19 July

Kipps v Lord

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in Family Law - Cohabitation

Citation: TT 2009 HC 4

Title: KIPPS v. LORD

Country: Trinidad and Tobago

Court: High Court

Suit No.: FH 547 of 2008

Judge(s): Gibson, J.

Date: (undated) 2009

Subject: Family law

Subsubject: Cohabitation – Property Adjustment – s.10 Cohabitational Relationships Act – Promise to marry – Both names on deed – Downpayment for property provided by mother of respondent and mortgage payments paid by respondent until default when paid for by respondent – Court awarded 45% interest to respondent.

Appearances:-

Mrs. Hayma Ramdhanie Seemungal for the applicant.

Mr. Brian Busby for the respondent.

GIBSON, J.: The applicant by Notice of Application for Financial Relief dated 27th March 2008 has applied for an order for property adjustment pursuant to Section 10 of the Cohabitational Relationships Act, 1998 (hereinafter referred to as the Act) with respect to property situated at LP # 10 Celestial Crescent, Paradise West Tacarigua.

At the onset of the hearing of this Application both parties agreed by joint application that contrary to the requirements of S (8) of the Act that their relationship formerly ended on a bona fide domestic basis more than 2 years before the date of the filing of this application.

Section 8 of the Act states

“(1) Where cohabitants have ceased to live together as husband and wife on a bona fide domestic basis, an application under this part shall be made within two years after the day on which they so ceased to live.

(2) The court may grant leave to a cohabitant to apply for an order after the expiration of the period referred to in subsection (1), if the court is satisfied that not to do so would cause undue hardship to the cohabitant or a child of the cohabitational relationship.”

Leave was granted to the parties to extend time pursuant to s. 8(2) and to proceed with the Application for an adjustment order on the basis that not to do so would cause undue hardship to the cohabitants.

Further, the respondent expressly abandoned her cross application dated 12th June 2008 for the following reliefs

(a) that the applicant do pay the arrears on the mortgage installments and do pay the mortgage installments for one year from the date of this order;

(b) a maintenance order for herself.

Subsequent to the hearing of this matter both counsels for the applicant and respondent were invited to address the court on the issue of the respondent’s mother intervening and participating as a third party in these proceedings. It was decided that in the circumstances of her illness among other things that this step was unnecessary.

BACKGROUND

The undisputed facts record that the parties first met in April 1995 and subsequently commenced an intimate relationship. In April of 1986 the parties secured a mortgage with Home Construction Limited for the property located at LP# 10 Celestial Crescent, Paradise West, Tacarigua. The property was registered in their joint names. The parties lived at the said premises for approximately 9-10 years, from 1996 to 2005 or 2006 when the applicant admits that he left the said premises.
The parties agree that the down payment for the property in the sum of $45,000.00 was advanced by the respondent’s mother who also expended a further $26,000.00 to facilitate repairs to the said premises prior to their taking possession. In July 1996, the respondent, her mother and her son moved into the home. The applicant moved in at the end of 1996. The respondent bore sole responsibility for the monthly mortgage payment from 1996 to 2002 and the applicant took over those payments upon the respondent’s default from 2002 to present. Though parties have disputed the periods in question, it is the finding of this court based on their respective documentary and other evidence relating to the payment of the said mortgage, that the above periods stated do in fact represent the correct position.
The applicant asserts that the respondent’s mother provided the down payment of $45,000.00 as a gift. The respondent however disagrees with this assertion and insists that the circumstances which led to her mother’s advance of the down payment had nothing to do with a gift to the applicant. The respondent argues that both herself and her mother were in the process of obtaining a home but were constrained to include the applicant after they realised that they could not qualify on their own to obtain a mortgage. It was at this point, she argues, that she approached the applicant to have his name added to the mortgage so as to meet the financial requirements of the mortgage company. She argues that this was no more than a convenient device to aid her qualifying for the said mortgage. She claims that the applicant agreed and he obliged with the understanding that she alone would be responsible for the mortgage payments.

The respondent further claims that the applicant promised to marry her and as such she acted upon reliance of this promise as well and included his name on the deed. The parties never married.

THE ISSUES

The primary issues for the court’s consideration are as follows:-

What is the nature of the applicant’s interest in the said property
Whether the respondent’s mother acquired an interest by virtue of her contribution to the purchase of the property in question
Whether the applicant is entitled under s. 10 of the Act to an adjustment property order.

ISSUE NO. 1

The applicant and the respondent hold the property in their joint names

The general rule of equity provided that where a purchaser directs that property bought from his resources be conveyed into the name of another person, then such property will be held on a resulting trust for the person providing the purchase money. This principle is of course based upon the true intention of the purchaser and can therefore be rebutted where the relationship between the parties suggests a contrary intention to make a gift. In such a case the resulting trust will be displaced by a presumption of advancement.

The respondent in her affidavit dated 12th June 2008 gave two reasons for including the applicant’s name on the deed.

(1) The applicant promised to marry her and she relied on the promise.

(2) By joining the applicant she would now be able to secure a mortgage for the said property, for which she was previously rejected.

(1) In the absence of an expressed agreement to marry the court is required to rely upon the conduct of the parties to determine whether there was in fact a common intention to marry. The respondent alleges that the applicant promised to many her and further that she relied upon this promise and consequently included his name on the deed. She further stated that had she known at the time that the applicant was deceiving her and had no intention of marrying her she would not have asked him to join in the mortgage. The applicant denies ever making such a promise and in fact insisted that the issue of marriage at that period in time in question was never discussed.

It can not be sufficient for one party to believe or presume that the other would marry him or her merely because they are in a relationship for a period of time, nor is it sufficient to presume marriage because parties in a relationship express an intention to cohabit. The intention to marry must be clear and unequivocal and it must be a common pursuit between the parties. Where therefore, as is the present case, one party is denying any such common intention, the court in the absence of an expressed agreement must draw upon the conduct of the parties to determine whether there was a common intention to marry.

