Boodoo v Suraj

Citation:           TT 2015 HC 54

Title:                 BOODOO v. SURAJ

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH01770 of 2012

Judge(s):          Smart, J.

Date:                February 12, 2015

Subject:           Family Law

Subsubject:      Co-habitational relationship – Division of property – Ownership – Whether petitioner was sole owner of property – Whether respondent made financial and/or non-financial contributions to the property.

 

Appearances:

Mis. Joan Byrne for the petitioner

Mr. Reynold Waldropt for the respondent

 

SMART, J.

EXTEMPORE (ORAL JUDGMENT

1. This application was heard on January 8 and February 4, 2015.

 

2. The applicant, Herman Boodoo seeks the following relief by way of application filed on September 4, 2012;

 

1. a) A declaration that he has lived with the respondent, Susan Suraj, in a cohabitational relationship as defined by section 2 of the Cohabitational Relationships Act, chapter 45:55,(hereinafter the Act or CRA);

 

1. b) A declaration that he is the sole owner of the property situate at L.P. 241 Talparo

Main Road, Brazil; and

 

1. c) An injunction pursuant to section 21 of the Act namely:

 

(i) that the respondent, Felicia Boodoo and Rodney Williams do immediately vacate the applicant’s premises;

 

(ii) that the respondent, Felicia Boodoo and Rodney Williams, whether by themselves their servants and or agents be prevented from re-entering or remaining in or occupying the applicant’s property pending the hearing and determination of this application;

 

(iii) An injunction restraining the respondent and Felicia Boodoo whether by themselves their servants and or agents from threatening, beating, harassing, molesting or assaulting the applicant herein.

 

3. The respondent is resisting the substantive claim regarding the property in that she is claiming a half share in same. The injunctive relief was not addressed on an interim basis but will be fully determined by the outcome of the substantive claim.

 

4. The applicant’s evidence is that he and the respondent were in a cohabitational relationship for approximately 19 years -as set out at paragraph 1 of his aj05davit sworn September4, 2012, which formed part of his evidence in chief. Under cross-examination the applicant insisted that the relationship lasted 17 years (a two year difference which ultimately is of no real significance).

 

5. The applicant purchased the land in 1997 and started to build. It cost him a total of $400,000.00 to construct the home -he borrowed money from his sister and mother and $70,000.00 from RBC. He said that the respondent made no financial contribution to the purchase of the land or the construction of the home. Furthermore, she did not physically assist with the building of the home. He hired and paid a workman, John Lewis, to build the home.

 

6. The applicant stated that the relationship between the parties was rocky and unstable, fraught with domestic violence and verbal abuse meted out by the respondent. The respondent was the primary caregiver of the children of the relationship who were born in 1993, 1998 and 2000. The applicant testified that he did not eat the respondent’s food. He is a maxi taxi driver. He ate outside when plying his taxi and usually ate at his mother’s home on Sundays. He further testified that the respondent did not clean or wash for him. The applicant wants possession of the home and put forward a plan whereby the respondent and the minor children may occupy his other property located at Brazilon Trace until the last child attains the age of 18 years.

 

7. It is not contested that the applicant left: the home in April 2012 and the respondent’s current partner, Rodney Williams moved into the home soon after. He continues to reside there with the respondent and the parties’ two minor children.

 

8. The property is valued at $1.4million, as set out in the valuation report of G.A. Farrell and Associates dated October 1, 2013. The valuation is accepted by both parties.

 

9. Selwyn Munroe, the applicant’s witness, testified that the applicant was involved in a sou-sou which he (Munroe) managed for several years. Munroe testified that the respondent was never a part of the sou sou and he never had any dealings with her.

 

10. The respondent’s position is that she made financial and non-financial contributions to the property. According to the respondent she contributed to a sou sou from the rent she collected from the tenant of a rental property owned by the applicant. However, the respondent also stated in her evidence in chief (affidavit filed on January 18, 2013 at paragraph 7) that she did not make any financial contributions to the construction of the home.

 

11. The respondent contends that her non-financial contributions were in the form of being the primary caregiver of the children and homemaker for 20 years of the relationship. Also, she testified that she “worked like a man” alongside John Lewis and the other workmen when the home was being constructed. Her labour included but was not limited to toting mortar and steel and cleaning up the yard at the end of the day as well as cooking for and feeding the workmen and supervising them.

 

12. The respondent denied that she was ever physically or verbally abusive to the applicant and testified that in fact it was the applicant who was abusive towards her. She testified that she cooked and cleaned and washed the applicant’s clothes and that she took care of him during an illness in 1998.

