RC v EP

¶ ```html <table> <tr> <td>1</td> <td>N THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>2</td> <td>AMILY DIVISION</td> </tr> <tr> <td>3</td> <td>N CHAMBERS</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>CAUSE NO. FAM 0087/2018</td> </tr> <tr> <td>6</td> <td>ETWEEN:</td> </tr> <tr> <td>7</td> <td>ROBERTY ANTHONY CAMPBELL</td> </tr> <tr> <td>8</td> <td>ND：</td> </tr> <tr> <td>9</td> <td>ESTHER MAE PUDDIE</td> </tr> <tr> <td>10</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>Mr C.H. Allen for the Petitioner</td> </tr> <tr> <td>16</td> <td>Hard：</td> </tr> <tr> <td>17</td> <td>19th and 25th September 2018</td> </tr> <tr> <td>18</td> <td>Ex tempore ruling：</td> </tr> <tr> <td>19</td> <td>19th and 25th September 2018</td> </tr> <tr> <td>20</td> <td>Ruling released：</td> </tr> <tr> <td>21</td> <td>5th November 2018</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> <td>Headnote</td> </tr> <tr> <td>26</td> <td>Matrimonial Causes Law-Financial Provisions-Estoppel</td> </tr> <tr> <td>27</td> <td>Maintenance Pending Suit-Legal Expenses</td> </tr> <tr> <td>28</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> </tr> <tr> <td>32</td> </tr> <tr> <td>33</td> </tr> <tr> <td>34</td> <td>2.</td> </tr> <tr> <td>35</td> <td>I hope the parties will not be offended when I refer to them as husband ("H") and wife ("W").</td> </tr> </table> ```
Background

¶ [1] The parties were married on 14th June 2012 in Grand Cayman. Both parties had been married before and have adult children from those relationships. There are no children of this marriage.

¶ [2] W is a Jamaican national and was employed as a domestic and childcare worker for two years leading up to their marriage. H is a Jamaican national with Caymanian status and the owner and manager of a car sales and repair business in the Cayman Islands.

¶ [3] Following their engagement W moved into the H’s 4-bedroom home in Grand Cayman where they continued to reside until their separation (“FMH”). When that separation occurred is a fact in dispute that will have to be determined at the final ancillary hearing. The FMH remains in the H’s sole name. During the course of the marriage H purchased two parcels of land opposite the FMH. Additionally, in 2016, H and W purchased a house in Jamaica which is currently registered in both of their names (“Jamaican Property”). All properties are free of encumbrances.

¶ [4] In March 2017 the parties travelled to Jamaica to visit H’s sick father and to undertake renovations of the Jamaican Property. H returned to the Cayman Islands shortly thereafter, while W remained in Jamaica. In February 2018 W returned to the Cayman Islands but did not return to the FMH. The reason for W remaining in Jamaica and why she did not reside at the FMH after her return are in dispute, but did not need to be determined for the purposes of the application for MPS.

¶ [5] On 27th March 2018 H filed a Petition for dissolution of marriage. On 29th May 2018 W issued a summons for MPS. Following a hearing before Williams J on 29th June 2018 the Petition was found proved and the application for MPS was adjourned.
The summons for MPS was listed for hearing on 3rd September 2018 together with another summons issued 7th August 2018 by W for an injunction preventing alleged interference with the Jamaican Property as well as seeking directions. Both summonses were adjourned at the request of Mr Allen who required further time to prepare. At that hearing the parties gave mutual undertakings concerning the management and use of the Jamaican Property. The matter returned for hearing on 19th September 2018. ### Estoppel Mr Allen’s initial application was to have W’s summons for MPS struck out on the grounds of estoppel. H gave evidence that after the hearing before Williams J on 29th June 2018, he was in communication with W’s brother (“B”) by WhatsApp. H asserted that the exchanges were with a view to settling ancillary matters in order to progress the proceedings as quickly as possible. Although there was no direct communication between H and W, H “had a feeling” he was communicating with W because B forwarded a text from W to him saying “[H]’s time would come”. H was unable to provide precise dates of these exchanges but it was accepted that they were sent a few days after the hearing on 29th June. H produced several messages which he received from B on a date/dates unknown – - “She say leave her with the house and the panel an she will take the offer” - “Talk to your lawyer about not taking nothing from the house that’s the panel an she will take the offer. Then your lawyer contacts her lawyer an basically that’s it.” On a subsequent day H had the following exchange: - H: “Bally I just spoke to my lawyer she will accept the House with the solar system in place. She has to resend that agreement to my lawyer.” Page 3 of 16

