Lutchman v Callender

Citation:           TT 2012 HC 253

Title:                 LUTCHMAN v. CALLENDER

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 1058 of 2009

Judge(s):          Ramkerrysingh, J.

Date:                July 18, 2012

Subject:           Family law

Subsubject:      Cohabitational relationship – Property division.

 

Appearances:

Ms. Leslie-Ann Lucky Samaroo (Instructed by Ms. Anjanie Ram) for the applicant.

Mrs. Janice Clarence-Quamina (Instructed by Ms. Jozanne Quamina) for the respondent.

 

Ramkerrysingh, J.: 1. Paula Lutchman (Ms. L) and Joseph Callender (Mr. C) lived together for 28 years if one believes Ms. L, or 17 years if the evidence of Mr. C is accepted. They have a son, Christopher, now an adult who lives with his father in the former family home. The parties worked together first, in a hardware and later, a business venture with the Trinidad and Tobago Government’s Community Based Environmental Protection and Enhancement Programme (CEPEP). Ms. L handled the bookkeeping and took care of all the financial matters for these two enterprises while Mr. C operated the business, secured contracts and supervised and managed his construction projects, the earnings from which were also entrusted to her. Several pieces of real property were acquired during their long relationship including the former family home, but sadly not all of those properties survived the relationship.

  1. What seemed to be a harmonious domestic and working relationship was shattered when a Ms. Milette, the person hired to operate a Lotto Machine on the compound of the hardware began treating Ms. L with disrespect. The tension was further heightened when Ms. L’s niece, Jewel, was hired by Mr. C to work in the hardware and he ignored her, that is, Ms. L, when she complained to him about Ms. Millette’s and Jewel’s time-wasting and the disinterest the latter showed in her responsibilities at the hardware. There were also allegations of an inappropriate closeness developing between Mr. C and the lottery employees. The situation swiftly deteriorated, culminating in a heated argument in February 2005 and Mr. C demanding that Ms. L leave the hardware. This marked the end of their relationship as a couple and Mr. C moved out of the family home and began occupying a room in the hardware, and Ms. L withdrew from the business until September 2005 when Mr. C asked her to return to do some clerical work.
  2. Four years after the relationship ended Ms. L has brought an action for property adjustment for the remaining properties and the business assets, of which she claims she is entitled, having worked with Mr. C to acquire the several assets and to achieve his status as a profitable businessman. A point in limine was raised by Mrs. Clarence-Quamina about the delay in bringing the application coming after the expiration of the two-year statutory time limit. Attorneys made submissions on 18th January 2011 and on the 25th February 2011 permission was granted to apply and proceed with the application. This decision is the subject of written reasons given on 25th February 2011.

 

Application of the Act

  1. The governing legislation is the Cohabitational Relationships Act, 1998 and I begin by making a distinction between a cohabitant’s rights under this Act and the rights of a spouse under the Matrimonial Proceedings and Property Act. I make this distinction because, if I understand her correctly, the gist of the submissions made on behalf of Ms. L, is that her long contribution to the various businesses and her role as housewife and mother, entitle her to be treated as a business partner and to share in all the assets including the businesses, very much like a matrimonial division. It was not Parliament’s intention however, to equate cohabitation with matrimony and when considering making a property adjustment order, unlike the MPPA, the Cohabitational Relationships Act limits the court to having regard to:

 

  1. “the financial contributions (My Emphasis) made directly or indirectly by or on behalf of the cohabitants to the acquisition or improvement of the proper* and the financial resources of the partners and
  2. 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;
  3. the right, title, interest or claim of a legal spouse in the property. “

 

  1. Cohabitants are not the same as married persons. The legislators, by implementing the Act, recognised the role of cohabitants, who lived together, shared expenses, took care of their family and acquired assets together on a “bona fide domestic base3 and in that regard conferred on them certain rights, when the relationship ends, but did not intend to elevate those rights to the status of married couples coming out of a marriage. Parties of a cohabitational relationship which has broken down do not have the same rights as spouses. Section 10 of the Act limits the conditions under which an adjustment order will be made, which are absent in the MPPA. By section 10 it is not enough for the applicant to show a contribution to the relationship. The division of property is influenced very much by financial contribution to the property or financial resources and future needs do not play a part. While some consideration is given to non-financial and parenting contributions, it is not given the same weight as in a formal marriage. Financial contribution takes centre stage, and it is for the court to determine what weight to give to the non-financial contribution.
  2. In order to be awarded a beneficial interest in property, the applicant must first show a financial contribution, direct or indirect to the property at issue. A mere contribution to the relationship is not sufficient unless it is also a contribution to the acquisition or improvement of that property. Sub-section 1 (b) goes on to provide some qualifying contributions which make subsection 1(a) not as restrictive as first appears, but still does not open the door wide enough to allow contributions that would otherwise be accepted under marital situations.
  3. Other distinctions include very limited circumstances under which a maintenance order can be made under the Act (section 15(1)); and also the imposition of a time on applications (section 8(1)) unlike the MPPA.
  4. According to Mendonca, J. as he then was:

 

“…it must be recognised that it was not the intention of Parliament to accord to cohabitants the same status as a married couple. … That being so, great caution should be exercised before importing into a cohabitational relationship context any matter which would be of importance in an inquiry in a marital context such as the needs of the parties or the standard of living enjoyed during the relationship. The need for caution is emphasized when it is noted that in the green paper despite drawing specific reference to certain matters which the Court takes into account under the Matrimonial Proceedings and Properly Act, Chap. 45:51 such as the financial needs, obligations and responsibilities of each party it was only recommended in the case of a cohabitational relationship that the Court should have regard to financial and other contributions of the parties.”

 

  1. I have adhered to these principles in determining Ms. L’s claim, particularly as it relates to the businesses and her relief for maintenance. There is no doubt that she was employed in the Petit Bourg Hardware, as well as JC Environmental Services Limited and to a far lesser extent JC Construction Building and Maintenance Services, but she was paid for her services. In other words she received compensation for her work. The issue therefore is whether in light of section 10, she is entitled to a share in those businesses including the property on which they stand or are conducted. The business J&H Enterprises is also in issue as it relates to her contribution and interest if any. With respect to the inherited properties in Santa Flora and Goodwood Tobago, she has asked for a property adjustment order and again her interest there is in issue. Finally, the property at 270 Hillside Crescent Mount Hope (Hillside) also falls for consideration. It was the family home and is registered in her name.

 

History and Facts

  1. Ms. L filed her Form 8 asking for the following relief, that is to say:

 

“An order for property Settlement/Adjustment under the Cohabitational (sic) Relationships (sic) Act No. 30 of 1998 in respect of the following properties and businesses:-

 

  1. PROPERTIES

 

  1. One House and land situate at Mt. Hope
  2. One House and land situate at Santa Flora
  3. One House and land situate at Petit Bourg
  4. One acre of land Goodwood Tobago

 

  1. BUSINESSES

 

  1. Petit Bourg Hardware Store with its stock in trade situate as No. 15 Eastern Main Road, Petit Bourg
  2. Building and Maintenance Services situate at No. 15 Eastern Main Road, Petit Bourg
  3. J&H Enterprise – manufacturer of thinners and sales of National Lotteries Product – Lotto, Scratch, Play Whe etc situate at the Hardware compound.
  4. JC Environment Services Company Ltd.
  5. JC Construction and Building Services situate at 15 Eastern Main Road, Petit Bourg.