 

13. At paragraph 6 of her affidavit the respondent deposed that she threw a sou sou from time to time with Mr. Munroe and the proceeds of the sou sou made up her contribution to the construction costs of the home. Both the applicant and his witness, Selwyn Munroe testified that the respondent was never involved in the sou sou.

 

14. At paragraph 7 the respondent contradicted what was stated in paragraph 6 and agreed with the applicant that she never contributed any monies towards the home.

 

15. Ifindthereforethattherespondentmadenofihancialcontributionstothepurchase of the land or the construction of the home.

 

16. Regarding the non-financial contributions and the respondent’s evidence that she “worked like a man” alongside the workmen who built the home, I reviewed, the applicant’s exhibit “HCB 3” -which is his bundle of receipts and notes of expenses relating to the construction of the home. I note, according to documents, which appear to be authentic and were not challenged by the respondent, that the ground floor and top floor of the home were completed on December 12 and 17, 1997. The construction continued well into the first part of 1998 and beyond. I note also that the respondent’s 2^nd child was born in May 1998, meaning that she was likely pregnant during the periods end of December 1997 and in the first part of 1998 when the home was being built. After the birth of the baby in May 1998, the respondent then had a newborn and a child of 4 years old to look after.

 

17. While I accept that the respondent may have assisted the workmen by providing food from time to time as she deposed at paragraph 7 of her affidavit, I do not accept, on a balance of probabilities, having regard to the respondent’s pregnancy and child rearing duties, that the respondent performed the kind of robust physical labour that she described while under cross examination.

 

18. I findthattherespondent’s assistance in the form of the provision of her physical labour in the construction of the home was not likely substantial.

 

19. The applicant did not contest that the respondent was the primary caregiver of the children and that she addressed their needs in the home and to this extent I find that this to be the respondent’s non-financial contribution.

 

20. Regarding the domestic violence issue the respondent, under cross-examination, denied ever commencing domestic violence proceedings against the applicant, inspite of saying so in her evidence in chief -at paragraph 12 of her affidavit. The respondent only admitted to same when the applicant’s counsel directed her to the affidavit. The respondent was evasive and not truthful and I found her evidence to be untrustworthy. For this reason I believe the applicant’s version of events and find that the applicant was a victim of incidents of physical and verbal abuse by the respondent.

 

21. Although the domestic violence issue has no direct bearing on the issue of respondent’s entitlement, I took the opportunity to examine the evidence surrounding the issue, as it ultimately assisted the court inassessing the respondent’s overall credibility.

 

22. There were several other inconsistencies in the respondent’s testimony. For example at paragraph 8 of her affidavit the respondent denied being in a relationship with Rodney Williams while she andtheapplicantwerestillinarelationship.Butatparagraph9 of the said affidavit, she stated that she was in a relationship with Mr. Williams for two years. As the affidavit was sworn on January 18, 2013, this would mean the relationship started in at least January 2011 -a whole year prior to the applicant leaving the home. She endorsed this in her testimony during cross-examination.

 

23. Having regard to the respondent’s lack of candour regarding her relationship with the applicant, I am inclined, on a balance of probabilities, to accept the applicant’s version of events over the respondent’s with respect to the care she provided to him. It appears that the parties have not had a close relationship for some time. In fact, the parties’ adult child has a strained relationship with the applicant, which he attributed to the influence on her of the respondent’s dealings with him.

 

24. In the respondent’s affidavit at paragraph 8 she deposed that after completion of house and the birth of the children, unhappy difference arose between the applicant and herself and she remained upstairs with the children while the applicant moved to the downstairs part of the house.

 

25. I find therefore that the likely scenario in the household thereafter was that the respondent performed household duties mainly for the children and herself and that the applicant was left to more or less fend for himself.

 

 

LAW:

26. Sections 6, 7 and are the relevant sections of the Cohabuational Relationship Act as attorneys at law for both parties pointed out in their submissions. The sections state as follows

 

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 Courtfor the granting of a maintenance order.

 

7. The Court shall not make an order under section 6 unless it is satisfied that—

 

(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, and that failure to make the order would result in grave injustice to the applicant.

 

10, (1) 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 acquisition or improvement of the property and the financial resources of the partners; and

 

(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;

 

(c) the right, title, interest or claim of legal spouse in the property.

 

(2) The Court may make an order under subsection (1) as to the title or rights of a cohabitant in respect of the property of either or both cohabitants.

 

(3)An adjustment order made under this Part is binding on the parties to the proceedings, but not on any other person.

