Hutchinson v Gaskin

Citation:           TT 2007 HC 218

Title:                 HUTCHINSON v. GASKIN

Country:           Trinidad and Tobago

Court:               High Court

Suit No:            FH 01582 of 2006

Judge(s):          Tam, J.

Date:                November 2, 2007

Subject:           Family law

Subsubject:      Property – Cohabitational relationship – Application for an adjustment order – Real property – Land valued at $200,000 – Building valued at $200,000 – Repairs to property performed – Parties have two children – Beneficial ownership of the property was vested in the respondent – Applicant made no contribution to the acquisition of the property – Applicant made non-financial contribution as homemaker and parent – Applicant made direct financial contribution to maintenance and repair of property – Lump sum of $17,000 awarded to applicant.

 

Appearances:

Mr. R. Boodoosingh for applicant.

Ms. V. Badri-Maharaj for respondent.

 

TAM, J.:  Before the court is an application by Joycelyn Hutchinson (the applicant) filed on the 8th September 2006, pursuant to section 10 of the Cohabitational Relationships Act 1998. Section 6 of the Act provides that a cohabitant my apply to the High Court for the granting of an adjustment order, defined in section 4 (1)(a) of the Act as an order declaring a title or right in relation to property, or adjusting an interest in property.

Section 10 provides that:

 

(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.

 

THE FACTS

The parties commenced living in a cohabitational relationship in the year 1991. In 1992 they began to reside at 29, Bowen Street, Tunapuna. This property comprises of (End of page 1) a parcel of land about 5,097 square feet in area, with an old dwelling-house situated on the land. The house is described in the valuation produced to the court as a “very old building of tapia construction” standing on 3-foot pillars. The floor is constructed with timber, with walls of tapia partly plastered, ceiling of close board and decorative ply, windows of timber casement, doors of timber and timber-framed glass, concrete steps and galvanize roof. The building has a floor area of 725 square feet and consists of 3 bedrooms, a kitchen, a living room, a dining room, a toilet and a bathroom. Because of the age of the building, maintenance repairs are required. Repairs were done to the floor, the front awning, the kitchen cupboard, the tapia wall, the toilet and the concrete pillars.

The value of the land is estimated at $200,000.00, while the value of the building is estimated at $20,000.00. The value of the repairs done to the property is estimated at $7,000.00.

The parties resided in this house until about December 2004 when the respondent left because of what he considered to be unfounded allegations of abuse having been made against him by the applicant and the fear of further and similar allegations.

Although the applicant stated in cross-examination that the respondent had left the home in March 2005, her affidavit evidence states that this occurred in December 2004.

However, I accept that the respondent may have left in January or February of 2005 because he states in his affidavit evidence that he left shortly after the applicant’s application for a Domestic Violence order was dismissed. That application was dismissed on the 20th January 2005, so that it is likely that the respondent would have left the home shortly after this last date. In my view, however, nothing of significance hinges on whether the separation was in December 2004, or in January, February, or March of 2005.

The parties have 2 children, namely, Jovan (born on 4th May 1992 and now aged 15 years) and Josanne (born on 20th June, 1995 and now aged 12 years). Both children were born during the period of co-habitation and have always lived at the Bowen Street property, except for two periods of separation during the relationship. The respondent alleges that there were two extended periods of separation occurring between 1991 and (End of page 2) 2004. The applicant initially denied that there was ever any separation, but she was forced to eventually concede that this was not true. She eventually stated that she recalls the respondent putting her out. While this can have some bearing on the applicant’s credibility, it matters little since these periods of separation, when compared with the periods of cohabitation overall, appear to have been minor. In other words, although the parties may have gone through periods of temporary separation because of arguments, or disagreements, those periods do not appear to me to be significant enough for the court to conclude that cohabitation had ended at any period before the final separation occurred in January or February of 2005. In any event, counsel for the respondent did not seek to argue that cohabitation had actually ended prior to 2005.

It is not in issue that the beneficial ownership of the Bowen Street property is vested in the respondent. It was devised to him by one Beryl Mildred Greaves in her Will. Thus, it is property he inherited. Thus, the applicant would have made no contribution towards the acquisition of this property. At present, the legal title to the property is vested in one Leonard Lovell, who is the executor of the estate of Mildred Greaves. Counsel for the applicant conceded that the applicant has no claim to a share in the land and that the applicant’s claim is with respect to a share in the building.

There is no contesting the fact that the building is in a very poor state and may best be described as dilapidated. It seems that it was so even prior to the parties’ occupancy. The evidence suggests that repairs had to be carried out by the executor prior to the parties’ commencement of occupancy in 1992, that repairs were necessary throughout the entire period of cohabitation, and that that continues to be the state of affairs even to date.

