Williams J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN FAMILY DIVISION CAUSE NO: FAM 34 OF 2012 BETWEEN: AT Petitioner AND JT Respondent Appearances: The Petitioner in person Ms. Vanessa Allard from Brooks & Brooks for the Respondent Before: Hon. Mr. Justice Richard Williams Heard: 21 August 2013, 29 October 2013, 11 March 2014, 14 May 2014 Due date for final submissions: 30 August 2014 Additional written comments/submissions: 20 January 2015 Date of Circulation of Draft Judgment: 3 March 2015 Date of Judgment: 6 March 2015 JUDGMENT
This is an application, brought by way of Summons dated 18 September 2012, for financial provision made by the Respondent, JT, against her husband, AT.
I hope that the parties will not be offended if from now on I refer to them, for convenience, as husband and wife. PROCEDURAL BACKGROUND
Regrettably, it has taken quite some time for the hearing to deal with ancillary matters to be concluded and this delay, coupled with piecemeal disclosure, has hindered the Court which has, as a consequence, had to review very dated and conflicting oral and written evidence in order to reach a decision. It is trite law that assets should be valued at the date of trial and that the Court should have the most up-to-date evidence. Thorpe L.J. in Cowan v Cowan [2001] 2 FLR 192, para 70 stated: "The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party has deliberately or recklessly wasted assets in anticipation of trial."
In a case where the parties’ evidence, in particular the husband’s, has changed during the course of the proceedings, the Court’s task has been made more difficult by the parties’ failure to provide at the outset and at the end of the hearing a brief and clear schedule of agreed and not agreed matrimonial assets in which they also set out the value of every asset, any encumbrances upon that asset and the equity in that asset.1 The Court has had to embark on the considerable time consuming exercise of trying to extrapolate this detail itself from the inconsistent and conflicting evidence in the parties’ written evidence, oral evidence and written submissions. Having carried out that exercise, the Court circulated to the parties a schedule prepared following its review of the evidence 1 They should have submitted an agreed schedule or their own schedule if it could not be agreed. and invited the parties to comment upon the same. The parties’ written comments were received by the Court by or on 20 January 2015. The first day of this hearing was back on 21 August 2013. That date was fixed relying upon the parties’ overly conservative time estimate of half a day.\(^{2}\) The delay has been contributed to by the unrealistic time estimate, issues concerning disclosure, requirement for valuations of property and the husband’s late filing of affidavit evidence. At the outset of the hearing on 21 August 2013 I referred to my comments concerning disclosure made at the mention hearing on 5 March 2013. Having done so, I lamented the fact that the normal disclosure process had not taken place and, as a consequence, there might be gaps in the parties’ evidence. Despite this, both parties confirmed to the Court that they wished the hearing to proceed without the requirement for any further disclosure as they felt it had been sufficient to enable them to run their cases. As the parties were content and wished to proceed on the evidence that was then before the Court, I permitted the hearing to commence. Regrettably, that half day hearing became a full day hearing and even then had to be adjourned part-heard. Having regard to fact that the hearing would have to recommence when a later date could be found, as no delay would be occasioned by it, the Court directed the husband to file and serve \(^{2}\) The Order of 5 March 2013 required the parties to confirm whether the hearing should be listed for a half or full-day. The Listing Officer was informed on 18 April 2013 that parties required only a half-day for the final hearing. an affidavit exhibiting any documents which he intended to rely on which were not contained in the bundle within 14 days.
The husband failed to properly comply with the direction as he did not file an affidavit. However, he did serve a bundle within the 14 days. That bundle contained a number of documents which he wished to refer to in his evidence. Although not in affidavit form, I indicated at the outset of the second day of the hearing that I would permit him to refer to any of those documents during his oral evidence.
During the hearing it became clear that the parties no longer agreed the valuation in relation to the property located in George Town, Block 13D, Parcel 223 ("the George Town property"). The parties were informed that the matter would have to be adjourned to enable a joint valuation to be obtained. At the hearing the husband sought to file an affidavit witnessed by an overseas Justice of the Peace. Ms. Allard wrongly contended that this did not comply with GCR O.41 r.8(1) and, although conceding that the content was potentially relevant, she objected to the filing of the affidavit. I ruled that the affidavit could be filed; recognising that the matter already required an adjournment to enable the joint valuation of the George Town property to be obtained, and I afforded the wife an opportunity to file evidence in reply. The hearing was adjourned part-heard with a further direction that the husband produce copies of all bank statements for his accounts in Jamaica, which should be exhibited to an affidavit to be filed by or on 6 December 2013.
The husband filed an affidavit on 6 December 2013. The joint valuation report in relation to the George Town property was filed at the outset of the third day of the hearing, namely on 11 March 2014. The Court was also provided with the wife’s Request for Further and Better Particulars dated 16 December 2013 and the husband’s Reply to the Request for Further and Better Particulars dated 17 January 2014. The parties concluded their evidence and leave was given to them to file written submissions by or on 1 April 2014. The Court indicated that if no written submissions were received from them by 4 April 2014 it would proceed to prepare its judgment on the information then before the Court.
The wife filed her supplemental written arguments in relation to the ancillary relief hearing on 9 April 2014. The husband filed his closing written submissions on 15 April 2014.
On 8 April 2014 the husband filed a Summons in which he sought leave to furnish further information with respect to assets disputed during cross-examination. He sought leave to serve an affidavit sworn on 8 April 2014 by or on 11 April 2014. He sought a direction that “the settlement of the ancillary relief be dispensed with and that a date be fixed for the hearing of the petition for divorce filed on the 12th February 2012.”
The wife opposed the husband’s application for leave to adduce further information and to file an additional affidavit. The wife’s arguments were set out in written submissions submitted on 14 May 2014. At a hearing held on 14 May 2014, when Ms. Brooks attended, holding the case for Ms. Allard, leave was given to the husband to file the affidavit. Leave was then given to the wife to file any Request for Further and Better Particulars by 22 September 2014 and for the husband to file any Reply by 27 October 2014. The ancillary relief hearing was adjourned until 10 November 2014 with a one-day time estimate; a delayed date was provided in the directions due to the unavailability of the wife’s Counsel. The husband was ordered to pay the costs occasioned by his application on the indemnity basis.
On 13 August 2014 the wife’s attorneys wrote to the Court indicating that she did not seek to file a Request for Further and Better Particulars, on the basis that her written submissions of May 2014 adequately dealt with the content of the husband’s affidavit. The wife’s attorneys invited the Court to proceed to judgment. On 25 August 2014 both parties were informed that, unless they sought to persuade the Court otherwise by 30 August 2014, the Court intended to then commence preparation of the judgment. Neither party communicated with the Court thereafter save to provide the written comments mentioned in paragraph 4 above. BACKGROUND THE PARTIES
The parties were married in the Cayman Islands on 26 July 2003.
