James Action, Re

Citation:           TT 2016 HC 117

Title:                 JAMES ACTON, RE

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 01886 of 2014

Judge(s):          Lambert Peterson, J.

Date:                February 4, 2016

Subject:           Family Law

Subsubject:      Whether a co-habitational relationship existed between the applicant and the deceased.

 

Subject:           Administration of Estates

Subsubject:      Share of the deceased’s estate to which the applicant was entitled.

 

Appearances:

Mr. Marlon Moore, Ms. Krystal Alexander and Mrs. Aasma Al Rawi-Sinanan for the applicant

Mr. Kweku Wilson for the Interested Parties

 

PETERSON, J.

BACKGROUND:

1    Acton James (hereinafter referred to as the applicant’) and Jennifer Ramdhan (hereinafter referred to as ‘J.R.’) shared a lengthy relationship of over thirty years. The applicant filed an application (hereinafter referred to as ‘the substantive application’) seeking that the court affirm that a co-habitational relationship existed between himself and J.R. The applicant also sought the court’s declaration of the quantum of the share of J.R.’s estate to which he, as the surviving cohabitant, is entitled. Two affidavits of the applicant and the respective affidavits of Sandra Cleghorn and Calvin Noel were filed in support of the substantive application,

 

2. J.R.’s four children were served with the substantive application and supporting affidavits. Two of the children opposed the application, Christopher Ramdhan and Carryl Ramdhan (hereinafter jointly referred to as the interested parties’ and referred to respectively as ‘Christopher’ and ‘Carry!’). The interested parties are not the applicant’s children. In addition, Carryl filed an application on 11th December 2014 seeking an order that the court dismiss the substantive application. Carryl and Christopher each filed an affidavit in support of Carryl’s application. In their affidavits the interested parties make no reference to the applicant’s principal affidavit or the affidavits of Sandra Cleghorn and Calvin Noel, even though those affidavits were served on them on the 13th October 2014 and the 14th October 2014.

 

 

CASE FOR THE APPLICANT

3. The applicant claims that he and J.R. lived together as man and wife since approximately 1984 and cohabited until her death. According to the applicant, he and J.R. lived together at L’anse Mitan, Carenage for a period of approximately ten (10) years and thereafter lived together at Finch Drive, Maloney for a period of approximately nineteen (19) years until her death. J.R. was married during much of the co-habitational period, but her spouse predeceased her in 2011.

 

4. Initially J.R. was unemployed but later acquired employment as a domestic worker. The applicant is a taxi-driver and in times past was a mason. He and J.R. shared the financial responsibilities of the home, although the money paid towards acquiring Maloney house was secured by J.R. They shared the utility and household expenses. Their respective children are now all adults, but when the children were younger, both parties contributed to their care.

 

 

INTERESTED PARTIES’ CASE

5. Christopher Ramdhan refutes the applicant’s claim that the applicant lived with J.R. in a co-habitational relationship whether at Carenage or at Maloney. He contends that the applicant and J.R. instead had a visiting relationship.

 

6. Carryl Ramdhan also maintains that the applicant and J.R. never lived together at Carenage or at Maloney. She claims that the applicant would sleep over at J.R.’s house from time to time mostly on weekends, but he resides with his mother. Carryl claimed that she and her son’s father were the ones that contributed financially towards the household bills at J.R.’s home.

 

 

ISSUES

7. The two issues to be determined are:

 

1. Did the applicant and J.R. share a co-habitational relationship?

 

1. If so, what is the quantum of the share of J.R.’s estate to which the applicant, as the surviving cohabitant, is entitled?

 

 

ANALYSIS

8. The applicant must prove on a balance of probability that the relationship between him and J.R. meets the criteria outlined in section 2 of the Distribution of Estates Act which defines a co-habitational relationship as:

 

‘the relationship between cohabitants, who not being married to each other, have lived together in a bona fide domestic relationship .far a period of not less than .five years immediately preceding the death of either cohabitant. ‘

 

9. In this case the Court is being asked to affirm a co-habitational relationship, and to make a declaration that would affect the distribution of J.R.’s estate. Cases concerning the distribution of estates sometimes attract false and hollow claims. The Court is mindful that in these proceedings J.R. is obviously not able to define or defend her relationship with the applicant and it is because of these circumstances that the Court has ‘jealously scrutinized’ [Stauble v. Bholai HCA 803/76] the evidence presented. The Court’s decision determines whether the applicant will be entitled to half of J.R.’s estate or whether he will not be entitled to share in her estate.

