Richardson v Ruiz

Citation:           TT 2014 CA 55

Title:                 RICHARDSON v. RUIZ

Country:           Trinidad and Tobago

Court:               Court of Appeal

Suit No.:           FPH No. 0011 of 2014

Judge(s):          Jamadar, J.A.; Rajnauth-Lee, J.A.; Mohammed, J.A

Date:                December 15, 2014

Subject:           Statute

Subsubject:      Interpretation – Family Law – Undue hardship – Delay in application –  Leave to proceed – Cohabitational Relationships Act – Appeal allowed.

 

Appearances:

Mrs. L. Seebaran Suite for the appellant.

Ms. D. Govia and Ms. C. Huggins for the respondent.

 

 

  1. JAMADAR, J.: This appeal concerns the interpretation and application of section 8 of the Cohabitational Relationships Act, Chapter 45:55 of the Laws of Trinidad and Tobago (the Act). Act No. 30 of 1998; Commencement date 23rd November, 1998. The Long Title to the Ad-describes-it-as:

 

“An Act to confer on cohabitants rights and obligations, to give the Courts jurisdiction to make orders with respect to interests in property and maintenance, to make provision for the enforcement of agreements and for matters incidental thereto.”

 

  1. Part III of the Act deals with ‘Proceedings for Property Adjustment and Maintenance’; and section 8 provides as follows:

 

“8. (1)   Where cohabitants have ceased to live together as husband and wife on a bona fide domestic basis, an application under this Part shall be made within two years after the day on which they so ceased to live.

 

(2)   The Court may grant leave to a cohabitant to apply for an order after the expiration of the period referred to in subsection (1), if the Court is satisfied that not to do so would cause undue hardship to the cohabitant or a child of the cohabitational relationship.”

 

  1. Thus, whereas the purpose and intention of the Act is to recognize the status of cohabitants and cohabitational relationships and their offspring, and to bring them within the ambit of the law for the purposes, inter alia, of making orders and granting relief in relation to property (adjustment orders pursuant to section 4(1) (a) of the Act) and periodical payments or lump sums (maintenance orders pursuant to section 4(1) (b) of the Act), section 8 of the Act creates a limitation in relation to those rights and obligations.

 

  1. Pursuant to Part III of the Act and by section 6, a cohabitant may apply for the granting of adjustment and/or maintenance orders. However, once the cohabitants have ceased to live together in a cohabitational relationship for more than two years (section 8(1)), an application for an adjustment and/or maintenance order pursuant to section 6 of the Act can only be made with leave of the court (section 8(2) of the Act).

 

  1. Leave to apply after the two year limitation period “may” be granted only “if the court is satisfied that not to do so would cause undue hardship to the cohabitant or a child of the cohabitational relationship” (section 8(2) of the Act). It is these words of limitation that fall to be interpreted and applied in this appeal.

 

 

HISTORY OF THE PROCEEDINGS

  1. On the 31st October, 2012 the appellant commenced proceedings pursuant to the Act, for property adjustment and a lump sum payment with respect to a certain property at Barbara Street, Arima.

 

  1. On the 16th May, 2013 the respondent filed an application to have the appellant’s action struck out pursuant to section 8(2) of the Act. The parties began living together in 1985 and separated in December 2009 (cohabitating for about 24 years). They have two children, Wayne born on the 25th October, 1980 and Rachel born on the 15th November, 1981. In July 1999 Rachel gave birth to a daughter (the parties’ grandchild), Shaniquwa, who lived with the appellant and the respondent until their separation. After the separation in 2009, the appellant began to live with her sister, where she continues to live together with her daughter and granddaughter.

 

  1. These proceedings were therefore commenced two years and ten months after the parties separated, and thus ten months outside of the limitation period provided for by section 8(1) of the Act.