On 17 February 2012 the husband filed his Petition for the dissolution of the marriage. This is not a lengthy marriage as the parties had been married for less than nine years at that time. On 16 March 2012 the wife filed her Answer and Cross-Petition. On 6 November 2012 leave was given to the husband to amend his Petition. The wife withdrew her Answer and by consent the matter proceeded by way of mutual Petitions. On 13 August 2013 the husband’s Amended Petition and the wife’s Cross-Petition were proved.
There are two children of the marriage, namely 11-year old D (born on 6 February 2004) and 7-year old E (born on 19 October 2007). On 27 August 2012 Smellie C.J. ordered the husband to pay CI$800 per month interim child maintenance. He also ordered the husband to continue paying the mortgage from the end of August 2012 as well as the property insurance for the matrimonial home.
In his Amended Petition the husband prayed that there be an order “in relation to the custody, care control, maintenance and general well-being of the two children as may be agreed between the parties or is otherwise made by the court.” The wife in her Cross-Petition prayed that the Court should “make orders in relation to the children…. as it deems just.” During the course of the proceedings the family remained living in the former matrimonial home. As a consequence no interim s.10\(^3\) orders were made in relation to the children. At the hearing the Court was told that the parties consented to a residence order being made in favour of the mother and a flexible contact order with their father. Both parents have parental responsibility. Detailed submissions were not received in relation to child arrangement orders. In light of the settled arrangements for the children and the parties’ agreement, I am content to make a residence order in favour of the wife and a flexible contact order in relation to the husband. Accordingly, having regard to the welfare checklist set out at s.3(3) of the Children Law (2012 Revision), I make those two s.10 orders by consent. 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 s.19 of the Matrimonial Causes Law (2005 Revision) ("the Law"), which reads as follows: "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."
S.19 must be read in conjunction with s.21 of the Law, of which the relevant parts for my consideration in this matter provide as follows: \footnotetext{3 S.10 of the Children Law (2012 Revision).} "At the time of pronouncing a decree under this law, the court shall, as appropriate, make order for: (a) ... (b) the disposition of matrimonial property, including the matrimonial home; (c) ... (d) .... (e) making financial provision from the property of either spouse for the children of the marriage and for the other spouse: (f) providing for periodical payments to be made by either spouse for the benefit of the children of the marriage and for the other spouse: and (g) costs."
Lord Nicholls of Birkenhead in White v White [2001] 1 A.C. at 596 ("White") stated that: "The purpose of these powers is to enable the court to make their financial arrangements on or after divorce in the absence of agreement between the former spouses."
S.19 and s.21 of the Law give the Court a wide discretion when it comes to financial provision and any awards made to the parties. The Courts in the Cayman Islands, in deciding whether to exercise their powers under s.21 and, if so, in what manner have, when considering what is fair in all the circumstances of the case, traditionally had regard not only to the matters set out in s.19, but also the relevant factors raised in s.25(1) of the Matrimonial Causes Act 1973, and now s.3 of the Matrimonial and Family Proceedings Act 1984 in England and Wales.\(^{4}\) The factors to be considered 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 accumulation of matrimonial assets as well as non-matrimonial property) and any contribution made by looking after the home caring for the family;*\(^{5}\) (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, that 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.* \footnotetext{4 *Doak v Doak and Riley* [2002] CILR 224, [17], [21], [22], *Wight v Wight* CICA 6 of 2006 [62], *Wood v Wood* [2009] CILR 255, [12] and *McTaggart v McTaggart* (2011) 2 CILR 366[39].} \footnotetext{5 *Wight v Wight*, 2006 CILR 1 Zacca P. at paragraph 33.}
Sir John Chadwick P. in Valerie Ayala Gordon v Jefferson Raymond Watler CICA (Civil) 13/2014 ("Gordon") paragraph 12 reiterated the principles set out in McTaggart v McTaggart [2011 2 CILR 366] ("McTaggart") and the approach to be taken to the case law emanating from England and Wales. These restated principles are most helpfully intended to guide Courts in the Cayman Islands on the proper approach to ancillary relief applications. I am greatly guided by these important principles and therefore make no apology for now repeating in full the President’s following analysis set out in paragraph 12 of Gordon⁶: "12. The correct approach to the division of property in ancillary relief cases was set out by this Court in McTaggart. At paragraph 40 of the judgment in that case the Court said this: "40. 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 the 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 illuminate. 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 interest 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 at paragraphs [138]-[143] per Baroness Hale. The ultimate objective, as Baroness Hale explained at paragraph [144], is to give each party an equal start on the road to independent living. She said this: '[144] Thus far, in common with my neighbour and learned friend Lord Nicholls of Birkenhead, I have identified three ⁶ I accept that this decision was handed down very shortly after the close of the proceedings and that ordinarily the parties would be asked to comment upon the same prior to judgment. However, the case does not raise any new law but neatly summarises the uncontentious principles emanating from earlier guiding cases which were already known to the parties. 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, much 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. The ultimate objective is to give each party an equal share start on the road to independent living.'" When Baroness Hale referred to "sharing" in that context, she had in mind - as her speech demonstrates - sharing of all the assets; not simply sharing the assets which could be classified as matrimonial property. This court went on in McTaggart to say this, at paragraphs 42 and 43: "42. In this jurisdiction a court will need to consider whether, having proper regard to the section 19 factors, an order under section 21(b) of the Law for the disposition of the matrimonial property will make appropriate provision for the relevant party in respect of the three strands: need, compensation and sharing. If not, then the court will need to go on to consider whether to make an additional order under section 21(e), that is to say, an order making financial provision for that party out of property of the other party. 43. It seems to me reasonably clear - and I would so hold – that, if satisfied that an order under section 21(b) of the Law, or the combination of orders under section 21(b) and (e), would make appropriate provision for the relevant party in respect of the three strands of 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 where such an order is unnecessary because appropriate provision can be made by the disposition of 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 to which Lord Scarman referred in Minton v. Minton, [1979] AC at 608." There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children that the other of equal importance is the principle of clean break, the law now encourages spouses to encourage bitterness after family breakdown and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down. It would be inconsistent with this principle if the court could not make, as between the spouses, a genuinely final order." Those observations must be read in the light of the observations in Miller - and in particular those in the speech of Baroness Hale to which I have referred - that the ultimate objective is to give each party an equal start on the road to independent living."
In the combined House of Lords appeals of Miller v Miller and McFarlane v McFarlane [2006] 2AC 618, 634 ("Miller"), Lord Nicholls identified three strands of principles for the purpose of achieving fairness between the parties, namely, financial needs, compensation and sharing. Lord Nicholls dealing with the concept of fairness stated that: "Divorce creates many problems. One question always arises. It concerns how the property of the husband and wife should be divided...the outcome ought to be fair in all the circumstances..."