 

  1. A maintenance order that the Respondent pay to the Applicant such sums or sum in respect of a clean break or such sums as the Court deems fit for the maintenance of the Applicant until further order of the court.”

 

  1. The parties agree that their cohabitational relationship ended in 2005, but differ as to when it began. Ms. L insists that they started living together in 1977, while according to Mr. C says it was in 1988 when Christopher was about 7 years old. Whether it was 1977 or 1988, the relationship was a long one. During that time they worked together in the hardware and the family home at Hillside was bought. During the relationship too Ms. L was the one who controlled and managed the financial affairs and the earnings generated from the hardware. Earnings from the construction company and the CEPEP contract were deposited into their own accounts, with which Ms. L had little dealings if any. Her tasks included among other things, making bank deposits and spending on agreed items for the benefit of the family and the hardware. Mr. C accepts that Ms. L worked in the hardware although he does not agree with her that she was the only person who worked there, saying that he always hired individuals to work in the hardware which fluctuated in number, depending on the amount of work available from time to time.
  2. Where the parties differ is the degree of Ms. L’s involvement in the hardware, the number and nature of the business assets owned and her entitlement to those assets. There is also bitter contention as far as the circumstances surrounding the acquisition of Hillside. It is to be noted that all but the Hillside property are in the name of Mr. C either alone or in partnership with a third party. Mr. C avers that he trusted Ms. L implicitly and put Hillside in her name because at the time of its acquisition he was (and up to the time of trial) still married and he wanted to protect the property falling prey to a matrimonial claim for ancillary relief. Finally, there is significant disagreement about the parties First Citizens Bank Account, which financed the vast majority of assets under dispute.
  3. Although I accept that this was a long and well-established relationship during which the parties worked together and supported each other until its unhappy demise, I am not convinced that Ms. L’s financial contribution was as substantial as she declares, nor do I accept that her enterprising diligence at the hardware and JC Environmental, entitles her to be treated as a partner in the businesses, as she claims.
  4. At the same time it is my judgment that the Petit Bourg Hardware and the following businesses: (1) J&H Enterprises, (2) JC Environmental Services Company Limited and (3) JC Construction and Building Services, were all acquired by dint of Mr. C’s efforts, which in turn generated the income(s) that funded Hillside as well as other ambitious property acquisitions, which were eventually lost as well as provided for the family. That is not to say that I do not recognise Ms. L’s involvement in the hardware and JC Environmental particularly, as it related to her bookkeeping, invoicing and general accounting, as well as her role as homemaker and mother, but unlike a wife, her entitlement to a property adjustment order must be linked to a financial contribution.
  5. Because of the number of assets and the varied circumstances under which each was acquired, my approach is to examine each separately under the scope of the Act, in order to determine whether they are to be included or excluded for consideration. This exercise, of necessity, makes for an unavoidably lengthy judgment, for which I apologise in advance, but I think it is important to do the analysis in this way so that the application of the law as I have interpreted it can be explained.

 

– Petit Bourg Hardware Store

  1. I start with the hardware which was the mainstay of Ms. L’s engagement. She said Mr. C discussed the idea of the hardware with her before it was opened. Mr. C does not accept that, saying that the concept for the hardware came from the need for him to have a constant supply of affordable materials for his construction firm, “Building and Services Limited” as it was then known. He had been finding it increasingly expensive to purchase building materials from other hardware stores and quite innovatively, thought that by operating his own hardware he could afford to buy material at wholesale prices which he could use in his construction projects and also generate income selling retail to customers.
  2. In 1977 he partnered with Thelma Pierre, (See Certificate of Registrations) to run and manage the hardware which was owned by Ms. Pierre, and so Petit Bourg Hardware was born. He attached the Partnership Agreement6 as proof of the arrangement. He therefore denies that he discussed the opening of the hardware with Ms. L, saying that he first met her in August 1978, some nine months after the hardware was registered and already in operation. At that time Mr. C’s wife and children worked in the hardware. The details provided by Mr. C together with the Partnership Agreement stand up to scrutiny and I accept entirely his evidence with respect to the opening of Petit Bourg Hardware. I also accept his evidence that by the time Ms. L came to work at the hardware it was already an established and flourishing enterprise and that no discussion had taken place between them about its opening.
  3. Mr. C hired Ms. L in 1978. He did not know her prior to that and had no knowledge of her previous employment and therefore denies asking her to leave that job to work in the hardware. A romantic relationship soon developed and although he helped her from time to time, paying the rent for her apartment and buying groceries, he did not begin living with her until 1988.
  4. When Ms. L was initially hired by Mr. C her duties were limited to taking orders and dealing with over-the-counter customers. All the other responsibilities were carried out by Mrs. Callender and the Callender children who also worked in the hardware. It was only when Mr. C and his wife separated in late 1978 and the latter gave up working in the hardware, were Ms. L’s responsibilities expanded to take over Mrs. C’s portfolio, which included pricing and purchasing of stock and depositing money into the business account at the Bank of Nova Scotia as it was then known.
  5. I pause here to note that in his affidavit’ Mr. C commented that it was on the third or fourth deposit that he realised a $25K cash deposit was not made by Ms. L as he had instructed. He made a complaint to the bank but the money was never recovered.
  6. When a bailiff arrived on 20th December 2000 to levy on the hardware, and Ms. L called him, Mr. C told her to pay the bailiff. Interestingly, she said that she “… questioned him why he did not pay the Bailiff and he said he had no money. In an effort to save the hardware I went to my bank and obtained a cheque, paid the Bailiff and he left … the sum of $18,276.24 was deducted from my account at First Citizens Bank… She exhibited a Debit Advice to substantiate her statement, which reflected that the money came from an account she claimed belonged to her and to which Mr. C made no contribution. This account is discussed elsewhere in the judgment, as Ms. L referred to it several times in her evidence as “her” account from which she made many payments for the benefit of Mr. C, the hardware and at one time the workers attached to JC Environmental.
  7. I have discussed this account in more detail below but for now I would say that there is no evidence that Ms. L had any source of income other than her salary, which at the time was $980 per month. I am doubtful that would have allowed her to accumulate that kind of cash. Her salary remained at that rate until 2002, when Mr. C hired her in JC Environmental (see below). Prior to that she earned between $640 and $980 per month. As it turned out the account was a joint account and it is my finding that the bulk of the money came from Mr. C. So her attempt to pass this account off as hers is manifestly misleading and as I have discussed a blow to her credibility.
  8. It is Mr. C’s evidence that as the years went by Ms. L’s responsibilities increased, but at no time did she work there alone or without being paid as she stated. After Mrs. Callender left and even before her departure, the hardware always employed other staff, a fact which is substantiated by the Wage Book. Ms. L’s claim that being the only person working required her to do heavy lifting of bags of cement is questionable. I do not accept that this was the case. Firstly, cement bags are extremely heavy and I doubt that Ms. L could lift one no matter how hard she tried. Secondly, as the Wage Book shows, there were male workers employed at the hardware at the time and it is Mr. C’s evidence that there was no need for her to do any heavy lifting, but if she did, it is my finding that this was of her own volition, not because she was required or instructed so to do. Once more her statements are not supported by the evidence.
  9. There is no doubt that Ms. L played an integral role in the hardware, particularly as the years rolled on, but it is my judgment that that role does not enhance her entitlement, nor does it elevate her position to that of partner. Her job was not as onerous as she would like the court to believe when she said that she was the hardware’s only employee. Not only were there other workers but Mr. C attended the hardware every day after visiting his work sites. It is a fact that Ms. L did the purchasing, restocking, bookkeeping, bank deposits and such like, but only on the instructions of Mr. C. There is no evidence that she made any major decisions for the businesses. In fact it is her evidence that at the end of each day she would go over the sales with Mr. C and he would tell her what payments to make. She signed no cheques for the hardware; these were all signed by Mr. C. She made no independent decisions. She did not accompany him to the bank on the annual review of his overdraft facility. This all symbolise to me, that far from being a partner she was a paid employee for whom National Insurance and Health Surcharge were paid, even though in her narrative affidavit of 16th June 20099 she said she “received no salary during the first twenty-five years of working in our businesses, only a token of $300 per month.”, but the Wage Book dispels that statement, and it is just one of many inconsistencies in her evidence.
  10. Ms. L claimed that the National Insurance and other payments were too complicated for Mr. C to understand, hence his dependence on her, but I find Mr. C to be an intelligent enough man, possessing a fair amount of business acumen, but who was too busy with his many construction projects that took him outside the hardware which needed to be managed in his absence. At one point he simultaneously supervised sites at Malabar, Plaisance and Mayaro. He needed someone there to run things at the hardware while he was away, which made him dependent on Ms. L and presumably on Mrs. Callender before her, not because he was a simpleton and could not understand the finances.
  11. Without her assistance there is no doubt that the hardware would not have been as successful as it was, but does working so fervently at a job for which she was paid make Ms. L a partner, or alternatively entitle her to a 50% share in this business under the Act? Is her position different from that of any other employee because she happened to share a cohabitational relationship with the owner? The answer to these questions is “no” for a number of reasons. Mr. C carried on Petit Bourg Hardware in partnership with Thelma Pierre; the Certificate of Registration identifies her as the partner with him. The bundle of letters exhibited by Ms. L to and from the Board of Inland Revenue also identifies her as an employee. The Wage Book”- classifies Ms. L as an employee along with the other staff members who worked there from time to time. Therefore to the world at large, there is no evidence that Ms. L was being held out as a partner in the hardware. Mr. C’s name does not appear in the Wage Book and there is no evidence that profits were shared with her.
  12. Crucially, there is no evidence that Ms. L had made any financial contribution to the acquisition of the Petit Bourg Hardware. She did little if anything to enhance its financial resources. Her only contribution in this regard was her claim that she (i) paid $18K to prevent the hardware from being levied upon, and (ii) invested some $15K to save it from financial ruin (both of which I have dealt with later in the judgment) but it is my finding that the money for these payments came from Mr. C. Apart from that no financial contributions were made by her.
  13. There is no doubt that Mr. C deposited money earned from the hardware into their joint account at FCB but this is not the same as profit sharing. It simply represents deposit of income in very much the same way that Ms. L might have deposited her earnings and it is my finding, Mr. C was the major contributor to this account. When they separated in 2005, the business continued to function, perhaps not as smoothly without Ms. L, but there was no move to dissolve and distribute assets. She is not deemed to be a partner.
  14. The Court of Appeal in Geary v. Rankine [2012] E.W.C.A. Civ 555 had to determine two issues, one of which was whether the cohabitants were partners in a guesthouse business, which was owned and managed by the respondent, but in which the applicant was also heavily involved. The other issue was whether Mrs. Geary had acquired a beneficial interest in the building, but for the purpose of the issue at hand, for the time being I want to focus on the former issue of the partnership. The facts were that Mrs. Geary carried on similar type functions as Ms. L before me and on the claim of partnership Lewison, L.J., while recognising that:

