Millette v Gervais

Citation:           TT 2006 HC 30

Title:                 MILLETTE v. GERVAIS

Country:           Trinidad and Tobago

Court:               High Court

Suit no.:           HCA 3179 of 2002

Judge(s):          Pemberton, J.

Date:                May 8, 2006

Subject:           Family law

Subsubject:      Relationship other than marriage – Cohabitation – Whether the relationship between the parties was governed by the Cohabitational Relationships Act 1998 – Whether the relationship met the requisite five year period – Parties cohabited for three years – Application dismissed.

 

Appearances:

For the plaintiff: Mr. D. V. Warner.

For the defendant: Mrs N. Maynard-Marshall.

 

PEMBERTON, J.

INTRODUCTION

[1] I must give an explanation for the length of time taken for this judgment. The matter came up for hearing before me on 10th May 2005 when evidence was (End of Page 1) taken. Hearings continued on 11th May 2005 and 24th May 2005 during which all evidence was laid before the Court. Directions were issued to wit:

Issues to be determined:

 

  • Whether the parties were cohabitees within the meaning of the act;
  • If so what share of the property is the applicant entitled to;
  • If so whether the applicant should be paid maintenance, if so, how much?
  • Written submissions and authorities to be filed and exchanged on or before 15th June 2005;
  • Replies if necessary and or before 24th June 2006;
  • Decision reserved thereafter;
  • Injunction to continue.

 

This timetable was not observed by both parties resulting in my issuing further directions as follows:

 

(a) Written Submissions on or before 30th November 2005;

(b) Response on or before 8th January 2006;

(c) No variation to be allowed;

(d) Decision further reserved.

 

There was further non-compliance and after due consideration of letters of apology and entreaties from counsel, I re-issued the following directions on 5th December 2005:

 

(a) Written submissions on or before 16th January 2006;

(b) Response on or before 31st January 2006;

(c) No variation to be allowed;

(d) Decision further reserved. (End of Page 2)

 

Ms. Maynard Marshall’s submissions arrived on 16th January 2006. I am yet to receive Mr. Warner’s submissions although his reasons for non-compliance have been noted. However, enough time has elapsed and the parties need to know their positions. It is in that regard that I now proceed to deliver this judgment.

[2] The sole issue for determination is whether the relationship between the parties, Ms. Millette and Mr. Gervais is governed by the Cohabitational Relationships Act, 1998 (“the Act”).

[3] Section 2(1) of the Act defines “cohabitant” as

 

(a) in relation to a man, a woman who …. has lived with a man as his wife in a cohabitational relationship; and

(b) in relation to a woman, a man who …. has lived with a woman as her husband in a cohabitational relationship.

 

[4] There is no denial by either Ms. Millette or Mr. Gervais that they lived together as husband and wife as so defined. I therefore accept that as a fact.

[5] The Act further provides that a “cohabitational relationship” means “the relationship between cohabitants who not being married to each other and have lived together as husband and wife on a bona fide domestic basis” [See section 2(1) of the Act].

[6] Again, both parties have adverted to this in their evidence in chief and confirmed this in cross-examination. There was therefore a cohabitational relationship existing between Ms. Millette and Mr. Gervais.

[7] Ms. Millette has brought this action under the Act for relief. The relief may be summarised as follows: (End of Page 3)

 

(1) Pursuant to Section 4 and 21 of the Act for a declaration

(a) that she is the owner of a one half undivided share in a property situated in Clever Road or for an order adjusting the legal ownership of Mr. Gervais in her favour;

(b) periodical payments for herself or a lump sum payment;

(c) transfer of one half undivided share in the Cleaver Road property to Ms. Millette.

 

Specifically pursuant to section 21

(a) An order for sale of said property and a division of the proceeds.

(b) Exclusion Orders.

 

[8] Section 4 gives jurisdiction to the Court to make the orders sought by Ms. Millette.

