may confuse rather than illustrate. It is not necessary, I think, to look further than the decision of the House of Lords in Miller – and in particular the speeches of Lord Nichols and Baroness Hale – in order to identify the principles. Leaving aside in this context, the best interests of the children, which (as I said) are paramount, there are three strands: need, compensation and sharing [2006] 2 AC 618 at paragraphs [10]-[16] per Lord Nichols and paragraphs [138]-[143] per Baroness Hale. The Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 7 of 36
```html <div class="page"> <div class="page-number">Page 8 of 36</div> <div class="text"> <p>[144] thus far, in common with my neighbour and learned friend Lord Nicholls of Birkenhead, I have identified three principles which might guide the court in making an award: need, generously interpreted, compensation and sharing. I agree that there cannot be a hard and fast rule, but whether one starts with equal sharing and departs when need or compensation supplied a reason to do so, or whether one starts with need and compensation and shares the balance, such will depend on how far future income is to be shared as well as current assets. In general, it can be assumed that the marital partnership does not stay alive for the purpose of sharing future resources unless this is justified by need or compensation. <em>The ultimate objective is to give each party an equal start on the road to independent living.</em></p> </div> </div>
Chadwick P in McTaggart made it clear that having regard to the considerations of need, compensation and sharing, if appropriate provisions could be made by order under section 21 (b) and/or 21 (e) of the law, the court should not make a spousal periodic payment order without good reason: "It seems to me reasonably clear (and I would so hold) that, if satisfied that an order under section 21 (b) of the law (all the combination of orders under section 21 (b) and (b) would make appropriate provisions for the relevant party in respect of the three strands (need, compensation, and sharing), the court should not, without good reason, make an order for periodic payments under section 21 (f). To make an order for periodic payments – in circumstances were such an order is unnecessary because appropriate provisions can be made by the disposition matrimonial property either (under section 21 (b) or by a capital adjustment from the separate property of the other party (under section 21 (e)) – would be inconsistent with the principles of clean break ... The ultimate objective is to give each party an equal start on the road to independent living." Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 9 of 36
Given that there are still 2 minor children for which arrangements need to be made I also have in mind William J's decision in E(R) v D(C) [2016(1) CILR 55] –
I have carefully considered the authorities cited above. One of the core issues raised by the husband in this matter is that there should be clean break, with the husband receiving an increased share of the matrimonial assets because – (a) he has made a special contribution to the marriage; and (b) he has been financially supporting the wife for the past ten years. ``` ```html <table> <tr> <td>28.</td> <td>...the position in the Cayman Islands is that the court should have regard first to the best interests of any children of the marriage when considering all of the other s.19 factors. The best interests of a relevant child are the first thing to which the court should direct itself. In the absence of the word “paramount,” which appears in other pieces of legislation, I'm not satisfied that section 19 of the law makes the interests of the children paramount. The effect of the requirement in section 19 is that the best interests of any children of the marriage are to be regarded as a consideration of first importance which must be borne in mind throughout when the court goes on to consider the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties... A general principle is that a home for minor children is normally a main requirement and this is consistent with their best interests as a first consideration."</td> </tr> </table> ``` ```latex \begin{equation} \text{28. ...the position in the Cayman Islands is that the court should have regard first to the best interests of any children of the marriage when considering all of the other s.19 factors. The best interests of a relevant child are the first thing to which the court should direct itself. In the absence of the word “paramount,” which appears in other pieces of legislation, I'm not satisfied that section 19 of the law makes the interests of the children paramount. The effect of the requirement in section 19 is that the best interests of any children of the marriage are to be regarded as a consideration of first importance which must be borne in mind throughout when the court goes on to consider the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties... A general principle is that a home for minor children is normally a main requirement and this is consistent with their best interests as a first consideration.} \end{equation} ```
The wife argues that: (a) the husband entered into a bigamous marriage in 2011 which is so egregious that she should receive a greater proportion of the matrimonial assets; and (b) due to her inability to work, an order for monthly spousal maintenance in the amount of CI$1,000 per month is appropriate. ### SPECIAL CONTRIBUTION
With regards to the husband’s submission that he made a special contribution deserving of the lion’s share of the matrimonial assets, the Court of Appeal in Gordon v Watler CICA (Civil) 13/2014 cited with approval the decision of the Court of Appeal of England and Wales in Charman v Charman (No.4) [2007] 1 FLR 1246; [2007] EWCA Civ 503. "In the judgment of the court, delivered by Sir Mark Potter, President of the Family Division, it was explained (at paragraphs [78]-[80]) that special contributions cases were really limited to circumstances in which the wealth was so large that there could be no question but that equal division would more than provide for the elements of need and compensation. In such a case it might be appropriate to depart from the principle of equal sharing which would govern normally the approach to the sharing element of the matrimonial assets. The court referred to the decision of Lord Justice Thorpe in Lambert V Lambert [2002] EWCA Civil 1685, 2003, 1 Fam LR 139 at para. [52]; in which it had been pointed out that there may be cases where the product alone justifies the conclusion of a special contribution, but that, absent some exceptional and individual quality" Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 11 of 36