¶ [1] H (at 6:36PM) - "This has to be done before Wednesday as he Leaves for 6 weeks and I leave also."

¶ [2] B (at 6:47PM) - "Hey"

¶ [3] "The negotiations that was going on you never did agree on. So now you have to deal with your lawyer to deal with it"

¶ [8] W’s attorneys wrote to Mr Allen on 10th July 2018 advising that W’s brother was not acting on W’s behalf and that all communication should be sent to them. Given H’s lack of recollection as to dates, it is unclear whether the letter was sent during or after the WhatsApp messages.

¶ [12] H’s evidence was that after the final message he “felt the divorce was concluded” and that he had “a clean break”. H did not advise Mr Allen of the agreement until 8th September 2018, which was after the application for MPS had been adjourned for a second time. H explained that the initial delay was because he “had to wait for the procedure and for [Mr Allen] to go off island” and that, thereafter, the issue did not arise at the hearing on 3rd September so he did not mention it.

¶ [14] Mr Allen submitted that B was acting as an agent for W and that she had, through the WhatsApp exchange, agreed to a final settlement. Consequently, she was now bound by the agreement and estopped from applying for MPS. Mr Allen asserted that the letter sent by W’s attorneys was after the fact and, therefore, did not negate the agreement already reached. Mr Allen invited me to find that, not only was W bound by the agreement, but that the court should proceed forthwith to make an order in the terms the parties agreed and then dissolve the marriage without the need for a full hearing. 26

¶ [2] W did not ce. Miss Carv, even without establishing a basis to find out W’s evidence, H had given evidence that she had failed to give evidence to establish that B was acting as an agent for W. Furthermore, there was no basis for finding on the balance of probabilities that B was acting as an agent for W given that she had legal representation. 32

¶ [16] Finally, Miss Carver argued that, even if there had been an agreement between W and H, it is not binding until approved by the Court. Miss Carver also objected to Mr Allen’s argument that the Court could make a final order without the consent of both parties, which W would not give at this stage. It is noteworthy that, Miss Carver made it clear that W neither accepted nor refused H’s offer to transfer the entire property to W in final settlement, reserving W’s position until H had provided full financial disclosure.

