Citation: TT 2012 HC 239
Title: CLARKE v. ALEXIS
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 1813 of 2011
Judge(s): Ramkerrysingh, J.
Date: July 6, 2012
Subject: Family law
Subsubject: Cohabitational relationship – Extension of time for making application.
Mr. Marlon Moore for the applicant.
Mr. Howell for the respondent.
Ramkerrysingh, J.: 1. The parties were involved in a relatively long cohabitational relationship, although the parties disagree as to its length and the time of separation. The relationship produced two children, Jonathan and Matthew who are still minors and now live with the applicant, who contends that the relationship lasted until December 2010. The respondent avers that it ended some three years earlier, that is, in 2007 and accordingly the application having been filed on August 25th 2001, is out of time as provided by the Cohabitational Relationships Act, 1998. This is the subject of the point in Amine now before me, raised by Mr. Howell. Attorneys were invited to make submissions on 27th June 2012.
- Mr. Howell submitted that the relationship came to an end when the applicant left the family home in 2008 (although the respondent deposed that the applicant’s departure was in 2007) and should be dismissed. Mr. Moore argued that the relationship continued up to December 2010 and therefore was filed within the two-year statutory time frame.
- While I agree with Mr. Howell that the application is out of time, I have nonetheless extended the time for filing the Application and given permission for the applicant to proceed with same for the reasons given below.
- The issues are twofold, that is:
- Whether the Application is out of time;
- If it is determined to be out of time should permission be given to extend the time for filing so that the applicant can proceed with the application.
- The governing section of the Act is section 8 which provides that:
“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.”
The respondent contends that the relationship ended in 2007, or 2008 according as Mr. Howell submitted. In either case, the Application was filed more than two years after the alleged separation. The applicant however avers that the relationship lasted until 2010. The way to cure this dilemma is to examine the evidence and make a finding of fact to determine when separation occurred. In other words when did these parties stop living husband and wife on a bona fide domestic basis’?
- Practitioners of family law are familiar with the case of Delzine v. Stowe HCA 3007 of 2001 where Mendonca, J. (as he then was) imported the section 4(2) guidelines of the New South Wales legislation into our jurisprudential landscape. These guidelines are simply that, guidelines, and the court must attach to each, such weight as it deems appropriate.
- Mr. Moore relied on Delzine v. Stowe when he submitted that parties need not be living under the same roof for a cohabitational relationship to exist, which incidentally is the very factor that Mendonca, J. considered in determining whether the parties before him were still in a cohabitational relationship. Mr. Moore submitted that the relationship did not come to an end in 2008 when the applicant left the home, but rather, that it continued until she “called it off’ in 2010. But what was the status of their relationship at the time? How did they conduct their lives between 2008 and 2010?
- In identifying the elements of cohabitation Warner, J.A. in Irwin Mohammed v. Jasmine Albert CA 165 of 2004, made the point that all the elements of domesticity do not necessarily have to exist at the same time for a cohabitational relationship to subsist. She stated that:
“…the phrase ‘on a bona fide domestic basis’ … does provide the key. It connotes ties pertaining to home, household and family affairs. Crucial factors would be society, support and protection. These are the hallmarks of domesticity. I therefore conclude that there is no requirement that the parties physically live together under the same roof once those elements are present.”
But Warner, J.A. was careful to conclude that:
“…the interpretation must accord with common sense, by that observation I mean that it must be born in mind that different people behave in a diversity of ways in similar situations.”
The bottom line therefore is the ultimate caution to treat each case according to its own facts.
- In Orr v. Stewart FH00983 of 2008 the court took into consideration (i) the nature and extent of common residency; (ii) the degree of financial independence and support; (iii) the use of property acquired. (iv) a degree of mutual commitment and shared life and (v) the care and support of their child, which all remained intact until 2007, to determine that the relationship continued until that time.
- However, in Walker v. Jones HC 1199 of 2007 Bereaux, J. (now Justice of Appeal) found that the evidence provided by the applicant was insufficient to establish cohabitation and therefore she failed to prove her case in circumstances where the Justice Bereaux found that the defendant was not committed to sharing his life with her.
- There is agreement between the parties that the applicant left the home in 2008 and moved in with the respondent’s brother and his family. There is also agreement that subsequent to her departure the parties started seeing each other again romantically, even engaging in sexual intercourse on occasion. The respondent cooperated fully with the applicant in obtaining visas for the children and according to her they “… continued working together for the benefit of the family.” The applicant said that the relationship had improved to such an extent that she withdrew the maintenance application she had filed in the Magistrates’ Court and the respondent continued paying maintenance for the children on a voluntary basis. In her mind they “fully resumed their relationship minus us living together.” But whereas the applicant presumed that those activities marked a resumption of their cohabitational relationship, in the eyes of the respondent the cohabitational relationship had ended when they separated, although they continued to be intimate and to work together where the children were concerned.
- I am not persuaded by the applicant’s arguments however. An examination of the evidence indicates to me that upon the applicant vacating the family home, the parties’ relationship was transformed into a visiting relationship. One where no doubt they were committed to meeting the demands of the children and caring for them, but where they were no longer sharing a life together, or living like husband and wife. There is little evidence, apart from what was said above about the visas and the intermittent liaisons, from which one can conclude that these parties were living in a domestic bona fide basis after 2008.
- Rather than return to the family home, the applicant continued to reside at the respondent’s brother’s home and although I appreciate that living together under the same roof is not necessary to establish a cohabitational relationship, I think that in this case it is of some significance, particularly since there is no evidence of other activities from which one can conclude that they continued to treat each other as husband and wife. The applicant complained that her new accommodation was cramped and it must have been, and surely still is an inconvenience to all its occupants. If the parties had resumed the full brunt of their relationship as the applicant contends, why would she put up with the unsatisfactory living conditions at the respondent’s brother rather than return to the family home? What, if anything has prevented her from-rejoining the respondent there? She has offered no explanation in this regard. I can only think that in her mind the relationship was not of the calibre that required living together.
