Sammy v Maharaj

Citation:           TT 2011 HC 43

Title:                 SAMMY v. MAHARAJ

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 1818 of 2009

Judge(s):          Mohammed, J.

Date:                February 4, 2011

Subject:           Family Law

Subsubject:      Cohabitational relationship – Property division – Child – Access.

 

Appearances:

Dr. Charles Seepersad for the applicant

Mr. Marlon Moore for the respondent

 

MOHAMMED, J.:

INTRODUCTION AND APPLICATION

  1. The applicant and the respondent were involved in a co-habitational relationship for some 10 years, which according to the applicant’s affidavit, came to an end in April 2007. They have one child together, Anika Maharaj, a daughter, who was born on the 2nd August, 1996. Anika is now fifteen (15) years of age and presently resides with the respondent. On 13th October 2009, the applicant filed a Notice of Application in which he seeks the following orders:

 

(a)  A declaration that the applicant is entitled to such share in the respondent’s assets as the court shall determine;

 

(b)  Alternatively, an adjustment order in respect of the contribution made by the applicant to the acquisition or improvement of those properties vested in the respondent;

 

(c)  An Order for periodical payments to the applicant in such amount as the court may deem just;

 

(d)  An order that the applicant be granted visitation rights to the child of the family, Anika Maharaj born on 22nd August 1996, or such terms that the court may deem just;

 

(e)  Costs; and

 

(f)   Such further or other relief as the court may deem just.

 

  1. Although it is not expressly stated therein, from the evidence before the court, the application is being made pursuant to S. 6(a) of the Co-habitational Relationships Act, 1998 (hereafter referred to as “the Act”), which gives a cohabitant the right to apply to the High Court for the granting of an adjustment or maintenance order. Such an application is, by virtue of Part 12.1 (2) (j) of the Family Proceedings Rules, 1998 (FPR), a financial relief application which ought to be initiated by filing the appropriate practice form (Form 8 questionnaire) in accordance with FPR Part 12.2 (1) supported by the applicant’s affidavit setting out his income, capital, assets and liabilities and the grounds upon which the application is made, in accordance with FPR Part 12.3 (1). It is to be clearly noted that the application filed was not in accordance with FPR Part 12.2 (1) and 12.3 (1) in that the application was not made in Form 8 nor was it supported by an affidavit setting out the applicant’s income, capital, assets and liabilities.

 

  1. S. 8(1) of the said Act provides that an application under s. 6(a) of the Act is to be made within two (2) years after the day on which the cohabitants ceased living together “as husband and wife on a bona fide domestic basis”. The evidence in this case indicates that the parties ceased living together on a bona fide domestic basis on or about the 11th April, 2007. Thus, the applicant’s cut off date for filing his application was the 10th April, 2009. Having filed his application on the 13th October, 2009 he was therefore some 6 months out of time. However, by virtue of S. 8(2) the court may grant leave to an applicant to make an application under the Act after 2 years have passed, if the court is satisfied that “not to do so would cause undue hardship to the cohabitant or a child of the co-habitational relationship”.

 

  1. Clearly, therefore, since more than 2 years had elapsed, the applicant, before filing his substantive application, ought to have filed an application seeking the court’s leave to apply for an order under the Act. Again, it must be clearly noted that the applicant never filed an application for leave to institute these proceedings notwithstanding that 2 years had already elapsed contrary to s.8 (1) of the Act.

 

  1. At the Directions Hearing on 1st February 2010, Counsel for the respondent Mr. Moore, took a preliminary objection to the application on the ground that it was made outside of the 2-year period stipulated in s.8(1) of the Act and that the applicant did not seek the court’s leave to make the application as he is required to do by s.8(2). Dr. Seepersad intimated that he was not prepared to respond to the preliminary objection and requested time to make his submissions and to produce authorities. The court then adjourned the matter to the 31st March, 2010 to deal with the preliminary objection and ordered the parties to submit their authorities on which they propose rely to the court and to the other side on or before the 1st March, 2010. The applicant did not comply with the order but instead, on the 26th February, 2010, filed an affidavit seeking to explain the reasons why the application was not filed within the statutory time limit and to say that he will suffer great hardship to meet his expenses if he is not granted leave to proceed with his application. This affidavit was filed without leave of the court.