 

“a family or quasi family relationship was not necessarily incompatible with the relationship of business partners; and that (sic) … a partnership can be founded on an agreement inferred from conduct”

 

nonetheless held that:

 

“…there was ample evidence on which the judge was entitled to reach the conclusion that there was no business partnership.”

 

I interpret that to mean that cohabitants working together in a business does not automatically make them business partners.

  1. One distinguishing feature in Geary was that the parties did not have a joint account and Mr. Rankine was not as generous to Mrs. Geary with his money, as Mr. C was to Ms. L. But I do not consider that the fact that the parties before me had a joint account, by itself is indicative of partnership. Mr. C treated Ms. L and she was in fact, his domestic partner in whom he had placed implicit trust, unlike Mr. Rankine, who viewed Mrs. Geary’s continued marriage to her husband as a threat to his assets. But, had Mr. Rankine opened a joint account with her, it is my view that that lone gesture would still be insufficient to transform Mrs. Geary into a business partner in light of the other circumstances. All the circumstances must be taken into account before making a determination and it is my judgment that the markers identified above satisfy me that Ms. L was indeed an employee of Petit Bourg Hardware and nothing more.
  2. In taking the argument further, no assessment of the hardware business was conducted so if it were to be divided it would be impossible to determine the paper value that should be attributed to it. Additionally, the premises at 15 Eastern Main Road, have not to date been registered in Mr. C’s name, so any share would have to be limited to the fixed and floating assets of the hardware and its goodwill. But even that conclusion may be premature in light of the further discussion below.
  3. Once more the landmark decision of Delzine v. Stowe proves instructive, by virtue of the many similarities between that case and the present one. In Delzine, the parties had shared an 18-year cohabitational relationship and had three children. When they met the common-law wife was a street-vendor selling clothes on a retail basis. The business eventually grew into the successful accessory store Lipstick, with branches in Colsort and Long Circular Malls.
  4. The income derived from this lucrative business afforded the purchase of several valuable properties and other assets, of which the common-law husband/applicant claimed half the interest because of his involvement in the business, which he deemed to be on a partnership level. Like the case before me there was dispute surrounding the level of Mr. Delzine’s involvement. He said that during the common-law wife’s frequent trips out of the country to merchandise for and re-stock the business; he managed the business and handled the money matters. He said that he had left his job to assist in the business, which over the years included doing the bookkeeping, paying bills and banking cash from sales. He claimed to have given her $5,000 to invest in the business, but that was rejected by the court. Like Ms. L he was paid a salary and his name appeared in the diary used to record payment of salaries to all the employees. He said that those entries represented money given to him if he wished to get something, but the court rejected his explanation and concluded that he was indeed a paid employee. The court found that overall he had exaggerated his role in the business and the Learned Judge concluded that far from being a partner, he had made no financial contribution to the business and that he was merely an employee.
  5. Similarly, Ms. L did not make any financial contributions to the hardware and that disentitles her from her partnership claim. Furthermore, any expanded works for the hardware, for example when its scope expanded to include the making of manhole covers for the Government, came through Mr. C. It was his idea to open the hardware in the first place. It was he who had the foresight and aptitude for such a venture. He installed his family in the business and Ms. L was introduced as one of its employees, a status, it is my finding, she retained throughout the relationship. In my judgment she was not a partner in the business and like Mr. Delzine, her contribution was duly compensated.
  6. My sister Justice Gobin also found the applicant’s claim in La Borde v. Gilbert even more remote and dismissed her summons altogether, holding that she had made no contribution to the respondent’s business and property, in spite of her statements that she assisted and advised him.
  7. Although Ms. L knew quite a lot about the business simply by being present for such a long time, it is evident that the details as to the timing and the reasons for various aspects of the business coming into being were all controlled and negotiated by Mr. C. Ms. L merely carried out his instructions. He may have discussed things with her in the normal course of their domestic relationship, but there is no evidence that she made any decisions, or played a role in the implementation of different phases of its development.
  8. Having said that Ms. L did have intimate knowledge of all the finances and accounts for the Hardware, as she had been dealing with them exclusively over the years, with the result that, at the trial, Mr. C showed limited familiarity with the various accounts. It is evident and undisputed that he had left this side of the business entirely up to her, but in my judgment this was more in the capacity of a very trusted employee than a business partner. Since Ms. L’s departure her portfolio has been passed to Christopher and the hardware continues to operate, while Mr. C, until ill-health and the economic downturn overtook him, continued to busy himself with his off-site projects.
  9. It is my judgment therefore that as far as the Petit Bourg Hardware Store is concerned Ms. L made no financial contribution to the acquisition or improvement to this business. She had no financial or no sufficient financial resources to assist in this regard and in any event she was compensated for the role she played.
  10. As Mendonca, J. pointed out in the case of Delzine, what is important in making an adjustment order in cohabitation, is not the needs of the parties as in matrimonial proceedings, but the contribution of the parties during the relationship. Other relevant factors include whether those contributions were sufficiently compensated and the context in which those contributions were made. In my judgment Ms. L was compensated for the role she played in the hardware, she made no financial contribution to the hardware and therefore is not entitled to an adjustment order.