```html <table> <tr> <td>1</td> <td>in the generator of the fortune, the case of a special contribution must</td> </tr> <tr> <td>2</td> <td>be hard to establish. The president, Sir Mark Potter, went on to say</td> </tr> <tr> <td>3</td> <td>this (at paragraph [80] of his judgement in Charman):</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>[80] in such cases, therefore, the court will no doubt have</td> </tr> <tr> <td>6</td> <td>regard to the amount of the wealth, and in some cases,</td> </tr> <tr> <td>7</td> <td>including the present, its amount will be so extraordinary</td> </tr> <tr> <td>8</td> <td>as to make it easy for the party who generated it to claim</td> </tr> <tr> <td>9</td> <td>an exceptional and individual quality which deserves</td> </tr> <tr> <td>10</td> <td>special treatment. Often, however, he or she will need</td> </tr> <tr> <td>11</td> <td>independently to establish such quality, whether by genius</td> </tr> <tr> <td>12</td> <td>in business or in some other field. Sometimes, by contrast,</td> </tr> <tr> <td>13</td> <td>it will be immediately obvious that the substantial wealth</td> </tr> <tr> <td>14</td> <td>generated during the marriage is a windfall. The proceeds,</td> </tr> <tr> <td>15</td> <td>for example of an anticipated sale of land development or</td> </tr> <tr> <td>16</td> <td>an embattled take-over of the party's ailing company</td> </tr> <tr> <td>17</td> <td>which is not the product of a special contribution."</td> </tr> <tr> <td>18</td> <td>The president went on (at paragraph [81]) to refer to the</td> </tr> <tr> <td>19</td> <td>observations of Baroness Hale in Miller (at paragraph [146]), in</td> </tr> <tr> <td>20</td> <td>which she had indicated that it was only if there is such a disparity in</td> </tr> <tr> <td>21</td> <td>their respective contributions to the welfare of the family that it</td> </tr> <tr> <td>22</td> <td>would be inequitable to disregard that this should be taken into</td> </tr> <tr> <td>23</td> <td>account in determining their shares."</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> </tr> </table> Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 ```
```html <table> <tr> <td>1</td> <td>23.</td> <td>I am satisfied on the evidence before me that each party contributed</td> </tr> <tr> <td>2</td> <td>financially to the household during their first 15 years of marriage, whether</td> </tr> <tr> <td>3</td> <td>by paying the mortgage or bills. Their support of one another came in other</td> </tr> <tr> <td>4</td> <td>forms too: I am satisfied that the wife was financially supporting the husband</td> </tr> <tr> <td>5</td> <td>during his training to become a pilot, and the husband paid off a significant</td> </tr> <tr> <td>6</td> <td>compensation order made following the wife's conviction for theft from her</td> </tr> <tr> <td>7</td> <td>employer 30 years ago. The wife assisted in running the husband's trucking</td> </tr> <tr> <td>8</td> <td>business. Once, the husband took up employment as a pilot his contribution</td> </tr> <tr> <td>9</td> <td>to the household was more significant than that of the wife. The wife worked</td> </tr> <tr> <td>10</td> <td>on and off for a further 10 years and was involved in raising the children. I</td> </tr> <tr> <td>11</td> <td>have not been provided with evidence to be able to quantify that difference in</td> </tr> <tr> <td>12</td> <td>their direct financial contributions. However, the husband's role as the</td> </tr> <tr> <td>13</td> <td>primary/sole breadwinner and the various roles of the wife are reasonable</td> </tr> <tr> <td>14</td> <td>acts to further the welfare of the family as a whole. The husband's contribution</td> </tr> <tr> <td>15</td> <td>does not constitute a special contribution.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>24.</td> <td>It has not been disputed that the husband has been the sole provider for the</td> </tr> <tr> <td>18</td> <td>family since at least 2011 and has continued to provide financial support for</td> </tr> <tr> <td>19</td> <td>them even after he left the matrimonial home. Whether that support was</td> </tr> <tr> <td>20</td> <td>sufficient to maintain the family and the FMH has been strongly contested.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>25.</td> <td>In April 2017 the husband estimated his salary to be $9,000 (Husband's</td> </tr> <tr> <td>23</td> <td>affidavit dated 3rd April 2017, paragraph 24).</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>26.</td> <td>It is not uncommon for one party to a marriage to be working while the other</td> </tr> <tr> <td>2</td> <td>is at home, for any number of reasons, including voluntary unemployment.</td> </tr> <tr> <td>3</td> <td>The husband now seeks to assert that the wife should not unfairly benefit from</td> </tr> <tr> <td>4</td> <td>his contribution while she was unemployed. There is no evidence before me</td> </tr> <tr> <td>5</td> <td>to suggest that the situation which developed was anything other than which</td> </tr> <tr> <td>6</td> <td>was intended by the parties at the time the marital assets were acquired, i.e.</td> </tr> <tr> <td>7</td> <td>the parties accepted, either expressly or by inference, that the husband should</td> </tr> <tr> <td>8</td> <td>be the sole breadwinner for the family. The husband cannot now seek to</td> </tr> <tr> <td>9</td> <td>reinterpret events in order to claim a special contribution.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>27.</td> <td>I find that the husband’s larger financial contribution in this instance does not</td> </tr> <tr> <td>12</td> <td>fall within the ambit of “special contribution” - there is nothing exceptional</td> </tr> <tr> <td>13</td> <td>nor an individual quality to his contribution that would cause an equal division</td> </tr> <tr> <td>14</td> <td>of the assets to be inequitable.</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>CONDUCT CASES</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>28.</td> <td>The conduct of a party is only relevant in exceptional circumstances in which</td> </tr> <tr> <td>20</td> <td>it would be inequitable to disregard it (see Miller v Miller; McFarlane v</td> </tr> <tr> <td>21</td> <td>McFarlane [2006] UKHL 24; [2006] 1 FLR 1186).</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> <td>29.</td> <td>The Court of Appeal of England and Wales in Whiston v Whiston [1995] 2</td> </tr> <tr> <td>24</td> <td>FLR 268 held that the crime of bigamy strikes at the heart of the institution of</td> </tr> <tr> <td>25</td> <td>marriage and therefore, the court can not regard the crime in context</td> </tr> <tr> <td>26</td> <td>when determining the case</td> </tr> <tr> <td>27</td> <td>of</td> </tr> <tr> <td>28</td> <td>equitable</td> </tr> <tr> <td>29</td> <td>when determining</td> </tr> <tr> <td>30</td> </tr> </table>
The wife has produced a marriage license from Dade County Court records, recording a marriage on 19th January 2011 between a person from the Cayman Islands of the same name and date of birth as the husband, and purportedly resident in Miami, Florida. The wife gave evidence that the husband was in Miami that weekend and that she found the relevant documentation and challenged the husband about the marriage. To her knowledge, the marriage was annulled in March 2011. Her evidence was that the DPP commenced criminal proceedings indicting the husband for bigamy, but that the prosecution was discontinued at the wife’s request, as a result of his pleas to her to discontinue. The husband has not produced any evidence to contradict or cast doubt on the veracity of the wife’s claim. On the evidence before me, I find that it is more likely than not that the husband participated in a marriage ceremony in Miami while still married to the wife and prior to him leaving the matrimonial home.