 

  1. At the hearing on the 31st March, 2010 there was no dispute that the application was filed out of time. The contention surrounded whether the applicant had established that it would cause him or the child of the co-habitational relationship “undue hardship” if he were not given the opportunity to proceed with his claim against the respondent and whether the court should exercise its discretion in his favour and permit him to file his application out of time. However, Mr. Moore objected to the affidavit filed on the 26th February, 2010 being used on the basis that it was filed without the court’s permission and that it was seeking in a smart way to put evidence before the court after the preliminary objection was made. I upheld the objection and refused leave to use the affidavit on the following grounds, namely: (1) the application being one for financial relief, the affidavit was filed contrary to FPR rule 12.10 in that no further evidence ought to have been filed without permission of the court except with the written consent of the other party; and (2) the affidavit was filed only after the preliminary objection was raised and, therefore, taking all the circumstances into account, it would have been unfair to the respondent to allow the applicant to introduce evidence through the back door, as it were, when such evidence ought to have been included, in the first place, in an application for leave to file the application out of time.

 

  1. The only affidavit before the court, therefore, is that of the applicant which was filed on 13th October 2009, in support of the substantive application. Counsel for the respondent did not challenge any aspect of this affidavit nor did he seek to cross examine the applicant on his evidence contained therein. Relying on the decision of Justice Tam in Gail Bishop v. Lennox Charlerie FH 02108-2006 Counsel maintained that the applicant’s affidavit discloses no evidence of any undue hardship and submitted that on that basis the application ought to be dismissed.

 

 

THE AFFIDAVIT OF 13TH OCTOBER 2009

  1. The applicant’s affidavit showed that he and the respondent started a sexual relationship in 1994 while the respondent was still living with her husband. This led to the birth of their daughter, Anika in 1996. It is not disputed that subsequently, sometime in 1997, they started a co-habitational relationship. When the applicant met the respondent she operated a small variety store in Rio Claro and in 1994 he started to assist her in the store. This store was closed sometime in 1999 and in February 1997, the Joy’s Variety Store was opened at No. 27 Charlotte Street, Port of Spain. The applicant said that the respondent borrowed $75,000 from her sister and paid for the fixtures and fittings and paid two months’ rent in advance. The respondent gave no evidence that he made any direct or indirect financial contribution to the business but he states that he and the respondent would travel abroad to purchase goods for the store.

 

  1. The applicant said that in January 1999, the store was relocated to No. 31 Charlotte Street, Port of Spain. He said that as at the end of 1999, the business made total earnings from sales for that year of $3.2 million. The applicant was paid a salary of $2,800 per month and he said that although he travelled abroad to various commercial centres to purchase goods for the store he was not paid nor did he demand extra for doing so. He said that he also supervised the loading and checking of goods and arranged the collection and checking of the goods at the Port of Port of Spain. According to the applicant, he was assured by the respondent that he had a share in the business. At that time, he said that he and the respondent lived in a rented apartment and that it was the respondent who paid the rent, purchased foodstuff for the house and maintained their daughter.

 

  1. At paragraphs 10 — 14 of his affidavit the applicant gave details of the frequent shopping trips he took with the respondent to Curacao, Miami, New York and Venezuela. The applicant then gave details of various properties which the respondent purchased between 1999 and 2000, but no mention was made of him making any financial contributions either directly or indirectly in respect of the acquisition and maintenance of these properties nor did he express that there was any common intention that he would have an interest in any of these properties. He said that the respondent built a two storey house on one of the properties she had purchased and that when it was completed in 2004, the property was valued at $1.8 million. He said that the respondent obtained a mortgage of $800,000 to finance the construction of the house. He did not say that he made any contribution to the construction or improvement of the house or to the maintenance of the household or that he purchased any furniture or household items. At paragraph 25, however, he mentioned that in or around 2005 the respondent began to keep him away from the store and told him to stay at home and look after the house, and that he therefore did the cooking, washing, cleaning and other household chores.

 

  1. In 2005, the applicant obtained a loan of $60,000 from Scotia Bank (Rio Claro) after the respondent assured him that she would repay him $180,000 three years later. He said that he gave the respondent the equivalent of US$10,000 ($60,000 together with $3,500). When they separated in April 2007, he said that the respondent gave him $60,000 as well as $25,000 towards liquidating the loan, but that she did not keep her promise to repay $180,000 after three years. He did not say whether he continues to make monthly instalments in respect of this loan.