[Section 4(1) The High Court shall have jurisdiction to make any order or grant any relief under this Act, including-

(a) in relation to property, an order declaring at title or right, or adjusting and interest; or

(b) an order for-

(i) the periodical payment to a cohabitant of such sums of money and such term as may be specified or

(ii) the payment to a cohabitant of such lump sum as may be specified.]

 

[9] The act empowers a cohabitant to approach the Court for the relief as sought, [Section 6 – under this part, a cohabitant may apply:-

(a) to the High Court for the granting of an adjustment order or for the granting of a maintenance order; or

(b) to the Magistrate’s Court for the granting of a maintenance order.], but it is clear that there must be conformity with section 7. That is the crux of this matter. The Court can only grant relief in the following circumstances:

 

(a) the applicant lived in a cohabitational relationship with the respondent for

a period of not less than FIVE YEARS; or

(b) The applicant has a child arising out of the cohabitational relationship; or

(c) The applicant has made substantial contributions of the kind referred to in section 10. [Emphasis mine] (End of Page 4)

 

[10] It is clear that sub-paragraphs (b) and (c) of section 7 are inapplicable. Thus the sole issue for determination – did Ms. Millette and Mr. Gervais enjoy a cohabitational relationship for a period of not less than five years?

 

[11] BURDEN OF PROOF

Ms. Millette has the burden of proving the cohabitational relationship with Mr. Gervais, that is that they lived as husband and wife “in a bona fide domestic relationship” for a period of not less than five years. Mr. Gervais categorically states this is not so. Since he raises this as a triable issue, the burden now shifts to him to disprove that the relationship between the parties falls within the statutory purview.

 

[12] DEFENDANT’S CASE

  1. GERVAIS

In 1993, Mr. Gervais was introduced to Ms. Millette. At that time he was separated from his wife but was cohabitating with one Carla Haynes in Tunapuna. That union produced one child in 1992. He did not begin an intimate relationship with Ms. Millette in February 1995. He never made promises of marriage to Ms. Gervais so he never went “matrimonial house hunting” with her. He denied cohabitating with Ms. Millette at her parent’s home in Arima in or around December 1995.

[13] Mr. Gervais purchased his home at Cleaver Road, starting in November 1998 and ending in 1999 by way of conveyance. Up to that time November 1998, he maintained a cohabitational relationship with Carla Haynes and his daughter in Laventille. He admitted using Ms. Millette parents’ address as his own when he executed the conveyance but explained it was used as a ruse to escape possible consequences in his divorce proceedings from his lawful wife. He never promised Ms. Millette to “put her name” on the deed to the house in Cleaver Road. (End of Page 5) Ms. Millette moved into that house in September 1999. She never did any household chores. He stated that they lived together as husband and wife while he worked and lived in Barbados in 2001. Their relationship came to an end in September 2002.

 

[14] CROSS EXAMINATION

Mr. Gervais put the start of the intimate relationship in 1996. He denied living with Ms. Millette at the Arima residence from 1995 as man and wife. He admitted that he never lived at Maloney Gardens and that he used the Arima address to negotiate the purchase of a property. He continued to deny any promise made to Ms. Millette to “put her name” on the house in Cleaver Road. Both he and his son started living at the house in 1999. Ms. Millette moved to the house in Cleaver Road in 1999. The son moved out in 2000 since there were conflicts between Ms. Millette and him. He provided for the household but reinforced his denial that Ms. Millette did household chores. After an incident on 2nd October 2002 he asked Ms. Millette to leave the premises.

 

[15] RE-EXAMINATION

Mr. Gervais maintained that in 1995 he lived in Laventille with Ms. Haynes and their daughter.