 

10. The interested parties characterized J.R.’s relationship with the applicant as a visiting relationship. The Court is mindful that the interested parties also have an interest in the outcome of these proceedings, and stand to gain twice the share of J.R.’s estate if the relationship between the applicant and J.R. is not affirmed as a co-habitational relationship.

 

11. Both Attorneys-at-Law in their closing submissions commended the case of Delzine v. Stowe H.C.A. 3007 of 2001 to the court. That case was cited with approval in the Court of Appeal, and is relied on by this court in determining this matter. The Court therefore considered all the circumstances of this case including the factors identified by the Honourable Mr. Justice Mendonca, as he then was.

 

 

THE DURATION OF THE RELATIONSHIP

12. The applicant contends that he and J.R. started a relationship in 1982 or thereabout which lasted until her death on 23rd April 2014. Given that their son was born in March 1984, the Court infers that the applicant and J.R.’s relationship started in 1983. No independent proof was presented that the applicant and J.R. lived together either in Carenage or Maloney. Christopher in his affidavit deposed to the fact that in Carenage the applicant stored groceries in J.R.’s bedroom and “All the house hold knew better than to interfere with his things”. Carryl deposed in her affidavit that at Maloney “Acton James would buy his own food and take care of himself:”

 

13. From the evidence as a whole, the Court infers that it is more probable that the applicant did purchase groceries for use in the household as he claimed, but he exercised greater control over the use of those groceries than the interested parties thought reasonable.

 

14. Of significance is the applicant’s evidence in his second affidavit that he moved out of the Maloney house after J.R.’s funeral in part because of the tension in the home. Having previously suffered a heart attack, he accepted his parents’ invitation to stay at their home for a while. The Court did not consider his action in leaving the home in those circumstances to be unusual. People react differently to the same circumstances, and the applicant’s explanation of his reasons for leaving the Maloney house do not appear to be inappropriate or unreasonable, given the circumstances.

 

15. Carryl was asked in cross examination “Given that [the applicant] moved out after the burial of your mother, it meant that relationship continued for a period of time?” To which she responded “Coming down to the last.” She was further asked “Do you agree that [the applicant! was in a relationship for the last 1,2,3,4,5,6 years?” To which she responded “About that.” Christopher also agreed that the applicant moved out of the Maloney home after the burial. Implicit in the uncontroverted evidence that the applicant moved out of the Maloney home after J.R.’s burial is the fact that he was living there; and was not merely a visitor as the interested parties would have the Court believe.

 

 

THE NATURE AND EXTENT OF COMMON RESIDENCE

16. In Sandra Cleghorn and Calvin Noel’s respective affidavits, they each claimed to have visited J.R. and the applicant as a couple in the Maloney house. Neither of them were cross-examined on their evidence.

 

17. Ms. Cleghorn was not present at the trial due to a medical emergency in her immediate family, and the applicant’s Attorney-at-Law after an initial application for an adjournment opted to proceed with the trial. Ms. Cleghorn deposed that she lived one house away from J.R. and the applicant, she knew them from 1995 and would regularly visit their home. She claimed that they moved in with their four children, and lived happily together in the Maloney house. She claimed to have a close relationship with the couple, and deposed that to the best of her knowledge there were no periods of separation between J.R. and the applicant up to J.R.’s death. Since her evidence was not tested by cross-examination, the Court did not rely on any of Sandra Cleghorn’s evidence that contradicted that of the applicant or the interested parties. Neither interested party filed an affidavit in answer to Ms. Cleghorn’s affidavit.