The respondent outlines that the idea of obtaining a property was first discussed between both herself and her mother sometime in September 1995. She advanced much details about their process in choosing the property in question. She related that the applicant was in no way connected or involved in this process. The court accepts the respondent’s chronology of events leading to the selection of the property. In any event the respondent has exhibited all her receipts in support of her claim. Having selected the property the respondent’s mother made the down payment of $45,000.00.

It is apparent from the evidence that up until this point, the applicant had only limited knowledge of the respondent’s plans and in fact admits that he had no knowledge of a second property upon which the respondent, her mother and a Mr. Leggerton made a down payment. In short I find that he had no intimate knowledge of the process involved in obtaining the property.

The applicant first states in his affidavit that he met the respondent in April 1995 and that in or around September 1995 he states further, “we decided to purchase our home”. The applicant in cross-examination stated that:-

“The only property I knew about is when her mother decided we were going to buy a property, that was at a later stage and that happened in January 1996.”

Later on in the said cross-examination he stated:-

“we were aware of the transaction when we decided that we were going to buy the property together me and Marva…. She was looking for property; I was looking for property for myself.

Close attention must be paid to the contradictory language used in both instances by the applicant who eventually concluded that “we agreed that her mother could also live in the property”

The entire down payment as well as the cost of the initial renovation was paid for by the respondent’s mother. The applicant made no contribution to the property until somewhere in 2002 when he was constrained to take over the mortgage payments previously paid by the respondent. He was not even aware of the actual cost of the initial renovations to the home that they both decided to purchase.

The applicant indicated that he did not move into the premises at the same time with the respondent. While the actual date is in dispute what is important to note is that the applicant did not see the need to take up occupation for at least six months with the respondent, her son and her mother. He continued living in Chaguanas with his mother and moved into the said property “when he felt it was time to move in”. This cannot be considered usual behaviour for a first time homeowner or someone contemplating marriage.

Consequently I find that there is no evidence to support the respondent’s claim that she so acted based on the applicant’s intention to marry her. While his conduct show’s his intention to cohabit eventually, it falls significantly short of conduct that can be construed as conveying a clear and unequivocal intention to marry. The respondent’s claim herein must therefore be rejected.

Further the court finds that there may have been an expectation on the part of the respondent but this arose subsequent to the purchase of the property. The respondent stated at paragraph 9 of her affidavit:

“In or about December 1996. I found out about the applicant’s involvement with a woman a relationship which was longstanding that the applicant had not informed me of When I confronted the applicant with this, he said he would terminate the relationship and I trusted that he would. In or about January 1998 the applicant moved into the property and made his intention known to me that we would get married when he had finished his degree at UWI”

While the date on which the applicant took up residence at the said home may have been in dispute, what is abundantly clear is that the alleged promise to marry came long after the acquisition of the property in question. It therefore cannot be reasonable for the respondent to suggest that she included the name of the applicant on the deed or that she made such a decision in reliance on his promise of marriage. The promise to marry whether expressed or implied must have occurred prior to the acquisition of the property in order for the respondent to rely upon this conduct as being the basis for her decision to include the respondent’s name on the deed.

This brings us to the second limb of the respondent’s claim which the court accepts to be more feasible in these circumstances, that is, that the inclusion of the applicant’s name on the Mortgage deed was at most a convenient device to assist the respondent and her mother who was already 66 years old at the time, in meeting with the pre qualifications required by the mortgage company in order to obtain a mortgage. I find that the respondent and her mother intended to purchase a property for their own use and benefit with or without the assistance of the applicant. His inclusion in the transaction allowed them to achieve their objective. Consequently I find that the applicant holds the legal estate in trust for the person or persons advancing the purchase money.

The question that must be answered is whether there was a common intention or design to share in the beneficial ownership of the property at the time of its acquisition. Such an intention may be expressly declared on the deed of conveyance or the mortgage documents or any other documents relating to the property. This intention will arise by way of a presumption under a resulting trust or be established by way of common intention expressly agreed or inferred from the parties’ conduct by way of a constructive trust. I find that while such an intention may not have existed at the time of the acquisition of the property, such intention must have been conveyed by the respondent to the applicant when he took over the payments of the mortgage in 2002. I will discuss this in some detail at a later stage.

ISSUE NO 2

I now turn to the issue of whether the mother of the respondent is entitled to an interest in the property. There is no dispute as to the contribution made by the respondent’s mother. She provided the down payment as well as the initial sums for renovation of the property. This amounted to $71,000.00. Under basic trust principles she has acquired an interest and the applicant and the respondent holds the said property subject to her interest. The Cohabitational Relationships Act however now gives the court much wider powers to treat with equitable trust claims. In CVA No 165 of 2004 Irwin Mohammed v Jasmine Albert, Warner, J.A. referring to the case of Aziz v Harrinarine CVA 46 of 1987 stated:-

“A fair reading of the Act however clearly demonstrates that its reaches goes beyond the circumstances of the Aziz case. A claimant will no longer find it necessary to resort only to equitable principles in order to obtain a share in the property, since the Court now has power to make a wide range of property adjustment orders”

In Ann-Marie Lynette Evans v Shawn Keller HCA No 1815 of 2001, Gobin, J. at page 24 in assessing the rights of third parties agreed that:

“The rules of natural justice would necessarily require that any third parties whose interest could be affected by litigation be notified of the existence of the proceedings and permitted to intervene and to participate in them if they so desire. This is no more or no less than third parties are allowed in civil proceedings. But the power of the court to make binding orders affecting the rights of third parties, so long as they have been joined and afforded an opportunity to be heard, cannot be in doubt.”

In the present circumstances however counsel for the respondent opted not to join the respondent’s mother to these proceedings for reasons aforementioned and it now falls upon the court to shed some light upon the significance of her contribution to the property in question in the absence of a formal application to determine her share in the property. In so doing this court must once again look at the intention of the person so advancing the down payments. Where the purchase is made in the name of a person or persons who is not in equity a stranger to the real purchaser such as a wife or child then a presumption of a gift arises in favour of the nominal purchaser. The real purchaser can establish a resulting trust in her favour only by providing evidence of his or her actual intention rebutting the presumption of advancement. The respondent’s mother has advanced no such evidence.