 

  1. At paragraph 22 the applicant deponed that the respondent caused him to take a life insurance policy on his life in the sum of $200,000 payable on death and named their daughter as the beneficiary. He said that the monthly premium of $332 was paid by the respondent, which payments she has stopped making; but he says that the payments are now up to date.

 

  1. The applicant further deponed that in February 2006, he borrowed $151,330 from Scotia Bank in order to purchase a Ford 4×4 pickup van which was driven by him. He said in September 2007, the van was stolen and was later found by the Police to have been burnt. He said that all his travel documents, personal papers and accounts and personal effects that he packed into the van when he left the house in April 2007 were destroyed. He recovered $109,000 ($119,000 less $10,000 cost of wreckage) from New India Assurance, which monies he used to build a small apartment downstairs his father’s house. The applicant said that the respondent agreed to pay the monthly instalment in respect of the motor vehicle loan of $3,252.67, but that she no longer makes these payments. According to him he cannot afford to make the instalments given his present salary of $3,600 which he earns as a Watchman. The applicant could not recall the balance due on the loan at the time of the accident but upon my enquiry he said that the loan is expected to come to an end in August 2011. He did not say whether or not these payments were up to date.

 

  1. The applicant said that in 2002, the respondent took him to one Mr. Lopez, Attorney at Law, who gave him a document which stated inter alia that he was to live separate and apart from the respondent. He said that the respondent agreed to pay him the sum of $100,000 on signing the agreement and thereafter monthly instalments of $2,000 until $300,000 was paid to him. The document also said that the respondent could continue living in the apartment but that he was not to molest and interfere with the respondent. On the said day that they visited Mr. Lopez, the applicant said that the respondent deposited $100,000 into his Scotia Bank account. This agreement he said, was never signed, apparently because sometime later the respondent changed her mind, but told him that he could keep the $100,000.

 

  1. In April 2007, the applicant said that he visited the office of the respondent’s Attorney at Law, Mr. Marlon Moore, where he signed a Deed of Separation (hereafter referred to as “the April 2007 agreement”) prepared by Mr. Moore. He said that the legal effect of the document was not explained to him and that Mr. Moore did not suggest to him that he should seek independent legal advice. By the April 2007 agreement the respondent agreed inter alia to continue to make all payments in respect of the motor vehicle TCA 3172 (Ford 4×4) until it was fully paid for unless the applicant chose to sell or trade the vehicle before it was fully paid for in which case the applicant would be fully responsible for making the monthly instalments and any other expenses in relation to the said motor vehicle; that she would pay the applicant the sum of $160,000 in full and final settlement of all financial obligations between the parties arising out of the co-habitational relationship; and that the applicant shall not make any further claim against the respondent in respect of any interest or share in the business Joy’s Variety Center and in relation to any assets acquired by them during the period of their co-habitational relationship.

 

 

“UNDUE HARDSHIP”

  1. The first task for the court is to consider whether the applicant or the child of the co-habitational relationship will suffer undue hardship if the applicant is not allowed to pursue his claim against the respondent. In Bishop v. Charlerie [Ibid] Justice Tam considered the definition of “undue hardship” in S. 8(2) of the Co-habitational Relationships Act. In that case the judge was faced with an application similar to the one before the court, which was filed some 3 years outside of the statutory 2-year period. The judge found the following explanation of undue hardship by Lord Denning MR in the Court of Appeal in Liberian Shipping Corporation v. King, (A) & Sons Limited [1967] 1 All ER 934, to be of useful guidance:

 

“…”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. ” [Ibid @ p. 938]

 

Liberian Shipping Corporation v. King (A) & Sons Limited involved an interpretation of “undue hardship” as expressed in S. 27 of the Arbitration Act, 1950 (UK), which provision gave the High Court the power, if it is of the opinion that undue hardship would otherwise be caused, to extend the time where a claim has been barred because proper steps were not taken within the time fixed by an arbitration agreement.