 

  1. The grounds upon which the respondent relied in support of his application of the 6th May, 2013 were essentially, that: (i) “the parties both agreed that they ceased to live together … on a bona fide domestic basis”, and (ii) “the … evidence has not disclosed any evidence whatsoever that (the appellant) would suffer undue hardship or any hardship at all.” Respondent’s Notice of the 16th May, 2013, Grounds, paragraphs 3 and 4. These grounds defined the parameters of the inquiry to be undertaken from the respondent’s perspective, though the court was obliged to satisfy itself of the section 8(2) requirements in any event.

 

 

CONSTRUING SECTION 8(2) OF THE ACT

  1. This Act is an indigenous piece of legislation, though there are several similar statutes in other common law jurisdictions. The necessity for it arose out of the unique cultural phenomenon of ‘common law marriages’ that have been a part of the fabric of local society for generations. Construing the Act requires the discernment of the general intention of Parliament in passing the Act in the first place, and then the intention of Parliament in circumscribing its reach by section 8(2). The Long Title of the Act gives a clear indication as to its intended purpose. However, in order to bring a measure of finality to cohabitational relationships and to ensure that cohabitants could move on with their lives after a separation, section 8 set as a time limit two years within which cohabitational relationship actions pursuant to section 6 of the Act must be commenced.

 

  1. This time limit is not absolute and “may” be extended. What is involved is therefore the exercise of a judicial discretion. The only statutory condition for this exercise of judicial discretion is that the court “is satisfied” that not to grant leave “would cause undue hardship” to either the applicant cohabitant or to a child of the cohabitational relationship.

 

  1. The question that arises is therefore: What is the “true spirit, intent and meaning” of section 8(2) of the Act. See section 10(1) of the Interpretation Act.

 

 

FIRST INSTANCE JUDGMENTS

  1. Not surprisingly there are several first instance judgments that have interpreted and applied section 8(2) of the Act. Among these are: (i) Gail Bishop v Lennox Charlerie (per Tam J., 26th April, 2007) FHO 2108-2006, Steve Sammy v. Joy Maharaj (per Mohammed, J., 4th February, 2010 FHO 1818-2009; Paula Lutchman v. Joseph Callender (per Ramkerrysingh, J., 25th February, 2011 FHO 1058-2009; and Roxanne Clarke v. Randy Alexis (per Ramkerrysingh, J., 6th July, 2012) FHO 1813-2011. All have imported into our local jurisprudence judicial opinions from other jurisdictions on the interpretation of particular words in section 8(2) and of similar statutory provisions.

 

  1. For example, both Tam, J.; Mohammed, J. in Gail Bishop and Steve Sammy respectively, drew heavily on the interpretation in two commercial cases (See paragraphs 4 — 6 in Gail Bishop, and paragraphs 16 — 18 and 25 in Steve Sammy.) of the words ‘undue’ and ‘hardship’, extracting from these cases guidelines to be applied in determining the meaning of ‘undue hardship’ as used in section 8(2) of the Act. Ramkerrysingh J. reiterated the value of these guidelines in Roxanne Clarke, though in Paula Lutchman she appeared to critique this reliance on these kinds of cases. See paragraph 9 in Lutchman’s case and paragraphs 19 to 21 in Clarke’s case.

 

  1. Further, Mohammed, J. in Steve Sammy also placed reliance on the judicial interpretation of section 18(2) of the New South Wales Property (Relationships) Act, 1984 (Section 18 (2) states:

 

“A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27(1) made where the court is satisfied as to the matters specified in section 27(1) (b)) WHERE THE COURT IS SATISFIED HAVING REGARD TO SUCH MATTERS AS IT CONSIDER RELEVANT, THAT GREATER HARDSHIP WOULD BE CAUSED TO THE APPLICANT IF THAT LEAVE WERE NOT GRANTED THAN WOULD BE CAUSED TO THE RESPONDENT IF THAT LEAVE WERE GRANTED.”)