Whether the advancement made by the third party belongs to one partner alone or to both of them is a question of the donor’s intention. I prefer the evidence of the respondent when she recounted that the quest for the home was embarked upon by both herself and her mother. I accept the respondent’s version that at that time the applicant was not involved in the “transaction” As such the respondent’s mother could not have intended to advance a gift to operate in his favour unless that gift was in anticipation of some expressed intention made to her by the applicant say, a promise to marry her daughter or unless there was other evidence to support the donor’s overwhelming generosity. I find no such expressed or implied intention nor am I in a position to infer any possible reason why the respondent’s mother would confer such an elaborate gift for the benefit of someone she knew for less that one year. The respondent’s mother who is now ailing moved in with her daughter, who cared for her until she was transferred to a care facility. She supported her daughter and assisted her in finding a home for her grandson, her daughter and herself. Her conduct throughout showed a clear intention to assist her daughter in advancing the down payment on her behalf.

I find the contribution of the respondent’s mother in the absence of her intervention in these proceedings to be that of an advancement in favour of the respondent only.

Much reference has been made to Mr. Leggerton and his involvement with the parties to these proceedings. Whether Mr. Leggerton was the boyfriend or common law husband of the respondent’s mother, I find to be of no relevance whatsoever. His alleged contribution to the property has not been proved and the respondent herself eventually admitted in cross-examination when asked about the said contribution

“Yes not Stanley Leggerton per se because he no longer lives with my mother and his contribution I would say have gone to my mother seeing that they were living together for a number of years….He has no direct interest in the property.”

Consequently I hold that Mr. Leggerton has absolutely no interest in the property and bears no real relevance to these proceedings.

ISSUE NO. 3 – THE LAW

I now turn to the substantive application of the applicant’s claim that he be granted an order for property adjustment under S6 of the Cohabitational Relationships Act 1998 with respect to the said property.

Section 6 of the Act states:-

“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 Court for the granting of a maintenance order.”

In considering such an application the court shall have regard to S10 of the said Act, which states

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;

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

This section requires the court to make a determination on what is considered just and equitable having regard to the financial and other contributions made by both of the cohabitants.

In HCA No 3007/2001 Anthony Delzin v. Judy Stowe, Justice Mendonca as he then was considered the issue of what is just and equitable in any given circumstance. At page 16 he states:

“In considering what is just and equitable, the contributions under s. 10(1) and (b) are not the only things to be taken into account. The court may consider other appropriate matters such as the needs of the parties, the standards of living and the nature of the relationship.”

The Learned Judge also felt the need to highlight the distinction between a marital situation and a cohabitational relationship when he pointed out that it was not the intent of Parliament to accord to cohabitants the same status as a married couple. In quoting the Green Paper Law Commission (3rd July 1996) it was recommended at paragraph 5:4 that:-

“On the granting of recognition to cohabitational relationships it is recommended that:

The law of Trinidad and Tobago should not accord to cohabitants a status akin to marriage but should be reformed in certain specific areas only so as to avoid grave injustice and situations of hardship.”

He further emphasised the need for great caution not to import into a cohabititional relationship those matters, which would be of necessity taken into account upon inquiry in a marital context.

In the New South Wales case of Evans v. Marmont [1977] 42 N.S.W.L.R. it was thought to be unrealistic to attempt to evaluate contributions on the basis of what is just and equitable, having regard to those contributions, in isolation from the nature and incidents of the relationships as a whole. Gleeson, C.J. and Mc Lelland, C.J. in this case made reference to some of the observations made by Hadgson, J. in the first instance case of Dwyer v. KalJo II Fam L.R. 785. In this case Hodgson J in quoting the case of Wilcock v. Sain 1986 II Fam. L.R. 302, accepted that other factors had to be taken into account. He said:-

“In my view, if one considers the plaintiff’s contribution and nothing else, this cannot conceivably lead to any view on what is just and equitable in the circumstances. However, it seems to me that the other factors can have no independent bearing on what is just and equitable. Their relevance is only by reason of such relevance as they may have to the question what is just and equitable having regard to the plaintiffs contribution.”

In my view, some other factors will be relevant in this way in all cases. One such factor arises from the question whether the contributions of the plaintiff have been sufficiently compensated. This in turn requires the court to reach some view of the value of what the plaintiff has received in return. In most cases, I think the financial circumstances of the parties will be relevant. Certainly, it is necessary for the court to ascertain what the property of the parties comprises at the time of the hearing because it is this that any adjustment of interest have to be made. Further I think that in most cases the needs and means of the parties will have general relevance, as subsidiary factors to the question of what is just and equitable.”

He went on further to state

“I do not think any limit can be set on what circumstances may be relevant remembering always that the relevance must be to the question, what is just and equitable having regards to the plaintiffs contributions.”

I agree with the conclusion of Mendonca, J. and it is clear from the authorities that even where factors other than contributions of the parties are taken into consideration, the contributions of the parties are considered as fundamental and to disregard the context in which the contributions are made may lead the court into misconstruing the significance of the contribution.

In HCA 1651 of 2003, Jasmine Albert v. Irwin Mohammed, Judith Jones, J. at page 13 agreed that S10 of the Act “seeks to compensate the parties for their contribution rather than ensure that the parties as far as possible are allowed to maintain the same standard of living on the break down of the relationship as they enjoyed during the relationship”: She also stated that “the Act does not accord any consideration to the conduct of the parties in so far as it relates to their contributions financial or otherwise”.

