Debydeen v Mack
Citation: TT 2016 HC 356
Title: DEBYDEEN v. MACK
Country: Trinidad and Tobago
Court: High Court
Suit No: FH 01177-2012
Judge(s): Tam, J.
Date: October 10, 2016
Subject: Family Law
Subsubject: Union other than marriage – Cohabitational relationship – Property – Child – Custody – Access – Whether applicant entitled to sums representing contribution to the property – Whether interim orders for child support and access ought to be made final.
Mr. Marlon Moore for the applicant
Ms. Angelique Olowe for the respondent
1. Before the court are two applications filed by the applicant on the 13th June 2012, the combined
effect of which amounts to a claim by her for the following orders –
(a) Affirmation of a co-habitational relationship from May 2000 to June 2010;
(b) Payment of a lump sum for a one-half interest in property at 20, Petunia Avenue, Coconut
Drive, Morvant, its contents, and motor vehicle registration PBT-5130;
(c) Payment of a lump sum and/or periodic payments for her financial support
(d) Payment of child support for their son, Jude Mack, born on the 20th March 2002, plus one-
half the child's educational, medical, dental and optical expenses;
(e) Sole custody of the child with liberal access to the respondent; and
The respondent counterclaims for the repayment of $10,000.00 allegedly loaned to the applicant,
plus $5,000.00 for damage she allegedly did to his motor car.
2. The evidence of both parties is that they began living together in October 2001 until she moved
out in June 2010. There is therefore no issue regarding the existence of a co-habitational relationship
between them for that period, or regarding the granting of an affirming order. The possibility that the
application might have been filed days outside of the two-year limitation period, thereby necessitating
the leave of the court to proceed, was not seriously pursued and I therefore assume that the application
was filed before the period expired. In any event, even if it was filed outside of the time, I would be
inclined to grant an extension on the basis of undue hardship.
3. On the 26th of September 2012 an order by consent was recorded granting sole custody of the
child to the applicant, with liberal access to the respondent, who was ordered to pay interim child
support of $800.00 per month. The liberal access provision includes an interim structured access
arrangement. The applicant did not pursue her application for financial support for herself.
4. The issues remaining for determination are therefore –
(a) The quantum to be paid to the applicant for her contribution to the property, its contents and
in respect of PBT-5130;
(b) The child's financial support;
(c) Access; and
I will deal firstly with the issues of child support and access.
5. The interim order was made in September 2012 when the child was ten years old. He is now 14.
If an appropriate final order is to be made at this stage, it is necessary to have updated financial and
other relevant information to facilitate a proper consideration of the present situation. As time has gone
by, the parties might have already taken the initiative to make appropriate adjustments, as good
parenting requires, and perhaps there is now no need for the court to intervene. Unless there is now a
consent position, what I propose to do is to make final the interim order for the monthly sum, but with
leave to either party to apply at any time for a variation. Any such application will involve a consideration
of what has taken place since September 2012. I would be prepared to hear and determine such an
application at short notice. And since there appears to be no issue regarding the application for the
payment by the respondent of one-half of the child's educational, medical, dental and optical expenses, I
further propose to make final that part of the order, also with leave to apply to have the position
reviewed at short notice.
6. The order of September 2012 for liberal access provided that, as an interim order, liberal access
includes, but is not limited to: (a) access on alternate weekends from Friday at 3:00 p.m. when the
respondent would collect the child from school, until Sunday at 5:00 p.m. when he would deliver the
child to the applicant's home; and (b) access for one-half of all school vacations. This interim element
has not been made final. I am not aware of any concerns raised by the parties regarding the
arrangement and, unless there is now some issue that warrants a different arrangement, I also propose
to make it final.
7. Section 10 of the Co-habitatlonal Relationships Act provides that where an application is made for
an adjustment order, the court may make 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, (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 (c) the right, title, interest or claim of a
legal spouse in the property. There is no legal spouse in the instant case. Broadly speaking, the present
exercise involves a consideration of the financial and non-financial contributions of each party.