- In any event there is no evidence that they supported each other financially during the period, that is, 2008 to 2010, except at it related to the children. Neither did they did acquire any property during that time. There is no evidence that the applicant visited the respondent at the family home, or helped with household chores, or did his laundry, or cooked for him, or that she and the children shared meals there at any time, as an indication that they still considered the place their home, or that they went out together, attended family gatherings, or that they were still a family in the whole. There is a lack of evidence from which one could draw any conclusive result.
- The applicant points to the fact of the respondent’s voluntary maintenance as indicative of the existence of a cohabitational relationship, but all that means to me is that the respondent was desirous of ensuring that the children were provided for and nothing more. His interest in paying maintenance, voluntary or not, cannot amount to a cohabitational relationship, just because it is coupled with the occasional sexual encounter.
- The burden of the party wishing to establish cohabitation is a serious one and not to be taken lightly or superficially. The applicant has not discharged this burden satisfactorily. There is nothing that the applicant has presented that shows that the parties were living in a cohabitational arrangement after 2008.
- It is my finding therefore that the cohabitational relationship between the parties ended in 2008 when the applicant left the family residence and accordingly the application is out of time.
- Having found that the application is out of time I now turn to consider whether permission ought to be given to the applicant to apply out of time and proceed with her application.
- Section 8(2) of the Act provides:
“8(2) The Court may grant leave to a cohabitant 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.”
This makes the exercise a two-pronged one, with the second stage being to determine whether undue hardship would be caused to the applicant, or a child of the relationship, if leave were not granted.
- In defining “undue hardship” in the case of Bishop v. Charlerie FH02108/2006 Justice Tam took guidance from Lord Denning, M.R. in Liberian Shipping Corporation v. King (A) & Sons Limited  1 All E.R. 934 CA”:
“‘undue’ there simply means excessive. It means greater hardship than the circumstances warrant. Even though a claimant has been at fault himself, it is undue hardship on him if the consequences are out of proportion to his fault.”
- In Bishop v. Charlerie Tam, J. also examined the case of Lower Hutt City v. New Zealand Municipalities Co-operative Insurance Co. Limited  N.Z.L.R. and adopted the five principles set out by Tompkins, J. for consideration when determining undue hardship, that is to say:
- The mere fact that the claim is barred cannot be held to be an undue hardship.
- The Court will not hold circumstances to constitute 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 negligently letting the time go by.
- Misunderstanding, or confusion which has been caused or contributed to by the other side, may lead the Court to hold undue hardship.
- Failure to give notice in time due to very special circumstances or circumstances over which the applicant had no control can result in undue hardship.
- If the refusal of an extension would result in the applicant experiencing actual financial difficulties or bankruptcy, this could amount to undue hardship.
Once more it is to be noted that the above are guides only and not exhaustive by any means and Tomkins, J. warned that:
“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.”
- Although section 8 of the Act does not require reasons for delay it must be obvious that the reason put forward, would play a pivotal role in determining whether leave ought to be granted to extend the time. In the case before me the applicant operated under the apprehension, or misapprehension as it turns out, that her application was filed within the two-year time frame and consequently advanced no reason for delay.
- So what, if any, is the undue hardship caused by what I have now deemed, to be the applicant’s late filing? Apart from living in over-crowded conditions at her present accommodation, she earns a little over $4K per month and seems just able to make ends meet from her income and the respondent’s maintenance combined. At the time of filing her Form 8 her bank account was only $41 in credit but she has some $28K invested in the Unit Trust Corporation and $900 in Rhand Credit Union. So where does the hardship lie? This is the question that needs to be examined in light of the circumstances.
- In my judgment there is a case for undue hardship if an applicant is prevented from pursuing an otherwise meritorious case, which he did not deliberately withhold from prosecuting, but rather, belaboured perhaps misguidedly, on the notion that time was in his favour. In Deves v. Porters Campbell, J. granted an extension of time when he found that to deny the applicant the opportunity of bringing the claim, would result in hardship to her in spite of her unsatisfactory explanation for her delay in filing. He concluded that:
“In my view the plaintiff established that greater hardship would be caused to her if leave were not granted than would be caused to Mr. Porter if leave were to be granted.”
In Selmore v. Bull  N.S.W.C.A. 365 the Court of Appeal was of the view that the greatest hardship that the plaintiff would suffer was if she were deprived of the opportunity to prosecute her claim against the defendant. The court held that if the plaintiff had at least an arguable case, then she stands to suffer extreme hardship, being that of not having her claim considered and determined. On the contrary if she proceeds with her claim and fails, all the defendant would have suffered was the angst and inconvenience of litigation. The court therefore found that the greater hardship would have been borne by the plaintiff. I relayed similar sentiments in the case of Lutchman v. Callender FH01058 of 2009.
- The applicant before me cohabited with the respondent for at least ten years during which she claims to have contributed to the welfare of the family and by extension, the assets accumulated while the relationship subsisted. Two children were born out of the union. From her evidence I think she has made out at least an arguable case for an adjustment order and it would be of extreme hardship if she were deprived of the opportunity to pursue such a claim. All that the respondent would suffer is the inconvenience of litigation. The applicant may or may not succeed on her claim, but she should be given the opportunity to present her case rather than lose altogether on a potentially viable application.
- I therefore order that leave be granted to extend the application to the 25th August 2011 and that the applicant proceed with same even though it is out of time.
- I also order that the applicant pay half the costs of the hearing to be taxed in default of agreement.