On appeal Mendonca, J.A. in Irwin Mohammed v. Jasmin Albert CA No. 165 of 2004 again stressed the critical importance of s. 10 of the Act He states:

“Under s. 10 the court must have regard to (a) the financial contributions made directly or indirectly by or on behalf of the cohabitants for the purpose of the acquisition or improvement of the property and the financial resources of the partners, and (b) any other contribution including any contribution in the capacity of homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them in order to arrive at a determination of what is just and equitable. Apart from the contributions of the cohabitants other considerations are relevant such as the needs and means of the parties and whether the contributions made by either cohabitants have been sufficiently compensated. These considerations do not have an independent bearing on the question of what is just and equitable but only general relevance to that question.”

He stated further that:-

“The section refers to other contributions and not only to those made in the capacity of homemaker or parent. Such contribution may be monetary or non monetary so long as they relate to the welfare of the family. But the party who has made none other than monetary contributions is not necessarily to come out the worse for it. Again such contributions are to be assessed and it be determined whether they are to be given equal or greater weight than the non monetary contribution of the other party.”

On the issue of what is considered a satisfactory adjustment order under s. 10 of the Act Judith Jones, J. in Irwine Stewart v. Carlile Theodore, HCA 1498 of 2002 concluded that-: “It is clear from the Act that unlike in the matrimonial jurisdiction the focus of the Act with respect to its jurisdiction to make a property adjustment order is retrospective rather than prospective. It is concerned mainly with the contributions made by the cohabitants rather than the consideration set out in s. 27 of the Matrimonial Proceedings and Property Act, Chapter 45:51. That said section 11 of the Act does with respect to a property adjustment order allow for some consideration of further circumstances but this is not relevant in the instant case.”

THE FACTS AS THEY RELATE TO THE LAW

I now turn to consider the present case and what is considered just and equitable in the circumstances. In so doing I must firstly examine the direct or indirect contributions made by or on behalf of both cohabitants for the purpose of the acquisition of or improvement to the property and the financial resources of the partners and secondly, any other contribution including contributions in the capacity of a homemaker or parent, made by either of the cohabitants to the welfare of the family constituted by them. Sub section 10(1)(c) bears no reference to these proceedings.

There is some dispute as to the nature and quantum of contributions made by the parties. This appeared to have been an extended family situation with the applicant, the respondent, her son and her mother residing at the said premises. The applicant claims that the respondent paid the mortgage for the first two years and that during that time he took care of all other household expenses, including food, electricity, telephone and furnishings. The respondent disagreed. She insisted that save for the occasional contribution, that these expenses were paid for by either her mother, her mother’s common law husband or by herself. She stated that other than the occasional contribution he contributed nothing to the household initially until her request in 1999 for him to make a contribution towards the food bill. She claims that upon said request he commenced a contribution of $400.00 (I assume per month, as this was not stated in evidence) towards the food bill.

I accept that the respondent and her mother were unable to meet with the requirements outlined by the Trinidad and Tobago Mortgage Finance Company in order to secure a mortgage for their home, and that the applicant agreed to join with the respondent in order to secure said mortgage. The mortgage was then secured in the sum of $148,000.00 with monthly installments increasing from $1,200.28 per month to $1,450.00 per month. The applicant claims that for the first two years the respondent paid the mortgage and thereafter to date he has been responsible for the mortgage payments. The respondent does not agree with this position. She states that the applicant took over the payment of the mortgage in 2002 when she stopped working. The respondent agreed to pay the food bills and her mother the utility bills. The fact that the applicant took over the mortgage is not in dispute. The question for the court to determine however is at what stage did the applicant take over the payment of the mortgage, 2000 as he alleges or 2002 as advanced by the respondent.

Both parties were granted leave by the Court to file further affidavits, upon obtaining the relevant information from their respective banks or from the mortgage company detailing their respective payments. While the applicant claims that his contribution towards the mortgage commenced in 2000 he has not supplied the Court with evidence of this. The applicant must recognise that the onus of proof rest upon his shoulders and it cannot be sufficient for him to merely deny the respondent’s evidence, especially when in the respondent’s case the evidence weighs in her favour. After careful examination of the exhibits annexed to the applicant’s affidavit filed on 15th December 2009 and the respondent’s affidavit filed on 19th December 2009, I am of the firm view that the respondent ceased payments of her mortgage installments in the year 2002. I therefore accept the respondent’s submission that the applicant’s contributions towards the mortgage commenced in April 2002 even though he was only able to provide remittances between the periods 28th August 2003 to 28th August 2008. Unless the circumstances have changed since the hearing of this matter. I further accept that the applicant continued payment at least up until December 2008 possibly longer. This in total will amount to approximately $123,250.00 as at the end of April 2009. The applicant’s total contribution towards the mortgage payments outweighed that of the respondent. His contribution to the mortgage installments were calculated at the rate of $1450.00 per month.

The respondent would have commenced payment of the mortgage at the lower installment rate of $1,200.28 (This figure was advanced by the applicant but not disputed by the respondent in any of her affidavits or under cross examination). This therefore puts the respondent to some disadvantage, as she never disclosed whether that figure changed during the period that she was responsible for making the mortgage payments, and the court cannot in these circumstances assume anything. Nevertheless her contributions towards the mortgage was also significant. From April 1996 to April 2002, some 6 years this would have amounted to approximately $86,420.16 to $90,000.00 (where the figure might have been higher). These are of course estimated figures. It is my conclusion as aforementioned that the applicant’s contribution to the mortgage payments exceeds that of the respondent.

A valuation of the property as agreed between the parties was completed in September 2008 by Raymond and Pierre Limited. The said property now attracts a current market value of $800,000.00. The amount outstanding on the mortgage as at February 2008 is $138,890.31 and according to my calculations approximately $117,140.00 as at April 2009.

I will now examine the financial contributions made towards the improvement of the premises, and the financial resources of the partners.

The respondent accepts that a substantial amount of repairs were carried out on the premises subsequent to the applicant moving in in 1996. She concedes that the majority of the money spent on these improvements can be attributed to the applicant.

Between 2000 to 2004 the Court accepts that the applicant made the following contributions.