The applicant contends that she shouldered the bulk, if not all, of the financial burden of the repairs during the parties’ occupancy. The respondent, in sharp contrast, contends that it is he who provided the finances for all of the repairs. The applicant (End of page 3) produced several bills and receipts in support of her contention.[(As an aside, the court notes that the bills and receipts were very sloppily presented to the court – documents in a bundle must normally be presented in an orderly fashion, usually, but not necessarily, in chronological order. The bundle should be paginated and indexed. I draw attention to the provisions of Part 29.1 of the FPR 1998)] However, I find it likely that the respondent would have provided some of the moneys to pay for repairs, especially because he was the main breadwinner of the family for most of the period of cohabitation and, although the applicant did earn income, her earnings were quite modest. It is clear that after the cohabitation ended the applicant bore the cost of any further repairs by herself. I find too that it is the applicant who was responsible for ensuring that the Land and Building taxes were paid for most of the period of the cohabitation. The receipts she provided bear this out, while the receipts provided by the respondent show that it is only after the separation that he began to make such payments.

It was observed that the respondent could offer no explanation as to why the bills and receipts produced by the applicant all carried her name and not his, save to say somewhat meekly that he had provided the money.

The evidence also points clearly to the undeniable, non-financial contribution of the applicant as homemaker and parent. It is she who bore the brunt of the responsibilities for looking after the home and the children, providing the family’s meals and ensuring the children’s general welfare. It appears that at one point she even had to obtain a court order to compel the respondent to make a financial contribution for the children. Her non-financial contribution must not be seen as an inferior contribution by any means. In my view, the tendency to still view non-financial contributions as inferior to financial contributions is to be discouraged. I find also that the applicant did make direct financial contributions to the improvement of the property through repairs over the years. In other words, had she not taken the initiative to carry out such repairs as she could afford from time to time, the property would have been in an even greater state of dilapidation. I further find that she made other contributions, far greater than the respondent, as a homemaker and a parent and that she continues to be the primary parent responsible for the welfare of the two children. As for any issue of arrears of (End of page 4) maintenance owed by the respondent, it is now accepted that the calculation by the wife’s attorney-at-law of there being some $37,000.00 in arrears was quite erroneous.

Counsel for the applicant has said that the applicant is seeking a declaration that:

 

(1) she owns a half share in the building; and (2) possesses a right to remain on the property with the children until the last child is 18 years old. I have had to consider whether this is an appropriate relief in the circumstances of this case, especially having regard to the comparatively minor interest that I find the applicant has in the property.

 

On the surface, it may not appear to be fair to the respondent to direct that he not be permitted the use and enjoyment of the property before the last child is 18 years old, approximately six years from now. I must also consider the dilapidated state of the house, and whether or not the building can last another few years without major construction and/or repair work, and therefore whether the environment is likely to be hazardous to the children’s welfare. It is on this matter of the children’s welfare that I wish to concentrate and to give paramount consideration.

Section 21 of the Act provides that the court, in exercising its powers may do any one or more of a number of things. These include the granting of a lump sum payment and the granting of injunctive relief in relation to the use and occupancy of the home occupied by the cohabitants. The respective values estimated for the land, the building, and the repairs, have already been stated. In all, I find that the applicant should be awarded a lump sum of $17,000.00 to be paid by the respondent to the applicant within six calendar months from today’s date. The applicant shall be permitted to remain in the property (provided that she remains the primary custodial parent of the children) until the last child is 18 years old, whereupon she shall vacate the property and the respondent shall be entitled to re-enter and to regain possession to the exclusion of the applicant.

I do not think that an order that compels the applicant and the two children to vacate the property in any lesser time would meet the justice of this case, unless the respondent is prepared to, and does provide proper alternative accommodation for the (End of page 5) children. Such an alternative will naturally include the applicant because she is the primary custodial parent. Should the applicant cease to be the primary custodial parent, I would be prepared to re-visit the timetable for her to vacate the property. In my view, the fact that there are minor children involved compels the court to place the welfare of those children above that of any property rights of their parents. An order that the applicant vacate the premises in any shorter period of time, given the present circumstances, would in effect be putting the children out of their home without any proper arrangements for alternative accommodation, and bearing in mind that this is the only home they have known since birth.

Finally, in relation to costs, I order that the respondent shall pay the applicant’s costs of her application, to be taxed in default of agreement.

 

Joseph Tam

Judge (End of page 6)