Citation: TT 2014 HC 167
Title: ANTOINE v. PATRICK ET AL
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 2537 of 2011
Judge(s): Ramkerrysingh, J.
Date: April 11, 2014
Subject: Probate practice and procedure
Subsubject: Cohabitation – Whether applicant and deceased were in a co-habitational relationship – Whether applicant and deceased were in a bona fide domestic basis as viewed in Delzine v. Stowe HCA 3007/2001 and sections 4 (2) and 4 (3) of the Property (Relationships Act) 1984 NSW – Whether applicant was entitled to a share in the estate of the deceased – Visiting intimate relationship – Claim failed.
Mr. Brian Camejo for the applicant.
Mr. St Clair O’Neil for the interested parties.
- As with most applications filed pursuant to section 25 of the Administration of Estates Act Ch 9:01 as amended by the Distribution of Estates Act, 2000 (Act No. 28 of 2000), this case entails a two-stage process. Stage one involves the determination of cohabitation pursuant to the Cohabitational Relationships Act Ch 45:55, which once proved, the court then moves on to the second phase which concerns the distribution of the deceased’s estate.
- This case is one that turns largely on the evidence. If I accept the applicant’s case that she and the Deceased lived together on a bona fide basis as husband and wife, she will be entitled to proceed to the second phase for a share in the estate of the Deceased, comprising, among other things, his gratuity and pension from the Water and Sewerage Authority. On the other hand if I accept the case as put forward by the interested parties then the applicant’s case would collapse and the interested parties and their half-siblings will be entitled to the estate.
- The applicant in this case is Pam Antoine who claimed to have been living with the Deceased, Hanno Patrick, at her home in San Souci, Toco from 2005 to the time of his death in April 2011. The Deceased who had previously been married to Carol Patrick fathered five children, three with Carol, who are the interested parties before me. The Deceased divorced Carol in 1997 and the decree nisi pronounced in February 2005 was made absolute in April the same year.
- The interested parties challenge the applicant’s claim that she and the Deceased lived for five continuous years immediately preceding his death. It is their case that the Deceased had in fact been living with Roslyn James in La Horquetta, whom he treated and considered his common-law wife. According to them the period of cohabitation lasted from 2004 to November 2010 when Roslyn died and while they accept that during that time the Deceased was involved in a relationship with the applicant, they allege that the association was unchaste and that he was unfaithful to Roslyn.
THE APPLICANT’S CASE
- The lack-lustre quality of the applicant’s evidence was not enough to persuade me that she and the Deceased lived as husband and wife in a bona fide domestic basis. Apart from ‘attending fetes and social functions together’ she offers very little by way of evidence to support her case. Even in the brief mention of the ‘functions’ she claimed she and the Deceased attended, the applicant provided no dates or examples of any such event to give credit to her statement. She did say that they shared all household expenses but produced nothing to substantiate that.
- In her reply to the affidavits of the Interested, the applicant mentions, for the first time, a roti-shop that she and the Deceased operated together. She also used that opportunity to say that they purchased furniture together for the San Souci home. This information should have formed part of her initial evidence. Having come as an afterthought so to speak, in the form of a reply weakens her evidence and ultimately her credibility. Even if I were to accept her evidence she hampered by material nondisclosure to support her statements. She attached no receipts, bills, ticket-stubs, pictures, letters, cards or anything of that nature, to show over the course of six years that she and the Deceased ran a business, paid bills, furnished or partially furnished their home, attended fetes or shows, or did anything together.
- The applicant contends that her relationship with the Deceased began after his relationship with Roslyn James ended, which might account for her failure to mention Roslyn in her first affidavit. But in November 2010, a full year before she filed her Application, it must have come to her attention (she attended the funeral) that the Deceased was described as the ‘Common Law Husband’ on Roslyn’s funeral programme. Having seen that, she must have thought that the Deceased’s relationship with Roslyn, could pose a potential threat to her application, and accordingly would have had to be fully addressed by her from the inception. It is in her second affidavit filed in December 2012 that the applicant talks about Roslyn saying that the Deceased visited her after she was diagnosed with cancer and on those occasions she (the applicant) accompanied him to his niece’s, (Ann Marie Wolfe), home in Arima, where they spent the night. The deceased would then visit Roslyn the next day after which they returned to San Souci. On other occasions she said they laid-over at her cousin’s home. Ann Marie did not say anything in her affidavit to corroborate that and the applicant’s cousin was not called as a witness.