(a) In 2003 the applicant paid for repairs which included the completion of the fence, installation of the entrance gate, and the installation of two steel doors and painting the house (the specific cost was not stated).

(b) In 2004 the applicant again affected repairs to the home, which included laying a foundation for a planned extension.

(c) In 2005 he extended the master bedroom and the respondent’s son’s bedroom, installation of a porch, a bathroom. He purchased (2) Air Conditioning Units along with other household items such as a dryer, a bed, and a 27″ colour TV.

The respondent, though querying whether the dryer was new, does not dispute the applicant’s claim. She insists however that in total, the renovations could not exceed $50,000.00 and she further added that she contributed $5,000.00 towards these renovations, a fact not in dispute.

The applicant disagrees with the respondent’s calculations of $50,000.00. He estimates that he would have spent something in the vicinity of $100,000.00 financed by loans taken out from various financial institutions to affect the said repairs. These loans when calculated however total approximately $59,756.62. They include, according to the applicant, the following:-

(1) Three separate loans in 2003 from Eastern Credit Union totalling $19,700.00;

(2) Again in 2004 he secured loans from Eastern Credit Union totalling $7,078.62

(3) In 2005, two loans from Republic Bank Limited totalling $32,978.00.

The applicant provided the court with letters from the respective lending agencies to support his claim.

A clear breakdown of the applicant’s loan arrangements revealed that he could not have expended $100,000.00. The applicant’s propensity to embellish at times and at other times veil the truth is evident. I refer here also to the evidence of the applicant in relation to the loans secured at Republic Bank Limited in 2005. The respondent accused the applicant of not being truthful with the court. She exposed that the monies borrowed from Republic Bank Limited were used by the applicant for home improvements to his parent’s property located in Chaguanas. When pressed in cross-examination for an explanation the applicant admitted that he “lied” to the bank in order to secure a larger sum, he explained: –

“The bank did not know I had a property and what I was going to use the money for, they would have taken the mortgage into account which would mean me getting less money to effect the repairs”:

He further admitted that the issue was not whether he would qualify but how much more he could get. In his defence the petitioner advanced “that is basic banking procedure”:

I noted with some interest the cavalier manner in which the applicant sought to explain himself. In these circumstances, given the petitioner’s admittance that he made a false representation to the bank in order to obtain what he wanted, the question will arise as to how far the applicant is prepared to go, what false statements he may be prepared to make to this court in order to obtain what he wants. I find the applicant’s conduct in this affair to be of some concern given what I can only surmise to be his general outlook in life.

At the end of it all, this conduct may very well affect the credibility of the applicant. Where therefore he claims to have spent $100,000.00 in repairs and renovations to the premises but can only account for approximately $60,000.00 is it then safe for the court to conclude “that this is basic accounting business”.

Failure to provide the court with a detailed breakdown of how the money was expended leaves room for the respondent to enforce her claim that the applicant did not spend more than $50,000.00.

I am however satisfied notwithstanding the above that the applicant’s contribution significantly out weighed that of the respondent who admitted to contributing a total of $5,000.00 towards the said renovations. The $26,000.00 spent by the respondent’s mother on the respondent’s behalf for repairs and improvements to the premises in 1996, has been taken into account here.

In 2000 the parties also made improvements to the property by purchasing and installing a water tank and the plumbing installations connected thereto as well as building a storeroom. The parties cannot agree upon their respective contributions to this venture.

I am not prepared to speculate in the absence of concrete evidence the precise nature of the source of the funds required to complete this venture. Indeed as Warner, J.A. aptly stated in CVA No 165 of 2004 Irwin Mohammed v. Jasmine Albert supra

“I do not understand however that the Court is called upon to examine each contribution microscopically in order to appraise the resources and make a full adjustment. The approach is more of a general kind in order to arrive at what is just and equitable”

I hold therefore that these repairs and improvements were undertaken as a joint venture between the parties.

OTHER CONTRIBUTIONS

Section 10(1)(b) of the Act provides that on an application for an adjustment order, the court shall have regard to “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.”

There can be no disputing the fact that this is a blended, reconstituted family situation. The applicant, the respondent, the respondent’s mother and the respondent’s son each having a role to play in their present situation. Throughout all of the evidence, I find the respondent mainly to be the axis to which all other family members are connected. She represents the core that fuels the process of day-to-day family life. In this regard the respondent appears to have had the sole responsibility for the upbringing and welfare of her minor child and now her ailing mother as well as most of the day-to-day household chores. This is not in dispute. The minor child in question is clearly not the biological child of the applicant nor was he treated as a child of the family. Neither the applicant nor the respondent made much reference to the welfare of the child save and except that according to the respondent “the applicant would occasionally take me and my son to the cinema” The respondent admits that the child’s biological father contributes financially towards his needs and there was no indication by the respondent that these provisions were insufficient.

It is safe to conclude that the respondent was solely responsible for ensuring that all of the minor child’s needs were met. She is required to secure and disburse all of the child’s financial circumstances; she provides support for the child’s emotional social, and physical needs. She must ensure that the child is provided with a reasonable education and of course she is required to provide housing and nurturing for her son. The applicant has very little to say about the child in question which suggest that his interactions with the child may have been limited to basic pleasantries.

The respondent alluded to the fact that she now also bears the responsibility for her ailing mother. Though I prefer to deal with this issue at a later stage let me say that I accept that the respondent bears the full responsibility for the ailing mother. I am not here ignoring the fact that the applicant and the respondent’s mother appeared to have had a good relationship where at times she will entrust him with finances to pay some of her small bills and to purchase odd items for her. During the time she resided at the premises I am of the view that the respondent was her main caregiver. I believe she was the one responsible for the cooking, cleaning, washing and ironing for the entire household. The applicant has not disputed that the respondent was the principle homemaker but denies that the respondent was responsible for washing his clothing and cooking for him. He claims that these chores were performed by his mother.