¶ [17] Neither counsel presented any authorities in support of their arguments. I proceeded to rule on the issue of estoppel without hearing from W as I accepted Miss Carver’s submission that H’s evidence had not sufficiently established the issue of estoppel. I came to this decision because – (i) **B acting as an agent** H may well have hoped to get a swift agreement by communicating with B, but I rejected the suggestion that H believed that B was acting as an agent for W. This was a matter of credibility. I found on balance that H’s explanation for his belief that B was acting for W (B had forwarded a message from W about H) was both unreasonable and incredible given that the parties were already midway through the proceedings and both H and W were legally represented. Page 5 of 16
The agreement There was insufficient evidence of a final agreement. The second undated text instructs H to speak to his lawyer about the panels and "then she will take the offer". At its highest this is a conditional offer. The next sentence suggests that the author believed that there was a further step to the process which required the attorneys to become involved before any agreement is finalized: "Then your lawyer contact her lawyer that basically it." The final text message from B was "The negotiation that going on you never did agree on. So now you have to deal with your lawyer to deal with it." I am mindful that I have not been provided the full extent of the communications, but the final message left no doubt in my mind that the author did not consider that an agreement had been reached previously. That demonstrates the lack of consensus. Furthermore, if H had hoped and honestly believed that an "agreement" had been reached with W that would bring the proceedings to a swift conclusion, then I would have expected H to have told Mr Allen as soon as possible, and no later than the 3rd September when the matter returned to court. H’s failure to advise Mr Allen for almost 2 months seriously undermined H’s credibility on this issue. I rejected H’s evidence as to the existence of an agreement. ## Estoppel Even if H and W had in principle agreed a final settlement, it is not binding until approved by the Court. Section 19 of the Matrimonial Causes Law (2005 Revision) ("MCL") provides – "In dealing with all ancillary matters arising under this Law, the Court shall have regard ...to the responsibilities, needs, financial and other resial and poteower and tle and about 9 par ties."
The final determination on whether a consent order should be made in the terms agreed remains with the Court. The Court can reject a proposed settlement. This discretion is underscored by Practice Direction 1/2013 "Consent Orders in Ancillary Relief Proceedings" which provides— "...when the Court is asked to make an order by consent, embodying the terms of an agreed settlement of ancillary relief proceedings, the Court is still obliged to comply with the statutory duty imposed by Section 19. In this regard, the Court will now require the following before exercising its powers under section 19: (i) Confirmation signed by both parties that they have made and received sufficient disclosure to enable them to make an informed decision to ask the Court to approve the terms contained within the proposed consent order. (ii) In the case of unrepresented parties, signed confirmation that they have been advised to seek legal advice in regard to the proposed settlement, and have either done so or have declined to do so. (iii) The lodging of a fully completed Statement of information for a consent order. (Where all of the parties attend the hearing of an application for financial relief or where the court is satisfied by the content of evidence already filed, the court may dispense with the lodging of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and with the giving of a State statement of information and 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```html <table> <tr> <td>1</td> <td>Neither H nor W had sought legal advice on the alleged agreement and Miss Carver</td> </tr> <tr> <td>2</td> <td>strenuously argued that H has failed to comply with his obligations for full financial</td> </tr> <tr> <td>3</td> <td>disclosure. The requirements of the Practice Direction had therefore not been met.</td> </tr> <tr> <td>4</td> <td>Consequently, even if there was a consensus, there is no basis in law for finding that the</td> </tr> <tr> <td>5</td> <td>parties would have been bound by it in these circumstances.</td> </tr> <tr> <td>6</td> <td>18.