8. The parties have agreed the value of the property to be $250,000.00. It was bought during the
relationship and while they were living together. The respondent was the lessee and in 2005 he
purchased it from his landlady for $130,000.00 utilizing a mortgage loan from the TTMF. The monthly
installment for the loan was about $1,186.00. The applicant did not contribute to the purchase and under
cross-examination she admitted that she had not paid any of the monthly installments. Her name is not
on any of the relevant documentation.
9. In cross-examination, the respondent accepted that the applicant had worked at a variety of jobs
and was employed for most of the relationship. There is evidence that she contributed to the
development and improvement of the property by putting $3,000.00 towards the purchase of floor and
counter tiles, and by spending modest sums of money from time-to-time on household and other items
for the family, which included their child Jude, and the applicant's daughter, Jael (born January 1997)
from a previous relationship. Both parties purchased food and other items for the home. The applicant
also paid the phone bill and for Internet service. Her evidence regarding her purchase of many of the
household items and furniture has not been challenged. The respondent appears to have been pre-
occupied with giving the impression that she was generally unfaithful, violent and often drunk, instead of
refuting the pertinent issues raised by her.
10. In these types of cases, bad behaviour is not normally a decisive factor, unless it impacts upon
the matters to be considered in section 10, or upon the manner in which a party has conducted the
litigation itself. In appropriate cases, conduct ought to be taken into account. In the instant case
however, it is not relevant. In the instant case I generally prefer the evidence of the applicant because it
is largely unchallenged and a lot more relevant than much of the evidence for the respondent.
11. When they began living together, Jael was only about 4'4 years old and the respondent has
been a father-figure in her life. Soon after, Jude was born. Both parties looked after these children and
at different stages in the relationship, each assumed the role of primary caregiver. The applicant
encouraged the respondent to better his qualifications while attempting to further her own. She was not
lazy. She, and not he, was the driving force in the relationship. In my estimation, she was clearly more
financially responsible. Whenever she could, she took loans to better their situation. He sometimes
allowed the rent to go into arrears.
THE CONTENTS OF THE HOME
12. The respondent purchased a used sofa from his mother for $3,500.00. The unchallenged
evidence shows that the applicant purchased a dining room set, a DVD player, a mattress, a refrigerator
for $6,015.00, a computer, a computer desk, a computer chair and a printer, all for 6,490.00, kitchen
wares and utensils, a fan, bookshelves, bunk beds and a microwave oven, among other items. Although
from the start she made her claim in relation to the contents of the home, none of the items were valued.
I am told that this was because there seemed to be a very real probability that this issue could be
settled. But barring a settlement, the onus was on her to provide the evidence of their value. Without a
valuation, it is difficult to arrive at an accurate award. But the applicant's evidence was not challenged
and although there is no valuation, this is not the same as no value. The items in the home clearly have
some value and, in my view, it would be unfair to allow the respondent to retain the benefit of the items
without some form of compensation to the applicant. I do not think it excessive to arrive at a
conservative value of $30,000.00, which I consider to be on the lower side.
MOTOR VEHICLE PBT-5130
13. Prior to this vehicle, the parties owned a car that the applicant says she put $2,000.00 towards
its purchase. The respondent sold the car for $4,000.00 and retained the proceeds. When PBT5130 was
acquired, the applicant did not contribute its purchase, but there is evidence that she paid for repairs
and maintenance. The value of the vehicle has been agreed at $15,000.00. In respect of the
respondent's claim for damage to the vehicle by the applicant, I am not convinced that he has made out
a proper basis for this claim and it is accordingly refused.