In deciding whether to make an order under s.21(b), and from where any such order should be made, as made clear by the Court of Appeal in McTaggart, I am required to consider and decide which assets can be considered as being matrimonial property. In the combined House of Lords appeals of Miller Lord Nicholls described matrimonial property as "property acquired during the marriage otherwise than by inheritance or gift." Its distinguishing feature is that it is "the financial product of the parties' common endeavour. In McTaggart, Sir John Chadwick P. approved Lord Nicholls’ view.
When carrying out this exercise I am again fortunately assisted by further guidance given by Sir John Chadwick P. In W v W [2009] CILR 225 the President reiterated the importance of the principles set out in: (i) Wight v Wight 2006 CILR 1 ("Wight"); (ii) White; and (iii) Miller. Referring to Forte J.A.’s ruling in Wight, the President stated that the Court should construe s.19 "on the basis of the new approach to the institution of marriage and the fact that it is a union of partners. ...Each therefore would be entitled to equal share of the assets acquired in the marriage, unless there is a good reason to depart from that principle."
The President understandably then referred to the guidance given in the English cases concerning property brought into the marriage by one of the parties. This included reference to what Lord Nicholls stated at page 610 in White at 610 and repeated by him in Miller at paragraph 23, namely: "Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The judge should take into account. He should decide how important is in the particular case. The nature and value of the property, and the time when and circumstances in which the property was acquired, or among the relevant factors to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the family’s financial needs cannot be met without recourse to this property."
In Miller a notion was introduced by Baroness Hale at paragraph 148 that property brought into a marriage can later be regarded as being a matrimonial property through the mixing of the parties’ funds. It is not always appropriate to pre-determine at the outset of a marriage what might later be determined to be a non-matrimonial asset, for one must take into account how the parties have treated that asset and their income in relation to the asset during the marriage. The wife submits that the husband has mixed funds during the marriage. The importance of such a submission ordinarily increases with the length of the marriage as the longer the marriage the more likely the non-matrimonial property will become mingled with matrimonial property. Although one may not term this marriage has being a short one, it would not be accurate to characterise it is a long marriage. It is also important to consider how long before the marriage the property was acquired, especially if the parties were not in a relationship, the greater the period of time may strengthen a submission that it was not intended to be treated as a matrimonial asset.
So when I now move on to consider the parties’ evidence and what financial arrangements to order I have regard to the above principles which establish that overall, the Court is charged with dividing the assets in a fair and equitable manner, whilst trying to see if there can be a clean break. I have also carefully considered the case authorities which the parties have referred me to.
Both parties agree that this case is one in which there should be a clean break, with the only ongoing obligation being provision for the children of the marriage. Any order I make is designed to enable the parties to do that and move on with their lives independent of each other. Fortunately, as for reasons which I will elaborate on I find that the George Town property is to be regarded as being a matrimonial asset, there are sufficient matrimonial assets to be shared which will enable the parties', and most importantly the children's, needs to be met and to accommodate their mutual desire for there to be a clean break. This is not a case where either party merits compensation for any special contribution. I therefore need not consider making an order in respect of non-matrimonial assets. HUSBAND'S EMPLOYMENT, INCOME AND OUTGOINGS
The husband is approximately 56 years of age. At the outset of the proceedings the husband was employed as a Police Constable7 with the Royal Cayman Islands Police Service with a base salary of CI$35,376 per annum and allowances of CI$650 per month, he also received other allowances totalling CI$150 per month. However, the husband due to a broken vertebrae and other injuries sustained in a motor vehicle accident in August 2012 was forced into early retirement from the Service on 10 December 2012. The husband produced a letter from the 7 Joined the police in 1994. Commissioner of Police confirming his retirement after 18 years of service. As a consequence, he no longer receives his police salary of CI$4,208.16.
In his affidavit sworn on 8 February 2013 the husband said that he received rental income of CI$3,050 per month from the George Town property registered in his sole name. The husband stated he also received CI$150 from Hot Stuff Variety Store ("the store"), a mobile clothing business in which he says he is a "part-time salesman." The wife says he told her it was "his company." The wife contends that although there may be difficulty establishing any value for this potential asset, it should at least be regarded as an alternative source of income for the husband. It is evident that he is more than just a part-time salesman and that he now plays a far more integral role in the business, for example as the buyer of its stock on overseas trips. In February 2013, the husband indicated that he was not at the time receiving his police pension, and that it may take six months post-retirement to "sort out." However, it is evident that he received CI$6,236.74 as a refund for overpaid pension payments on 25 April 2013.
In her oral evidence, the wife accepted that the husband did not work on a day-to-day basis, but she felt his injuries should not prevent him from doing so. Although I do not agree with her view that he could take on any type of work, it is clear that he is fit and able to undertake work of a non-heavy physical nature to a greater degree than he seeks to suggest. Although the wife conceded that he never discussed with her his income from the store, she felt that he earned more than he was disclosing in his evidence as she believed he took a number of overseas trips to purchase inventory8. She contended at paragraph 16 of her affidavit sworn on 27 February 2013 that Cayman Broadcasting Ltd/Love 103.1 FM ("the radio station") provided a source of income for the husband. She accepted that his employment with the Police Service had come to an end due to ill-health, and that his police salary had formed the major part of his income. The wife stated that she knew little about the particulars of his finances.
During cross-examination on 11 March 2014, the husband stated that his monthly income totalled CI$4,490, comprising: (i) CI$3,050 rent from the George Town property; (ii) CI$840 from his pension; and (iii) on a good month, CI$600 from the store. The husband stated that AS, his partner in the store, holds the trade and business license, and that she takes a two-third share of any profits. There are no proper accounts for this business, but having regard to the frequency of his overseas buying trips and the amount of money taken to then buy stock, even if one were to accept his incomplete evidence concerning the nature of the partnership arrangement with AS, I am satisfied that the income potential is greater than the disclosed CI$600. The oral evidence from JT, his partner in the radio station, was consistent with the husband's assertion that no personal income/dividends have to date been derived from that enterprise. That said, I note the document headed "Profit and Loss January 1, 2009 through August 20, 2013" purports to show a net income of CI$35,045.82 during that period, so there is 8 The wife said he had travelled with around US$3,000 in April, June and July. some future income potential. I am satisfied that his foreseeable income capacity is in the region of CI$5,000- CI$5,100.
In his affidavit the husband said that his monthly outgoings at the time totalled CI$8,076, which included CI$800 child maintenance and CI$390 for Court ordered maintenance for BT, his daughter from a previous relationship. The wife contends that as that daughter may be sixteen years of age he is no longer required to maintain her.\footnote{Paragraph 25 of the wife’s affidavit sworn on 27 February 2013.} However, the husband confirmed in his oral evidence that she was still in full-time education at high school and intended to thereafter attend university. I am satisfied that this is an ongoing liability for him. His projected monthly outgoings also now included CI$150 for tithes to the church and around CI$200 to support his elderly mother in Jamaica. He stated that his changed financial position had resulted in him being unable to pay his household insurance, funds into the Credit Union account, life assurance payments to Sagicor and the payments to help support his mother. He stated that he had fallen behind in payments for cable television and his telephone bill.