- The evidence surrounding Roslyn was crucial to this case and the applicant did not offer a strong enough answer in her December 2012 affidavit to dislodge the Interested Party’s contention that the Deceased and Roslyn were still in a committed relationship up to November 2010, when she finally succumbed to the cancer.
- Furthermore the applicant did not challenge or answer Kevon’s evidence that the Deceased played an integral part in Roslyn’s funeral. It is also not in keeping with the applicant’s contention, that as a ‘wife’ of the Deceased (it is her evidence that by the time of Roslyn’s death the Deceased referred her to everybody as his wife), she did not stay with him and the other mourners at La Horquetta after the funeral. She simply dropped the Deceased and his sister off, stood by the gate and left. Her evidence that by November 2010 her relationship with the Deceased was so well established and accepted by the family, as they ‘attended functions and social gatherings … visited relatives and friends..’, is in stark contrast to her apparent exclusion at the funeral.
- The applicant’s corroborating witnesses did little to help her case. Neither of them was a regular visitor to San Souci nor did they have the opportunity to observe the applicant and the Deceased interacting with each other in the normal course of their everyday lives. The Deceased’s niece Ann Marie Woolfe accompanied them to a few social events and assisted in the Deceased securing a car loan. His son-in-law Stefano Edward contributed nothing in his evidence that was beneficial to the applicant. Surprisingly, Stefano’s wife, the Deceased’s daughter gave no evidence on behalf of the applicant.
- All in all the body of evidence produced by the applicant is weak and does not support her case. The statutory guidelines (which I have reduced to footnote status only because of its familiarity), identified by Mendonça, J. as he then was in Delzine v. Stowe, and adopted from the De Facto Relationships Act 1984 of New South Wales, from which the court could determine bona fide cohabitation, were remarkably absent from the applicant.
- Before moving on to the evidence of the interested parties, it is notable that the Deceased did not use San Souci as his address. Instead he used Reid Lane D’Abadie as his address for official purposes. The applicant was adamant that the Deceased moved in to live with her at 34¼ Mile Mark San Souci from August 2005 and for the six odd years he lived there, she confirmed that he received no mail at that address. He gave Reid Lane as his address on the two certified copies of ownership of PCN 4675 which the applicant alleges was purchased by them jointly and HBT 7481, which admittedly was purchased in 2004, before the commencement date of the alleged cohabitation. This is significant because, the purchase of PCN 4675 in 2009 presented the opportunity to change his address to San Souci, but he opted to keep the Reid Lane address, which according to Vernon Joseph was incorrectly recorded as number ’27’ instead of ’11’.
- The insurance policy for PCN 4675 named the Deceased as the policyholder, although in her affidavit Ann Marie Woolfe erroneously stated that the Deceased and the applicant were joint holders. The applicant was named only as someone who was authorised to drive the vehicle, which I have no doubt, was the Deceased’s intention. Whether he meant for the applicant to rent the car from him as suggested by Vernon, or he purchased it for their joint use, he alone maintained control of it until his death.
- The applicant avers that she contributed $25K towards the purchase of PCN 4675. She had no documentary proof of her contribution because she said that she was in a relationship and I presume that she did not think of obtaining or retaining any proof of that contribution, which is understandable. She did not disclose the source of the fund but the money must have come from somewhere. It would not have been impossible for the applicant to produce a statement showing the withdrawal or other relevant transaction at about the time of the purchase, from which one could reasonably conclude that the sum represented her contribution.