The applicant has not disputed that the respondent was responsible for the home. He contends that his contribution to the home in this regard amounted to taking care of the yard a contention which in itself is in dispute. The applicant asserts that he paid for the gardener and did in fact exhibit one receipt dated 25th May 2008 in the sum of $60.00 to support his assertion. In his financial evidence however he records that he spends $200.00 per month on the gardener. The respondent on the other hand argues that she has been in the habit of paying the gardener but never felt the need to request a receipt. While I believe that the applicant in the normal course of things made some contributions to the home other than repairs and renovations, I do not feel that these contributions were as significant at the applicant deposed. I accept that he had the responsibility of caring for and cleaning up after the dogs. In 2006 the applicant purchased a rottweiler dog for which he continues to take sole responsibility. I also believe that he was also responsible for looking after the pompek, the family dog. I also believe that he at times assisted in cutting the lawn.

The applicant relates that during the time the relationship was undergoing some strain, that is in 2001, his mother washed his clothes for him because the respondent refused to do so. He further relates that the respondent never used to cook for him. He advised that he would normally eat at work and on weekends eat at his mother’s home. I find that both the applicant and the respondent continue to be strangers to the truth in these matters. I believe that during the period 1996 – early 2005 the applicant benefited from the respondent’s domestic arrangements taking into consideration of course the occasional but not usual moments of discord between the parties. Once the relationship started to dismantle I believe that the applicant did in fact avail himself of his mother’s good graces.

In Mohammed v. Albert (supra) Warner, J.A. sought to put into perspective the contribution of the homemaker when she stated at page 19 of her judgment

“as I understand “the homemaker contribution” it embraces not only housekeeping “and taking care of the other household responsibilities, but it extends to providing the necessary support to maintain the family as a stable unit.”

The respondent worked between 1996-2002 and during that time earned sufficient to be in a position to contribute solely to the mortgage installments and contributed to the general food bills. Her mother and the applicant after 1999 also contributed to the food bill. I also believe that the applicant did make some contribution towards the electricity and telephone bills. I accept that the applicant had and paid for his telephone line.

The respondent also earned in 2005, the sum of $45,000.00 as commission on a property she sold on behalf of her aunt. She claims, (though I do not entirely accept this claim) that the money was spent on living expenses, and contributions to purchase material for the extension to the bedrooms. In cross examination she offered that having received the commission she decided to put aside some $20,000.00 in shares for her son, the rest was consumed in day to day living expenses. These shares were later encashed, as she needed to use them “to live on”. At this time the applicant and the respondent were estranged and therefore while it is not difficult to accept the fact the applicant’s contribution to the home (given the fact that the respondent was not washing his clothes or cooking for him) may have ceased altogether save and except the mortgage payments, I find the respondent in her explanations to be vacillating unnecessarily.

Nevertheless I am without doubt that the respondent’s contribution to the home as a homemaker significantly outweighed that of the applicant.

I now turn to the troubling issues of the parties conduct towards each other to determine what if any relevance such conduct would have to their respective claims.

The respondent and her attorney suggested that the applicant’s conduct should debar him from seeking any interest in the said property. She claims that the court should take into account the applicant’s lies, deceit and womanising over the years.

She states that during the course of their relationship the applicant became involved with a woman … “a relationship that was longstanding which the applicant had not informed me of.” She further states that the applicant, when confronted promised to terminate the relationship, which he did not. The applicant denies being involved with this woman but admits to having a relationship with the said person to whom he referred to as his “ex girlfriend” prior to his involvement with the respondent.

The respondent went further to add that in January 2005 the petitioner slept away from the home more frequently. She found love notes in his clothes from women he was involved with and evidence of trips made abroad to Barbados. She states that the applicant would “lie and say he was going Tobago”. It is interesting to note that no evidence in support of any of these allegations were presented to the court. Nonetheless parties continued to accuse each other of leaving abusive notes towards each other around the house. The relationship quickly deteriorated as the parties engaged in inappropriate behaviour.

The respondent also claims that since 2005 the applicant has been living at the premises of another woman and it is at these premises that he currently resides. The applicant deny these allegations and insisted during cross examination that this other woman was a friend who assisted him during the domestic violence proceedings in the Magistrates’ Court.

The applicant states: “I spoke to Ms Hinkson and she said I could come and stay by her until the matter was resolved”

The applicant on the other hand has accused the respondent of bringing a man “to sleep at the house where I was sleeping”. The respondent admitted that in 2006 she “started going out with friends” she claims that on 3`d March 2007 at about 12:30 a.m., she returned home and whilst talking to “her date” in his car the applicant arrived home. An altercation subsequently ensued between the parties. The applicant alleges that this man threatened him. The respondent denies such threats claiming that it was the applicant who became abusive towards her, shouting at her and eventually lunching at her collaring her by her jersey neckline and yelling. I do not propose to spend any time on the parties’ accusation of domestic violence issues against each other since this has already been determined and the respondent sought and obtained a Protection Order against the applicant in this regard on 13th September 2007.

I find that the general conduct of both parties have brought them into disrepute. It appears that once the parties realised that their relationship could not be sustained, they both began to treat each other with the greatest of discourtesies and disrespect. The applicant though he continues to deny the degree of his involvement in the lives of the various women referred to by the respondent in these proceedings cannot deny that these relationships, whether intimate or not is largely responsible for the breakdown of the union between himself and the respondent. The respondent on the other hand admits to having a “date” during a period of time when the cohabitational relationship was not officially terminated.

If therefore the court is to consider the issue of conduct, then of necessity I am constrained to consider the conduct of both parties. I am of the view that neither of the parties conducted themselves in an exemplary manner and further that they are both culpable of unsavory behaviour.

