Blacks v Douglas

Citation:           TT 2006 HC 88

Title:                 BLACKS v. DOUGLAS

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH01796 of 2005

Judge(s):          Tam, J.

Date:                October 19, 2006

Subject:           Family law

Subsubject:      Cohabitational relationship – Maintenance – Lump-sum order – direct or indirect financial contributions – No evidence of financial contribution – Indirect contribution by bearing responsibility for a minor child – Applicant was a homemaker – Applicant was awarded lump sum of $70,000.

 

Appearances:

Mr. D. Giles for the applicant.

Mr. E. F. Hosein for the respondent.

 

TAM, J.: 1. The applicant, Loma Blacks, claims financial relief in the form of a lump-sum payment. She was never legally married to the respondent, Solon Douglas, but qualifies as a cohabitant, under the Cohabitational Relationships Act, 1998 (“the Act”), and her application before this Court is governed by the Act. As was stated in H.C.A. No. 1498 of 2006 Stewart v. Theodore, section 21 of the Act deals with the types of orders the Court can make when exercising its powers. These include the making of a lump-sum order. The Act does not contain a specific provision dealing with the principles to be applied, however, in making such an order. In other words, the power of the Court to make a lump-sum order is merely an adjunct to the Court’s jurisdiction to grant an adjustment of property rights and maintenance with respect to a cohabitant. On this basis, the applicant is essentially seeking an adjustment order in accordance with section 6 of the Act.

2. In an application under this section, the Court should have regard to the financial and other contributions of the cohabitant. Section 10 of the Act stipulates that the Court should have regard to –

 

1. A) The financial contributions made directly, or indirectly, by, or on behalf of, the cohabitants to the acquisition or improvement of any property and the financial resources of the partners; (end of page 1)
2. B) 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; and
3. C) The right, title, interest or claim of a legal spouse in the property.

 