ANALYSING THE EVIDENCE OF THE INTERESTED PARTIES
- Turning now to the evidence of the interested parties and their witnesses: Vernon Joseph confirmed that even after the Deceased moved from 11. Reid Lane, his mail continued to come there and when he moved in with Roslyn at La Horquetta, the Deceased gave him, Vernon, La Horquetta as his contact address. I mention that fact in furtherance of the view that the Deceased distanced himself from the San Souci address, keeping certain aspects of his life compartmentalised from the applicant. I agree with Mr. Camejo that Vernon does not give a timeframe during which the Deceased and Roslyn lived together. He did however indicate that he asked his father to give his girlfriend a lift home to Arima on occasion, which standing alone, is of little probative value, but is not sufficient to reject his evidence, because it is not being considered in isolation and together with the totality of the evidence of the other witnesses strengthens the circumstantial evidence.
- The interested parties all give evidence that the Deceased lived with Roslyn James as man and wife. From time to time they all either visited him or had cause to call upon him for assistance with transport. In Niki’s case she called him at late hours around 10:30 at night to pick her up from work at Piarco. On these occasions the Deceased was at La Horquetta, or would leave from that address to come for her and Roslyn would be with him. Niki was also a frequent visitor to a house next to Roslyn’s, from which she would observe the Deceased’s car parked outside the residence at night.
- Niki did not visit the Deceased and Roslyn at La Horquetta and admitted that all her observations were made from Virginia’s house next door. She gave contradictory evidence when she told Mr. Camejo under cross-examination that she had never met the applicant before the funeral and was unaware of her existence until she read the court papers, which was in direct contrast with her written evidence that the Deceased was in a relationship with the applicant and spoke of her at times. This weakens her evidence to some extent and while I am not minded to reject it completely, I will treat it with some degree of caution.
- Mr. Camejo argued that because Kevon last lived with the Deceased and Roslyn in 2000, he was not is a position to say with any degree of definiteness whether or not they lived together until Roslyn’s death, but there are other sources by which Kevon said that he came by this information. When he called on Virginia, Roslyn’s friend and neighbour, he would see the Deceased ‘a stone’s throw away’. Additionally, Kevon avows that he and his father were very close and they saw and talked to each other every day when the Deceased stopped in at his (Kevon’s) home and kept him updated on his private affairs. He testified that he was with his father when he fell ill the week before he died and had taken him to a health facility in Arima.
- Of all the siblings, Crystal appeared to be the one farthest removed, emotionally, from the Deceased. She was unclear when and for how long the Deceased and Roslyn lived together but recalled that in 2007 she often saw him in the company of a woman patronising a bar that was in close proximity to her house. She also recalled seeing him going to the bar with the applicant but not in 2007. I place very little weight on Crystal’s evidence.
- The most crucial evidence comes from Nirron, Roslyn’s son who lived at the La Horquetta house with his mother. He was able to give evidence which was not challenged by the applicant, that Roslyn and the Deceased lived first at St Joseph where he often visited and spent the night and then from there, moved to La Horquetta in 1998 when he lived with them until her death. He said he became aware that the Deceased was involved with the applicant (and was therefore unfaithful to his mother) and because of that he only tolerated him for his mother’s sake, but after she died Nirron asked the Deceased to leave the home. Nirron was a strong and very credible witness and I accept his evidence. Unlike the interested parties he is a neutral witness and has nothing to gain from this case.
- Another very strong and neutral witness was Virginia Antoine-Bailey, Roslyn’s neighbour and friend who could observe the household goings-on, not only because of the close proximity of their respective houses, but because of the close neighbourly relationship they shared. A wall separated the two houses and she and Roslyn would often talk to each other from their respective back yards, while Roslyn did the laundry. Virginia gave details of the stages of Roslyn’s health and stated that she worked right up to just before Roslyn’s death as confirmed by Nirron. They cooked for each other and visited each other’s homes which gave her ample opportunity to see how Roslyn and the Deceased interacted with and treated each other. She was evidently close to the Deceased and to Kevon and Niki as well. She often heard him speak of Niki and Kevon and told her when he was either going to visit them, or take them something, or when they called him. She appeared to know some of the background history of the children.
- Ms Antoine-Bailey also described Roslyn’s and the Deceased’s daily routine of leaving the home together to go to work, which continued even after Roslyn became ill, up to April or May 2010. She confirmed too that she saw the Deceased everyday and when she retired for the night he was with Roslyn. She said that she could not say whether he was there after she, (Virginia), retired for the night, but affirmed that every day she saw him leave for work from the La Horquetta residence. In response to Mr. Camejo’s question whether or not she knew the Deceased to spend months away from La Horquetta, Virginia was adamant that he did not. This was indeed a strong witness and her evidence stood up to scrutiny.