I find that the husband’s conduct was so egregious that it would be inequitable to disregard it; however, I am mindful that the wife has not asserted that the husband’s behaviour caused the breakdown of the marriage. This is relevant to determining what distribution is equitable in those circumstances. FUTURE INCOME POTENTIAL/FUTURE DEBT
A medical examination in December 2017 disclosed that the husband has hypertension and type II diabetes. Both are being treated with medication. I accept conditions consequent to his medical condition, although the prevention of his resumption of his professional activities will address that in detail later. ```
The husband argues that given his change in employment status he is no longer able to financially support the wife. The husband advised me during the proceedings that he is seeking new employment to supplement his pension income, although he does not believe that his income will be at the same level. The husband has failed to set out his liabilities, other than the general existence of loans with CICSA and Bank of Butterfield and his liability to pay for a hospital bill relating to one of his sons. He did not produce any bills to corroborate the existence of the medical bill. During the proceedings in January, the husband offered to pay child maintenance in the amount of $1,278 p.m. and continue to pay the mortgage on the FMH until the twins' 18th birthday<sup>4</sup>. By this offer the husband was acknowledging that he would be able to satisfy an order made in those terms. Given the husband's failure to disclose the details of his income and expenditure, this offer is material in assessing the husband's true means. <sup>4</sup> In addition, on the twins' 18th birthday the FMH would be signed over to them without incumbrances; Block 48C Parcel 137 ("Breakers lot" – with apartment) would be signed over forthwith to son, S, without incumbrance "for him to do as he pleases", the wife would receive Block 59A Parcel 48 ("Midlands East lot") without incumbrances forthwith; while the husband would retain Block 55A Parcel 33 ("Frank Sound lot"), Block 56C Parcel 70 (lot adjacent to FMH) and Block 27C Parcel 243 ("North Sound Estates lot") Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 16 of 36
The wife gave evidence of her and the children’s needs to be as follows | Item | Cost per month | | --- | --- | | CUC | $180 | | Water | $78 | | Groceries | $600 | | Telephone | $150 | | Gas | $150 | | Petrol | $150 | | Car insurance | $26 | | Medication | $400 | | Cable/Internet | $100 | | School lunches | $200 | | Personal care/clothing for daughters | $300 | | School uniform/supplied | $71 | | Wife’s personal expenses | $1,000 | Total amount $3,405.00 per month. The wife accepted that her utility bills will reduce somewhat now that her son and his wife have moved out of the property. $312 p.a. Although the wife is currently able to obtain this service for free if the box is reconnected. $10 p.d. per child In addition to purchases made by husband $850 p.a. e.g. medical expenses, vehicle maintenance and licensing, personal care and outings with the minor children Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 17 of 36
```html <table> <tr> <td>1</td> <td>36.</td> <td>On the evidence before me I am satisfied that the wife was in and out of</td> </tr> <tr> <td>2</td> <td>employment until 15 years ago. Thereafter she made 2 attempts to open a</td> </tr> <tr> <td>3</td> <td>shop in 2010 and again in 2011 but these traded for only a short time. She has</td> </tr> <tr> <td>4</td> <td>not had an income since then. In 2008 the wife was convicted of theft and</td> </tr> <tr> <td>5</td> <td>employing another without a work permit. I accept that the wife has had some</td> </tr> <tr> <td>6</td> <td>medical issues over the years that restricted her ability to work. I am not</td> </tr> <tr> <td>7</td> <td>persuaded that the wife has made all reasonable efforts to secure the</td> </tr> <tr> <td>8</td> <td>necessary treatment that would allow her to resume working. Although the</td> </tr> <tr> <td>9</td> <td>wife cites lack of funding, she admitted in evidence that she did not follow up</td> </tr> <tr> <td>10</td> <td>an application she made with the Needs Assessment Unit for funding for her</td> </tr> <tr> <td>11</td> <td>surgery. This fact lends support to the husband's assertion that the wife has</td> </tr> <tr> <td>12</td> <td>allowed her medical condition to continue so that she can justify demanding</td> </tr> <tr> <td>13</td> <td>spousal maintenance. Importantly, the wife stated in evidence that she thinks</td> </tr> <tr> <td>14</td> <td>she could perform a desk-based job, although she has not spoken to, nor</td> </tr> <tr> <td>15</td> <td>produced evidence of, any attempts to secure employment since 2011. I</td> </tr> <tr> <td>16</td> <td>accept that given the wife's convictions for dishonesty she will have some</td> </tr> <tr> <td>17</td> <td>difficulties securing employment, but it is not impossible. I find that she is</td> </tr> <tr> <td>18</td> <td>capable of securing an income of her own. I do think that it is appropriate in</td> </tr> <tr> <td>19</td> <td>these circumstances that the wife should be expected to take positive steps to</td> </tr> <tr> <td>20</td> <td>maintain herself. I am mindful that even if the wife secures employment, it</td> </tr> <tr> <td>21</td> <td>will be a small salary and there will be little time to accumulate any meaningful</td> </tr> <tr> <td>22</td> <td>pension. I am satisfied that the wife will not likely have the means to secure</td> </tr> <tr> <td>23</td> <td>her own accommodation.</td> </tr> <tr> <td>24</td> <td>also</td> </tr> <tr> <td>25</td> <td>37</td> <td>Is also taken into consideration that at present neither party has health</td> </tr> <tr> <td>26</td> <td>insurance and, consequently, neither party has</td> </tr> <tr> <td>27</td> <td>COU</td> </tr> <tr> <td>28</td> <td>2/17</td> </tr> </table> Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 ```