THE SECOND MORTGAGE
14. After the relationship had ended, the respondent took out a second mortgage on the property.
He said that the applicant knew beforehand, but she disputed this and said that she did not find out until
after it was a done deal. In my view, whether she knew before or not is immaterial, and counsel for the
respondent rightly conceded that since it was taken after the relationship had ended and did not include
her, it should not be taken into consideration. At the same time, and paradoxically enough, counsel then
submitted that "because it exists", it should be taken into account when calculating the equity in the
15. The applicant acknowledged that she had received the benefit of $10,000.00 voluntarily given to
her by the respondent from the mortgage proceeds. She had not asked him for this money and perhaps
it was his way of inducing her to reconcile. Counsel for the applicant submitted that this was a gift and
not to be taken into account, while counsel for the respondent argued that it was a loan to be repaid.
While I am convinced that the sum should be taken into account in considering the lump sum to be
awarded because the applicant has benefitted from it after the relationship had ended, I am not
convinced that the respondent has established that it was a loan. Except to that limited extent, the
second mortgage should not be taken into account because: (a) it was taken by him after the
relationship had ended; (b) she played no part in the transaction; (c) she did not know of it until after it
was completed; and (d) he had the full benefit of the sum borrowed to do as he pleased and he has not
accounted for what he did with most of the proceeds.
SUMMARY AND CONCLUSION
16. Both parties made significant financial contributions and, although the respondent made the
greater financial contribution, I find that the applicant has made the greater non-financial contribution to
the home and the family. I also find that without her contributions, both financially and non-financially,
the respondent was unlikely to afford to purchase the property and the vehicle. He often found himself in
arrears of his financial commitments and I have already concluded that the applicant was the more
financially responsible partner. Her nonfinancial contributions were significant and in the overall context
of the family's situation should not be viewed as being inferior to the respondent's greater financial
contributions. In my view, it is fair in all the circumstances to award her a one-half share and interest in
17. At the time of the trial, the agreed value of the property was $250,000.00 with an outstanding
mortgage balance of $139,000.00. Thus I calculate the equity to have been $111,000.00. I have
conservatively estimated the contents of the home to be valued at about $30,000.00 and the parties
agreed the value of the vehicle at $15,000.00. The total net value of the assets is therefore $156,000.00.
The applicant is entitled to one-half amounting to $78,000.00 less $10,000.00 already received. I
therefor propose to award her a lump sum of $68,000.00.
18. This is a case that the parties should have settled. Most of the applicant's evidence is
unchallenged. I was informed that agreement had been reached on two of the major issues, i.e.,
concerning the property and the motor vehicle, but not on the contents of the home. It would therefore
have been less costly and time-consuming to proceed to have the contents valued, thereby making it
easier to have settled that outstanding issue. Instead, I was told that the respondent opted to proceed to
trial on all the issues, which, of course, is his right. But if a party chooses to litigate, especially in
circumstances where key issues have been resolved through negotiation and settlement, that party also
accepts the risk of being penalized in costs. In these circumstances, I propose to order that the
respondent pay the applicant's costs, to be taxed in default of agreement.
19. In all the circumstances, I make the following order –
(a) The court hereby affirms that a co-habitational relationship existed between the applicant
and the respondent from October 2001 until June 2010;
(b) The applicant is entitled to a one-half share and interest in –
(i) the property at 20, Petunia Avenue, Coconut Drive, Morvant;
(ii) the contents of the home at that address; and
(iii) motor vehicle registration PBT-5130;
(c) The respondent shall pay the applicant a lump sum of $68,000.00 in lieu of her one-half
share and interest by 4:00 p.m. on the 30t December 2016 and, upon payment, her interest
shall be extinguished;
(d) The interim order dated the 26th September 2012 for structural access shall hereby be made
final and shall continue until the child is 18 years old, or until further order;
(e) The interim order dated the 26th September 2012 for child support shall hereby be made
final and shall continue until the child is 18 years old, or is no longer receiving full-time
schooling or training (whichever is later), or until further order;
(f) The parties shall have leave to apply at any time to review the issues of access and child
(g) The parties shall have liberty to apply; and
(h) The respondent shall pay the applicant's costs, to be taxed in default of agreement.
Dated this 10th day of October 2016
Judicial Research Counsel