In his oral evidence the husband accepted that his outgoings were not over CI$8,000 as previously contended, stating that it was CI$5,861, leaving him with a monthly shortfall of CI$1,371. The husband stated he has a credit card debt of US$1,200. In his oral evidence he said that he was able to survive, as he used the balance in his RBC account and CI$2,700 in interest that he received from Credit Union in January/February 2014.
When I review the husband’s outgoings detailed by him in his oral evidence on 29 October 2014 I find the following monthly figures to be reasonable: (i) Food $450 (ii) TV $80 (iii) Telephone $75 (iv) Internet $40 (v) Daughter’s maintenance $390 (vi) Gas for car $300 (vii) Vehicle license and Insurance $100 (viii) Cayman National Bank Loan IL-014-03713 $1,911 (ix) Credit Union loan $402 (x) Insurance on George Town property $318 TOTAL: CI$4,066
In August 2012 the husband made an open offer to pay to the wife a total of $750 per month child maintenance ($375 per child), as well as a percentage of the child education, medical and after-school activity expenses.
I am conscious that the husband’s main source of income is the rental income from the George Town property, without which he would clearly be unable to meet his daily needs. If he were unable to continue to receive the income from this property, due to his age, his income capacity and capability to make provision for his retirement would be less than the wife’s. As it currently stands he has a higher income than the wife but his personal outgoings are greater, especially to maintain the George Town property.
I am satisfied that, as I find that the husband’s foreseeable income is in the region of CI$5,000 to CI$5,100 and his reasonable outgoings (not including utilities) to amount to $4,066, if the children’s need required it, that an order could be made totalling around CI$800. THE WIFE’S EMPLOYMENT, INCOME AND OUTGOINGS
The wife is a civil servant aged approximately 41. She is roughly 14 years younger than the husband and therefore she has many more years of potential full-time employment than him. In her affidavit sworn on 17 August 2012 she disclosed a bi-weekly salary of CI$1,064 (CI$2,305 per month).10 The wife stated that at that time she also received CI$400 contribution from her husband, and her monthly outgoings amounted to CI$2,746.77. I am satisfied that the wife has an income capacity of CI$2,305/month.
When I review the wife’s stated outgoings, I am satisfied that the following are reasonable monthly figures: (i) Grocery $900 (ii) Light $250 (iii) Water $50 (iv) Personal expenses $300 (v) Gas for car $250 (vi) Credit card $80 10 Based on a 52 week year. (vii) Car Insurance and licensing $ 90 (viii) Mortgage on matrimonial home $987 (ix) Insurance on matrimonial home $200 TOTAL: $3,107 CHILD MAINTENANCE
The wife seeks monthly child maintenance of $750 per child, $1,500 total per month. I note with interest that this is the same figure that she sought in her affidavit of August 2012 when the husband was still in full-time employment with the Police Service. The wife also states that if that amount is not ordered, the quantum should "at a minimum" be the current sum ordered by the Court, namely a total of CI$800 per month.
The husband's circumstances have changed to his detriment since August 2012. On the evidence before me, I am satisfied that his income capacity is now reduced due to his medical condition coupled with his age. Therefore, his income levels are significantly lower than the wife believed them to be in August 2012 when she was also submitting that CI$1,500 was the appropriate total monthly figure for child maintenance.
I am satisfied, having carefully reviewed all of the figures including the wife's income of CI$2,305 and her reasonable outgoings of CI$3,107, that the husband be ordered to pay CI$400 maintenance per child each month. I am satisfied that the husband has the means to make the payment and that this sum is required to meet the children’s needs. The total of CI$800/month is to be paid into the Court Funds Office on the same day that the existing interim payments are being made. The orders, unless varied by the Court, will last until the respective child reaches the age of 18 or ceases full time education up to the age of 21, whichever may be the later. THE WIFE’S ASSETS AND THE PARTIES’ MOTOR VEHICLES
The wife has minimal personal/sole assets. As of July 2012 the wife held a CNB share account valued at around $1,665 and a share loan in which she owed $600. She owns a 2007 Kia Sorrento motor-vehicle, towards which she had been obligated to make payments of CI$517 per month. However, her financial position has improved since the filing of her affidavit in August 2012, as she has since discharged that liability. The wife values the motor vehicle at around CI$8,000, the husband values it at CI$18,000, but he accepted in his oral evidence that he has no evidence to support that contention. In the absence of a formal valuation, I am content to accept the CI$8,000 figure which is slightly less than a Kelley Blue Book US$ valuation for a good condition 2007 Kia Sorrento. The wife contends that each party should retain their own primary motor-vehicle and that the husband should sell his other vehicles and the parties share the net proceeds. The husband indicates that his 2005 Honda CRV has a valuation of CI$5,000. He says he also owns a Hyundai H-1 bus valued at CI$4,000 and an unroadworthy GMC box truck with no value. The husband contends that the motor-vehicles should be sold and proceeds of sale be split equally. I am satisfied that all of the motor vehicles are matrimonial assets. Having regard to the margin for error due to the absence of formal supporting evidence of the valuations and the fact that they almost balance each other out in value, I order that each party retain the motor vehicles currently registered to them. I will not include them in my ongoing calculations of the parties’ assets. POTENTIAL MATRIMONIAL ASSETS
Both parties rightly agree that the four-bedroom matrimonial home in Newlands\(^{11}\) purchased in or around 2005 and registered in their joint names is a matrimonial asset. They were able to buy the property as, on 28 January 2004, FirstCaribbean International Bank (Cayman) Ltd\(^{12}\) granted them the joint mortgage loan number 100613331, in the sum of CI$123,900 (with payments of CI$960/month over 20 years). The loan was secured by a registered first charge against the property and the parties assigning life insurance policies over each of their lives for CI$124,000.
The property had originally been a two-bedroom property, but it was extended to its current size in 2010 after a $112,734 joint loan (No. IN57), with 180 monthly payments of CI$998, was granted by CISCA Credit Union on 5 May 2009. The collateral security for this extension loan is specified in the Loan Agreement note as being the husband’s Credit Union shares in account number 1357 and the North Side Property which is registered in his sole name. \(^{11}\) Block 27E, Parcel 145: Savannah registration section.