This has been a very unpleasant case, with the parties engaging in a tit-for-tat litigation – seeking to rely on events that occurred almost 20 years ago to shape the outcome of the proceedings today. I find both parties have been less than truthful with the court in an effort to manipulate the outcome of these proceedings. The wife failed to adequately address the high medication expenses she claims. The insurance statements contradicted not only what the wife alleges she has had to pay in the past, but also what she will likely have to pay in future, even without medical insurance. She has provided no details for the medical costs for the daughter who suffers with asthma. The wife only provided vague details as to how she reached the $1,000 p.m. estimate for her personal expenses. I am satisfied that the wife has grossly exaggerated the medical expenses as well as her “personal” expenses in an attempt to secure a more favourable outcome. On the other hand, as I will come to next, the husband has withheld details of his assets overseas, most likely to minimise the level of any maintenance order. He has sought to acquire new assets after leaving the FMH and increased the marital debt, while failing to meet his financial obligations to his family, most notably, failing to make meaningful efforts to maintain the FMH to provide a safe, healthy and comfortable environment for the children of the family. THE MATRIMONIAL ASSETS AND LIABILITIES Thereof six properties are a total of properties in the marriage. Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 19 of 36
```html <table> <tr> <td>1</td> <td>41.</td> <td>The wife has obtained a report from “Bould Consulting” a property consulting</td> </tr> <tr> <td>2</td> <td>company. They inspected the properties to the extent that they could and</td> </tr> <tr> <td>3</td> <td>provided details as to how they determined the “market value” for each</td> </tr> <tr> <td>4</td> <td>property. This report incorporates the existence of dwellings on two of the</td> </tr> <tr> <td>5</td> <td>properties into the assessment.</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> <td>42.</td> <td>The husband has produced a letter from a property broker, Steve Parsons of</td> </tr> <tr> <td>8</td> <td>“Property Pals” which, on the face of the document, appears to be a valuation</td> </tr> <tr> <td>9</td> <td>of the raw land only. The different approaches are evident in the disparity</td> </tr> <tr> <td>10</td> <td>between the valuations of the properties that are developed. Given the</td> </tr> <tr> <td>11</td> <td>thoroughness of the Bould report, and the fact that it does take into</td> </tr> <tr> <td>12</td> <td>consideration the development of two of the properties, I find that reliance can</td> </tr> <tr> <td>13</td> <td>be placed on that report, while less weight can be attached to valuations</td> </tr> <tr> <td>14</td> <td>provided by “Property Pals” with respect to the developed properties. I have</td> </tr> <tr> <td>15</td> <td>taken the approximate median values in respect of the raw land.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>The FMH(block 56C parcel 10)</td> </tr> <tr> <td>19</td> <td>43.</td> <td>This property was purchased by the husband at the age of 17. It was used as</td> </tr> <tr> <td>20</td> <td>the matrimonial home throughout the subsistence of the marriage and</td> </tr> <tr> <td>21</td> <td>presently is the home of the two minor children and the wife. It is apparent</td> </tr> <tr> <td>22</td> <td>from the wife’s evidence and the photographs provided that the FMH is in a</td> </tr> <tr> <td>23</td> <td>poor condition. It is in need of significant repairs, both internally and</td> </tr> <tr> <td>24</td> <td>externally. I accept the wife’s evidence that the house is not fit for habitation</td> </tr> <tr> <td>25</td> <td>for the minor children. The only evidence of the extent of the damage do</td> </tr> <tr> <td>26</td> <td>estimates almost a of repair</td> </tr> <tr> <td>27</td> <td>current condition the property is valued at one hundred and seventy five</td> </tr> <tr> <td>28</td> <td>thousand dollars (CI$175，000). It has an incumbrance to the value of $100，000</td> </tr> <tr> <td>29</td> <td>as a result of a CICSA loan obtained by the husband in 2015.</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> </tr> </table> Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 ```
Land adjacent to FMH (block 56C parcel 70)
This raw land is valued at approximately CI$31,000<sup>11</sup> has an incumbrance the total value as a result of the same CICSA loan obtained by the husband in October 2012. # Canal front land in North Sound Estates (block 27C parcel 243)
This raw land is valued at approximately CI$89,000<sup>12</sup> and also has an incumbrance tied to the CICSA loan. # Midland East lot (block 59A parcel 46)
This raw land is valued at approximately CI$147,500<sup>13</sup> and has an incumbrance as a result of a Bank of Butterfield mortgage obtained by the husband in 2013 to purchase his current residence. # Frank Sound lot (block 55A parcel 33)
This raw land is valued at CI$125,000<sup>14</sup> and has an incumbrance since January 2011 for a CICSA loan. <sup>11</sup> Bould CI$33,000 / Property Pals CI$29,098 <sup>12</sup> Bould CI$95,000 / Property Pals CI$82,755.28 <sup>13</sup> Bould CI$145,000 / Property Pals CI$150,033.70 <sup>14</sup> Bould CI$85,000 / Property Pals CI$165,528 Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 21 of 36
Breakers property (block 48C parcel 137)
This property includes a single-storey residential structure, believed to be a one-bedroomed apartment. The parties agree that the residences currently occupied. The evidence of the husband is that the occupants are residing there free of charge. This is not disputed by the wife, although the parties disagree as to the reason why the occupant is not paying rent. This property is valued at CI$90,000<sup>15</sup> and is also subject to an incumbrance tied to a CICSA loan. There is no evidence of the current condition of the property or its potential rental value. Given the location and the size of the property, it is reasonable to infer that it is unlikely to attract a rent in excess of CI$1,000 p.m. ## LIABILITIES
As at 31<sup>st</sup> October 2017 the CICSA loan balance was CI$226,356.67. I have no evidence before me as to whether further payments have been made. It is accepted that the husband has been meeting the payments of this loan from his salary for many years. The loan is a consolidation of loans obtained before and after the parties separated.