 

  1. Justice Tam also considered the New Zealand case of Lower Hutt City v. New Zealand Municipalities Co-operative Insurance Co. Ltd. (1965) NZLR 24. This case involved an interpretation of S. 18(6) of the Arbitration Amendment Act, 1938 (New Zealand), which authorizes the court to grant an extension of time within which steps may be taken in an arbitration, if in its opinion undue hardship would be caused by refusal of an extension. Tompkins, J., in that case, named five (5) matters which he considered to be relevant in considering whether or not there is undue hardship, which Justice Tam found to be of useful guidance in determining the issue before court. They are as follows:

 

(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”.

 

  1. Justice Tam, while accepting that Justice Tompkins’ five (5) points were not exhaustive, found that the evidence before him did not fall into any of these categories. According to the learned Judge “in the instant case…there are no special or extraordinary circumstances that the applicant can point to as explaining her delay and there is no evidence of any hardship, undue or otherwise, that she is likely to suffer if the court refuses to grant leave to pursue her application [Bishop v. Chalerie, supra @ p. 5].

 

  1. In Deves v. Porter [2003] NSWSC 625 the New South Wales Supreme Court was faced with an application for adjustment of property interests under S.20 [“20 Application for adjustment – (1) On an application by a party top a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or the financial resources of the parties or either of them, and (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties; (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property.”] of the Property (Relationships) Act, 1984, which was filed some 4 — 5 years out of time. The facts, in brief, are that the parties shared a de facto relationship from 1991 until they separated in 1997. They had no children. During the course of their relationship, the husband purchased a property called “Brooklands”, together with his parents and brother, and he and the applicant lived in a cottage on the property. The applicant painted the bathroom and helped with the tiling. She was the one who did more of the cooking and other domestic tasks while Mr. Porter performed the outside tasks. In 1998, following their separation, the applicant told Mr. Porter that she would like some money for her share in “Brookland”, to which he replied that he had no money to give her. Mr. Porter subsequently sold the property. The applicant had not sought any legal advice as to what her rights might be following the ending of cohabitation but sometime after the sale of “Brookland” she was told by a friend that after two years from separation, she could not apply for orders for adjustment of rights to property. She made a halfhearted attempt at that time to get some legal advice but did not actually obtain any, and by that time the two year period had already expired. She consulted her solicitor in September 2000 and brought these proceedings in January 2001. Under S. 18(1) of the Act “where de facto partners have ceased to live together as husband and wife on a bona fide domestic basis, an application to a court for an order under this Part shall be made before the expiration of the period of 2 years after the day on which they ceased, or last ceased… to so live together”. An application was therefore made under S. 18(2) of the Act which makes provision for the court to grant leave to an applicant to make the application even though the time as stipulated under the Act for doing so has passed. S. 18(2) states as follows:

 

“(2) 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 considers relevant, that greater hardship [emphasis mine] would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted”

 

  1. Campbell, J., who delivered the judgment in Deves v. Porter, in defining “hardship” in S. 18(2) of the NSW Act, found the case law construing S. 44 of the Family Law Act, 1975 (NSW), to be useful. At paragraph 37 of the judgment he made the following observation:

 

“37.      At the time of enacting section 18, the New South Wales Parliament had available for consideration section 44 of the Family Law Act 1975 (Cth). Section 44(3) of that Act provides that proceedings for maintenance or property adjustment shall not be instituted after 12 months from the date of making a decree nisi except by leave of the court. Section 44(4) said:

 

“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”.

 

Faced with that example, the New South Wales Parliament adopted a test, in section 18(1) of the Property (Relationships) Act, 1984 requiring there to be greater hardship on the applicant than on the respondent before leave is granted ”

 

  1. Campbell, J., then went on to quote extensively from the judgment of Strauss, J., in Mackenzie v. Mackenzie (1978) FLC ¶ 90-496 and where Strauss, J., made the following observation in respect of S.44(3) of the Family Law Act:

 

“… subsec 44(4) makes it clear that this discretionary power to grant leave does not become exercisable unless the court is satisfied that hardship would be caused to a party or child if leave were not granted I stress the word “satisfied” and “would” because they seem to me to throw light on the kind of case which an applicant for leave must establish. The onus resting on our applicant is not discharged by showing merely that hardship might be caused, if leave were not granted….

 

The very purpose of sec 44(4) is to enable the court to grant leave to institute proceedings in order to avoid hardship. The court should exercise this power liberally, but only if it is satisfied that hardship would be caused to an applicant or a child of a marriage if he or she were barred from making a claim for maintenance or relating to property.