 

and the judges’ use of section 44(4) of the New South Wales Family Law Act, 1975, and imported the test of `greater hardship’ prescribed in section 18 (2) as an aid to interpreting section 8(2) of the Act. See paragraphs 19, 20, 21, 22, 23 and 24 of the judgment. And note, in interpreting section 18(2) of the New South Wales legislation those judges used as an aid to their interpretation section 44(4) of the New South Wales Family Law Act, 1975 . Section 44(4) states: “The Court SHALL NOT GRANT LEAVE under subsection (3) UNLESS THE COURT IS SATISFIED THAT HARDSHIP WOULD BE CAUSED TO A PARTY OF A MARRIAGE OR A CHILD OF A MARRIAGE UNLESS LEAVE WERE GRANTED.” In doing so he opined that ‘greater hardship’ and ‘undue hardship’ “both import the idea of hardship that is excessive or circumstances that are substantially detrimental to the cohabitant.” At paragraph 24 of the judgment. Mohammed, J. concluded: “The Court therefore finds the approach of the New South Wales Courts in the cases cited above to be of useful guidance in considering whether the applicant would suffer undue hardship if the court refuses to extend time.” At paragraph 24 of the judgment.

 

  1. Ramkerrysingh, J. also accepted the use of the ‘greater hardship’ test in Paula Lutchman, (See paragraph 12 of the judgment: “Statutorily it (the court) must consider whether greater hardship will be caused to the applicant by refusing leave than it will be caused to the respondent by granting leave to proceed.”) as a comparative hardship test between an applicant and a respondent to determine whether to grant leave to proceed pursuant to section 8(2) of the Act.

 

  1. A comparison of the wording and the language of the statutes that have informed the decisions relied on by the trial courts, reveals that they are not used in an identical way as in section 8(2) of the Act. Thus, while it is well known that in the research and drafting stages of the Act, consideration was given to similar legislation from New South Wales, clearly the language finally adopted in section 8 of the Act was intentionally, purposefully and differentially selected. These differences are therefore significant and are to be given due consideration.

 

  1. Also, Ramkerrysingh J. in Paula Lutchman, suggested the following as an appropriate approach to a section 8(2) analysis: At paragraph 20 of the judgment.

 

“From my readings I have come across a number of factors that the Courts have considered when deciding one way or the other, whether or not to exercise its discretion. I have listed these factors below, but I caution practitioners that this list comes with the proviso that it is by no means exhaustive, and it is important to note that these considerations must be put in the context of each case, which means that it is not necessary that each and every factor be present and the weight to be put on each, is a determination that the court would have to make. The list, not written in any particular order of importance, include:

 

  1. A reasonable explanation for the delay;
  2. Whether the applicant has made out a reasonable prima facie case had the proceedings been filed in time;
  3. The establishment of undue hardship as required by the Act.
  4. Any prejudice that the respondent would suffer by reason of the delay in bringing the application.

 

These factors may be added to the Tompkins factors (The ‘Tompkins factors’ (which emerged out of the interpretation of ‘undue hardship’ as used in section 18(6) of the New Zealand Arbitration Amendment Act, 1938), are those suggested by Tam J. and Mohammed J. in Gail Bishop and Steve Sammy, and are (per Tam, J.):

 

“Tompkins J. stated … that:

 

`While judges have refrained from attempting to define what undue hardship is, no doubt because there are infinite varieties of circumstances which might constitute undue hardship, it seems clear that the following are relevant matters in considering whether there is undue hardship or not:

 

(a)  The mere fact that the claim is barred cannot be held to be an undue hardship;

(b)  The court will not hold circumstances to constitute an undue hardship where the delay has been due to inadvertence, or to an applicant not making himself aware of the terms of his contract, or to his negligently letting the time go by.

(c)  The court will hold there is undue hardship where there has been a misunderstanding, or confusion, which has been caused, or contributed to, by the other side.

(d)  The court will hold there is undue hardship where the failure to give notice in time was due to circumstances over which the applicant had no control, or other very special circumstances explaining the delay.

(e)  The court would hold there to be undue hardship if the refusal of an extension would involve an applicant in actual financial difficulties, or perhaps bankruptcy.’

 

In that case, Tompkins, J. had considered section 18(6) of the New Zealand Arbitration Amendment Act (1938) that authorizes the court to grant an extension of time within which to take some step in an arbitration if “undue hardship” would be caused by the refusal of such extension.”)