The Land Registry documents disclose that since the parties separated in 2011, the husband has used matrimonial property to secure an increase in the principle sum of the CICSA loan: - (i) CI$100,000 on the FMH in August 2015; and - (ii) Approximately CI$26,600 (net<sup>16</sup>) on the Frank Sound land 55A Parcel approx20,000 (net land) (Block 33). <sup>15</sup> Using Bould valuation only (see above) <sup>16</sup> 19<sup>th</sup> June 2012 “Principle Sum is increased by CI$17,747.59” <sup>18</sup> 18<sup>th</sup> December 2013 “Principle Sum is increased by CI$16,878.45” <sup>31</sup> 31<sup>st</sup> July 2015 “Principle Sum decreased by CI$7,974.10” Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 22 of 36
It is noteworthy that the FMH was free of incumbrances when the charge was registered in 2015. No evidence has been adduced as to how the loan funds were applied, although it is clear that they were not used to purchase matrimonial assets or refurbish the FMH. However, the wife has not disputed that this is a matrimonial debt, inviting me to order the sale of such properties as is necessary to discharge the CICSA loan. Assuming that interest and other fees will have been added and some payments made since the last statement, I will have to estimate the current balance. I find that the matrimonial debt is approximately CI$223,000.00, while the combined value of the properties is CI$657,000. The net equity is CI$434,000. 13 NON-MATRIMONIAL PROPERTY & LIABILITIES 15 Apartment 1, The Corner, Spotts
The husband purchased this property in May 2013 as his new residence. The purchase was financed with a mortgage for CI$215,000 with Bank of Butterfield, using the new property and the Midland East lot (matrimonial property) as collateral. As at 30th November 2017, the balance on the mortgage was CI$166,124.86. Bould Consulting has valued the property at CI$265,000. The husband has not provided a valuation for this property. Depending on whether the husband has continued to make payments on the mortgage, and excluding the Midland East lot, the available equity in the husband's new apartment is approximately CI$100,000. Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 23 of 36
Florida properties
The wife has asserted that the husband purchased two pieces of land in Marion County, Florida in August 2016. She has produced land registry documents and a mortgage deed in relation to these properties. The husband has not produced any evidence to the contrary, nor has he denied purchasing these properties. I find on the evidence before me that it is more likely than not that the husband owns these lots together with Donna Marie Ebanks. I am also satisfied that in September 2017 the properties were together valued at US$121,000 and are unlikely to have decreased in value since then. The principle sum of the mortgage was US$71,200 with an interest rate of 7% per annum. The mortgage repayment rate is US$826.69 per month for 10 years. As at 1st April 2018 the mortgage balance would be US$70,788.64<sup>17</sup>. Consequently, the equity in these properties is a total of US$50,211.36. It is reasonable to assume that the husband is legally entitled to at least 50% of the equity.
The husband has failed to disclose this property during the course of these proceedings. I consider this to have been an intentional withholding of information so as to avoid knowledge of the existence of this asset. I consider this to have been a dishonest act. Consequently, I find it is reasonable to infer that it is more likely than not that the mortgage payments have been honoured.
The wife has also asserted that the husband owns a property in Florida with his mother. There is no evidence before me to substantiate this and so I find that he owns such a property with his mother. Therefore, I find that the husband does not own a property with his mother. <sup>17</sup> Calculated using amortisation calculator at Bankrate.com Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 24 of 36
```html <table> <tr> <td>56.</td> <td>Although the husband had initially asserted that the wife is the beneficial</td> </tr> <tr> <td>owner of property/funds held by SS, the wife's sister, he did not challenge her</td> </tr> <tr> <td>affidavit evidence denying that this was the case. There is no other evidence</td> </tr> <tr> <td>suggesting the wife has any hidden assets. I find that she does not own nor</td> </tr> <tr> <td>she the beneficiary of any other assets than those identified as marital assets.</td> </tr> <tr> <td>57.</td> <td>Whilst having regard to the best interests of any relevant child and the section</td> </tr> <tr> <td>19 MCL factors, if upon assessing the value the matrimonial assets, they meet</td> </tr> <tr> <td>the needs of the children and parties, then the court need not make any order</td> </tr> <tr> <td>in relation to non-matrimonial assets (per Williams J in JH v YH 15th January</td> </tr> <tr> <td>2018 - D113 of 2000, para 33). Given that the husband's purchases were</td> </tr> <tr> <td>made, at least in part, using the matrimonial assets, and funds were spent on</td> </tr> <tr> <td>these new assets while the FMH fell further into disrepair, I do find that these</td> </tr> <tr> <td>new assets should be included in the section 19 considerations, as not only the</td> </tr> <tr> <td>husband's financial resources but also relevant to the fairness of the division</td> </tr> <tr> <td>of assets.</td> </tr> <tr> <td>OTHER ASSETS</td> </tr> <tr> <td>58.</td> <td>In addition to the six properties to which I have referred, the parties are agreed</td> </tr> <tr> <td>that the husband purchased and owns five motor vehicles and one boat:</td> </tr> <tr> <td>· Chevrolet Corvette</td> </tr> <tr> <td>· Mercedes Benz</td> </tr> <tr> <td>· Chevrolet Avalanche</td> </tr> <tr> <td>· Chevrolet Dual</td> </tr> <tr> <td>· Chevrolet Sily</td> </tr> <tr> <td>· A Scarab Boat</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>59.</td> <td>I have not been provided with any valuations of these assets or an independent</td> </tr> <tr> <td>2</td> <td>assessment of their condition. It is accepted that the husband uses the</td> </tr> <tr> <td>3</td> <td>Mercedes Benz.</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>60.</td> <td>Although the wife has given evidence that there is a second boat outside the</td> </tr> <tr> <td>6</td> <td>husband’s residence, which he denies owning, there is no direct or indirect</td> </tr> <tr> <td>7</td> <td>evidence to satisfy me on balance that he is the owner of this second boat.</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>61.</td> <td>Given the letter from the Chambers Pension Plan, I find that the husband only</td> </tr> <tr> <td>10</td> <td>has a modest pension entitlement: only $12， 000 per annum ($1， 000 per</td> </tr> <tr> <td>11</td> <td>month).</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> </tr> </table> Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 ```
THE NEEDS OF THE CHILDREN
The two remaining minor children are almost 16. They currently live with the wife and have liberal access to the husband and their paternal grandmother. In the consent order dated 9th March 2017, it is recorded that the parties informed the court that they agree a residence order in favour of the wife with flexible contact with husband is appropriate. For reasons not explained in his submissions, the husband now invites me to either make a shared residence order or a "no order" order. Mrs Thompson did not address this issue at all during these proceedings. Section 3(2) of the Children Law (2012 Revision) provides the matters I should have regard to when determining whether to make a section 10 order<sup>18</sup>. I note that the current arrangements reflect the March 2017 order. There is no evidence before me that the arrangements are contrary to the children’s wishes, are not meeting their physical and emotional need, or are causing them or likely to cause them harm. The parties do agree that the hostile behaviour each of the parties accuses the other of, is distressing the children. This is another reason why a clean break – drawing a line under this marriage – is in the best interests of this family.