3. An overview of relevant authorities demonstrates that paramount consideration must first be given to the applicant’s contributions in deciding what lump-sum she should be awarded. In H.C.A. No. 1651 of 2003 Albert v. Mohammed, Jones, J. declared that, `the contributions to be considered are those which were made pursuant to the cohabitational relationship, not contributions made before. As a consequence, only contributions of the applicant from the commencement of the relationship to its conclusion can be considered.’ In the instant case, that means only contributions made during the 12-year period of the relationship are relevant to the determination of the quantum of the lump-sum that the applicant should receive. The case of H.C.A. No. 3007 of 2001 Delzine v. Stowe affirms that in arriving at this quantum the crucial question is, what is just and equitable, having regard to the applicant’s contributions. Section 10 (1) of the Act states that consideration should be given to the financial contributions made directly or indirectly, by or on behalf of, the co-habitant, to the acquisition or improvement of the property and the financial resources of the partners.
4. In the instant case, however, there is no evidence of any financial contribution made by the applicant during the cohabitational relationship. The applicant gave affidavit evidence that during the period she lived with the respondent she was unemployed because the respondent did not want her to work and had assured her that he would “take care of her”. It is therefore reasonable, given the applicant’s own admissions, to assume that she made little or no financial contribution to the resources of the parties. It is also reasonable to assume that, given our culture, in the absence of evidence to the contrary, and in light of the fact that the respondent worked and the applicant served as the homemaker, that the bulk of the responsibility for looking after the minor child (Tracy Douglas), whom the parties at one time treated as their own child, (end of page 2) fell to the applicant. This can be corroborated by the fact that the respondent in his own affidavit admitted that the applicant looked after Tracey. In cross-examination he also said that it was the applicant who was mainly responsible for looking after the child and that that was the arrangement between them.
5. In this case we are primarily concerned with subsection (b) of the Act, which states that the Court should take into account any other contributions, including any contributions made in the capacity of homemaker or parent made by either of the cohabitants to the welfare of the family constituted by them. This is due to the fact that the applicant gave sworn affidavit evidence to the effect that throughout the duration of the cohabitational relationship, she stayed at home doing all the household chores, generally looking after the home, while the respondent was the one who went out to work.
6. Cases such as Albert v. Mohammed promulgate the notion that the Court is indeed prepared to place value on such non-financial contributions of a cohabitant. As an example of this, the learned Judge in that particular case was clearly of the view that the contributions of the respondent as homemaker and parent were greater than that of the applicant’s. As a consequence, the Judge found that by virtue of her contributions in the capacity of homemaker and parent to the welfare of the family as constituted by them, the respondent had acquired an interest in the property that was over and above that of the applicant’s. In Delzine v. Stowe Mendonca, J. (as he then was) alluded to the fact that even where factors other than the contributions of the parties are taken into consideration (such as the length of the relationship, any promise or expectation of marriage or opportunities lost by the applicant by reason of her contributions), the contributions of the parties are considered fundamental. They are the focal points by reference to which the Court in exercise of its discretion may make an order under the Act. In Albert v. Mohammed it was stated that the Act was retrospective in terms. It seeks to compensate the parties for their contributions rather than to ensure that the parties, as far as possible, are allowed to maintain the same standard of living on the breakdown as they enjoyed (end of page 3) during their relationship. This is, of course, different from the position of married persons governed by Matrimonial Proceedings and Property Act. Therefore, any lump-sum award should seek to compensate the applicant for the contributions she has made during the 12 years of the cohabitational relationship.
7. In my estimation, it is safe to say that throughout the extent of the relationship, the applicant did in fact make regular and fair contributions to the home and welfare of the family. She was the one who would have been responsible for the day-to-day care of the child, Tracy, as well as the running of the household, for a substantial period of the relationship, if not for the entire period of the relationship. Moreover, if we accept her evidence that the respondent did not agree to her working, this goes to one of the aforementioned factors, that is, the factor involving lost opportunities, as referred to by Medonca, J. in Delzine v. Stowe. It can be assumed that since the applicant took on the role of housewife for most of the relationship, this, in essence, inhibited her from advancing herself in the working world, or perhaps even academically. The evidence shows that the applicant worked and earned her own monies prior to the relationship. In fact the case proffered by the respondent in opposition to the application is that the applicant had been employed by him as his housekeeper only for several years.
