Citation:Â Â Â Â Â Â Â Â Â Â TT 2006 CA 27
Title:Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â MOHAMMED v. ALBERT
Country:Â Â Â Â Â Â Â Â Â Â Trinidad and Tobago
Court:Â Â Â Â Â Â Â Â Â Â Â Â Â Â Court of Appeal
Suit no.:Â Â Â Â Â Â Â Â Â Â Civil Appeal No. 165 of 2004; HCA No. 1651 of 2003
Judge(s):Â Â Â Â Â Â Â Â Â Warner, J.A.; Kangaloo, J.A.; Mendonca, J.A.
Date:Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â July 31, 2006
Subject:Â Â Â Â Â Â Â Â Â Â Family law
Subsubject:Â Â Â Â Â Property division â€“ Cohabitational relationship â€“ Adjustment â€“ Contribution â€“ Home purchase with lottery winnings for the benefit of the family â€“ Trial judge’s findings were supported by evidence â€“ Decision was not plainly wrong â€“ Appeal dismissed.
Ms. Hyacinth Griffith for the appellant.
Ms. Lynette Seebaran for respondent. (End of page 1)
MENDONCA, J.A.: 1. I have read the judgment of Warner, J.A. and I agree that the appeal should be dismissed. I would however, like to add a few comments of my own with respect to the adjustment of the interest of the parties in the property as ordered by the judge.
- The order which is the subject of this appeal was made by the judge under section 6(a) of the Cohabitational Relationships Act, 1998 (the Act). This section provides that a cohabitant may apply to the High Court for the grant of an adjustment order. On such an application section 10(1) of the Act is relevant. This is as follows:-
On an application for an adjustment order, the High Court may make any such order as is just and equitable, having regard to:-
(a) the financial contributions made directly or indirectly by or on behalf of the cohabitants to the acquisitions or improvement of the property and the financial resources of the partners; and
(b) any other contributions including any contributions in the capacity of homemaker or parent, made by either of the co-habitants to the welfare of the family constituted by them;
(c) the right, title, interest or claim of a legal spouse in the property. (End of page 2)
- In this case section 10(1)(c) has no relevance but the contributions of the cohabitants of the kind referred to in sections 10(1)(a) and (b) are of critical importance. Under section 10 the Court must have regard to (a) the financial contributions made directly or indirectly by or on behalf of the cohabitants for the purpose of the acquisition or improvement of the property and the financial resources of the partners, and (b) any other contribution including any contributions in the capacity of homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them in order to arrive to a determination of what is just and equitable. Apart from the contributions of the cohabitants other considerations are relevant such as the needs and means of the parties and whether the contributions made by either cohabitant have been sufficiently compensated. These considerations do not have an independent bearing on the question of what is just and equitable but only general relevance to that question. It has been noted that a court cannot say that because a defendant has $11,000,000.00 and the plaintiff less than $5,000.00 it is just and equitable to make an adjustment (See Dwer v. Kaljo (1987) 11 Fam LR 785 and Evans v. Marmont  42 NSWLR 70.). The contributions outlined in section 10 are fundamental and are the focal point of the inquiry.
- It is also relevant to have regard to the context in which the contributions are made. As I mentioned in High Court Action No. 3007 of 2001 Anthony Delzine v. Judy Stowe to disregard the context may lead the Court into a misunderstanding of the significance of the contributions. It is therefore necessary for the Court to have regard to (End of page 3) the context in which the contributions were made, or as is said the contributions should not be considered in isolation from the nature and incidents of the relationship as a whole.
- In this matter the respondent sought an adjustment order in respect of a property at Perseverance Road, Haleland Park, Maraval (the Haleland Park property). This was where the parties and the children of their relationship lived as a family from about December, 1999 to the end of their relationship in or around May, 2003. It is not in dispute that the monies to acquire the property came from a sum of money that was won in the “Lotto”. This sum amounted to $1,794,559.18 (the Lotto fund). The judge concluded that although the winning Lotto ticket was bought by Anton, one of the children of the family, and subsequently given to the respondent and the Lotto fund then placed in joint accounts in the name of the appellant and the respondent, it was the common intention that the fund would be used for the benefit of the family as constituted by the appellant, the respondent and their three children. From the Lotto fund the parties bought the Haleland Park property in their joint names furnished and renovated it. As a consequence the judge correctly held that the appellant and the respondent at the commencement of their cohabitational relationship (and I would add, or shortly thereafter) owned the Haleland Park property and the balance of the Lotto fund jointly.