The children are almost 16, at which time they are free to decide where they wish to reside and when they wish to spend time with either of their parents or other family members. It strikes me that the husband’s attempt to revisit the issue of the residence order is another example of the tit-for-tat approach the husband and the wife have been engaging in during these proceedings. <sup>18</sup> The wishes and feelings of the child; their physical, educational and emotional needs; the likely effect of any change in their circumstances; the age, sex, religious persuasion, background and any characteristics of the children that I consider relevant; any harm they have suffered or are at risk of suffering; how capable each parent is of meeting their needs; the range of powers available under the Children Law. Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 27 of 36
```html <table> <tr> <td>1</td> <td>64.</td> <td>The children's living conditions do cause me grave concern, and it is important</td> </tr> <tr> <td>2</td> <td>to ensure that their financial needs are met which I will address shortly. Given</td> </tr> <tr> <td>3</td> <td>that-</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>(a) the current arrangements were agreed in March 2017 and</td> </tr> <tr> <td>6</td> <td>communicated to the court;</td> </tr> <tr> <td>7</td> <td>(b) the agreement accurately reflects their living and care</td> </tr> <tr> <td>8</td> <td>arrangements;</td> </tr> <tr> <td>9</td> <td>(c) no valid basis has been proffered as to why the court should go</td> </tr> <tr> <td>10</td> <td>behind the earlier agreement; and</td> </tr> <tr> <td>11</td> <td>(d) with the orders I will make in relation to the settlement of the</td> </tr> <tr> <td>12</td> <td>financial affairs of the parties, the current order will meet the needs</td> </tr> <tr> <td>13</td> <td>of the children;</td> </tr> <tr> <td>14</td> <td>I find that the Residence Order agreed in March 2017 is appropriate to ensure</td> </tr> <tr> <td>15</td> <td>the continued welfare of the children.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>65.</td> <td>The wife seeks maintenance for their youngest son, who is now 19. The wife's</td> </tr> <tr> <td>18</td> <td>evidence is that, although the son is currently in employment, he wishes to</td> </tr> <tr> <td>19</td> <td>pursue tertiary education for which he requires financial support. He does not</td> </tr> <tr> <td>20</td> <td>currently have an offer from his chosen educational institution and will have</td> </tr> <tr> <td>21</td> <td>to reapply for the 2018/19 year. Given that the son is over the age of 16 and</td> </tr> <tr> <td>22</td> <td>no longer in education, the court cannot make an order for periodic payment</td> </tr> <tr> <td>23</td> <td>for him either under the MCL or the CL (see section 22(1) of the MCL and</td> </tr> <tr> <td>24</td> <td>section 2(2) of schedule 1 of the CL)</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> <td>27</td> </tr> <tr> <td>28</td> <td>29</td> </tr> <tr> <td>30</td> </tr> </table> Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016
The two minor children are in need of a safe and healthy home together with running utilities and groceries, as well as the usual school and personal purchases. They currently reside in the FMH in terrible conditions. How the FMH came to be in such a state of disrepair is of little moment. The husband has not suggested that the children should live anywhere other than the FMH. If the house is put in a satisfactory condition, it is in the children’s best interests to remain in the only home they have ever known. The husband’s position is that the wife should only have the benefit of the FMH until the daughters are 18 after which the wife should vacate the FMH and the house is either signed over to the daughters or returned to him. His argument is based largely on the fact that he purchased the house before their marriage.
In determining whether to grant a Mescher Order, the court has to consider (a) the best interests of the children; (b) the fact that such an order did not give the parties a “clean break”; (c) the length of time for which the order would apply; and (d) whether the party with the responsibility for caring for the children would otherwise be able to purchase a family home (E (R) v D (C) [2016(1) CILR 55]). In this case, I find that the need for a clean break is high, and that the wife will not be able to afford suitable accommodation, thereby making a Mescher order inappropriate.
The parties are in agreement that the insurance money received after Hurricane Ivan was not utilised in full to repair the home and replace furniture. Based on the evidence adduced by the wife, which has not been contested, I find that the cost of putting the house into a habitable condition is approximately $63,000 for repair.
I have considered the wife’s assessment of the financial needs of the family, which included her own needs/costs. I find that the following are reasonable expenses attributable to the minor children –
CUC $100 p.m.
Water $50 p.m.
Groceries (including snacks) $400 p.m.
Telephone $100 p.m.
Gas $100 p.m.
Petrol $50 p.m.
Medication<sup>19</sup>
Cable/Internet $0 p.m.<sup>20</sup>
School lunches $200 p.m.<sup>21</sup>
Personal care/clothing for daughters $300 p.m.
School uniform/all supplies $100 p.m.<sup>22</sup>
I find that the wife should be responsible for maintaining and licensing her own vehicle.