 

– Building and Maintenance Services – JC Construction and Building Services

  1. By her Form 8 Ms. L makes separate claims for the business enterprises known as Building and Maintenance Services and JC Construction and Building Services, however the evidence shows that Building and Maintenance Services evolved into JC Construction and Building Services, when Mr. C decided on a name change to attract new business. At some point, although it is not clear when, the construction business came to be known as “JC Construction and Building Services”.
  2. According to Mr. C, JC Construction and Building Service and its former incarnation Building and Maintenance Services, was an entity in name only, by which he conducted his construction projects. Initially the company did not have an office, but used the address of a Mr. Moze at 117 Frederick Street, Port of Spain for transmitting and receiving messages and correspondence. It is apparent that he was engaged as a contractor in the construction industry before he met Ms. L. She played no part in this enterprise except for depositing money earned from the company into the FCB Joint Account. Other than that, as early as 1996, by which time Mr. C was trading as JC Construction, there is no mention of Ms. L. At some point after he acquired 15 Eastern Main Road he conducted JC Construction’s affairs from those premises. It is Mr. C’s evidence that JC Construction and Petit Bourg Hardware operated as one business. The workers were the same.
  3. First Citizens Bank presented a file of the JC Construction account containing papers only from September 1996 when Mr. C applied for and was granted an overdraft account. This account was reviewed periodically by the bank and on each occasion the facility was increased. All the transactions in the file which included the purchase of vehicles TBD 6132, PBO 5271 and TBT 6024, made no mention of Ms. L and it is agreed that she did not accompany him to the bank to transact any business on behalf of JC Construction. At the trial Ms. L confirmed that, like the hardware, she did not write cheques for this account.
  4. In 2001 Mr. C applied for a Visa Credit Card in the name of the business. None of these documents showed any involvement by Ms. L. In fact there is nothing evidencing any significant role by Ms. L in JC Construction and I do not think that it is open to her to claim any interest simply by being a cohabitant. The Act is clear that the applicant must show some direct or indirect financial contribution to the asset to be entitled to a property adjustment. She has failed to so do in relation to this company.

 

– J&H Enterprises

  1. As far as J&H Enterprises is concerned, I accept Mr. C’s evidence that it was and still is a business partnership between him and his brother Hezekiah, which was first established to sell paint thinners on the compound of the hardware. At that time they traded as “J&H Automotive Thinners”; the letters “J” and “H” in both business names representing their first initials. The Certificate of Registration” of the business attached to Ms. L’s affidavit identifies Mr. C and Hezekiah as the Partners. When the business decided to obtain a lottery licence to operate a Lotto Machine and other government regulated lottery games they found the name too specialised, and changed it to “J&H Enterprises”.
  2. Two workers were hired to vend the lottery tickets and operate the machine, although Ms. L said that she had to supervise them in addition to carrying on her duties at the hardware. There was a divergence in the evidence as to the operating hours of the lottery. But whether I accept Ms. L’s evidence that she had to supervise the operating of the lotto machine, or Mr. C’s version that the two employees hired to work, meant that there was nothing for Ms. L to do in that regard, does not affect my judgment that her lack of financial contribution disentitles her to a share in this business.
  3. As part of her claim Ms. L also stated that she did work for J&H Enterprises because she had to sign for deliveries, a job for which she was not paid, but instead received a bonus at the end of the year. While Mr. C accepted that Ms. L did indeed sign for deliveries from time to time, he said that she was not the only one who did this and that anyone working in the hardware signed delivery notes, since that aspect of J&H’s business was carried on in a section of the hardware. All other aspects of the business were carried out by Hezekiah who had the knowledge and experience for mixing the thinners and his daughter did the company’s bookkeeping. It seems to me that the signing for deliveries by Ms. L and the hardware employees was a matter of convenience and nothing more. There is no evidence that they were employed by & H.
  4. AII that is now left of J&H is the lottery side of the business since the thinners operations ceased in 2007. Mr. C and his brother share any profits realised by the lottery sales and they also give some to charity. It is my judgment that Ms. C is not entitled to any interest in this business.

 