 

Strauss, J., then went on to say that one cannot ignore the policy underlying section 44(3) of the Family Law Act that proceedings should ordinarily be commenced within a year from the date of the decree nisi. Accordingly, he said that even if there is hardship, in its determination of whether to grant leave, the court is bound to have regard to the length of delay as well as the reasons for the delay. This is how Strauss, J., defined “hardship” as used in section 44(4):

 

“… [hardship] should be taken to mean no less than a substantial detriment …. What amounts to a substantial detriment will depend on the circumstances of the applicant or a child of the marriage. In an appropriate case, the loss of something of comparatively little value may constitute a substantial detriment …. The loss of the mere right … to litigate a claim … is not hardship to which subsec (4) refers. It is the hardship which would be caused by the loss of that right, with which the subsec is concerned….”

 

  1. In Deves v. Porter, Campbell, J., having been guided by the manner in which Straus, J. in Mackenzie v. Mackenzie construed “hardship”, exercised his discretion in favour of the applicant and granted an extension of time. Campbell, J., found that although the explanation for the delay was not completely satisfactory, overall it was a good explanation and to deny the applicant the opportunity of bringing the claim would result in hardship to her. At para 47 of his judgment he said:

 

“To deny her the opportunity of bringing that claim would, in my view, result in hardship to her. A significant reason for the delay in bringing the proceeding is that in 1998 she accepted Mr. Porter ‘s statement (which was true) that he did not have any money. Had she taken proceedings at that stage, she probably could have compelled a sale of “Brooklands”, or caused the Porters to rearrange their interests in the property amongst themselves, so that Mr. Porter had the means to pay her claim. If the fact that she did not take that sort of a tough line in 1998 had the consequence that she was, now, disentitled from bringing a claim at all, that would, in my view, be a hardship to her. There is no evidence of Mr. Porter having arranged his affairs on the basis that he would not have to make any payment to Ms. Deves from the proceeds of the sale of “Brooklands”. Nor is there any evidence of him having arranged his affairs in reliance on the statement by Ms Deves at the time the property was purchased, that she did not want any part of it. In my view the plaintiff established that greater hardship would be caused to her if leave were not to be granted than would be caused to Mr. Porter if leave were to be granted.”

 

  1. In Wilson v. Hamilton [1999] NSWC 80, another case from the New South Wales Supreme Court, the court also considered an application under S. 18(2) of the NSW Act [De Facto Relationships Act, 1984] for extension of time to make an application for property adjustment. Here, the parties were in a de facto relationship from 1980 to February 1994 when the defendant left the matrimonial home and moved to a house owned jointly by the parties. They had three children together the youngest of which lived with the defendant. Between July 1996 and May 1998, there were ongoing negotiations between the parties which proved to be unsuccessful. In September 1998, the plaintiff issued a summons for orders for sale in respect of the home in which the defendant and their youngest child lived at the time. The defendant applied for leave to commence proceedings under S. 18 of the De Facto Relationships Act 1984. The application should have been made no later than March 1996. The court found that the hardship of the defendant (applicant) exceeded that of the plaintiff and went on to exercise its discretion in favour of the applicant and extended the time for making the application. In assessing the hardship that would be caused to the applicant Young, J. considered the fact that she was currently living in the house rent free; that the children were living with her; that she had no funds available to her other than what she received through maintenance orders or the pension or supporting parents benefit; and that if she were not permitted to mount her claim she would be deprived of the chance, “although it may not be a good chance”, of being able to remain in the premises by buying out her husband.

 

  1. Although section 18(2) of the NSW Act refers to “greater hardship” being caused to the applicant if leave were not granted than would be caused to the respondent if leave were granted and S.8(2) of the Co-habitational (Relationships) Act, 1998 requires the court to consider the “undue hardship” that would be caused to “the cohabitant or a child of the co-habitational relationship” if leave were not granted, both phrases import the idea of hardship that is excessive or circumstances that are substantially detrimental to the cohabitant. The court therefore finds the approach of the NSW Courts in the cases cited above to be of useful guidance in considering whether the applicant in this case has shown that he or the child of the co-habitational relationship would suffer undue hardship if the court refuses to extend time.