 

for a more complete, but certainly by no means an exhaustive set of guidelines. With respect to (a) I repeat that although there is no statutory requirement for an explanation, case law (Here reliance was placed by Ramkerrysingh, J. on two Australian cases.) has established that it is appropriate that the court require the applicant to provide a satisfactory explanation for the delay”.

 

 

CONCERNS

  1. This court acknowledges the significant research done by the trial courts on this issue, but is concerned that in the process the plain intent, meaning and purpose of section 8(2) may have become somewhat overtaken by layers of meanings and sub-meanings that could shift the focus away from what ought to be addressed when applying section 8(2) of the Act.

 

  1. We share the concern of Ramkerrysingh, J. that “‘undue hardship’ in the family context should go beyond the sterile environment of commercial and other such contractual ties.” At paragraph 9 in Paula Lutchman. Though we see it less as a ‘going beyond’ and more as the need for finding its meaning in its particular context, which is a cohabitational relationships context in Trinidad and Tobago.

 

  1. We are also concerned, that the importation of the ‘greater hardship’ test is simply not what section 8(2) of the Act prescribes. Section 8(2) does not focus on any comparative analysis between an applicant and a respondent; it focuses solely on the undue hardship of the applicant cohabitant and/or a child of the cohabitational relationship.

 

 

TWO STANDARDS

  1. Furthermore, section 8(2) of the Act lays down a general time limit with a conditional discretion to extend it once two standards are met in relation to ‘undue hardship’. These two standards are that the court “is satisfied” that not to grant leave to apply for an adjustment and/or maintenance order “would cause” undue hardship. Therefore, the standard to be met by an applicant who seeks leave to proceed, is simply to satisfy the court that unless leave is granted undue hardship would be caused to him/herself or a child of the cohabitational relationship. This must be established on a balance of probabilities and the onus of establishing it is of course on the applicant.

 

  1. We are of the opinion that given the intention of the Act, the condition of undue hardship must be interpreted and applied purposively. That is to say, so as to further the intention of recognizing cohabitational relationships and conferring rights and obligations in relation to property and maintenance arising out of them. There is therefore no basis to impose an unnecessarily restrictive or onerous meaning to this condition, which for example does not in its plain meaning say ‘excessive’ hardship or even hardship that is ‘substantially detrimental’. The only hardship that must be demonstrated is hardship that is ‘undue’. In relation to the comparative notion of ‘greater hardship’, there is also no textual warrant to introduce such a consideration into a section 8 (2) analysis.

 

 

UNDUE HARDSHIP

  1. What then does undue hardship mean? The ordinary meaning of ‘undue’ is ‘not owed or suitable’, ‘disproportionate’. It is the contrary of ‘due’, as in that which is due to someone; meaning that which is ‘owing to’, ‘ought to be given to’, ‘merited by’, ‘appropriate’, ‘rightful’, `proper’ or ‘adequate’.

 

  1. ‘Hardship’ means in its ordinary usage, in relation to a person, ‘difficulty’, ‘suffering’, `privation’ or ‘loss’.

 

  1. Put together, ‘undue hardship’ in the scheme of the Act, means nothing more than a privation or loss, a difficulty or suffering, that is not right, proper or appropriate, in the context of what is rightly and properly due to a cohabitant or a child of a cohabitational relationship under the Act. Which, in the further context of section 6 of the Act, means what is rightly and properly due in terms of either an adjustment and/or maintenance order. This is because, all that a cohabitant or a child of a cohabitational relationship can get pursuant to section 6 is an adjustment or maintenance order. The undue hardship that the court must be satisfied about, is that which is caused by the undeserving loss of what ought to be given to the applicant or child under the Act. In our opinion this ought to be the proper approach to be taken to the section 8(2) question: ‘Would the refusal of leave cause undue hardship?’