– 270 Hillside Crescent, Mount Hope

  1. Hillside was the family home, which Ms. L said was a National Housing Authority (NHA) (as it was then known) property owned by a Mr. Noray, from whom she had purchased it in April 2005. At the time of the purchase it comprised a portion of land on which stood an incomplete structure. NHA requirements allowed only first-time buyers to purchase property and because Mr. C already owned property in Rio Claro, he was ineligible to apply. Ms. L purchased the property from her own savings. The purchase price was $12K and Ms. L claimed to have paid Mr. Noray by way of: (1) a Manager’s cheque in the amount of $8,425; (2) cash payment of $10,500 and (3) $1,500 in three instalments of $500.
  2. Ms. L’s other contributions to Hillside were a refrigerator and living room suite given to her by her sister, when the latter migrated to the America and a dining set and bed which she (Ms. L) said she purchased, but produced no receipts. She was able to buy these items as well as pay for the installation of cupboards from bonuses she received from the hardware.
  3. Mr. C contends that it was he who had purchased Hillside from Mr. Noray and while he accepts that the payments were paid to the vendor as described by Ms. L, he asserts that all the money came from him, which he had given to Ms. L to conduct the actual transaction. He said that he registered the property in her name because he feared it might be caught or adversely affected by potential divorce proceedings, since at the time, he was still married. He subsequently completed the structure using his own money and material from the hardware to the tune of $185K and paid labour in the amount of $45K. He also denied that Ms. L purchased any items for the home, except a few pieces of furniture which she had previously owned. He denied further that she could have used her bonus to do anything worthwhile, since she only received one bonus of $300 in 1990.
  4. When she was cross-questioned by Mrs. Clarence-Quamina as to the source of the money from which she claimed to have paid Mr. Noray, Ms. L said that her sister Sheila entrusted her with some $48K which she held in safe keeping in her Eastern Credit Union Account. That account she said also held $60K of her own monies, (for a total of $108K which she later withdrew to give to her daughter). But when pressed by Mrs. Clarence-Quamina as to the exact amount she held in her ECU account, after hesitatingly insisting it was $108K, subsequently said she could not remember. She also said that she could not remember when she opened the account’s, how much was deposited to open it, or the times or quanta of her deposits to amount for a credit of $108K or even $85K. She eventually conceded that all she had in the account which was withdrawn to assist her daughter, was $85K and that the balance standing to the credit of the account was $3K, but stilt was unable to say where the money came from, that is, apart from the $48K.
  5. The movement of $85K was confirmed by the credit union’s branch manager Mrs. Jennifer Mannette De Landro, who said that there were two requests by Ms. L to transfer money from her share account to her deposit account, from which a further transfer to her daughter’s account was made. The first request was made in May 2005 for $10K and the second in February 2008 for $25K. She said that there was a third request by letter dated 2nd November 2010 for $65K, but whereas the first two transfers came or should have come from Ms. L’s share account the $60K was never recorded on her share account. From [JMDL] the $60K withdrawal was transacted on 23rd May 2008.
  6. Accordingly, the payments to Mr. Noray could not have come from this account. Once again Ms. L’s credibility is brought into question.
  7. Let me digress for a moment to address the sum of $48K to which, throughout her testimony Ms. L referred, claiming that she used it to pay for Hillside, purchase furniture, contribute to living expenses at home, assist her daughter with the construction of the house at Mohipat and save JC Environmental from disaster when she paid the workers who had not been paid in weeks. She claimed that she and Mr. C kept using the money and putting it back. Surely if the funds were used to finance all these activities they would have been depleted years ago and there would be nothing left over to assist her daughter.
  8. Ms. L said that she received the money from her sister Sheila to pay a debt resulting from a land dispute involving another sibling. No evidence was given on Sheila’s behalf and Ms. L could produce no record of these monies being sent or received. It is unfortunate that she did not produce or perhaps preserve these records. While it is very possible that a sum of money was entrusted to her by her sister, I do not think that it was used for the purposes for which she claimed, other than perhaps to assist in the Mohipat construction.
  9. Returning now to Hillside: When Hillside was purchased in 1989 she had been working at the hardware for 12 years, the greater part of which was at a rate of $640 per month, out of which she said she “would put aside some of my salary in my bank account (see paragraph 74 et al) and I would utilise some in the running of the household.” There is no evidence that she received money from any other source. I cannot begin to imagine the level of frugality that Ms. L would have had to employ, to run a household comprising a growing child and two adults and still have something left over to “put aside” and accumulate such substantial savings. I find that she did not have the wherewithal to accumulate $12K. No bank statements were produced for the years leading up to 1989, but I find it difficult to see how Ms. L could have accumulated that sum on her income.
  10. I conclude that on her own, Ms. L could not have afforded to purchase Hillside and so I must find that the source for payment, the cost of material to complete the construction of the structure and to pay labour costs, must have been Mr. C and that she had made no financial contribution to its acquisition or improvement. I am satisfied that the completion of the construction of the building to its full capaciousness was financed by money earned by Mr. C derived from the hardware and JC Construction.
  11. That conclusion however may be of little consequence because whether or not she contributed, Hillside was clearly a family home and the common intention when it was bought was for the purpose of making it a home for the parties and their child. Both parties by that time carried on their affairs and conducted their lives on a “bona fide domestic basis”. They have accepted that, although Ms. L contends that the cohabitation started years before. Ms. L is the registered legal owner of the property. I accept the reason put forward by Mr. C for the property being registered in her name. It is my finding that Mr. C spent the money to purchase and improve it. I also find that Ms. L made no financial contribution to its acquisition or improvement. Was a constructive trust created thereby? Ms. Lucky Samaroo submits that there was none, but I am afraid I do not agree with her. For reasons outlined below it is my judgment that Ms. L holds Hillside in trust for Mr. C. I also hold that it is an asset that ought to be divided between them and an adjustment order made.
  12. In Bennett v. Parker [2001] VSC 401 a decision from the Supreme Court of Victoria in Australia Justice O’Bryan considered the plaintiff’s contribution as homemaker as well as her contribution as partner with the defendant in a horse-breeding business, where the defendant paid for the real property which was registered in his name and the plaintiff spent her income, which was considerably less, on the horses. Justice O’Bryan, finding that:

 

“The plaintiff bad no money available to contribute to the purchase of the land. She provided the furniture. … The decision to acquire a small farm properly had a dual purpose, in my opinion.

It was to provide the equivalent of a matrimonial home and for the borad purpose of a horse stud business to be conducted in partnership. X23

 

He concluded that:

 

“…a constructive trust arising from the commercial and personal partnership meant that when the … property was purchased it was held by the parties upon a constructive trust: 40 owned by the plaintiff and 60 per cent owned by the defendant.”

 

But in that case, the parties were held to be also business partners.

  1. I agree with the approach of Baroness Hale in two decisions of Stack v. Dowden [2007] 2 W.L.R. 831 and Abbott v. Abbott [2007] U.K.P.C. 53 that is that:

 

“The burden will (sic) be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests and in what way.”

 

It was held in Stack among other things that:

 

“…where a domestic property was conveyed into the joint names of cohabitants without any declaration of trust there was a prima facie case that both the legal and beneficial interests, in the property were joint and equal; that the onus of proof lay upon any party seeking to establish that equity should not follow the law; that such a party had to prove that the parties had held a common intention that their beneficial interests be different from their legal interests, and in what way; that in order to discern the parties’ common intention the court should look at the parties’ whole course of conduct in relation to the property; that the law had moved on from the presumption of a resulting trust … and that when all relevant factors had been taken into account, cases in which the joint legal owners were to be taken to have intended that their beneficial interests should be different from their legal interest would be very unusual. ”

 

I am satisfied that Mr. C has discharged his burden of establishing that he has a beneficial interest in Hillsdale. Hillside was bought by him to be used as a family home. He expended money to complete the building and carry out the improvements. I have no doubt that it was their common intention to treat it as such, and indeed the parties and their son lived there until the separation.

  1. In Stack the property was in their joint names and in Abbott the matrimonial home was in the husband’s sole name, but the latter had pooled their resources together and the home they built on the parcel of land came from their joint account. Baroness Hale found that:

 

“The parties’ whole course of conduct in relation to the property must be taken into account in determining their shared intentions as to its ownership.”

 

The Board in Abbott declared that the husband held the house in trust for the parties in equal shares. Similarly, I hold that Ms. L holds Hillside in trust for Mr. C and taking her contribution as a homemaker and the intention of the parties as it related to the property, it is my judgment that it should be shared, but not in equal proportions.