- For the purpose of section 10(1)(a) therefore, since the financial contributions to the acquisition and improvement of the Haleland Park property, were made from the Lotto fund, they were made by the parties equally. (End of page 4)
- Section 10(l)(b) deals with other contributions. These are not any contributions, but must be contributions made by either of the cohabitants to the welfare of the family constituted by them. The section specifically refers to contributions made in the capacity of homemaker or parent. Such contributions are not to be regarded as inferior to other contributions and are not to be assessed in a token way but in terms of their true worth to the welfare of their family. Section 10(1)(b) therefore permits a cohabitant who stays at home and takes care of the house and family while the other works to acquire an interest in the property to which that cohabitant has made no other contribution.
- The section refers to other contributions and not only those made in the capacity of a homemaker or a parent. Such contributions may be monetary or non monetary so long as they relate to the welfare of the family. But the party who has made none other than monetary contributions is not necessarily to come out the worse for it. Again such contributions are to be assessed and it be determined whether they are to be given equal or greater weight than the non monetary contributions of the other party.
- It will not be unusual that both cohabitants may claim to have made both monetary and non-monetary contributions. Here again the respective contributions are to be assessed to determine whether the contributions of one party should be given greater weight than the other. If the Court comes to the conclusion that the contributions of one of the cohabitants are of greater weight then, all other things being equal, effect should be given to that conclusion by increasing the cohabitant’s interest in the property. (End of page 5)
- One outcome therefore that section 10(1)(b) permits, and which is relevant to this case, is that it allows a cohabitant who has contributed equally in financial terms to the acquisition or improvement of the property to acquire a greater share if that cohabitant’s contributions should be given greater weight than the other cohabitant. On the other hand if it is found that that the other contributions are equal, then equality should prevail.
- In this case the contributions under section 10(1)(b) consisted of the parties’ contributions in the capacities of parent, homemaker and breadwinner. So far as parent and homemaker are concerned the judge found that the respondent made contributions that carried far greater weight than the appellant. The judge sated:-
“Although there is no direct evidence it is reasonable to assume that on the parties moving in together the respondent continued in her role as caregiver and homemaker. As well the appellant’s work up the islands would have contributed to her having the bulk of the responsibility with respect to the minor children even after the parties began to live together”.
- These are reasonable inferences that the judge was entitled to draw. The judge was clearly of the view that the contributions of the respondent as homemaker and parent were greater than the appellant’s. As a consequence the judge found that:-
â€œBy virtue of her contributions in the capacity of homemaker and parent to the welfare of the family as constituted by them during the period of the (End of page 6) cohabitational relationship that is to say December, 1997 to June, 2003 the respondent has acquired an interest in the said Haleland Park property over and above that of the appellant”
- This conclusion follows from the judge’s findings referred to above and is unobjectionable.
- The Court also considered the appellant’s role as breadwinner. The respondent had alleged that since they won the Lotto the monetary contributions of the appellant to the expenses of the home and family were reduced drastically. It appears that prior to winning the Lotto the respondent accepts that the appellant made monthly contributions of $4,900.00 to the family expenses but, the respondent alleged, that thereafter his contributions were reduced to $200.00 per week and since April, 2000 had stopped altogether. On the other hand the family’s expenses increased. In dealing with this allegation in light of the cross examination of the parties the judge stated:
“At the time of the commencement of the relationship there were two minor children of the relationship, Adam was 13 years and Marisa 2 years. The children lived with the [respondent]. According to the [respondent] after the receipt of the lotto winnings the [appellant] stopped making his usual contributions to the family and the winnings were used for the family’s expenses. Save to say that he has always looked after Marisa’s needs without assistance from the [respondent] the [appellant] has not (End of page 7) challenged this statement. Further, given the [appellant’s] evidence of his reduced circumstances since the year 2001 it is reasonable to assume that at least from that time the [appellant] would less have been able to have afforded to continue to make the contribution that he had been making previously. As well, from his evidence, the appellant had from the year 1998, the added expense of the mortgage payments for the Gittens apartments. In the circumstances, I accept the evidence of the [respondent] in this regard.