The total assessed costs for the minor children are $700 p.m. per child. Given the wife’s likely difficulties securing employment, she is unlikely to be able to secure income which will allow her to meet half of the assessed costs while meeting her own needs. <sup>19</sup> Insufficient evidence at this time <sup>20</sup> This is currently free and there is no evidence that that cannot continue once reconnected. <sup>21</sup> $10 p.d. per child <sup>22</sup> $600 p.a. per child Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 30 of 36
```html <table> <tr> <td>1</td> <td>72.</td> <td>As I have already stated, given the hostility of the parties since the breakdown</td> </tr> <tr> <td>2</td> <td>of the marriage, any order that would continue the wife’s financial dependence</td> </tr> <tr> <td>3</td> <td>on the husband is likely to cause more conflict and prevent the parties from</td> </tr> <tr> <td>4</td> <td>moving forward with their lives. This would also likely have a negative impact</td> </tr> <tr> <td>5</td> <td>on the minor children’s emotional wellbeing. In making these orders I bear in</td> </tr> <tr> <td>6</td> <td>mind that neither party’s conduct has been exemplary, either during or after</td> </tr> <tr> <td>7</td> <td>their separation in 2011. I find that the husband’s behaviour in entering into</td> </tr> <tr> <td>8</td> <td>a bigamous marriage is the type of conduct that should result in an adjustment</td> </tr> <tr> <td>9</td> <td>to the distribution of assets in favour of the wife.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>73.</td> <td>This is a case where appropriate arrangements can be made to meet the future</td> </tr> <tr> <td>12</td> <td>needs of the children and the parties, their financial resources (including</td> </tr> <tr> <td>13</td> <td>earning capacity)，their obligations，the contribution made to and the benefits</td> </tr> <tr> <td>14</td> <td>derived from the marriage (including assets) and the deserts of the parties. A</td> </tr> <tr> <td>15</td> <td>clean break can be achieved and is fair.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>74.</td> <td>I am also mindful that despite the need to repair the FMH，the husband</td> </tr> <tr> <td>18</td> <td>mortgaged the property and used the funds for other purposes，therefore</td> </tr> <tr> <td>19</td> <td>increasing his post-separation assets while placing the matrimonial assets into</td> </tr> <tr> <td>20</td> <td>debt. In that respect the equity in his new residence and the property overseas</td> </tr> <tr> <td>21</td> <td>is relevant consideration to the distribution of the assets.</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> <td>27</td> </tr> <tr> <td>26</td> <td>28</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> </tr> </table> Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 ```
```html <table> <tr> <td>1</td> <td>I make the following order for the settlements of assets and maintenance -</td> </tr> <tr> <td>2</td> <td></td> </tr> <tr> <td>3</td> <td>75. The wife shall be assigned the FMH (Block 56C parcel 10) free from</td> </tr> <tr> <td>4</td> <td>incumbrances. The wife shall also receive a lump sum of CI$63,000 to be used</td> </tr> <tr> <td>5</td> <td>to refurbish the FMH. I am satisfied that this sum can be raised by the</td> </tr> <tr> <td>6</td> <td>refinancing of the remaining marital assets and therefore shall be paid to the</td> </tr> <tr> <td>7</td> <td>wife within 120 days of judgment.</td> </tr> <tr> <td>8</td> <td></td> </tr> <tr> <td>9</td> <td>76. In addition, the wife shall be assigned the Breaker land with the studio</td> </tr> <tr> <td>10</td> <td>apartment (Block 48C Parcel 137) free from incumbrances. This second</td> </tr> <tr> <td>11</td> <td>property can provide the wife with either a rental income or be sold for a lump</td> </tr> <tr> <td>12</td> <td>sum for her benefit. As a rental property it can provide the wife with a modest</td> </tr> <tr> <td>13</td> <td>income to subsidize any income from employment, and act as a pension in the</td> </tr> <tr> <td>14</td> <td>future. As a result the wife will have no entitlement to the husband's pension</td> </tr> <tr> <td>15</td> <td>or need for spousal maintenance.</td> </tr> <tr> <td>16</td> <td></td> </tr> <tr> <td>17</td> <td>77. All other marital assets are awarded to the husband together with</td> </tr> <tr> <td>18</td> <td>responsibility for the loans at CICSA and Butterfield Bank. The husband may</td> </tr> <tr> <td>19</td> <td>sell one or more of these properties to extinguish the mortgages, or he can</td> </tr> <tr> <td>20</td> <td>maintain such parts of the debt as he wishes in order to keep said properties.</td> </tr> <tr> <td>21</td> <td>The husband will also retain ownership of the motor vehicles and boat listed</td> </tr> <tr> <td>22</td> <td>at paragraph 58. The husband shall remove said vehicles from the FMH within</td> </tr> <tr> <td>23</td> <td>30 days and is at liberty to sell them or gift them if he so wishes.</td> </tr> <tr> <td>24</td> <td></td> </tr> <tr> <td>25</td> <td>8. The wife no longer has any or any further title to any of the other marital assets, including vehicles or the other motor responsi</td> </tr> <tr> <td>26</td> <td>Butterfield Bank of the debt at CICSA or</td> </tr> <tr> <td>27</td> <td>the debt at C</td> </tr> <tr> <td>28</td> <td></td> </tr> <tr> <td>29</td> <td></td> </tr> <tr> <td>30</td> <td></td> </tr> <tr> <td>31</td> <td></td> </tr> </table> Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 ```
```html <table> <tr> <td>1</td> <td>79.</td> <td>The husband shall pay maintenance for the children in the amount of CI$550</td> </tr> <tr> <td>2</td> <td>per child per month to the wife until each child attains the age of 18 or</td> </tr> <tr> <td>3</td> <td>complete tertiary education, whichever is later, but, in any event, not beyond</td> </tr> <tr> <td>4</td> <td>their 21st birthday. Payments shall be made through the Court Funds Office</td> </tr> <tr> <td>5</td> <td>starting 1st April July 2018. April 2018 and May 2018 payments are to be</td> </tr> <tr> <td>6</td> <td>added to the arrears balance. The wife shall be responsible for any additional</td> </tr> <tr> <td>7</td> <td>expenses in relation to the upkeep of the children, with the exception of</td> </tr> <tr> <td>8</td> <td>medical costs/medical insurance/co-payments, which shall be shared</td> </tr> <tr> <td>9</td> <td>between the parties equally. I have excluded the medical expenses from the</td> </tr> <tr> <td>10</td> <td>maintenance calculations because there is no evidence as to what those likely</td> </tr> <tr> <td>11</td> <td>costs will be. The maintenance order is inclusive of all school supplies,</td> </tr> <tr> <td>12</td> <td>although the husband is at liberty to make additional purchases for the</td> </tr> <tr> <td>13</td> <td>children should he wish to do so.</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>VARIATION OF MPS</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>80.</td> <td>The husband seeks a retrospective variation of the MPS. In this jurisdiction the</td> </tr> <tr> <td>19</td> <td>Court does not have the jurisdiction to remit arrears which have accrued and</td> </tr> <tr> <td>20</td> <td>are owing under an order for maintenance payments (AT v TT 2014(1) CILR</td> </tr> <tr> <td>21</td> <td>Note 10, Franklin v Franklin [2014(2) CILR 79]). However, the court does</td> </tr> <tr> <td>22</td> <td>have the jurisdiction to vary maintenance orders, both under the MCL and the</td> </tr> <tr> <td>23</td> <td>CL, and to do so retrospectively, in circumstances where party is shown to</td> </tr> <tr> <td>24</td> <td>have been no longer able to meet the terms of an order (see Franklin ibid).</td> </tr> <tr> <td>25</td> <td>This mspctive toe summons</td> <td>27</td> <td>Wen v Worden</td> <td>3 WLR 1</td> <td>he mattste</td> </tr> <tr> <td>26</td> <td>ay be retro the date one variation</td> <td>28</td> <td>Worden [1981]</td> <td>delay ier</td> </tr> <tr> <td>29</td> <td>e applicanejudiced</td> <td>29</td> <td>nd</td> <td>d(see</td> </tr> <tr> <td>30</td> <td>being lis</td> </tr> <tr> <td>31</td> </tr> </table> ```