 

  1. The courts below have themselves pointed out that section 8(2) does not require that any reasons for the delay in making the application for leave to proceed be given. This is indeed so. Though reasons for not making the substantive section 6 application within the two-year period and for any delay thereafter in making an application for leave to proceed will always be helpful, a disproportionate focus on ‘reasons for delay’ could distract from the primary analysis, which is whether the refusal of leave would cause undue hardship.

 

  1. The courts below have also pointed out that all of the ‘lists’ and ‘guidelines’ that they have set out are not exhaustive, because each case must be determined on its own circumstances. Again our concern is that ‘lists’ and ‘guidelines’ could distract from the primary analysis that is to be undertaken. What the court is required to do, in the circumstances of each case and in the context of the Act, is to determine whether or not the refusal of leave to proceed would cause undue hardship. Once satisfied of this, it is then a matter of discretion (`may grant leave’) whether or not to grant leave to proceed. The obvious danger of ‘lists’, is that they can become boxes, that limit the ambit of the inquiry, Section 8(2) is framed in very broad and general terms, so as to permit the courts an equally broad range of consideration in the exercise of its discretion. This is intended to promote a generous interpretation and application of section 8(2) and to denounce a limited restrictive approach to applications for leave to proceed.

 

  1. Finally, we are of the view that in the analysis to be undertaken, the courts will usually be required to inquire into the circumstances of the cohabitational relationship, including the standard of living enjoyed by the parties and also including the sections 7, 10 and 15 considerations set out in the Act. Section 7 (c) provides: “The Court shall not make an order under section 6 unless it is satisfied that—

 

(c)  the applicant has made substantial contributions of the kind referred to in section 10, and that failure to make the order would result in grave injustice to the applicant.”

 

Section 10 (1) provides: “On an application for an adjustment order, the High Court may make any such order as is just and equitable, having regard to—

 

(a)  the financial contributions made directly or indirectly by or on behalf of the cohabitants to the acquisition or improvement of the property and the financial resources of the partners; and

 

(b)  any other contributions, including any contribution made in the capacity of homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them;

 

(c)  the right, title, interest or claim of a legal spouse in the property.”

 

Section 15(1) and (2) provides: ” (1) A Court may make a maintenance order, where it is satisfied as to one or more of the following matters:

 

(a)  that the applicant is unable to support himself adequately by reason of having the care and control of a child of the cohabitational relationship, or a child of the respondent, being in either case, a child who is-

 

(i)   under the age of 12 years; or

(ii)   in the case of a physically disabled or mentally ill child, under the age of 18 years;

 

(b)  that the applicant’s earning capacity has been adversely affected by the circumstances of the relationship, and in the opinion of the Court a maintenance order would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education; and

(c)  having regard to all the circumstances of the case, it is reasonable to make the order.

 

(2) In determining whether to make a maintenance order and in fixing the amount to be paid pursuant to such an order, the Court shall have regard to—

 

(a)  the age and state of health of each of the cohabitants including the physical and mental disability of each cohabitant;

(b)  the income, property and financial resources of each cohabitant;

(c)  the financial needs and obligations of each cohabitant;

(d)  the responsibilities of either cohabitant to support any other person;

(e)  the terms of any order made under section 10 with respect to the property of the cohabitants;

(f)   the duration of the relationship;

(g)  a standard of living, that in all the circumstances is reasonable;

(h)  the extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the other cohabitant;

(i)   the terms of any order made by a Court in respect of the maintenance of a child or children in the care and control of the applicant;

(j)   any fact or circumstance that, in the opinion of the Court, the justice of the case requires to be taken into account.”

 

In addition the courts will also usually consider the current circumstances of the applicant and/or child, as well as reasonably foreseeable future circumstances. This will generally be the core information that will be considered in a section 8(2) analysis, though, all circumstances are relevant.

 

 

THE INSTANT CASE

  1. In a section 8(2) analysis what is involved is the exercise of a judicial discretion. On an appeal a trial judge’s order will only be set aside if it has been shown to be plainly wrong.

 

  1. In this case we were of the view that the trial judge was plainly wrong in exercising her discretion not to grant leave to the appellant to proceed. We were of this opinion for the following reasons.