</td> <td>It is also important to note that H has not suggested that he has been prejudiced by his</td> </tr> <tr> <td>7</td> <td>reliance of the alleged “agreement”. Even if H and W had in principle agreed a</td> </tr> <tr> <td>8</td> <td>settlement which they wished the Court to approve in due course, this would not</td> </tr> <tr> <td>9</td> <td>preclude W from applying for MPS. MPS is a bridging arrangement until final orders can</td> </tr> <tr> <td>10</td> <td>be made (see below), and can be applied for, and an order made, at any time before</td> </tr> <tr> <td>11</td> <td>conclusion of the proceedings.</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>19.</td> <td>Finally on this subject, Mr Allen suggested that the Court could adopt a ‘summary judgment’</td> </tr> <tr> <td>14</td> <td>procedure to convert an interim application for MPS into a final ancillary relief hearing without</td> </tr> <tr> <td>15</td> <td>the consent of both parties. He did not provide with any law, rule or authority to suggest that</td> </tr> <tr> <td>16</td> <td>such a course was available in proceedings for financial relief. I find that such an approach</td> </tr> <tr> <td>17</td> <td>would be entirely inconsistent with the Court’s overarching duty to deal with matters, not only</td> </tr> <tr> <td>18</td> <td>expeditiously and economically but also justly. Any final decision without completing disclosure</td> </tr> <tr> <td>19</td> <td>and consideration of all of the evidence would be unjust and, therefore, I dismissed Mr Allen’s</td> </tr> <tr> <td>20</td> <td>submission on this point.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>20.</td> <td>For the forgoing reasons I rejected H’s plea of estoppel.</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>25</td> </tr> <tr> <td>26</td> <td>Maintenance Pending Suit</td> </tr> <tr> <td>27</td> <td>9</td> <td>the Court to make an order and the amount to be paid.</td> </tr> <tr> <td>28</td> <td>21.</td> </tr> <tr> <td>29</td> <td>30</td> </tr> <tr> <td>31</td> </tr> </table> ```
The approach of the Court when considering maintenance pending suit for a spouse is helpfully set out in the case of T v T (Financial Provision) [1990] FCR 169. [1989] Fam Law 438 at paragraph 4A as follows: "The primary aim of the court will be to make such an order, if possible, which will give a spouse certainly sufficient money to discharge the day-to-day outgoings and to feed, clothe and keep a roof over the head if that spouse until the final adjustments and orders are made in relation to the matrimonial assets and the finances after decree nisi...Where there are sufficient assets revealed by the parties the usual exercise for the court is to balance needs against resources and this come to a temporary figure until the whole question of the division of the matrimonial property can be decided." Nicholas Mostyne QC, then sitting as a Deputy High Court judge in TL v ML [2005] EWHC 2860 (Fam) gave the following frequently cited guidelines – a. The sole criterion to be applied is ‘reasonableness’, which is synonymous with fairness. b. A very important factor in determining fairness is the marital standard of living, although that is not to say that the exercise on a maintenance pending suit application is merely to replicate that standard. c. In every MPS application, there should be a specific budget for that application which excludes capital or long-term expenditure which should be considered at a final ancillary relief hearing. The budget should be examined critically in every case so as to exclude frenzied exaggeration. d. Where the affidavit or Form E disclosed by the paying party is deficient, the court hesitates to assume that there is any income. In such circumstances, the court should not make any assumptions about the ability to pay or resources, the court should be satisfied to the circumstances as to the favour of the payee.”
```html <table> <tr> <td>1</td> <td>24.</td> <td>In considering the application for MPS today, I am guided by and I apply the above legal</td> </tr> <tr> <td>2</td> <td>principles.</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>25.</td> <td>At Mr Allen’s insistence, W gave viva voce evidence in addition to her affidavit as to her means.</td> </tr> <tr> <td>5</td> <td>Mr Allen briefly cross-examined her. W’s evidence was largely consistent with her affidavit.</td> </tr> <tr> <td>6</td> <td>While H didn’t give evidence, he did provide an affidavit as to his means, which included some</td> </tr> <tr> <td>7</td> <td>details as to his company’s income and expenditure. If the information provided is accurate</td> </tr> <tr> <td>8</td> <td>then the business is currently making a loss. However, the records were deficient in that they</td> </tr> <tr> <td>9</td> <td>did not provide evidence to corroborate the handwritten entries as to expenditure. My ability</td> </tr> <tr> <td>10</td> <td>to critically examine the true health of the business was therefore limited. Miss Carver will be</td> </tr> <tr> <td>11</td> <td>requesting disclosure of that material and it is likely to be one of the issues to be determined at</td> </tr> <tr> <td>12</td> <td>the final hearing.