The husband contends that the matrimonial home was extended to create an income from the two additional rooms and that the estimated earning capacity through rentals of the extended matrimonial home is CI$1,500.\footnote{Valuation report BCQS International, April 2012.} The wife does not agree and says that the suggested rental figure of CI$1,500 does not apply solely to the extension, but to the renting of the entire property. The wife contends that it would not be appropriate to rent out parts of the property if she and the children remained living there. There is insufficient evidence placed before me to enable me to deduce what rental income, if any, could be received from letting out the extended area of the home. However, on the evidence before me I agree with the wife that, if she and the children were to remain in the property, she should not be compelled to rent and share the property in that way. However, if she retains the property, once the children have left home, that might be a possible source of extra income.
The husband initially contended that he had taken on sole responsibility for paying the FirstCaribbean Bank mortgage on the matrimonial home for the previous seven years and still paid the CI$3,336.48 property insurance. By June 2012 the mortgage arrears stood at CI$1,957.42. The wife states that she borrowed CI$1,900 from her sister and paid off the mortgage arrears in June 2012. The wife said she borrowed a further CI$2,000 from her sister to get the mortgage up-to-date until the date of the first affidavit on 17 August 2012. By the time of the affidavit the wife said that she was around CI$4,000 in debt to her sister.
In or around December 2012 the husband stopped, without recourse to the Court, paying the CI$946.71 monthly mortgage, although both parties were still residing in the property with the children. Regrettably this was in breach of the August 2012 order made by Smellie C.J. However, it is evident that the husband’s non-compliance coincided with a significant detrimental change in his circumstances, namely him being unable to continue employment with the Police Service for health reasons in December 2012. The husband also states his problems were compounded by there being a delay in him receiving his pension. The husband said that without a police salary, and having to primarily rely upon his rental income from the George Town property, he was unable to make the ordered payments and the other loan payments which he had until that time been paying.
The wife indicated that she continues to pay the mortgage and that between May 2013 and August 2013 she could only pay interest at CI$517 per month, but thereafter she has paid the full mortgage payments of around CI$946.71- CI$987 per month. The wife states that she continued to pay the utilities for the home, including electricity and water, totalling CI$250 to CI$300 per month, but now they have been paying those equally.
The husband rightly points out that although he may have stopped paying the mortgage, at the time he continued to pay a similar amount, CI$998 per month for the CISCA Credit Union loan taken out for the extension work on the matrimonial home. In October 2013 he used CI$60,000 of the shares in his CICSA shares account number 1357 to restructure the loan and reduce the balance of loan to $35,187.06 and his monthly repayment amount to CI$402 per month. It appears from a letter from the Credit Union dated 31 December 2013 that on 21 October 2013 the loan was restructured into 10-year loan in the sum of CI$35,000 with the Credit Union which encompassed the balance of the original loan. As of 31 December 2013 the balance was CI$34,165.17.
He said he also paid other family bills, including CI$500 per month towards the groceries solely for the wife and the children, lunch money for the children and CI$100 a month towards the utility bills. Despite his difficulties the husband continued to pay child maintenance for the children of the marriage as well as the Attachment of Earnings Order for his other daughter.
Although initially contending that he had also made the household insurance payments on the matrimonial home, in his oral evidence on the 11 March 2014, the husband confirmed that he had made no payments from 2013 onwards, and that there was CI$1,000 shortfall from 2012. Interestingly, although unable to make payments on the matrimonial home, he confirmed in his oral evidence that he felt it appropriate and that he was able to keep up the CI$4,000 insurance payments and the CI$1,911 monthly mortgage payment on the George Town property, which he claims is not a matrimonial asset, from the CI$3,050 rental income. This gives the impression that he was prioritising and securing what he perceived to be his sole asset over and above the matrimonial home which is indisputably a joint asset. He argued that he had to do so to protect his main source of income, namely the rental income.
The mortgage redemption figure shown in the FirstCaribbean Bank statement of 5 December 2013 is CI$98,601.71, leaving equity of CI$136,398.29. During the hearing on 29 October 2013 and in their January 2015 comments, the parties reconfirmed that they both accepted the CI$235,000 valuation and there being equity of CI$136,398.29.
The wife values her interest at 50% of the equity, namely CI$68,199.145. The wife also claims that when calculating her percentage of the equity of the property credit should be given to her for the payments she made to the mortgage when the husband ceased paying. Although by failing to pay the husband was in breach of the court order I am satisfied that at the time his income was rapidly and dramatically reduced and that his remaining income was used to maintain other matrimonial assets. Accordingly, each party remains entitled to a 50% interest in the equity of the home.
However, when arriving at the equity figure, the wife failed to mention the balance of around CI$34,165 left on joint extension loan number IN57 with Credit Union. It would be wrong to disregard that fact and that the collateral for the loan is the North Side property and the husband’s Credit Union shares account.
The wife contends that the matrimonial home should be transferred to her, especially as it is the only home that the children have known, and this could be taken into account when the Court decides what happens with the other assets. When considering s.19 of the Law, there is some force in her contentions. When determining the division of the matrimonial assets it would be preferable to do so in such a way that enables the wife to retain the matrimonial home for her and the children to reside in and enables the husband to retain the George Town property which he could reside in and, having regard to his age, provide him a liveable income.
On 21 August 2013, the first day of this ancillary relief hearing, the husband told the Court that he would be happy for the matrimonial home to be transferred outright to the wife, so that she would receive his 50% interest as well as her own. However, in his skeleton argument dated 2 September 2013 and in Court on 29 October 2013 he stated that this was no longer his position and that the property should be sold and the net equity divided equally. The husband now contends that each party should receive their 50% interest in the property.14
The wife contends that there are other assets for the Court to consider. Firstly the George Town property which is registered in the husband’s sole name and was acquired by him only three years before the marriage, back in August 2000. The wife contends that this is an apartment building, with all units rented and 14 See paragraph 69 below. 150306 AT v JT Judgment generating an income for the husband. The husband accepts that it is an eleven-bedroom, three-kitchen and six-bathroom tenanted property.
The husband argues that the George Town property is not a matrimonial asset because: (i) it was purchased in August 2000 for CI$175,000, before the marriage; (ii) he has always been solely responsible for the maintenance of the property; and (iii) he never intended the property’s rental revenue to be used to offset matrimonial debts or obligations. He also contends that the CI$3,050 rental income was used to pay: (i) the CI$1,911 loan mortgage payment to Cayman National Bank; (ii) house insurance payments of CI$250; (iii) church tithes of CI$300; and (iv) CI$390 for the care of his elderly mother and for the cost of maintaining the property. The husband contends that during the marriage the wife showed no interest in the property and refused to help him with cleaning or preparing the property for rentals.