 

  1. First of all we note that the trial judge made no attempt to state the test that ought to be applied or the considerations that ought to have informed her analysis. Though reference is made in passing to the local judgments referred to above, no attempt was made to state what these cases suggested was the approach to be taken.

 

  1. In the absence of any such statement and analysis, it is difficult to justify an approach that accords with the law. This is especially so where there have been at first instance differing views on how section 8(2) of the Act is to be interpreted and applied.

 

  1. Secondly, there was no analysis of the cohabitational context prior to the separation of the parties in 2009. No attempt was made to determine the standard of living that they enjoyed over the twenty-four year period of their cohabitational relationship, or of the benefits that they intended and expected to enjoy and to continue enjoying into the future, had the relationship not ended. Also, no proper review was undertaken of the sections 7 and 10 considerations of the Act and how these could impact on the section 8 (2) analysis.

 

  1. The evidence on the face of it, suggests that the appellant made both indirect as well as direct financial and other contributions to the cohabitational relationship, and thus at least contributed indirectly to the development of the Barbara Street property in Arima. Further, that these contributions were made with the joint intention that that property would be the future home of the parties and in time pass to the children of the cohabitational relationship. The respondent has sold this property and the appellant has received nothing from that sale. Also, whereas the respondent continues to live in the cohabitational home rent free, the appellant is now residing in cramped conditions at her sister’s residence, where she pays $1500.00 for that privilege. She is without an independent home, owns or has no interest in any real property, and remains a caregiver for the grandchild of the parties. All this after twenty-four years of cohabitation with the respondent.

 

  1. Is it that on a balance of probabilities there is no interest in either the cohabitational home and assets or the Barbara Street property that is properly due to the appellant arising out of this twenty-four year cohabitational relationship? And, is it that the appellant would suffer no privation or loss if she is not allowed to pursue this application for adjustment and lump sum orders in relation to her claimed interest in the Barbara street property, which was sold by the respondent for $1,500,000.00?

 

  1. Furthermore, the disparity in the incomes of the parties is the alleged difference between a monthly salary of $6,000.00 earned by the appellant and $25,000.00- $30,000.00 per month earned by the respondent from an auto repair business that he operates on the cohabitational premises where he lives, together with a monthly pension of $3000.00 that he receives.

 

  1. It is undisputed that the appellant contributed to the cohabitational relationship as a homemaker and parent and continues to do so in relation to the parties’ grandchild.

 

  1. All of these are factors, which by reason of section 10(1) of the Act, are to be considered on an adjustment order application. After twenty-four years of cohabitation, during which a property was developed for the benefit of the parties and their children, it is more than probable that the appellant has an arguable claim to an interest in that property or the proceeds of its sale, and for the purposes of section 8(2), that undue hardship would be caused to the appellant if she cannot pursue this claim. These rights and interests are of course matters that will only be finally determined on a full hearing of the section 6 application and after consideration of the section 7 criteria.

 

  1. Thirdly, in the trial judge’s analysis of undue hardship and as the basis for concluding that the appellant had not satisfied the requirements of section 8(2) of the Act, she stated: At paragraphs 6 — 7 of the judge’s reasons.

 

“6. The wording of section 8(2) of the CRA is such that it was not the intention of the legislators that failure to comply with the statutory timeframe for filing an application, without more, should defeat the rights of a former cohabitant. The framers of the CRA have given the court the jurisdiction to make orders in respect of the interests of former cohabitants where to do otherwise would cause undue hardship.

 

  1. The reasons advanced by the Applicant for her failure to file her application within the stipulated 2 year period do not amount to undue hardship. In particular, there is no evidence to show that a refusal of leave would result in financial difficulty for the Applicant. During the period since the separation of the parties, the Applicant has been able to purchase a motor vehicle. There is no evidence that her financial situation is grave. She is in permanent employment and pays her sister the sum of $1,500.00 per month.”