</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>26.</td> <td>Mr Allen focused his argument on “the deserts of the parties”. H’s objection to an order for MPS</td> </tr> <tr> <td>15</td> <td>was grounded on the belief that W is not entitled to any share of the assets as</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>(i)</td> <td>she did not financially contribute to the marriage; and</td> </tr> <tr> <td>18</td> <td>(ii)</td> <td>it was a short marriage.</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>27.</td> <td>H will contend that the FMH is not a matrimonial asset as it was purchased many years before</td> </tr> <tr> <td>21</td> <td>the marriage. Initially Mr Allen also suggested that the Jamaican Property is not matrimonial</td> </tr> <tr> <td>22</td> <td>property either, but later acknowledged that W may be entitled to 50% share. He submitted</td> </tr> <tr> <td>23</td> <td>that in the absence of an entitlement, or only very limited entitlement, it is inappropriate to</td> </tr> <tr> <td>24</td> <td>make an order for interim spousal maintenance, as it is unfair and may prove prejudicial to H</td> </tr> <tr> <td>25</td> <td>who cannot afford such an order. Mr Allen referred me to the factors identified by Foster J in B-</td> </tr> <tr> <td>26</td> <td>HvH[2009CILR185]insupportifhiscontentionthatthecourisunlikelytofindmanyofthe</td> </tr> <tr> <td>27</td> <td>assets to be assets. Me to make</td> </tr> <tr> <td>28</td> <td>(i)</td> <td>W did not finan</td> </tr> <tr> <td>29</td> <td>(ii)</td> <td>W cially contrib</td> </tr> <tr> <td>30</td> <td>(iii)</td> <td>W is not entitled to any share of the assets, or alternatively, that her share is</td> </tr> <tr> <td>31</td> <td>limited to half of the value of the Jamaican Property.</td> </tr> <tr> <td>32</td> </tr> </table>

¶ [1] 28. I found that these are all issues that will need to be fully explored at the final ancillary hearing so that the Court can make appropriate findings of fact. An application for MPS is not the proper forum for determining such issues, largely because the Court is not yet in possession of all of the relevant evidence. I am mindful that H asserts that he has disclosed all that he can, but until the process of financial disclosure is complete (which Miss Carver does not accept), the Court should not proceed to make findings of fact on such critical issues.

¶ [2] 29. At the time of filing the summons, W had sought spousal maintenance at the rate of CI$3,000 per month of which $750 was to cover her legal costs. W reduced the overall sum requested to $2,400 in light of W having secured employment in the interim.

¶ [3] 30. I was mindful that there is only a limited examination of the available evidence and proposed budgets for MPS applications. I considered the information before me carefully, in particular to identify any evidence of exaggeration or underestimation of income and expenditure. Having done so, I accepted W’s evidence that currently her only source of income is her employment as a domestic helper for which she receives $600 per month. I also accepted that W’s savings were almost depleted and she was otherwise entirely dependent on the charity of a friend in order to have a place to live.

¶ [4] 31. I was persuaded that W might be able to secure another job as a domestic helper with better wages, but, considering the nature of her work, I concluded that any increase is likely to be small and will not provide the significant additional funding required to meet her current needs. Mr Allen suggested that if W accepted the settlement offer made, she would be able to rent out the house thereby providing a source of income. In essence, Mr Allen was suggesting that W is the creator of her own financial situation as she has refused to accept H’s offer of settlement. I found that argument had no merit. I found it quite reasonable for W to hold off making a decision on transferring the ty to W, until H has completed his offer to Jamaica Propleted disclosure.

¶ [1] 32. Similarly, Mr Allen’s suggestion that W could secure a loan against the Jamaican Property is not viable, given that she does not have sufficient funds to travel to Jamaica to make the arrangement. H has suggested that the Jamaica Property be rented out, providing W an income. No evidence was adduced as to how long it is likely to take to find a suitable tenant but it is unlikely to provide a swift solution. I was satisfied that W did not have another immediate source of income that could supplement her very modest wages.