  1. A recent instructive case is Jones v. Kernott [2012] 1 All E.R. 1256 a judgment of Lord Walker and Lady Hale SCJJ, where several useful principles28 were laid out in circumstances where the property was in joint names and a brief comparison was made where properties were held in the name of one party only.
  2. Ms. L may argue that Mr. C’s registration of Hillside in her name, with a view of protecting it from potentially forming part of a matrimonial dispute, bordered on illegality and an avoidance of disposition suit in favour of Mrs. Callender and accordingly, it must have been his intention to convey the property to her. But the evidence does not suggest that Mr. C acted on that purported illegality. In Lawson v. Combes [1999] F.C.R. 731 the Court of Appeal held:

 

“Where a husband transferred a jointly purchased property into the sole name of his mistress with the illegal purpose of preventing his wife from having any future claim to the property under s. 37 of the Matrimonial Causes Act, 1973, he was entitled, provided he did not rely on the illegality, to a declaration that the mistress held one half of the beneficial interest in the property on a resulting trust for him. It followed that the plaintiff’s appeal would be allowed.”

 

I do not think that Mr. C was intent on interfering with any claim Mrs. Callender may wish to bring, but merely providing a home where he, Christopher and Ms. L could live. I stress that Mr. C’s financial contribution and Ms. L’s contribution as homemaker and parent are the deciding determining factors in the proportional division which I hold to be in unequal shares in favour of Mr. C

 

– Santa Flora & Goodwood Tobago Properties

  1. I can happily deal with the properties known as (i) 21-23 Community Road, Dailey Village, Santa Flora and (ii) Goodwood, Tobago swiftly. The first property comprises a single-storey home in a mostly residential area. The building is about 60 years old according to the valuation report, divided into two apartments standing on 6,200 square feet of land. The second property in Goodwood Tobago comprises land only. Both properties were bequeathed to Mr. C by separate wills of Theresa Downing Dell and James Callender respectively. In the case of the latter the land is to be inherited by him and his brother. Mr. C is the executor named in both wills and he has not yet applied for a grant of probate of either.
  2. These two properties clearly do not make up assets that Ms. L contributed to. They remained completely external to the relationship. Ms. L made no contribution whether directly or indirectly to the acquisition of or improvements to either of these properties and in my judgment it is not in keeping with the provision of the Act that her contributions to the relationship should extend to these properties.

 

– 15 Eastern Main Road, Petit Bourg

  1. The property at 15 Eastern Main Road, Petit Bourg, houses the various businesses, including the hardware and J&H Enterprises. JC Environmental and JC Construction also operate out of those premises. The site measures a little over 7K. Apart from the area where sales are conducted the building comprises an office, two bedrooms, a kitchen and a bathroom. Mr. C testified that he entered into an Agreement to purchase the property in 1996 for $228K and up to the date of the trial, a balance of approximately $20K still remained on the transaction. The money to purchase has come from the businesses.
  2. The property is still in the name of its Vendor so that legal interest has not passed to Mr. C, but Mr. C intimated at trial that the Vendor has been patient with him and there is every likely-hood that the property will be conveyed to him upon completion. I am aware that any orders made regarding this property will not bind the vendor.
  3. As is shown above Ms. L worked for Petit Bourg Hardware and JC Environmental from which was derived the money to pay for Petit Bourg thus far, and as I have found, for Hillside. What effect, if any, does that contribution have on her claim for an interest in that property? For the answer to this question I return to the cases of Geary and Delzine, both of which came to the same conclusion that the applicant was not a partner at the time of the acquisition of the business premises.
  4. In the case of Geary. Lewison, L.J. held further, that there was no common intention that the applicant should have a beneficial interest in the property, either expressly or from his conduct, and therefore Mrs. Geary was not entitled to a beneficial interest. By virtue of his parental role Mr. Delzine was awarded 10% beneficial interest in the value of the assets purchased with income derived from the business, but no beneficial interest in the business was awarded to him.
  5. There is no evidence that Mr. C had any intention for Ms. L to have a beneficial interest in 15 Eastern Main Road Petit Bourg and he had demonstrated no change in that intention for the duration of the relationship. I therefore hold that Ms. L’s claim for a beneficial interest in 15 Eastern Main Road fails.

 

– JC Environmental Services

  1. JC Environmental Services Limited was formed to handle the CEPEP contract. Ms. L was unhappy about the extra duties placed on her with the implementation of this new company of which she was appointed Secretary. When Mr. C secured the contract from Trinidad and Tobago Solid Waste Management Company Limited, it was necessary to form a company as it was the agency’s policy not to conduct business with individual persons. Mr. C accepted that Ms. L conducted all the work involving the establishment of accounts for the team of workers, registering the company for VAT and other levies, preparing time and salary sheets. Unlike Petit Bourg Hardware Ms. L was allowed to sign cheques for JC Environmental, but as Secretary, and the account required two signatures; Mr. C signed as Director.
  2. She complained that the work was too much for her to handle in addition to her duties at the hardware, and according to her, the Lotto Machine and J&H Enterprises. Acknowledging that JC Environmental entailed additional responsibilities, Mr. C increased Ms. L’s salary to $6K from the $980 she previously earned. He maintained that she did not work for J&H neither was she needed at the Lottery section.
  3. For reasons already posited I draw similar conclusions that there is no evidence that Ms. L made any financial contribution to JC Environmental. It is accepted that she worked strenuously, but she was adequately compensated for the increased workload. She was not a partner of the business. Her claim for a share in this business also fails.

 