The wife accepts that the husband uses some of the rent towards the mortgage for the property and that the mortgage payments are not in arrears. The wife states that some of the rent from the property was used to cover the joint extension loan Number IN57 with the Credit Union which had been obtained to renovate the matrimonial home. The wife contends that this is a further clear indication that the husband considered the property to be for the benefit of the family and to be a matrimonial asset. She also says that rent was used to assist with payments of loan number IL-014-03713 with Cayman National Bank extended/increased with additional borrowing of CI$50,000 by the husband to set up the radio station, which he concedes is a matrimonial asset. The husband agrees that there was an extension to loan number IL014-03713 in April 2009\(^{15}\) in the sum of CI$50,000 intended for the setting up of the radio station. The 81 monthly repayments were increased at the time to CI$1,911. At the time of the increased borrowing the existing loan balance stood at CI$80,041.48. The collateral for the loan is a first legal charge over the George Town property increased in April 2009 to cover CI$130,041. It is clear that since 2009 the husband has been paying substantial amounts from his various sources of income which could have otherwise been used for the benefit of the family into this loan account, as its balance has reduced to CI$61,445.50.
The wife also contends that the husband told her that he had been using his earnings from his employment in the Police Service to fund the additions to the rear of the George Town apartments.
The wife rightly argues that all of this co-mingling of funds illustrates that the husband viewed the George Town property as being for the benefit of the family, thereby making it a matrimonial asset. The George Town property was purchased only three years before the marriage ceremony by means of a substantial mortgage into which significant payments have been made during the marriage from the husband’s income. He has been able to arrange his affairs enabling him to make the payments from the rental income from the property, as the wife has used her \(^{15}\) Existing loan had a balance of CI$80,041.48 in April 2009. income to meet some of the family’s other expenses. The husband has also used his income, including from that property, to invest in the radio station which he has conceded is a matrimonial asset.
Despite the submissions made by the husband set out in paragraph 61 above, I am satisfied that due to the co-mingling of funds that the property purchased three years prior to the marriage was intended to be and should be treated as a matrimonial asset.
The wife contends that the equity is CI$173,554.23, as the value is CI$235,000\(^{16}\) and the balance of the mortgage with Cayman National Bank as of 4 December 2013 was CI$61,445.5. The husband did not state in his evidence what he believes the equity to be, but each party in their January 2015 written comments agreed the equity to be CI$173,554.23. I agree with the wife’s submission that a 50% share should be allocated to her, quantifying her interest at CI$86,777.11.
The wife also claims a 50% interest in the piece of land situated in North Side.\(^{17}\) The wife contends that that property should be sold and each party paid 50% of the proceeds of sale. The property is registered in the husband’s sole name and was purchased in 2005 using a loan of CI$37,000 in the husband’s name taken out with the CISCA Credit Union. This property is collateral for the joint \footnotetext{16 BCQS International valuation report dated 10 December 2013.} \footnotetext{17 Block 49A, Parcel 53: North Side registration section – registered in husband’s sole name.} CI$112,734.10 Credit Union loan number IN57 for the extension to the former matrimonial home taken out in 2009.
The husband initially misleadingly stated in very clear terms in his affidavit\(^{18}\) that this property was purchased for $37,000, well before the parties’ marriage in 1988, and it should not be considered as a matrimonial asset. On day one of the hearing in August 2014, having been shown the extract from the Land Registry, the husband conceded that his statement his affidavit was incorrect. He belatedly agreed that the property should be regarded as being a matrimonial asset\(^{19}\) as it was purchased during the marriage. I find it hard to understand, in the absence of any proper explanation from him, why the husband initially contended that this property had been purchased prior to the marriage when it clearly had not. I have had to treat his evidence with a degree of caution due to this and due to the fact that some other disclosure has only belatedly been forthcoming.
The husband went on to say on day one of the hearing that, as he then proposed that the wife could take his interest in the former matrimonial home, he should retain all of the interest in the North Side property. However, I note that the husband’s latest contention is that this property, as well as the former matrimonial home, be sold and the net proceeds of sale be divided equally between the parties. In the alternative he now contends that if one party wishes to retain either property \footnotetext{ 18 Paragraph 5 of the husband’s affidavit sworn on 8 February 2013. 19 The husband reconfirmed this during the hearing on 29 October 2013 when he also restated that the radio station and the former matrimonial home were also matrimonial assets. } that they pay the 50% share to the other party "in the form of equal instalment payments or a cash lump sum payment."
The husband estimated the value of the North Side property, as of February 2013, to be CI$45,000. The wife challenged this valuation for the first time during the hearing on 21 August 2013, having failed to question the husband's valuation prior to the hearing. However, during the hearing on 29 October 2013 and in her Counsel’s January 2015 written comments she accepted that, for the purpose of these proceedings, the Court could attach a value of CI$45,000 on the North Side property. Therefore, the wife values her interest in the North Side property to be CI$22,500. That is the valuation I place on the North Side property and agree that each party has a 50% interest in the same.
During the hearing on 21 August 2013, the husband conceded that his interest in the radio station should also be considered as being a matrimonial asset. The wife, who is the secretary for the radio station, had also been a 25% shareholder, but that was purportedly changed without her consent or knowledge. In his evidence JT, the husband’s partner in the radio station who was called by the wife to give evidence, stated: "Three of us are signatories, us two and Mrs. Thompson has to sign the cheques. Despite the divorce, we are still the signatories. She is the Secretary to the company."
It is still unclear whether the wife’s 25% shareholding has been properly transferred to another. JT states that in 2009 that the husband informed him that the wife had agreed to transfer her shares to his daughter. He said that a resolution was made to that effect. JT admitted that there was nothing in writing about the wife transferring the shares. He accepted that “It may be that the shares transferred since then may have been invalid due to lack of documentation.... We need to meet as directors to see how to sort that out.” The husband did not seek to cross-examine JT.
The husband places no value on the radio station. The husband, in his oral evidence, stated that over time since the radio station was set up he had invested $50,000 from the extended Cayman National Bank loan number IL-014-03713 secured over the George Town property, as well as making payments from his own pocket and savings at the Royal Bank of Canada.
The wife contends that JT made it clear in his oral evidence that the two existing shareholders were, as a consequence of their investment into it, owed over CI$71,000 by the radio station and they expected it to be repaid. JT said to the Court in his oral evidence that “I am hoping that at some time that from the company be able to recover. I expect to be paid, that is at some stage- no interest-no repayment date shown.” He later said that it was not a bad investment, that it was a “spiritual calling” and that “we not paid a salary, we are owed $72,000.” He then said that “we hoping get repayment after 4 years on our shareholders.” loans, but despite that... if not come we will continue to run the station. No refund has been paid to neither of us. None at all." Again, I note that the husband did not seek to cross-examine JT.
The Financial Statements for the radio station for the year ended December 31, 2012 prepared by R.A. Thomas, Certified Management Accountant, has an entry, under the heading of a long-term liability, for shareholders loans $71,984. Therefore, the wife contends that she has a 25% interest; a 50% share in relation to the husband’s declared interest. She values the husband’s 50% interest at CI$35,992 and therefore her interest as being CI$17,996.