- She was cross-examined by Mr. Camejo on the time when Roslyn became ill as her affidavit disclosed that she became ill in 2004, whereas she indicated that she continued to work right up to 2012 shortly before she died. She explained that Roslyn fell ill first in 2004 and became ‘very ill in 2006’, but she maintained that she continued to work up to the year of her death in 2010. She remained unruffled during this line of questioning and I accept her evidence as being truthful. Virginia stated that she cared for Roslyn as the cancer progressed and as she became terminal the Deceased was present and went with her. Ms Antoine-Bailey was straightforward in her answers and I found her to be an open and reliable witness.
THE BURDEN OF THE APPLICANT
- There is a tendency for applicants wishing to invoke their rights under the CRA to put forward limited evidence, in what usually results in a futile attempt to persuade a court that a cohabitational relationship existed. Quite unlike a surviving spouse, and barring a cohabitational agreement, a surviving cohabitant cannot simply rely on a document to prove that such a relationship existed. It is therefore imperative that a cohabitee provide the strongest evidence that he or she can muster, if he or she is to succeed in an application. The evidence must be sound and compelling and come without prompting, from the very first narrative that is filed. The potency of one’s evidence is diluted when it comes as an afterthought (barring reasonable omissions), in response to a respondent’s answer, especially when the second bite contains information that goes to the heart of the case.
- It is reasonable to assume that the opposing party to a cohabitational application will first contest the existence of the requisite elements, in order to avoid application of the court’s discretion in favour of cohabitation. An applicant is well advised to prepare for such an attack and advance evidence containing as many elements of the NSW section 45 guidelines that are relevant to the facts of his case. Sufficient evidence must be harnessed to show that the parties were cohabiting and sharing a household during the prescribed period. If he or she fails to produce adequate evidence it is very easy for the other party to displace a presumption that the parties shared a life together as a couple, simply by raising questions concerning the significance of different aspects of their lives together. Where as in this case the evidence is shaky and does not stand up to scrutiny, chances of persuading the court towards a favourable result are slim.
- Using the Delzine guidelines as a tool, an applicant stands a much better chance of success, if he or she provides clear evidence to demonstrate that the relationship was marriage-like and from which marital-like obligations can be inferred. A couple living together for many years, or even the minimum statutory requirement of five years, who can provide evidence of sharing a life and financial resources, in which their dependence upon each other is emphasized, and/or where one takes care of the other without compensation, holding themselves out as husband and wife, can be presumed to intend to share the property they acquired together and enhance the right to inherit a division of the estate, in the event of death of one of them.
- A court must be wary, particularly where one of them is dead, of exercising its discretion on weak or poorly substantiated evidence, or else risk validating the actions of unscrupulous individuals who feign affection, begin a relationship, perhaps in an effort not to waste time on a long-term cohabitation, with the sole purpose of achieving unmeritorious, selfish goals. I hasten to add that I do not hold that this was the case here. To eliminate the danger of the court either endorsing an application based on deceit, or dismissing a legitimate claim, an applicant must do all in his or her power to avoid creeping doubts. Scant or flimsy evidence will not do.
- In this case the applicant’s credibility is worn thin when she fails to mention the roti-shop, the furniture and appliances purchased together, or her contribution to PCN 4675 until her second affidavit. These are significant facts in support of her case which would have been within her knowledge when she filed her first affidavit. Delaying these revelations until the interested parties raised their issues, puts her case in jeopardy, and is threatened further when she produces nothing to authenticate them.
- Most threatening of all is the applicant’s silence about Roslyn James with whom the applicant acknowledged in her second affidavit the Deceased lived just before he moved in with her (the applicant), and who he continued to visit until her death in 2010. The applicant is trying to establish her relationship with the Deceased. She must have known that Roslyn’s existence may threaten the success of her application and that the background of that relationship must be addressed if she is to succeed in her case. The legislation does not make it possible to be in a ‘part-time’ cohabitational relationship; spending the majority of time in one household, while at the same time spending less time in another. There is no room for the co-existence of one relationship on the horizon and another fading into the sunset. The Deceased’s relationship with Roslyn must have been directly addressed and all traces of it between 2005 and 2011 eliminated, if the applicant were to succeed. Just as she had to clear off the Deceased’s former wife Carol, it was her duty to clear off Roslyn as well.