 

27. Section 7 sets out the prerequisites for making an order under section 6. It is accepted that the parties are cohabitants and have children arising out of the cohabitational relationship so the prerequisites are met.

 

28. Essentially, what the court has to determine is whether the respondent has made substantial contributions (as defined in section 10) to the property such that it is just and equitable that she be given a share in the said property. It is the applicant’s burden to prove, on a balance of probabilities, that the contributions are not substantial and therefore do not warrant the respondent being given a share of the property or altematively warrant a division which greatly favours the applicant.

 

29. I accept the submissions of counsel for the applicant that under the CRA, the cohabitational relationship spouse is not on an equal footing with the legal spouse and that the contributions are the important factor to be considered in determining adjustment order applications.

 

30. The respondent’s only contribution is that made for the family’s welfare in her capacity of homemaker and parent. The respondent did not work outside the home. While this contribution cannot be discounted or minimized, as the parties’ relationship lasted between 17and 20 years and two of the children are still under the age of 18, being 14 and 16 years, it has to be weighed against the fact that the applicant, for the most part, looked after his meals and own personal needs. Furthermore for almost 3 years continuing to the present day, the respondent has occupied the home with her new partner, who has enjoyed the comforts of this shelter rent-free.

 

31. The respondent has made no financial contributions to the property. The applicant purchased the land and borrowed the money from family and a financial institution to build the home. I have not found the respondent’s assistance in the supervision and feeding of the workmen from time to time and assisting with the construction to be substantial enough to be taken into account.

 

 

THE WELFARE OF THE CHILDREN:

32. The overriding consideration in this matter is the children’s welfare. Rule 1.1 (1) of the Family Proceedings Rules 1998 as amended states, “The overriding objective of these Rules is to enable the court to deal with family matters-

 

1. justly: and
2. in a way which, in proceedings affecting any child of the family, gives first and paramount consideration to the welfare of that child.

 

33. Counsel for the respondent’s submission in this regard is accepted. The parties have two children from this union and their best interests must be met and balanced against the rights of the parties.

 

34. The issue to be considered then is where the children would live should the applicant be allowed to return to the said property. The applicant offered a solution which is that the respondent and the children can move into his other property at Brazilon Trace. The respondent did not provide any evidence with respect to the practicality of this offer and in the circumstances this is tenable solution.

 

35. In Seetal v. Davis FH02249/2008. decided by my sister Justice Ramkerrysingh in 2014, the parties cohabited for 24 years and the applicant’s contributions were only non financial and made in the capacity of home maker. Justice Ramkerrysingh attributed a share of 15%ofthe property to the applicant.

 

36. In this matter at hand like the applicant in Seetal v. Davis, the respondent’s contributions resulted from her role as caregiver and parent. However, unlike Seetal, the applicant took care of his own needs for a period during the relationship and the respondent’s current common law partner is occupying the property rent free.

 

37. In the circumstances, having weighed all the evidence, and considered the relevant sections of the Act, I have determined that the respondent is entitled to a 10% share in the said property.

 

 

ORDER;

1) This court declares that the applicant and the respondent, not being married to each other, have lived together as husband and wife on a bona fide domestic basis.

 

2) This court declares that the applicant is the sole owner of the property situate at L.P. 241 Talparo Main Road, Brazil and that the current value of the said property is $1,400,000.00.

 

3) The respondent, her servants, her agents and her occupiers shall vacate the property situate at L.P. 241 Talparo Main Road, Brazil on or before March 31, 2015;

 

4) The applicant shall pay to the respondent the sum of $140,000.00 representing the respondent’s 10% interest in the said property in the following installments:

 

$70,000.00 on or before March 31, 2015 and,

 

$70,000.00 on or before June 30, 2015 but nothing shall prevent the applicant from making the payment in full at any time before June 30, 2015;

 

5) The respondent, whether by herself, her servants, her agents and the occupiers of the property situate at L.P. 241 Talparo Main Road, Brazil are hereby restrained from threatening, beating, harassing, molesting and or assaulting the applicant from the date of this order to March 31, 2015.

 

6) The respondent and the two minor children namely Brandon Boodoo born May 14,1998 and Laura Boodoo bom July 18,2000shallbeallowed to occupy the applicant’s property located Talparo Main Road, Brazil Village, Brazilon Trace until the last child, namely Laura Boodoo, attains the age of 18 years.

 

7) There shall be liberty to apply with respect to the timing and implementation of the order.

 

8) There shall be no order as to costs.

 

Dated February 12,2015

A Smart