In La Borde v. Gilbert HCA No 3424 of 2001 Gobin, J. in considering the issue of conduct as a factor to be taken into consideration when assessing the parties contribution stated at p 22 of her judgment:

“counsel for the respondent in her submissions nevertheless referred to the issue of conduct on the part of the applicant. Let me say here that I do not consider that conduct was an issue in this case and I thought that this was made clear early in s. 27(1) of the Matrimonial Proceedings and Property Act, Chapter 45:51 makes reference to the court’s jurisdiction to take into account the conduct of the parties. That section notwithstanding, Judges have over the years given little weight to these allegations save of course where the conduct alleged is “gross and obvious”

She went on to conclude

“But the practice of raising issues of conduct save where the conduct alleges has had a direct effect on the ability to earn, or on the value of the property or other resources of the party, is to be discouraged.”

I am of the same view. While both parties to my mind have behaved unseemingly at times towards each other such conduct cannot be considered “gross and obvious” neither did the alleged conduct have a direct effect on the ability of either the applicant or the respondent to earn or on the value of the property in question or on the resources of the parties. In spite of the difficulties experienced by the parties during the breakdown of their union they both appeared to have weathered the storm admirably save and except for the issues relating to the property adjustment which is now being considered by the court. Neither the applicant’s conduct nor that of the respondent has had to my mind any direct bearing in so far as it relates to their contributions, financial or otherwise.

The court therefore finds that the alleged conduct of the applicant cannot be taken into consideration in assessing his contribution when making a final adjustment order neither can it be taken into account when determining what is just and equitable in the circumstances of this case.

WHAT IS JUST AND EQUITABLE

Counsel for the respondent submits that it would be grossly unfair to have a starting point of both parties having half share in the property as the financial contributions of the respondent both direct and indirect far exceeds that of the applicant. Before making an adjustment order however, the Court is required to determine what is just and equitable having regards to all of the contributions made by the parties.

In Delzine v. Stowe supra Mendonca, J. advised that:-

“what is clear from the authorities…. is that even where factors other than the contributions of the parties are taken into consideration, the contributors 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 this Act.”

Further the authorities all agree that in consideration what is just and equitable reference must be made to the following factors:-

(a) Whether the contributions of the applicant has been sufficiently compensated;

(b) The length of the relationship;

(d) Lost opportunities;

(e) Any promise or expectation of marriage.

I must now turn to the issue of whether the applicant was sufficiently compensated during the cohabitation period. Jones, J. in Albert v. Mohammed clarified this issue when she stated that the Act was retrospective in its terms. It sought to compensate the parties for their contributions rather than ensure that the parties as far as possible are allowed to maintain the same standard of living on the breakdown of the relationship as they enjoyed during the relationship.

In Evans v. Jones, the Court in referring to the decision of Hadgsen, J. in Dwyer v. Kaljo agreed that in looking at the question whether the contribution of the Plaintiff have been sufficiently compensated stated:

“This in turn requires the Court to reach some view of the value of the contributions of the Plaintiff, and some view of the value of what the Plaintiff has received in return”

In this present no evidence has been advanced by the respondent that suggests that the applicant has been compensated in any way financial or otherwise in relation to his contributions to the said property. It is therefore quite surprising that the respondent’s attorney in his submission sought an order from the court to transfer the applicant’s interest in the property to the respondent. While as aforementioned the Court agrees that the contribution of the respondent’s mother must be construed as an indirect contribution towards the respondent, one cannot overlook the substantial contributions made by the applicant towards the mortgage and improvement of the said property. Mortgage payments are part of the purchase price of the property.

The parties lived in a cohabitational relationship between 1996 to 2006, just about 10 years. This I consider to be a reasonable length for any domestic relationship during which time the parties would have shared and adjusted their lives for their mutual benefit and for the purpose of establishing a family unit. Though there may have been periods of distress, and difficulties during the relationship, 10 years is sufficiently long enough to have established a life style and to have acquired assets which both parties may have an interest in and for which a property adjustment order must be made.

Counsel for the respondent request that the court take into consideration the future needs and means of the respondent her child and her mother. He suggests that the court devise a formula that would prevent them from being put out on the street. The applicant has made it clear that he is pursuing his share and interest in the property. He is not interested in returning to live at the premises nor do I get the impression that he is seeking to deny or prevent the respondent from remaining in the property.

He has made two suggestions (a) that the respondent continue to live in the premises and compensate him for his contributions made therein, whereupon he will transfer his interest to her and (b) the property can be sold on the open market and the proceeds divided as the court sees fit.

The Court in examining this factor must also be careful to balance the needs of both parties according to their means. Both parties are now gainfully employed, even though the applicant’s monthly salary at the time of filing stood at net $17,000.00 per month, whereas the respondent’s current take home salary amounted to $2,800.00 per month. Of course as is the usual fashion for these parties, they continue to accuse each other of concealing the truth. In both of their statements of financial evidence I find the information contained therein to be suspect. Nevertheless I am constrained to work with what is before me.

The respondent presents to have little or no savings since she was largely unemployed between the periods 2002 to 2006. She has a son to provide for, though admittedly she receives financial assistance from the child’s biological father to cover all the major expenses such as food, school fees, school books, medical, dental and optical expenses plus pocket money. All other expenses are met by the respondent. She also has the overall responsibility to provide housing for the said child.

In addition, the respondent outlines that she is contemplating having her mother returned to the home which will put an additional strain on her. I suspect that the strain may be more physical rather than financial as I observe that the respondent’s mother, in spite her current condition has always provided amply for her own needs and at times the needs of the respondent. She receives a pension and I suspect assistance from her other child or children as the case may be. I do believe however that the respondent will be put to some cost should her mother return.

In her favour, the respondent continues to reside at the premises and has not been saddled with any mortgage payments since 2002 to date. The applicant undertook to pay the mortgage until at least the determination of these proceedings.