First Citizens Bank Joint Account

  1. This account has been the source of some considerable contention and it is my finding that some very crucial facts turn on it. In the end I think that Ms. L went out of her way to alter the history and workings of this account to her credit but ultimately to her detriment.
  2. Ms. L deposed that in 1989 she had opened the account number 170326909201 at National Commercial Bank into which she said she made deposits from her salary, implying that she was the only source of money in that account. She said that Mr. C made no contribution to the account and that he was only added to the account as a joint holder in 2006. She managed to procure a letter from the bank (now First Citizens Bank) dated 17th August, 2010 stating that the account was opened on 21st August 1989 and that Mr. C “was added to the account on November 2006”. The letter was signed by Ms. Esther Tom, Customer Account Representative. In spite of that letter Mr. C vehemently denied the background of this account as related by Ms. L and insisted that it was opened as a joint account from the very beginning in order that Ms. L could transact business on his behalf. He said that she was permitted to use the account for anything she needed as well as to meet their day-to-day expenses.
  3. However, Mr. C had maintained all along that the account was a joint account into which he deposited his income from the hardware and JC Construction, but, in his first narrative (November 26th 2009), he complained that “the applicant had (sic) since 1989 used joint account 170326909201 as her personal account and spent monies deposited therein from the business sales as if it was her own.”
  4. In a subsequent affidavit (filed November 22, 2010) Ms. L insisted that the account was hers and that Mr. C made no contribution to it. It was from this account she said that she paid Mr. Noray for Hillside, ran the household, deposited savings, paid the bailiff when he came to levy on the hardware, invest to prevent financial ruin, purchase vehicles, transfer money into her credit union account, and pay disgruntled workers of JC Environmental.
  5. More specifically, she said that in 2003 she bought a truck TZ 6679 and a cab together costing $29,500 and transferred $17,143.13 to JC Environmental’s account when the company was unable to pay its workers. She said that she met these payments from “her (sic) account”. She identified the account as belonging to her on each occasion she described an event paid for with funds from that account.
  6. It was not until Mr. C queried the letter from Ms. Tom did she send another letter to each of the parties, dated 17th December 2010 this time countersigned by the Operations Supervisor, Ms. Mota, in support of Mr. C’s contention that very account she earlier said belonged to Ms. L and to which Mr. C was only joined in 2006, was in fact a joint account from its inception.
  7. To my mind that is a fatal misstep. However that letter was obtained, Ms. L must have known that the earlier letter prepared by Ms. Tom was inaccurate but she insisted upon its contents. I view that as a significant blow to her credibility and perhaps even to her integrity as well, from which I think it is difficult to recover.
  8. I find these several instances nothing less that Ms. L’s attempts to deceive the court. There is no doubt that she worked in the hardware and for JC Environmental, but I think that she tried to create a history of financial contribution made by her, that did not exist and she did it in a most manipulative way. I am left with little choice than to draw very strong inferences regarding her testimony as to her financial involvement, not only in the hardware and other businesses, but in other transactions like the acquisition of Hillside and her financial contribution thereto and the reason the property was registered in her name.
  9. I repeat that Ms. L knew it to be the case that the account was a joint account and I hold that she knew that Mr. C was its main contributor. Ms. L’s credibility about this account is shattered and it is precisely because of that, I also prefer Mr. C’s version of the acquisition of TZ 6697, which was that JC Environmental needed a vehicle to replace TBD 6132. As his man (or woman) of business Ms. L accompanied him to several motor vehicle dealerships and they decided to purchase a cab and tray separately and he directed her to make the payments from the joint account. I also accept his testimony that the vehicle was always intended to be a company vehicle and not belonging to Ms. L as she implied.
  10. With respect to Ms. L’s noble gesture of trying to save the CEPEP (sic) contract and (sic) transfer from my account to the account of JC Environmental Services the sum of $17,143.13″, because that sum was paid from the joint account, her generous act has been severely diluted and in my judgment is just another attempt to score unjust judicial mileage. So too is her claim that: “(o)n one occasion … I withdrew personal savings and gave it to him to avoid losing (sic) the business altogether.” Not only does the exhibit she refers to as proof of her’ further investment” into the business addressed to the Visa Officer of the United States Embassy and indicative of the statement customarily required by the embassy as proof of worth in this country, (and therefore not an investment in any of the businesses), the sum comes out of the very joint account.
  11. Also her exhibit [PL9] (comprising documents relating to the purchase of PBO 5271) which she deposed is evidence of other investment she made from the said account, are all addressed to her “FOR JOSEPH CALLENDER” and the Manager’s Cheque is endorsed “B/O JOSEPH CALLENDER”, which meant that it was drawn on his instruction as holder of the account. When cross-questioned by Mrs. Clarence-Quamina as to why that was, she replied that it was because the car PBO 5271 was bought in Mr. C’s name, but it is obvious that that could not be true. I reject her assertion that these payments (down-payment and instalments) came from Ms. L and find that they was paid largely by Mr. C as proffered above, and although I do not condone his taking the car away from her when they separated, I accept his evidence that her replacement vehicle PBU 9882 was purchased with funds from this account.
  12. It is my finding that everything that Ms. L said about this account proved to be unreliable and I reject all the statements she made regarding same. Her lack of credibility has been glaringly displayed before the court. Regrettably bank statements for the account were only provided for the years 2007 to 2012. There is no doubt however that some very large sums passed through this account during the relationship at a when time Ms. L’s salary was under $1000 and remained so until 2002. I can only reasonably assume and it is my finding that the major source of money for this account was Mr. C.

 

The Mohipat Connection

  1. Sometime in 1977 Ms. L’s mother gifted to her the property at A7 Mohipat Street, St Helena Piarco, which at the time comprised approximately 2 acres of land. Since the separation Ms. L has assisted her daughter Elizabeth to erect a three-bedroom structure on the land, which they now both occupy along with Elizabeth’s son. During the relationship as discussed above, Mohipat was used by Mr. C as a vehicle to secure several loans for a variety of purposes, including (1) down-payment on property adjacent to the hardware in 1979 – 17 Eastern Main Road – which was intended for expansion of the hardware; (2) purchase of a vehicle TAC 8916 for the hardware business in 1984 and (3) a loan in 1988
  2. There is common ground regarding the transactions except in three major respects. First, by her affidavit38 Ms. L suggests that Mr. C held on to Mohipat after the first transaction in 1979 and did not re-convey it until the last transaction in 1988. However Mr. C’s evidence is that whenever he wanted to access a loan, Ms. L would convey Mohipat to him, which he in turn would use as collateral. As soon as the loan was repaid, he would re-convey the property to Ms. L. However, I lean more towards Ms. L’s version of the conveyance of Mohipat. Although Mr. C said that: “…every time I asked the Applicant to transfer the title in the Mohipat Street property to me, it was always re-conveyed to her when I liquidated my debt”, he produced no evidence of the conveyance.
  3. On the other hand Ms. C exhibited several documents which together form a paper trail evidencing: (i) the conveyance to Mr. C in 1979; (ii) an agreement in 1984 in relation to TAC 8916 signed by both parties which indicates that: “the (sic) land [that is Mohipat] is still in my name which will be transferred to the said PAULA T LUTCHMAN as early as possible, hopefully early next year One Thousand Nine hundred and Eighty Four.”; (iii) the re-conveyance to Ms. Lon 14th July 1999, which combined, is strong evidence of the fact that once Mohipat was conveyed to Mr. C in 1979 he did not re-convey until 1999.
  4. The second area of dispute surrounding Mohipat relates to the 1988 loan in the amount of $16K. Ms. L said that the loan was taken for Mr. C’s personal use whereas he said that the loan proceeds were used to finance Ms. L’s medical costs abroad. At trial Ms. L said that she paid for the 1989 trip to Miami Pain Centre where she underwent spinal surgery and that the hospital made arrangements for her to stay at a home. She said the entire cost was $2,500 (TTD). In 1990 she went to Venezuela for a MRI Scan which cost her $100 (USD) and airfare was $267.77, which she also paid for. No receipts or other documents were produced in support of Ms. L’s statements, but I think that the sums she claims to have spent seem to be incredibly affordable. Whatever the cost it is accepted on both sides that this loan, like the others was to be repaid by Mr. C, the actual repayment of which was never completed according to Ms. L.
  5. There is also some uncertainty surrounding the Deed of Release exhibited as [PL14] and on which Ms. L said she was surprised to see the name Gail Grace Clifford endorsed, when as far as she knew, Mr. C borrowed the $16K from Olric Doughan. The schedule describes a portion of Mohipat only which suggests a sub-division of some sort and there is no mention of Mr. Doughan in the body of the document. From the evidence as presented I have been unable to make any findings to account for the discrepancies.
  6. Mohipat does not affect the orders I intend to make, but I took the trouble of referring to it to exemplify the nature of the relationship shared by the parties, and also because it featured in the evidence of both parties. I take judicial notice of the manner in which the property was used, but I also take notice of the repayment of the several loans save and except the last, which both parties agree was not fully repaid. When Mohipat was finally re-conveyed to Ms. L in 2001, Elizabeth cleared this debt when the property was conveyed to her.