 

18. At the trial, Calvin Noel was sworn in, stated his name, address and testified that his occupation was a Cook [The deponent had in his affidavit described himself as a Minister of Religion]. He testified that he had filed an affidavit, but it contained errors which he wished to correct. He was, however, unable to identify his affidavit, and he was not cross examined. The Court did not rely on any aspect of Calvin Noel’s affidavit, notwithstanding that the interested parties did not file an affidavit in opposition to that affidavit.

 

19. The applicant testified that approximately ten years prior to J.R.’s death, he asked her if she was engaging in an intimate relationship with G., one of her co-workers. J.R. denied that she was in such a relationship, but the ensuing argument between the applicant and J.R. caused them to separate. The applicant’s evidence of the nature of the relationship that he and J.R. shared and the extent of common residence between the applicant and J.R. particularly in the years subsequent to their reconciliation is sheathed in generalities.

 

20. The interested parties contend that the couple shared a visiting relationship. Both interested parties gave evidence that J.R. was engaged in concurrent intimate relationships. In evaluating that evidence, the Court is guided by the dicta of Honourable Madame Justice of Appeal Margot Warner in the case Irwin Mohammed v. Jasmine Albert Civ App 165/2004 that “It is no part of the court’s !Unction to carry out a detailed sociological analysis of the relationship or to pass moral judgment.”

 

21. The court is mindful that J.R. and the applicant jointly swore to two statutory declarations in 1999 and 2006 – during the years that the interested parties claim that their mother was in an intimate relationship with one G.P. In the 1999 statutory declaration, J.R. identified her relationship with the applicant as a ‘common law’ relationship. In Trinidad and Tobago, the term ‘common law’ relationship or marriage refers to an arrangement where an unmarried couple holds themselves out to be, or acts in such a way that others view them as, being married to each other.

 

22. The interested parties also allege that J.R. and the applicant had an argument in 2004 and as a result the applicant stayed away from the Maloney premises for three years. [Carryl in her affidavit deposed that he stayed away for 4 years] When that case was put to the applicant in cross-examination, he testified that he and the applicant were separated for a year. The second joint statutory declaration was sworn on 12th September 2006. Its existence assists the court in making a finding on the evidence of the parties about the duration of the separation. The interested parties’ case (if true) would mean that the applicant and J.R. together swore to the second statutory declaration during their period of estrangement, which the Court considers improbable.

 

 

WHETHER OR NOT A SEXUAL RELATIONSHIP EXISTS

23. It is clear that the couple had a sexual relationship since there is uncontroverted evidence that the applicant is the father of J.R.’s son Stephen Acton James born 20th March 1984. At the time of her death, J.R. was 61 years old. Given that she was medically unwell for some time prior to her death, the Court attaches little weight to whether the couple had a sexual relationship up to the time of J.R.’s death as an indicator of whether a co-habitational relationship existed between them.

 

 

THE DEGREE OF FINANCIAL DEPENDENCE OR INTERDEPENDENCE AND ANY ARRANGEMENT FOR FINANCIAL SUPPORT BETWEEN THE PARTIES

24. There is no independent proof of financial dependence or interdependence between J.R. and the applicant. It is the applicant’s evidence that when he met J.R. she was unemployed, and he was responsible for the household expenses which included paying the rent, the utility bills and purchasing groceries. When she became employed, however, he and J.R. combined their incomes to support the household. He deposed that they shared all of the financial responsibilities; and in addition J.R. generally took care of him and the family. He testified that he did not contribute financially to the acquisition of the home at Maloney, because that was a personal arrangement between J.R. and Lynette Wiltshire-Moore, her best friend. He and J.R. had agreed that he would subsequently be a co-owner of the premises. To that end, he contributed financially and physically to the renovations, and he and J.R. prepared the 1999 statutory declaration. In cross examination, both interested parties admit that the applicant completed aspects of the house renovation at Maloney, however, Caryll contends that he was paid for the work he did.