 

[16] CARLA HAYNES

Ms. Haynes deposed that she knew Mr. Gervais from 1989. From about 1990 they lived together in Tunapuna. In 1992 she gave birth to their daughter and the family lived together up until late 1998. The relationship ended in early 1999. Under Cross Examination Ms. Haynes did not waver from these facts. (End of Page 6)

 

[17] PLAINTIFF’S CASE

  1. MILLETTE

Ms. Millette deposed that she first met Mr. Gervais in March 1993. They maintained a friendship, which turned intimate sometime in February 1995. In December 1995 they commenced living as man and wife at her parent’s home in Arima. She maintains that during that time Mr. Gervais was separated from his wife and promised marriage so soon as his divorce was finalized. During the period up until 1999 they were house hunting. This venture bore fruit and in June 1999 they both moved into the premises at Cleaver Road. Mr. Gervais promised to “put her name on the property”. By July/August of that year Mr. Gervais’ son moved into the home. Their relationship began to show signs of strain. She recounted various acts allegedly committed by Mr. Gervais, his son and his son’s girlfriend during 2001 and 2002. Ms. Millette deposed that Mr. Gervais and she lived in Barbados for a period as cohabitants there. This was in 2001.

[18] During the time at her parents’ home, she performed wifely duties – cooking, washing and ironing. When she moved to the home at Cleaver Road, she continued to perform these chores in addition to cleaning the home and caring for her daughter. She denied that he cohabited with Ms. Carla Haynes in Laventille. In support of her position Ms. Millette produced two documents.

 

(1) On 28th August 1998 Mr. Gervais purchased foreign exchange and gave his address as that of her parents in Arima;

(2) Mr. Gervais’s Answer in his divorce proceedings in which he gave his address as Maloney.

 

[19] CROSS EXAMINATION

Ms. Millette confirmed her evidence that in 1995 she and Mr. Gervais commenced a bona fide cohabitational relationship at her parent’s home. She stated that nine persons shared living quarters comprising three bedrooms, a kitchen, living room (End of Page 7) and porch. She disputed that in 1998 Mr. Gervais lived at Laventille with Carla Haynes.

With respect to ownership of the Cleaver Road property Ms. Millette maintained that Mr. Gervais promised to “put her name on the house”.

Her re-examination did not carry her case further.

 

[20] ANALYSIS AND FINDINGS OF FACT

From the evidence, I make the following findings of fact.

 

(1) That Ms. Millette and Mr. Gervais met in 1993;

(2) That Mr. Gervais lived in a common law relationship with Ms. Haynes up until late 1998;

(3) That this was his main relationship up to that time;

(4) Although he shared an intimate relationship with Ms. Millette from 1995, they did not cohabit at her parents home. I would term this a visiting relationship and not one where the parties lived as husband and wife “on a bona fide domestic basis”. I accept Mr. Gervais’s evidence that he wished to conceal the Haynes relationship from his wife at the time of his divorce and hence the reason for using the Arima address on the foreign exchange purchase form. I wish to state as well that this as proof is at best tenuous;

(5) The co-habitation with Ms. Millette and Mr. Gervais began when she moved to his home at Cleaver Road in 1999.

(6) That the relationship between Mr. Gervais and Ms. Millette ended in 2002;

 

[21] CONCLUSION

Based on these findings of fact therefore I conclude that the relationship between Ms. Millette and Mr. Gervais lasted approximately three (3) years. The parties did not live in a cohabitational relationship for the requisite five year period. Mr. Gervais has discharged the burden placed upon him by disproving that the (End of Page 8) relationship between Ms. Millette and himself satisfied section 7(a) of the act. As a result Ms. Millette’s application to the Court for a property adjustment order fails. Since Ms. Millette has not got off this base, there is no need to go further to address the other issues raised.

 

[22] COSTS

In the interest of justice I have decided that each party shall bear his own costs.

 

ORDER

  • Summons filed 7th October 2002 is hereby dismissed.
  • Injunction granted on 7th October 2002 is hereby discharged.
  • Each party to bear his own costs.

 

CHARMAINE PEMBERTON

HIGH COURT JUDGE (End of Page 9)

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