 

Contribution to the Welfare of the Family

  1. It is rather unfortunate that there was such a preponderance of evidence on Ms. L’s part to establish a claim for the business assets and real properties, for it is in her role as homemaker and parent that the strength of her case lies. Reference to that role in her narratives is however very limited. In her November 2010 affidavit she merely said that she prepared meals for the Respondent and herself, and took care of the household and Christopher. She gave no details, but I can only assume that she was mainly responsible for the cooking, cleaning, laundry and all the other household duties entailed in looking after a child and caring for a domestic partner. She would have carried out these duties in conjunction with her responsibilities at the hardware and later for JC Environmental. It is these combined roles that make up her contribution to the welfare of the family.

 

Maintenance

  1. Ms. L has also asked for a maintenance order and Ms. Lucky Samaroo has suggested a figure of $10K per month. The Act only provides for maintenance orders for cohabitants under certain conditions. In my view sub-section 15(1) paragraphs (a) and (b) do not apply to this case – (b) in particular because of Ms. L’s age. She has been able to secure employment since the breakdown of the relationship, working at first for $3,600 per month and now $2,500 per month. She lives with her daughter who is a registered nurse and I imagine, financially independent, and her grandson. The evidence suggests that she utilised whatever available money she had to assist her daughter in building the Mohipat house. She drives a car PBU 9882. She now lives in a property that is worth two times the value of Hillside. The legal interest has been transferred to her daughter, but I am sure that she will be able to live there for the rest of her life, without threat of eviction. Certainly there is no evidence of that. She has no health complaints other than the spinal problem that has unfortunately plagued her for many years. She is 60 years old and should be soon able to receive old age pension and National Insurance benefits, if she has not begun to receive them already.
  2. Mr. C has recently suffered a stroke and has been diagnosed with a series of health ailments including high cholesterol and appendicitis for which he has been (in the case of the appendicitis) and is being (in the case of the cholesterol) treated. His condition now makes him reliant on medication and out-patient care, which are costly. He has had to pay some $23K to Medical Associates for the cost related to the appendicitis surgery and has accessed the Chronic Disease Assistance Plan (C-DAP) for help with medication. At 74, I think that his condition could only worsen, at best, remain the same. His ill-health had forced him, in 2011, to leave the less-than-comfortable accommodation at the hardware, where he had been living since the separation and return to Hillside, so Christopher can look after him. Christopher had been living alone at Hillside since Ms. L left there in 2008 to move in with her daughter at Mohipat.
  3. Mr. C is now also forced to cut back sharply on his work commitments and has become more dependent on Christopher to run the hardware and manage any contracts he still has with .JC Construction. He no longer has secured work for JC Environmental and both the hardware and construction businesses have experienced a general slowdown.
  4. Having considered the above and to meet the justice of the case I do not think that an order can be made for maintenance for Ms. L.

 

Conclusion and Order

  1. Having considered the evidence it is my judgment that Ms. L made no financial contributions directly or indirectly to the acquisition or improvement of the properties or businesses discussed above. Despite her involvement in Petit Bourg Hardware and JC Environmental Services I hold that she was not a partner of those businesses, but an employee who was paid for her work. She also benefitted from the use of a motor vehicle, during the relationship, purchased by Mr. C, although in respect of the last one PBO 5271 I appreciate that it was taken away from her when the relationship ended, but as already mentioned, she now has the benefit of PBU 9882 which, it is my finding was bought with funds from the joint account.
  2. I do accept that her involvement in Petit Bourg Hardware and JC Environmental contributed overall to the welfare of the family and her contribution in her capacity as homemaker and mother would also be taken into account. Ms. L claims a 50% share in Hillsdale but like Mendonca, J. in Delzine v. Stowe, I do not think that the inequality of the financial contribution justifies an equal division.
  3. It is my finding that there was a deliberate and concerted attempt by Ms. L to minimise Mr. C’s financial contribution while at the same time exaggerating her financial contributions and to reap unjustified reward thereby and although this is a tactic often used by divorcing and separating parties, I frown upon the methods used by Ms. L to do so, the most offensive of which concerned the FCB joint account. For the duration of the relationship, Mr. C put his complete trust in Ms. L, never questioning anything she did as far as their financial matters were concerned. He was not at all concerned with money matters. He left all the financial dealings for Petit Bourg Hardware, JC Environmental and their domestic affairs in her hands.
  4. Generally speaking I am of the view that Mr. C’s contribution overall, far outweighed Ms. L’s non-financial contribution. For reasons posited above I hold that the only assets to be considered in which Ms. L has an interest are Hillside and (were it not for PBU 9882), the motor vehicle PBO 5271. I do not know what has become of this vehicle, but it was intended for Ms. L’s use when it was purchased. Ms. L now drives PBU 9882, which Mr. C contends war bought with money from the joint account which remained unchallenged by her. I declare that Ms. L holds Hillside in trust for Mr. C. I also declare that each is entitled to a beneficial interest in the same.
  5. During the cross-examination of Mr. C it was revealed Ms. L received an insurance cheque for an undisclosed amount which represented earthquake damage to Hillside. No account has been give of this cheque, which Mr. C knew nothing about until he was asked about it at the trial, not have any detail been provided. He knew that Hillside had been damaged as a result of an earthquake, but was unaware that Ms. L had received compensation. I can only assume that Ms. L used this money for her own purpose.
  6. Ms. Lucky-Samaroo submits that if Mr. C were to be given Hillside, then he would end up with that property, 15 Eastern Main Road and the Santa Flora and Goodwood properties and Ms. L would have nothing. She submitted further that Ms. L should be paid a lump sum of $1M in recognition for her contribution to the businesses and that the court should not condone the casting aside of women after they have devoted their entire lives to a relationship. But, as I said at the start of the judgment, such an analysis is to treat Ms. L on the same level as a married spouse and that is not the intention of the Act.
  7. Taking into consideration the following, that is to say:

 

  1. That there was no financial contribution to the acquisition or improvement of Hillsdale either directly or indirectly by Ms. L;
  2. Taking into consideration her combined role as homemaker and mother and her involvement in Petit Bourg Hardware and JC Environmental as her contribution to the welfare of the family;
  3. That Ms. L has been already compensated by

 

  1. salary received over the years;
  2. motor vehicle PBU 9882;

iii.   free access during the relationship to the FCB joint account of which Mr. C was the major contributor;

  1. being sent at Mr. C’s expense to the Miami Pain Centre and then to Venezuela to be treated for her back injury;
  2. An undisclosed insurance sum for earthquake damage to Hillside

 

I hold that Ms. L is entitled to 25% interest in the Hillside property.

  1. Hillside is valued at $600K. Ms. L’s entitlement is therefore calculated at $150K. I therefore order that:

 

  1. The respondent shall pay to the applicant the sum of $150K within six months from today.
  2. Upon payment of the said sum the applicant shall transfer to the respondent the property situate at 270 Hillside Crescent Mount Hope, the respondent shall bear the cost of the said transfer.
  3. The Registrar of the Family Court is empowered and hereby directed to execute the Instrument of Transfer in default of the applicant so doing.

 

  1. I now invite attorneys to address me on the question of costs.

 

Allyson Ramkerrysingh

Judge

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