¶ [2] 33. I was advised that W’s application for Legal Aid had been refused and legal costs were accumulating. Mr Allen suggested that the Legal Aid Director’s decision to refuse legal aid suggests that W does have funds from which she can cover her legal costs. I was not provided with any reason for the refusal and therefore, it was not a factor from which it would be proper to draw an inference that there are other undisclosed funds or sources of income.

¶ [3] 34. I reviewed W’s budget. I was satisfied that there were no obvious exaggerated estimates or unnecessary expenditure. The budget disclosed a desire for a modest lifestyle with only basic necessities and that $2,250 per month was a reasonable figure to achieve this.

¶ [4] 35. Mr Allen argued that W’s decision to return to the Cayman Islands to low-wage employment was unreasonable and H should not have to bear the cost of maintaining W here where the cost of living is significantly higher than in Jamaica. He opined that the Immigration Department may in due course deny W’s application for a full work permit, thereby necessitating her return to Jamaica in any event. The issue of why W returned to the Cayman Islands when she did is also a matter for the final hearing and I found not to be material to this application. W resides in and wishes to remain in this jurisdiction, which is not itself unreasonable, particularly given that she previously resided here, H petitioned for divorce here and the proceedings are ongoing.

¶ [5] 36. Mr Allen’s suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. 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The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means to support herself and her child. The suggestion that W should continue living with her friend as a cohabiting couple is unreasonably so given that W has no means
```html <table> <tr> <td>1</td> <td>37.</td> <td>H’s evidence disclosed that he earns CI$4,000 a month from his business. He provided a budget suggesting that he is in deficit every month. He produced documents demonstrating that the business is indebted to others. Despite the alleged deficit, during the course of the hearing, H made an offer to pay W $600 per month until the proceedings conclude. This fell far short of what W reasonably needed so I turned to examine H’s stated income and expenditure to determine whether he could afford to pay more and, if he could, whether it was fair to order him to do so.</td> </tr> <tr> <td>8</td> <td>38.</td> <td>I considered that having a gardener and a maid (helper) are luxuries rather than needs and could be dispensed with to free up funds. I also noted that H estimated the cost of house maintenance and repairs to be up to CI$830 per month. This seemed to me to be a very significant sum but no explanation was offered as to why it would be so high. I found that that it is more likely than not an exaggerated figure and that probably half that amount is sufficient.</td> </tr> <tr> <td>14</td> <td>39.</td> <td>H’s budget included financial support he provides to other family members, which totalled CI$750 per month. While I accepted that H has to meet the cost of his mother’s care and needs because she is elderly, there was little explanation of why H is also financially supporting his adult daughter and her two children. I considered that this was another area of expenditure that could be cut back.</td> </tr> <tr> <td>20</td> <td>40.</td> <td>H’s evidence was that the business is struggling and so he cannot withdraw any further funds from it. As I have already stated, I was not in a position to assess that assertion on the limited evidence before me. But I was satisfied that, even if cash flow from his business is as bad as H suggested, he is in a position to secure a loan against either the FMH and/or the Jamaican Property as these are free from encumbrances. Furthermore, H’s affidavit (dated 18th September 2018 at paragraph 21) spoke to him expending considerable funds recently:</td> </tr> <tr> <td>27</td> <td>28</td> <td>“I ha the expense</td> <td>25</td> <td>abou</td> <td>him [his nty</td> </tr> <tr> <td>30</td> <td>31</td> <td>d to take ops of bury</td> <td>29</td> <td>the expense</td> <td>which co</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>Mr Allen submitted that this was an error in H's affidavit and that H had only co-ordinated the pooling of funds from family members, not contributed himself. Given the clear language of the affidavit, I found that it was more likely than not that H did meet some or all of the costs of his father's funeral. From that I inferred that H has access to, or can raise, significant funds from an as yet undisclosed source.</td> </tr> <tr> <td>6</td> <td>41. Given all of the forgoing, I was satisfied on balance that H has sufficient sources of funds to meet his expenses and pay the $2,400 sought by W as spousal maintenance until the final hearing. I also concluded that it was appropriate given the great disparity between H and W's standards of living, although this was only a smaller factor as the amount awarded would not elevate W to the same standards as H.