 

25. With respect to the critical years (commencing with the couple’s reconciliation and the applicant’s return to the Maloney home and concluding with J.R.’s death) Christopher only visited the Maloney home periodically at weekends. Carryl lived nearby, and it was only on J.R.’s death that she moved into the Maloney home. Most of interested parties’ evidence concerning the financial arrangements between the parties consists of what they have been told by third parties. As such the Court attached little weight to their evidence that the applicant made no financial contribution to the home.

 

 

THE OWNERSHIP, USE AND ACQUISITION OF PROPERTY

26. The applicant had initially deposed that he and J.R. purchased the property at Maloney from a friend of J.R. All the documents and transactions exhibited to the applicant’s substantive affidavit are solely in the name of J.R. In cross-examination, the applicant testified that J.R. intended to approach the Housing Development Corporation so that the applicant would own the property jointly with her. This evidence is supported by the 1999 statutory declaration exhibited as “A.J.5”.

 

27. The Court is satisfied that the Maloney property was acquired by J.R. for the family’s use, and to that end the applicant did the renovations which included tiling the kitchen, living room and bathroom, rebuilding the cupboards in the kitchen, plumbing and electrical rewiring of the property. He provided no independent evidence that he expended money in order to complete these renovations.

 

 

THE DEGREE OF MUTUAL COMMITMENT TO A SHARED LIFE

28. The applicant exhibited undated family photographs as “A.J.9” to his principal affidavit. He deposed in his second affidavit that when J.R. got sick, he cared for her, took her to the doctor and contributed financially to her medical expenses. The applicant deposed that Carryl only assisted J.R. now and then, because most of the time he assisted J.R. This is fiercely refuted by the interested parties. They stated in their respective affidavits that the applicant never assisted J.R. in her time of illness – physically or financially. Carryl stated that she cared for J.R. during her illness.

 

 

THE CARE AND SUPPORT OF THE CHILDREN

29. The applicant deposed in his affidavits that he took care of the needs of the family which included their son Stephen and J.R.’s other children. This was disputed by the interested parties who maintained that their biological father maintained them. Even from Christopher’s evidence this was not so, since Christopher attributed the nights that they went to sleep hungry to the fact that groceries purchased by the applicant remained in J.R.’s room. No specific evidence was put before this Court showing in what way the applicant cared for and supported the children. The interested parties grudgingly admitted during cross-examination that the applicant was a step-father to them. He deposed that when they were children the interested parties refused to assist with Christmas cleaning, and that was a source of contention between them. This is a clear example that during the material time (that is during the children’s childhood) the applicant sought to exercise some parental responsibility with respect to them. All the children are now adults, so the Court attributed little weight to this factor as an indicator of whether a co-habitational relationship existed between the applicant and J.R. up to the time of J.R.’s death.

 

 

THE PERFORMANCE OF HOUSEHOLD DUTIES

30. The applicant simply stated that J.R. looked after the family, and he worked and took care of the expenses. In his second affidavit, the applicant made mention of being responsible for the household expenses which included paying utility bills and purchasing groceries. The interested parties’ evidence is that the applicant never assisted physically in the home or lent support financially to the household. From the evidence as a whole, the Court infers that it is more probable that the applicant did purchase groceries for use in the household as he claimed, but he exercised greater control over the use of those groceries than the interested parties thought reasonable.

 

 

THE REPUTATION AND PUBLIC ASPECT OF THE RELATIONSHIP

31. The two joint statutory declarations of J.R. and the applicant are clear examples of the reputed relationship of the couple. No court can lightly disregard two statutory declarations made by J.R. confirming the nature of her relationship with the applicant. The first joint statutory declaration of the parties was in 1999 [See paragraphs 21 and 26 above] and the second in 2006 [See paragraph 22 above]. This court attaches significant weight to these sworn statements because the statutory declarations made by J.R. are statements against her interest. Further, the statutory declarations were not made for the purpose of any court proceedings. The Court, therefore, prefers to rely on the manner in which J.R. publically defined her relationship with the applicant.

 

32. Carryl testified that she is familiar with J.R.’s funeral programme, which was paid for by the applicant and prepared on his instructions. In that programme and the fact that in it J.R. was referred to as the wife of the applicant. There is no evidence that Carryl (or anyone else for that matter) at the funeral or at any time challenged the applicant about that statement in the funeral programme. Christopher testified that he had not seen the funeral programme before. The funeral programme and the two statutory declarations are significant public statements of the relationship of J.R. and the applicant.