8. The applicant is now about 39 years old and thus, may have limited opportunities for retraining or even educational and job prospects. Another factor that is relevant to the quantum of the lump-sum is whether it can be said that the applicant has already been compensated for her contributions, again as alluded to in Delzine v. Stowe and in H.C.A. No. 3454 of 2001 La Borde v. Gilbert. This requires the Court to reach some view of the value of the contributions of the applicant and some view of the value of what the applicant has already received in return. In Delzine v. Stowe Mendonca, J. also stated that such a factor lends itself naturally in considering what is just and equitable, having regard to her contributions. In La Borde v. Gilbert the judge held that `in so far as I have found that the applicant did make some non-financial contributions, I find she has been adequately compensated.’ There the applicant had already received $70,000 from (end of page 4) the respondent towards her studies while she was a student abroad. She could not have been in a position to make any contribution to the family or the resources and during that time she had still received support from the respondent. Further, she had received $37,000 after the breakdown of the relationship. The respondent also said that he gave her cash amounting to about $150,000. Gobin, J. in that case stated that `I think that $107,000 which she acknowledges she received, together with all the other non-financial benefits over the period of the cohabitation, including housing, food, travel, entertainment, is not inadequate.’ That was a case where the Court found that the applicant had already received a substantial benefit that exceeded what she had contributed.
9. It is clear, from the evidence that the applicant in the instant case spent a considerably long period of time taking care of the household and of the child. While the respondent provided her with a home, there is no evidence to suggest that he expended anything of significance on her to compensate her for her good turn. No evidence was adduced as to any travel or entertainment, or other benefit afforded her. Therefore, in the absence of any evidence to the contrary, I find that the applicant has not already been compensated for her contribution.
10. As to the allegations of impropriety on the part of the applicant, that is, her alleged affairs with one “Matthew” and with a man from ISPAT, it appears as though those allegations, even if they are true, have no bearing on the determination of a lump-sum award under the Act. Unlike the provisions of the Matrimonial Proceedings and Property Act, the Cohabitational Relationships Act does not accord any consideration to the conduct of the parties, except in so far as it relates to their contributions, financial or otherwise. Therefore, unless it can be shown that these allegations are true, and if true, that they detrimentally affect the applicant’s contributions, they have no effect on any quantum that should be awarded to her. Section 9 of the Act provides for the making of an order, which will end the financial relationship between the parties giving them a (end of page 5) clean break. A lump-sum award to the applicant should also reflect that clean break principle.
11. The length of the relationship and the financial circumstances of the parties are also relevant. In H.C.A. No. 1489 of 2002 Stewart v. Theodore the cohabitational relationship lasted for 26 years. The applicant was entitled to a one-half share in the home that was valued at $105,000. The respondent husband had offered to pay her $109,000.00, which represented half of his gratuity, in full and final settlement of her claims. Thus, under section 21 of the Act, Jones, J. ordered the husband pay that sum of $109,000. The case of Delzine v. Stowe involved an 18-year long cohabitational relationship. The respondent was a businesswoman in possession of substantial assets. In the circumstances the judge found that having regard to the applicant’s contributions, what was just and equitable was that he should receive only ten percent of the value of the assets. The applicant had asked for a transfer of part of the respondent’s interest in the property, but the judge thought it would be best in the case to make a lump-sum order instead, and so he ordered the respondent to pay a lump-sum of $351,800.
12. As stated in Delzine v. Stowe, the needs and means of the parties will also have general relevance as subsidiary factors to the question of what is just and reasonable. But the Court cannot say that because the respondent might be a millionaire and the applicant might be a pauper, for that reason it is just and equitable to make an adjustment. However, it is not, in my view, unreasonable, to bear in mind that the applicant now earns approximately $400.00 per week, an amount which just narrowly covers her needs, while the respondent’s means appears to afford him a comparatively comfortable standard of living. This is not to say that I consider him to be very wealthy. However, when I compare his assets, as against hers, I find that her assets are negligible. His assets are well over $300,000. He has given the value of the house as $400,000 but says that his ex-wife owns a half share and therefore, I value his share at the figure he has given, at $200,000. In addition, he owns a motor vehicle, which he values at $75,000. I bear in mind, however, that the vehicle is a depreciating asset, but, nevertheless, it is an income- (end of page 6) earning asset. It is a van of the TBF series. He also has a fixed deposit in CLICO, which he said was $50,000.00 and he has a small amount of shares invested in the Unit Trust Corporation, which is valued about $1,300. Those are investments, and assuming that he does not withdraw from them, they will grow overtime. He has debts, however. At the time that he gave his evidence his debts amounted to about $55,000. He owed about $30,000 still on his mortgage and about $25,000 otherwise. Assuming he has been paying, those debts have since been reduced. I estimate therefore that his net worth should be just around $300,000. Section 10 of the Act declares that, in making an adjustment order, regard should also be had to the right, title, interest, or claim of a legal spouse in the property. The respondent, as I said, claims that he owns his home jointly with Linda Williams, his ex-wife, and I have therefore taken that into account.
13. On the basis of all that I have said, therefore, it appears to me to be just and equitable that the lump-sum that is payable to the applicant, having regard to the length and duration of the relationship and to her non-financial contributions during that period, is $70,000 and I order the respondent to pay that sum to the applicant. The lump-sum is to be paid in three installments as follows:-

 

(b) $25,000 on or before the 31″ of January 2007;

(c) $25,000 on or before the 31″ of July 2007; and

(d) $20,000 on or before the 31″ of December 2007.

 

I also order the respondent to pay the applicant’s costs of the application, to be taxed in default of agreement.

 

Joseph Tam

Judge (end of page 7)