 

  1. If the court is to use as a guide, the five (5) circumstances set out by Tompkins, J., in Lower Hutt City v. New Zealand Municipalities Co-operative Insurance Co. Ltd, it can safely say that having considered the applicant’s affidavit filed on 13th October 2009, that item (a) does not apply in this case. The mere fact that the applicant was late in filing his application and would therefore lose his right to litigate his claim does not by itself establish undue hardship. It is the hardship which would be caused by the loss of that right which is of importance and which the applicant has the onus of establishing. In respect of items (b) and (d) there is no explanation given by the applicant for the delay in filing his claim, so that it cannot be said that the delay was due to circumstances that were beyond his control or some other special circumstances. Counsel for the applicant directed the court to paragraph 23 of the applicant’s affidavit where he states that in September 2007, his van in which he had personal papers and accounts of the business was stolen and subsequently found by the police to have been burnt. Counsel submitted that the fact that the applicant’s documents were destroyed may very well account for his delay in filing his claim. However, the court is not prepared to speculate and arrive at that conclusion from this evidence. With regard to item (c) there is no evidence to suggest that there has been any misunderstanding or confusion which has been caused or contributed to by the respondent. In respect of item (e) Counsel for the applicant has advanced the argument that a refusal by the court to grant an extension of time would involve the applicant in financial difficulties. I respectfully disagree with Counsel. In my view, the evidence does not establish any actual financial difficulty on the applicant’s part. The applicant’s affidavit shows that he presently works at nights as a Watchman at the Couva Magistrates’ Court and that he travels from Rio Claro, where he lives, to work daily. He states that he earns a gross monthly income of $3,600, from which he has to make monthly payments of $3,252.67 towards the motor vehicle loan, and also life insurance premium of $332.00 per month. The evidence indicates that these payments are up to date, and in fact that the motor vehicle loan will come to an end in August 2011, so that although he does not earn much, it is apparent that he is somehow able to fulfill his financial obligations. It must now be remembered that the applicant has never filed his Form 8 questionnaire and affidavit giving full disclosure of his financial status including his income, capital, assets and liabilities as is required by FPR Part 12.2 (1) and 12.3 (1) . As such, the court is unaware of the true financial position of the applicant.

 

  1. The affidavit also reveals that in April 2007 when the parties separated the respondent gave the applicant $60,000 as well as $25,000 towards liquidating the Scotia Bank Loan he obtained in 2005. There is no evidence that the applicant continues to make payments in respect of this loan. The evidence also shows that in April 2007, the applicant received $109,000 ($119,000 less $10,000 cost of wreckage) which monies he used to construct a small apartment, where he now resides. There is no evidence as to the value of this property and there is also no evidence that he has any mortgage in respect of this property. The child of the relationship does not live with the applicant and he admitted that it is the respondent who maintains the child. Under the April 2007 agreement the applicant received $160,000 and although there is no evidence as to his present financial position there is no indication of any actual financial difficulty that the applicant is suffering or will suffer if he does not pursue his claim against the respondent. Thus, I do not find that the applicant has established undue hardship.

 

  1. Further, it must also be recalled that the applicant has never actually filed an application for leave to pursue this claim notwithstanding the 2 year statutory period had elapsed. Accordingly, this court has no option but to refuse leave to proceed with the application.

 

  1. The order sought at clause 4 of the application filed on the 13th October, 2009 for “visitation rights” to the minor child Anika is not one which can be entertained under an application brought pursuant the Co-habitational Relationships Act. The Act gives the court jurisdiction to make orders with respect to interests in property and maintenance and makes provision for the enforcement of agreements and for matters incidental thereto. Further, s. 21 of the Act highlights the orders which the court may make when exercising its powers under the Act, none of which pertains to custody or access orders in relation to children. An order for access to the child Anika by the applicant must be sought under the provisions of the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, Chap. 46:08 dealing with the welfare and best interests of the child. Such a relief will entail the filing of an Application Relating to the Child in questionnaire Form 10 supported by a narrative affidavit showing good grounds why it is in the child’s best interests that the applicant be allowed access to the child Anika.

 

  1. Accordingly, the order of the court is as follows:

 

(a)  Permission to proceed with the application filed on the 13th October, 2009 is denied.

 

(b)  The application filed on the 13th October, 2009 is hereby dismissed.

 

(c)  Costs of the application are to be paid by the applicant to the respondent to be taxed in default of agreement.

 

Dated this 4th day of February, 2011

 

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