 

  1. The judge seems to have limited the assessment of undue hardship to ‘financial difficulty’. In so far as this was done, that was plainly wrong. Though financial circumstances are a relevant consideration, those are not the only circumstances that are relevant to a section 8(2) analysis. The analysis on finances is not simply about whether the applicant is experiencing `financial difficulties’. It involves a consideration of whether the refusal of leave would cause undue hardship. This is to be determined in the context, inter alia, of the standard of living enjoyed by the parties, of the property and assets that they have acquired during the course of their cohabitational relationship, of whether the applicant may have acquired an interest in those assets, as well as in the context of the intentions and expectations of the parties in relation to any such property. To reduce the measure of hardship to a minimum wage or standard of living is to misunderstand the significance of ‘undue’ as used in ‘undue hardship’.

 

  1. Thus whether the appellant has purchased a vehicle, or is permanently employed, or can pay her sister $1,500.00 per month for lodging, or is not in a ‘grave financial situation’, are not determinative of whether or not there is undue hardship for the purposes of section 8(2). In so far as the trial judge approached the analysis on the basis that unless the appellant was in a `grave financial situation’ there could be no undue hardship, she was plainly wrong.

 

  1. In our opinion, the compartmentalized assessment of “financial difficulty” adopted by the trial judge is inappropriate when one is assessing whether or not there is undue hardship under section 8(2). This is because undue hardship must at least consider, as we have said earlier, all of the circumstances of the cohabitational relationship in the context of the Act.

 

 

DELAY

  1. Fourthly, this action was brought ten months outside of the two-year limitation period prescribed by section 8(2) of the Act. In the context of the breakdown of cohabitational relationships in Trinidad ten months is not excessively long.

 

  1. The appellant’s explanation for her delay was simply that the respondent had assured her after their separation, that the Barbara Street property would have been transferred to their children and that she would have had the use and benefit of it upon its final completion. The uncontroverted evidence is that up to the time that the respondent sold the property it was not completely finished or fully fit to be occupied.

 

  1. It was only upon the discovery of the sale of the premises that the appellant felt compelled to initiate this action. Yet the trial judge stated that “there was nothing preventing her use of the Barbara street property”, thus apparently rejecting the appellant’s reason for the delay in commencing these proceedings. In this the trial judge was also plainly wrong. See paragraphs 4 — 5 of the trial judge’s reasons, which state:

 

“4.  In paragraphs 10 — 14 of the applicant’s affidavit filed on 23rd November, 2012, the applicant stated that she did not make an application within the statutory period because she had an agreement with the respondent that he would transfer the Barbara Street property to their children and granddaughter; and that she would have the benefit and use of the Barbara Street property.

  1. The uncontroverted evidence is that when the applicant left the cohabitational home after 24 years of cohabitation, she went to live at her sister’s home where she remains to this day. It is passing strange to the court, that in the face of the applicant’s alleged agreement with the respondent (that she would have the use of the Barbara Street property) that the applicant would go to live with her sister in what she describes as ‘cramped premises’ when there was nothing preventing her use of the Barbara street property.”

 

This reason was a good and reasonable explanation for the delay in bringing these proceedings in the circumstances of this case.

 

 

CONCLUSION

  1. For all of these reasons, on the 17th November, 2014, we allowed this appeal and set aside the orders of the trial judge. After hearing argument on the issue of costs, we decided that the order of the trial judge on costs, that there be no order as to costs, ought to remain and further that the same order for costs be entered in relation to this appeal.

 

  1. We are of the opinion that these orders for costs are appropriate in this matter, because before this court what was explored in part was the uncertainty of the law on section 8(2) of the Act in light of the differing approaches taken by first instance judges.

 

  1. We also ordered and directed, on the urging of both attorneys, that this matter be dealt with expeditiously and be placed before another judge sitting in the Family Court for hearing and disposition.

 

Peter Jamadar

Justice of Appeal

 

I have read the judgment of Jamadar, J.A. and I agree.

 

  1. Rajnauth-Lee

Justice of Appeal

 

I have also read the judgment of Jamadar, J.A. and I also agree.

 

  1. Mohammed

Justice of Appeal

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