Interestingly the husband fails to address how this asset should be dealt with in his skeleton argument filed on 2 September 2013 and his closing submissions filed on 15 April 2014. In his written comments submitted on 16 January 2015 he states that the business has no value. I am unable on the oral and written evidence before me to conclude whether the wife’s 25% shareholding in the radio station has been legally transferred. If it has not then she is entitled to her 25% interest in the shareholder loan liability from the radio station. If the shares were transferred it is accepted that this is a matrimonial asset and therefore the wife is again entitled to the 25% interest in the loan liability, especially as the loans were taken out and invested in the radio station during the marriage and were tied to other matrimonial assets used as collateral.
The wife also claims a 50% interest in relation to what she terms as being Jamaican investments. The wife contends that the husband told her during the marriage that he removed funds derived from all of his sources of income in Cayman and from his Cayman accounts and he would, when visiting Jamaica, deposit them into his accounts there. She therefore claims, having regard to the balance of the accounts, that they should be regarded as being matrimonial assets and quantifies a 50% interest as being US$23,936.03 (CI$19,627.54). The husband contends that the money invested in the accounts came from rental income generated from the Jamaican rental property, and should not regarded as being a matrimonial asset.
The husband eventually disclosed the following details about his Jamaican assets\(^{20}\): (i) Policy number S00100100 with Scotia Jamaica Life Insurance Company Limited with a total accumulated value as of 18 April 2013 of J$873,080.03 (CI$6,263.12)\(^{21}\). Nineteen months after the marriage, on 30\textsuperscript{th} December 2004, J$102,500 (CI$728.10) was invested into this account, having been withdrawn from Scotia Savings account number 40896 on the same day. J$100,000 was intended to be the initial lump sum for the policy and the balance of J$2,500 was for the regular premium. On the balance of probabilities I am satisfied that this was the J$102,500 placed in the \footnotetext{20 Both parties agree all the balances set out herein for all eight of the accounts in their January 2015 written comments.} \footnotetext{21 Currency conversion using http://www.xe.com/currencyconverter.} account although the documents do not bear the word transferred.\(^{22}\) It appears from the policy date shown in the Anniversary Statement dated 18 April 2013 exhibited by the husband to his affidavit sworn on 8 February 2013 that this policy was properly opened during the marriage on 18 April 2005 and therefore whatever value there may be should be considered as being a matrimonial asset; (ii) Regular savings account number 601470929 with Bank of Nova Scotia Jamaica Ltd. which was opened in March 1996 well before the marriage, showing in the most recent statement provided by the husband a balance of US$12,369. This account was not closed on or around 11 June 2014 as originally alleged by the wife. It appears that the first passbook may have been closed at that time and the balance moved on to the new passbook which was also exhibited to the husband’s affidavit sworn on 8 April 2014. At the time the parties married in July 2003 the account had a balance of $9,324. I accept that it may be argued that the money in the account as of the date of marriage was the husband’s and not a marital asset. However, sums were placed into the account after the marriage to such an extent that even after the $10,000 was withdrawn in November 2004\(^{23}\) there remained a credit balance of $1,788.31. Thereafter, despite a withdrawal of US$5,000 on 12 March 2009, due to further investment into the account the balance has risen to US$12,369. I am therefore satisfied \footnotetext{ \(^{22}\) See Scotia Insurance Receipt No. 5855 exhibit to husband’s affidavit sworn on 8 April 2014. \(^{23}\) See paragraph 78 (vii) below. } that the US$12,369 (CI$10,149.87) in the account has amassed since the marriage and should be treated as being a matrimonial asset; (iii) Regular savings account number 925217 with Bank of Nova Scotia Jamaica Ltd showing the balance of J$34,461.93 (CI$245.09); (iv) Time deposit with FirstCaribbean (Jamaica) Limited showing the balance redemption value of US$5,722.12 (CI$4,695.51) as of 11 November 2013. This investment was created by a deposit of US$5,000 on 25 November 2004, about eighteen months after the marriage, and should be treated as being a matrimonial asset; (v) Time deposit with FirstCaribbean (Jamaica) Limited showing the balance redemption value of J$1,229,651.43 (CI$8,820.97) as of 2 September 2013. This investment was created by a deposit of J$1,000,000 made during the marriage, on 13 March 2009 and should be treated as being a matrimonial asset; (vi) Save Smart account number 1265777 with Jamaica Money Market Brokers Ltd. with a balance on 31 March 2013 of J$59,297.45 (CI$425.37); (vii) Account number 8485435 with Bank of Nova Scotia Jamaica Ltd. showing a maturity value of US$11,392.61 as of 14 May 2012. I note from a 'Term Deposit Agreement' document that US$10,000 was paid into this account on 25 November 2004. I also note that on the same date US$10,000 was withdrawn from his Scotia account 601470929.\footnote{See paragraph 78 (ii) above} On the balance of probabilities I am satisfied that this was the US$10,000 placed in the account although the documents do not bear the word transferred. Although at the time of the marriage the Scotia account 601470929 had a balance just under $10,000 ($9,324) I am satisfied that the content of account number 8485435 should be regarded as coming from pre-marital savings and should not be viewed as a matrimonial asset. I say this despite the issue of where the $5,000 investment made on the same date into the FirstCaribbean Bank came from; and (viii) Account number 8486695 with Bank of Nova Scotia Jamaica Ltd. showing a maturity value of US$5,168.96 (CI$4,241.59) as of 5 March 2012. I note from a 'Certificate of Deposit' document that US$5,000 was paid into this account on 12 March 2009. This money was withdrawn from his Scotia account 601470929 also on 12 March 2009. On the balance of probabilities I am satisfied that this was the $5,000 placed in the account although the documents do not bear the word transferred. I am satisfied that the US$5,168.96 in the account should be regarded as being a matrimonial asset as the pre-marital savings amassed in 601470929 had already been exhausted by the $10,000 removed from that account in November 2004.
Having carefully considered the very belatedly fully disclosed bank statements, having regard to my comments above, I am satisfied that the accounts save for the Scotia account detailed at paragraph 78 (vii) may be regarded as being matrimonial assets. On the evidence before me, I am satisfied that the husband has directed income received during the marriage into those accounts and the current balances are traceable to that income. However, due to the balance dates, the transient nature of accounts and allowing for day to day use, any accounts with a balance of less than a CI$1,000 will be disregarded. Therefore, when totalling the matrimonial assets, I exclude the Scotiabank Regular Savings account number 925217 and the Save Smart account number 1265777 with Jamaica Money Market Brokers. The remaining accounts total CI$34,171.06. The wife is entitled to claim a 50% interest, namely CI$17,085.53, a figure which is less than the CI$19,627.54 claimed by the wife.