</td> </tr> <tr> <td>12</td> <td>13</td> </tr> <tr> <td>14</td> <td>Legal Expenses</td> </tr> <tr> <td>15</td> <td>16</td> <td>42. CI$750 of the amount W applied for was towards legal costs. Miss Carver drew my attention to the decisions in Zuiderent v Zuiderent [2001 CILR Note 9]，G v G [2002] EWHC 306 (Fam) and B v B [2012(1) CILR Note 4] as authority that MPS can include an element to cover legal costs. She argued that it was a legitimate part of W's expenses that she had to meet. I will review this issue in more detail, including Mr Allen's objections below.</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> <td>43. H strenuously objected to W receiving any contribution towards her legal costs, arguing that this would cause an unfair burden on him and is wrong in principle. Mr Allen suggested that W can settle her costs from her share of the marital assets after the proceedings have concluded. Mr Allen also submitted that it was W's failure to accept H's offer of settlement that has caused her and H to incur additional legal costs for which he should not be responsible. As I have already stated, give of the procot unreasonable decision oment until fiable for W t n the stage edings, it is have def the settlement di interim.</td> </tr> <tr> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>44.</td> <td>There is ample authority that MPS can incorporate an allowance for legal fees if it is in the</td> </tr> <tr> <td>2</td> <td>interests of justice to do so (see authorities cited at paragraph 21 above). It is a discretionary</td> </tr> <tr> <td>3</td> <td>power which has to be exercised with a view to promoting fairness between H and W. Fairness</td> </tr> <tr> <td>4</td> <td>is a “two way street”. The power to include an element in respect of the costs has to be</td> </tr> <tr> <td>5</td> <td>exercised having regard to the positions of both H and W and to the possibility that such an</td> </tr> <tr> <td>6</td> <td>order could or would be unfair to the paying party as well as to the advantages and</td> </tr> <tr> <td>7</td> <td>disadvantages to the other party that would flow from making or refusing the order.</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>45.</td> <td>Such an order is not confined to “big money” cases. Where, like in this instance, one spouse has</td> </tr> <tr> <td>10</td> <td>considerable assets while the other is without means and a source for the funds can be</td> </tr> <tr> <td>11</td> <td>identified, then it will be in the interests of justice to include an allowance for legal costs (see B v</td> </tr> <tr> <td>12</td> <td>B above).</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>46.</td> <td>I was satisfied that H had the ability to pay spousal maintenance at a rate of CI$2,400 per month</td> </tr> <tr> <td>15</td> <td>and given the financial disparity between the parties I concluded that it was in the interests of</td> </tr> <tr> <td>16</td> <td>justice to make an order for spousal maintenance which included an allowance for legal costs.</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>47.</td> <td>I therefore made an order that H pay W CI$553.84 per week commencing 28th September 2018.</td> </tr> <tr> <td>19</td> <td>All payments are to be made through W’s attorneys.</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>48.</td> <td>It is possible that after a full examination of all of the evidence at the final hearing the tribunal</td> </tr> <tr> <td>22</td> <td>may come to a different conclusion than I have. In such an event, if the judge considers it to be</td> </tr> <tr> <td>23</td> <td>appropriate, the final order may be adjusted to reflect any “prejudice” either party may have</td> </tr> <tr> <td>24</td> <td>suffered as a result of this interim order, including setting off such amounts.</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> <td>29</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> </tr> <tr> <td>32</td> </tr> </table> Page 15 of 16 ```
Costs of the Application

¶ [49] W applied for H to pay her costs of the application. Mr Allen argued that such an application is premature, as the judge at the final hearing may determine that the order would not have been made on the grounds that this was a short marriage and/or the amount paid pursuant to the interim order exceeds W’s share of any matrimonial assets. Given that Mr Allen will seek to argue that a setoff be made, I reserved the issue of costs until after the final hearing, at which time I will have the decision of the learned judge to consider. ## Dated this 5th day of November 2018 Acting Judge of the Grand Court Kirsty-Ann Gunn