- All the interested parties and their witnesses contend that the Deceased and Roslyn James lived together as man and wife up until Roslyn’s death in 2010. Unlike the two supporting witnesses the applicant chose to support her case, the opposing side comprised family members and an acquaintance who visited with and interacted with the Deceased and Roslyn and were therefore in a better position to provide information relevant to the Deceased’s personal and domestic affairs at least up to 2010. The applicant did not satisfactorily rebut this evidence.
- The interested parties and Roslyn’s son Nirron contend further that the Deceased was having an affair with the applicant, which caused them (the interested parties) to distance themselves emotionally from the Deceased. Oddly enough this is indirectly borne out by the applicant’s own evidence, when she said that she and the Deceased shared a ‘casual living friendship … for several years when we would attend fetes and social gatherings together…’, during which it is my finding that he was being unfaithful to Roslyn and remained so until her death in 2010.
- Overall the evidence is more in support of the interested parties’ case that it was Roslyn James and the Deceased who shared a cohabitational relationship up to the time of Roslyn’s death, while the applicant was his mistress. I am not satisfied that the applicant has properly discharged her burden on a balance of probabilities, that she has met the requirements under the CRA. The section 4 De Facto Relationships Act (NSW)/Delzine features are either absent in the applicant’s evidence or only vaguely mentioned by her, but not sufficiently for me to exercise my discretion in her favour.
SOME CLOSING REMARKS
- It has been stated over and over again that it was not the intention of Parliament to equate cohabitation with marriage. The CRA is more restricted and narrower than the MPPA and because there can be so many incarnations of cohabitation and living together, if one wants to qualify under the CRA, the evidence must contain relational characteristics, which are readily identifiable and can be analysed by the courts. The fragility of cohabitation (the informality of the living arrangement and the fact that parties can call it quits at any time without ceremony) compared to the more robust institution of marriage means that cohabitants must work harder than their marital counterparts to establish their unions convincingly.
THE FIELD INVESTIGATOR’S REPORT
- Just a short note of the Filed Investigator’s Report. Mr. Camejo relied on statements given by three persons among others, who were interviewed by the Registrar General’s Field Investigator Radesh Jagdeo, namely Atrill Hagley, Donna Carabello and Candice Augustus-Ward. The Report also contained conflicting statements from other interviewees. It is to be remembered that a Field Investigator’s report is not evidence and a court is not bound by its contents. The three above-named individuals did not file affidavits and were not examined at trial, which nullifies the value of their statements. I place no reliance on their statements or on the report as a whole.
FINDINGS AND CONCLUSION
- It is my finding that the Deceased was in a cohabitational relationship with Roslyn James up until her death in 2010. It is also my finding that he was engaged in an extra affair with the applicant, during the time that he was living with Roslyn. In any case I am not persuaded that the relationship the Deceased shared with the applicant was one that satisfies the statutory description of life together as husband and wife on a bona fide domestic basis. The applicant’s evidence falls very short of that. She grossly overestimated the strength of her case to her detriment.
- Even if I were to elevate the relationship between the applicant and the Deceased to that of cohabitation it would mean that that the Deceased carried on two cohabitational relationships simultaneously, which the legislation was not designed to recognise.
- I am satisfied from the evidence that Roslyn James was the cohabitant and that the Deceased and the applicant merely shared a visiting intimate relationship. I am prepared to go so far as to find that the relationship between the Deceased and the applicant blossomed, but only after Roslyn’s death and not in sufficient time to qualify as a cohabitation relationship under the Act. Had it met the time requirement the applicant’s evidence was nonetheless deficient as already mentioned. The applicant has not proved her case and so her claim fails.
- The Application is dismissed with costs to be paid by the applicant to the interested parties to be taxed in default of agreement.