 

33. The Court is nevertheless mindful that the mere referral of the applicant as J.R.’s common law husband that in the 1999 statutory declaration, does not in itself establish that the applicant has satisfied the legal requirements to be affirmed by the Court as a cohabitant. Neither does the fact that J.R. was referred to in the funeral programme as the applicant’s wife establish that the applicant has satisfied the legal requirements to have the relationship that he shared with J.R. declared a co-habitational relationship. Section 2 of the Distribution of Estates Act requires that the Court be satisfied that the couple shared a bona fide domestic relationship of at least five years immediately prior to the death of a cohabitant.

 

 

THE SENSE OF PERMANENCE AND STABILITY IN THE RELATIONSHIP

34. There is evidence that the relationship between the applicant and J.R. lasted approximately three decades. Again, the court is guided by the dicta of Honourable Madame Justice of Appeal Margot Warner in the case Irwin Mohammed v. Jasmine Albert Civ App 165/2004 that “the requirement of ‘good faith ‘ [‘bona fide domestic relationship’] underscores the fact that the relationship that is transient, or casual will not suffice….Each case must be determined on its peculiar factors. The interpretation must accord with common sense by that observation I mean that it must be borne in mind that different people behave in a diversity of ways in similar situations.” There is no evidence that either J.R. or the applicant acted in any way intended to bring the their cohabitation to an end.

 

35. In coming to its decision, the court considered all the filed documents save that of Lynette Wiltshire-Moore. Ms. Wiltshire-Moore is the person who sold the Maloney house to J.R. On 29th May 2015, the Court granted leave to Lynette Wiltshire-Moore to file and serve an affidavit in answer to the applicant’s affidavits on or before the 31st July 2015. She filed an affidavit in these proceedings on 22nd January 2016 – six months after the time limited for filing that affidavit. The affidavit was filed one working day prior to the trial. Given the objection of the applicant’s Attorney-at-Law, who wished the trial to proceed and argued that his client would have been prejudiced by the use of the affidavit, the Court did not allow the interested parties to rely on or use the affidavit of Ms. Wiltshire-Moore.

 

36. Cognizant that all of the identified indicia of a bona fide domestic relationship need not be present in each case in order for the court to make a finding that a co-habitational relationship existed, the Court considered all of the evidence in light of the statutory requirements outlined in section 2 of the Distribution of Estates Act. The Court attached significant weight to the repute, public aspects, permanence and stability of the relationship between the deceased and the applicant. The Court accepts that the applicant and J.R. remained in their accustomed co-habitational arrangement until J.R.’s death.

 

37. The Court kept in mind that the applicant’s ultimate aim in filing his application is his claim for a share of the J.R.’s estate, and that such an aim might provide a powerful motive for the applicant to misrepresent his relationship with J.R. Nevertheless, considering the evidence as a whole, it is more probable than not that the applicant and J.R. did have a co-habitational relationship for a period of not less than five years immediately preceding J.R.’s death. Having established that a co-habitational relationship existed between J.R. and the applicant, the applicant as the surviving cohabitant is entitled to a half share of J.R.’s estate pursuant to sections 25(1) and 24(4) of the Administration of Estates Act.

 

 

DECISION

• The Court affirms that a co-habitational relationship existed between the applicant and Jennifer Helenore Ramdhan who died on 23rd April 2014;

 

• The Court declares that the applicant is one of the persons entitled to apply for grant of letters of administration of the estate of Jennifer Helenore Ramdhan;

 

• The applicant is entitled to one half share of the estate of Jennifer Helenore Ramdhan; and

 

• No costs having been sought by the applicant, the Court makes no order as to costs.

 

• The application of Carryl Ramdhan filed on 11th December 2014 is dismissed, with no order as to costs.

 

Dated this 4th day of February, 2016

Betsy Ann Lambert Peterson

Judge