The wife does not seek an interest in the Stony Hill apartment building in Jamaica, Counsel in her closing written submissions and orally at the hearing on 21 August 2013 conceding that it was unlikely to be a matrimonial asset subject to division. She accepts that this property was purchased before the marriage and that the mortgages registered against the property were discharged before the marriage. She does not dispute that this is a property owned jointly between the husband and his brother. It appears that this property brings in roughly US$850 per month in total, if all of the apartments are rented. I accept the husband’s evidence that the rent is used towards the running costs of the building and some is retained by his brother. He also said that some of the balance from the rental income is put into his accounts in Jamaica. He also said that the rental income “largely contributed” to the Jamaican investments, but that the fixed deposits investments had come from savings accounts in which it invested prior to the marriage.” The husband, when giving evidence and making his submissions, chose to not take me through the content of the accounts in such a way to satisfy me that tenancy money was put into his accounts. Even if I accepted his evidence, any sums for such investment would have been minimal after the making of payments for the running costs of the property and the payments to his brother. I do not regard this property as providing income to the husband when I calculate the appropriate level of child maintenance.
I need not turn to deal in any great detail with the husband’s accounts held in the Cayman Islands. Although in the skeleton argument filed in support of the wife dated 4 March 2013 the wife sought 50% of the net value of his investment accounts in the Cayman Islands, this position had changed by the end of the hearing. At the top of page 20 of the Supplemental Arguments filed on behalf of the wife does not claim an entitlement to a share of the content of the husband’s accounts in the Cayman Islands. On the same page the wife seeks an order that each party retain the benefit of any funds remaining in their bank accounts.
The husband in his written closing submissions dated 15 April 2014 seeks an order that the content of each parties’ bank accounts be divided equally. However, the content of the wife’s accounts in Cayman total CI$2,335.81\(^{25}\) and the \footnotetext{ 25 Share account number 71340 at CISCA Credit Union which had a balance of CI$1,565.68 as of 30 June 2012 & Account number 012-26799 at Cayman National Bank which had balance of CI$770.13 as of 14 August 2012. } husband’s bank account amounts to CI$1,208.20 before one considers the large balance held in his Credit Union share account. I will take the generous approach advocated by the wife, which is in fact more favourable to the husband especially when one considers the balance in his shares account and the number of inadequately explained withdrawals from his Cayman accounts. Before I move away from the Cayman accounts, I need to comment upon the husband’s Regular Savings account number 700-6315 with a balance on 27 November 2013 of CI$528.64\(^{26}\) with Royal Bank of Canada (Cayman) Ltd. As highlighted by Counsel for the wife, in the week preceding the August 2012 financial hearing before Smellie C.J., the husband made unusual withdrawals on three consecutive days from this account totalling CI$20,000. This reduced, by the date of the hearing, the balance of the account from CI$21,568.98 to CI$3,871.\(^{27}\) The husband explains that one withdrawal of CI$10,000 was used to assist his first daughter with the purchase of their first home. Even if he is truthful, this is not a transaction he should have carried out from a potential matrimonial asset, especially in the midst of ongoing divorce proceedings, without the consent of the wife. He does not account for the two withdrawals of $5,000. His failure to provide sufficient supporting disclosure to enable a proper tracing of the movement of these sums, and the timing of these transactions, fortifies my view that sums of money from his Cayman accounts which could be regarded as being \footnotetext{26 See Statement Transaction History document dated 4 December 2013 attached to affidavit of husband sworn on 6 December 2013.} \footnotetext{27 Payroll salary of CI$2,303 was paid directly into the account on the same days as the hearing.} matrimonial assets have been removed for his personal use, including investing in his Jamaican accounts. PENSIONS
The husband states that he receives a Government pension of CI$830.93 per month which he uses for his day to day upkeep and expenses. The husband states that it is paid directly into the Credit Union account from which $402 is taken every month pay the mortgage on the Credit Union loan taken out for the extension on the former matrimonial home.
The wife does not give any disclosure about her projected pension. She indicates that she pays CI$127.72 per month. What is evident, due to her younger age, unlike the husband, she has a number of years in which to continue to contribute to her pensions.
Both parties contend that there should be a clean break and this includes their intention that both parties should retain the benefit of their respective pensions. Due to the insufficient evidence, I am unable to deduce a value on each pension and due to the parties’ agreed position in relation to how to treat the pensions, I do not include them in my calculations. 1 CONCLUSIONS 2 87. When calculating the assets for equal division I have the following: Matrimonial Home equity CI$136,398.29 George Town property equity CI$173,554.23 North Side property equity CI$ 45,000.00 Husband’s Jamaican accounts CI$ 34,171.06 The Radio Station 25% CI$ 17,996.00 8 9 88. I am satisfied that the Credit Union loan IN57 with a relevant balance of 10 CI$34,165.17 should be treated as being a matrimonial debt. 11 12 89. I order that the former matrimonial home be retained by the wife. I order that the 13 George Town property be retained by the husband. There is a difference in equity 14 of CI$37,155.94. As I order the husband to be solely responsible for the Credit 15 Union Loan IN57 which has balance of CI$34,165.17, the difference is reduced to 16 CI$2,990.77. Having regard to the margin of error concerning the valuations and 17 the fact that the husband had made unspecified mortgage payments prior to the 18 marriage, that it is fair and just to discount the amount of CI$2,990.77. 19 20 90. I order that the North Side property be marketed for sale forthwith with the 21 intention of it being sold as soon as possible. The parties should agree on the 22 realtor(s) to be used and have joint conduct of the sale. Each party will receive 23 50% of the equity from the sale. 24
I total the amount in the husband’s Jamaican accounts treated as being a matrimonial asset at $34,171.06. The husband is to make to the wife a lump sum payment of 50% of that figure which amounts to CI$17,085 within 56 days of the delivery of this judgment.
If the wife has retained her 25% shareholding in the radio station then she will be entitled to receive the 25% shareholder loan repayment from the business as and when it is paid. However, if it transpires that she is no longer a shareholder then she should obtain the same from the husband. However, having regard to JT’s evidence, which I accept, there is uncertainty if and when this might be paid. Therefore, it would not be fair and just to expect the husband to make those payments at this stage. Therefore, if the wife is no longer a shareholder, I order that the husband to make lump sum payments up to a total of CI$17,996 to the wife. Each payment should be 50% of the shareholder loan repayments when made to him by the radio station and that must be done within 14 days of receipt of such payments by him. I order the husband to provide the wife with a copy of the radio station’s certified annual balance sheet which will provide details of any shareholder loan repayments made.
Each party shall retain property already in their sole name.
There shall be a clean break, with no order for spousal maintenance made. LEGAL FEES/COSTS
Unless I hear from the parties within seven days of the delivery of the perfected judgment that they wish to make further submissions on the issue, I intend to make no order for costs. HONOURABLE MR. JUSTICE RICHARD WILLIAMS JUDGE OF THE GRAND COURT