- The judge therefore went on to conclude:
“Further the failure of the [appellant] to contribute adequately to the family finances resulted in the sums of money standing to the parties benefit in the joint account and monies inherited by the respondent were (sic) spent on the day to day expenses of the family and as a result the [respondent’s] savings were depleted and the [appellant] was able to conserve his personal resources and income.”
- These findings are supported by the evidence. What the judge was in fact saying was that the quality of the appellant’s contributions as breadwinner was inadequate and in fact it could be said to be poor. When this finding is considered along with the others referred to earlier regarding the contributions of the cohabitants as parents and homemakers the inevitable conclusion, as the judge found, was that the contributions of (End of page 8) the respondent under section 10(1)(b) were to be given greater weight than the appellant.
- The question that now arises is what is just and equitable having regard to that conclusion. The judge found that there should be an adjustment to the title to the Haleland Park property in favour of the respondent so that the respondent was entitled to an 80% share of the property and the appellant to 20%. With the value of the property set at $2,650,000.00, in real terms this meant that the appellant’s share was reduced from $1,325,000.00 (being 50% of the value of the property) to $530,000.00 being 20% of the value or a difference of $795,000.00. This latter sum in essence was the value placed by the judge on the greater contributions of the respondent.
- The judge in making an adjustment order under the Act is exercising a discretion. In reviewing the judge’s exercise of her discretion an appellate court should not interfere with it merely because the court would have exercised its discretion differently. The function of an appellate court is one of review only (see Lord Diplock in Hadmoor Production & Ors. v. Hamilton & Anor  2 W.L.R. 322). It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong, that an appellate body is entitled to interfere (see G v G  2 All E.R. 225). Does the decision of the judge as to what is just and equitable in this case fall into that category of decisions that entitles this Court to interfere? This raises the question whether the value of $795,000.00 placed on the greater contributions of the respondent is supportable. (End of page 9)
- It was the respondent’s evidence, which the judge accepted, that the appellant’s monetary contributions to the household were drastically reduced after the Lotto was won in 1997. According to the evidence, the respondent’s contributions prior to winning the Lotto were over $4,900.00 per month which supported the family. The family’s basic monthly expenses by the commencement of the proceedings in 2003 increased to $7,545.75. It is therefore not surprising that the respondent can claim that the balance of the Lotto fund which, after the Haleland Park property was acquired, furnished and renovated and other things purchased, amounted to approximately $670,000.00, was depleted. In other words, because of the failure of the respondent to adequately provide in monetary terms to the welfare of the family, the Lotto fund was extinguished. Although it is true that the fund belonged in part to the appellant, when viewed in the context in which the Lotto fund was placed in the names of the cohabitants, that is to say that it would be used for the benefit of the family, then had the appellant contributed adequately in his role as breadwinner the fund would not have been depleted in the way it was but would have been available to benefit the family in other ways. Not only did the appellant fail to contribute adequately to the expenses of the family but also he was able during that time to acquire real property of his own. Quite apart from the depletion of the Lotto fund, the respondent stated that she had to meet the family’s expenses from monies that she inherited from the estate of Neville Belfon, deceased. Although there was no evidence of the amount of money that the respondent expended in this way, the judge accepted that the respondent did spend money from the inheritance and on the evidence it is not an unreasonable finding. Indeed when the family’s expenses, which appear to be but basic expenses, are considered against the balance of the Lotto fund of (End of page 10) $670,000, I have little doubt that the amount used from the estate of the deceased would not have been insignificant. Apart from these monetary considerations the judge also had to put into the mix the value of the respondent’s enhanced contributions as a homemaker and as a parent.
- I am mindful that there is evidence that the appellant contributed by his labour to the renovations to the Haleland Park property. These may be seen as an indirect non-financial contribution to the improvement of the property. The judge does not appear to have taken this into account but I can understand why because on the evidence these contributions appear to be of no real significance and in my judgment should not affect the assessment of the parties’ interest in the Haleland Park property.
- In all the circumstances, in my judgment the decision of the judge cannot be said to be plainly wrong or that it exceeds the generous ambit within which reasonable disagreement is possible. (End of page 11)