The husband submitted that the wife's affidavit misled Williams J as to the number of minor children in the household affecting the figure reached. Reading the affidavit, I note that mention is made of the youngest son, then 17, being in education, but also that he is not residing at the FMH. There is no evidence that Williams J was misled. The husband has largely focussed his argument on his inability to pay the sums ordered. In March 2017 the husband accepted that his average earnings were CI$9,000 per month gross\footnote{Husband's affidavit dated 3rd April 2017, paragraph 24}. Despite his protest that he is unable to meet the court’s order made at that time, the husband has failed to provide any details or evidence of his expenditure to support this assertion. Given his own admissions as to his income, I find it is more likely than not that he had sufficient funds to meet the order until his retirement on 31st July 2017. Carter J (Actg) had previously adjudged the arrears at July 2017 to be CI$6,565.50. Payments made to the twins directly are not made in accordance with the court’s order and, therefore, the husband will not receive credit for those. On the evidence adduced, the husband has failed to make the maintenance payments, save for four payment of CI$1,000 each\footnote{1st August 2017, 28th August 2017, 29th September 2017 and 2nd November 2017}. These payments will be applied to maintenance payments accruing after 31st July 2017. Therefore CI$6,565.50 remains outstanding on the July 2017 order. Judgment | 20180516 | Coram Hon. Gunn J (Actg) | FAM 116 of 2016 Page 34 of 36
```html <table> <tr> <td>1</td> <td>84.</td> <td>I accept that on the evidence before me the husband’s financial situation</td> </tr> <tr> <td>2</td> <td>changed significantly on his retirement on 31st July. The husband</td> </tr> <tr> <td>3</td> <td>communicated his decision to retire the day after Carter J (Actg) adjudged the</td> </tr> <tr> <td>4</td> <td>arrear, made an AEO and adjourned his application for the variation of the</td> </tr> <tr> <td>5</td> <td>MPS. While the court was seeking information on the husband’s retirement</td> </tr> <tr> <td>6</td> <td>options, he went ahead and elected to retire without consulting or advising the</td> </tr> <tr> <td>7</td> <td>court of his intention to do so immediately. His letter to his employer, nor their</td> </tr> <tr> <td>8</td> <td>reply, spoke to the retirement being as a direct result of ill health or that his</td> </tr> <tr> <td>9</td> <td>pilot’s license had not been renewed. The timing of the husband’s election to</td> </tr> <tr> <td>10</td> <td>retire struck me as a deliberate act to frustrate the court’s order.</td> </tr> <tr> <td>11</td> <td>12</td> <td>85.</td> <td>As I have already set out, I believe that the husband has had access to funds in</td> </tr> <tr> <td>13</td> <td>excess of his pension; not least he has considerable equity in his new property</td> </tr> <tr> <td>14</td> <td>(see above). His offer in the face of the court to pay CI$1,278 per month in</td> </tr> <tr> <td>15</td> <td>addition to the mortgage payments satisfied me that he would be able to meet</td> </tr> <tr> <td>16</td> <td>such an order. There is nothing before me to suggest that the husband’s</td> </tr> <tr> <td>17</td> <td>financial situation changed between his retirement and the date of the offer.</td> </tr> <tr> <td>18</td> <td>Consequently, I am satisfied on the evidence before me that from the lst August</td> </tr> <tr> <td>19</td> <td>2017 the husband was able to pay CI$1,278 per month in maintenance. Given</td> </tr> <tr> <td>20</td> <td>that the husband’s summons for variation was adjourned, it is appropriate that</td> </tr> <tr> <td>21</td> <td>any arrears accruing after the 31st July 2017 are adjusted to reflect the new</td> </tr> <tr> <td>22</td> <td>sum of CI$1,278, including the cost of any utilities. The responsibility for any</td> </tr> <tr> <td>23</td> <td>mortgage payment remains upon the husband.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>86.</td> <td>Consequently, the maintenance payments due from 1st August 2017 to 31st</td> </tr> <tr> <td>2</td> <td>March May 2018 total CI$10，224 CI$12，780. A credit of CI$4，000 is given for</td> </tr> <tr> <td>3</td> <td>the payments made since 31st July 2017, reducing the balance to CI$6，224</td> </tr> <tr> <td>4</td> <td>CI$8，780 owing. Upon presentation of proof of payments, further credit shall</td> </tr> <tr> <td>5</td> <td>be given for any utilities bills paid by the husband during that period for the</td> </tr> <tr> <td>6</td> <td>FMH. Such proof shall be produced to the court within 7 days of the date of</td> </tr> <tr> <td>7</td> <td>this judgment for the purposes of drafting the final order. The remaining</td> </tr> <tr> <td>8</td> <td>amount is adjudged to be arrears owing to the wife. These arrears are in</td> </tr> <tr> <td>9</td> <td>addition to the arrears still outstanding from the order made on 25th July 2017.</td> </tr> <tr> <td>10</td> <td>The arrears are consolidated and shall be paid at CI$600 per month starting</td> </tr> <tr> <td>11</td> <td>1st May July 2018</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>SECTION 10 ORDERS</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>87.</td> <td>Finally, I make a Residence Order in respect of both minor daughters to reside</td> </tr> <tr> <td>17</td> <td>with the wife and that they should continue to have liberal contact with the</td> </tr> <tr> <td>18</td> <td>husband. This order reflects the reality of the current arrangements (which</td> </tr> <tr> <td>19</td> <td>neither the wife nor the husband seeks to change)：the daughters live with the</td> </tr> <tr> <td>20</td> <td>wife who provides their day-to-day care and they visit the husband as and</td> </tr> <tr> <td>21</td> <td>when they wish. This order will automatically expire on their 16th birthday.</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> <td>27</td> <td>GRAND COURT</td> </tr> <tr> <td>26</td> <td>Honn Gunn</td> </tr> <tr> <td>28</td> <td>Acting Judge of the Grand Court</td> </tr> </table>