The applicant appears to be in a superior position financially, despite his pretence otherwise. He has some savings in the Credit Union of approximately $40,000.00 as well as Life Insurance Policy which will have a cash surrender value. He also has an annuity which matures at age 50. He has a larger income and to my mind has been in a better position to adjust to the breakdown of the relationship. He however has several outstanding loans, and is currently residing either at his parents home or with a friend. The fact that the applicant appears to be in a better position financially than the respondent does not of itself necessarily place him at a disadvantage. As highlighted in Delzin v. Stowe, “the needs and means of the parties will have general relevance as subsidiary factors to the question of what is just and equitable. So that the Court cannot say that because the defendant has $11 million dollars, and the plaintiff has something less than $50,000.00 for that reason it is just and equitable to make an adjustment”.

Again it must be re-emphasised that the Act seeks to compensate the parties for their contributions rather than ensure that the parties, as far as possible, are allowed to maintain the same standard of living on the breakdown as they enjoyed during their relationship.

The respondent claims that in April 2002 her mother’s health deteriorated and on the encouragement of the applicant she stopped working to stay at home to care for her.

One can only assume that the respondent is here advancing this position in the hope that the court will take note of her dedication to her family as well as to consider any lost opportunities and earnings she would have suffered during her period of unemployment.

In Delzin v. Stowe (supra) Mendonca, J. (as he then was) on examining the case of Evans v. Marmont (supra) agreed with the observations made by Gleeson, C.J. and Mc Leeland, C.J. when the quoted Hodgson, J. in Dwyer v. Kalio [1987] II Fam L.R. 785 He stated:

“Other circumstances which may be relevant include such matters as the length of the relationship any promise or expectation of marriage and also I think opportunities lost by the plaintiff by reason of the plaintiffs contributions. This is by no means exhaustive”

In Black v. Douglas FH 01796 of 2005 Tam, J. in considering the contribution of the applicant therein stated:

“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 Mendonca, J. in Delzine v. Stowe. It can be assumed that since the applicant took on the role of house wife for most of the relationship, this in essence inhibits her from advancing herself in the working world or perhaps even academically… The applicant is now 39 years old and this may have limited opportunities or even educational or job prospects.”

This is not the present case however. In June 2006, the respondent placed her mother in a care facility in order to “reduce the strain of caring for her, to better care for her son and to handle the continued stress from the applicant’s doings.”

The applicant disputes this recount of events and claims that he continues to have a good relationship with the respondent’s mother. In fact the applicant disclosed that the respondent’s separation from her place of work had absolutely nothing to do with taking care of her mother but everything to do with the fact that she was dismissed from her employment at Caribbean Packaging Industries for gross misconduct that amounted to fraud. The respondent in cross examination while conceding to the fact of the dismissal argued that she did not mislead the court into believing that her termination of employment was voluntary, she postulates rather that it was a “misuse of words” rather than an intention to mislead the court.

I do agree that the court was being misled by the respondent’s evidence into believing that the termination was a voluntary act of separation. Misled in believing that the applicant encouraged, supported, agreed with the respondent’s decision to voluntarily terminate her employment and misled in believing that this act of compassion was performed in and for the benefit of her ailing mother.

In spite of this I find that she continues to be the one solely responsible (with the help now of her sister) for the care of her mother. I also find that she suffered no lost opportunities as dictated by her circumstances during the period of her unemployment.

This factor has already been examined in some detail. On the evidence however I find that even though the promise to marry did not exist prior to the acquisition of the property, it materialized during the cohabitational relationship. I say this for the following reasons:-

(i) I accept the respondent’s evidence where she explained that the respondent expressed this intention somewhere in 2001 and the possibility of it becoming a reality after he completes his course of training at UWI.

(ii) The applicant, without hesitation, it appears, assumed full responsibility for paying the mortgage in 2002 when the respondent was unable to after living on the property for some 6 years previously without one single contribution thereto.

(iii) Major improvements and renovations commenced in 2003 almost completely at the applicant’s own costs.

(iv) The applicant himself when asked under cross-examination whether he never intended to marry the respondent stated

“well I won’t say that, it is not true to say that no I disagree with you”

Both the applicant the respondent presents as being deliberate individuals in my view. They both weigh carefully their decisions and then proceeded with the guarded expectation that they will succeed in all their endeavours. Unfortunately, they are at this stage unable on their own to make the appropriate decision that can bring closure to their relationship and at the same time bring about a fair and reasonable result for both parties.

Having carefully examined all of the relevant evidence in this matter and taking into account all of the requirements under section 10(1) of the Act, I conclude that notwithstanding the applicant’s substantial contribution to the acquisition of and improvement to the property in question I find that the respondent’s interest still outweighs that of the applicant but only marginally.

I therefore find it just and equitable to award the applicant 45% of the current market value of the property minus the outstanding mortgage balance and other property costs incidental thereto which at this time is not precisely known to the court.

The Market Value of the property now stands at $800,000.00,
The outstanding mortgage is estimated at approximately $117,000.00 to $120,000.00;
The applicant’s 45% interest minus the mortgage balance amounts to approximately $306,000.00.

While I am aware that the applicant may be anxious to bring closure to this relationship and all issues related to the property, I am required to balance the respondent’s ability to pay the entire sum of $306,000.00 in the short term given her current financial position.

AND THIS COURT ORDERS

That the respondent do pay to the applicant the sum of $306,000.00 which represents his 45% share and interest in the property located at LP#10 Celestial Crescent, Paradise West Tacarigua.
That such payments be disbursed as follows:

(a) $100,000.00 on or before January 2011

(b) $100,000.00 on or before January 2013 and the final payment of

Upon payment of the final sum above stated the applicant shall within 21 days of the last payment to him transfer all of his share and interest in the said property free from all encumbrances in the sole name of the respondent.
The respondent shall assume responsibility of the mortgage payments, free from arrears from the 1st July 2009.
All fees associated with the said transfer shall be borne by the parties equally.
The applicant shall vacate the said premises forthwith save and except 9th May 2009 at 2:00 p.m. when the applicant shall enter upon the said premises for the purpose of removing the following items:-

a rottweiler dog;
all his items of clothing and personal effects

and thereafter the said applicant is not to return to or enter upon the said premises except by order of the Court.

Each party shall bear their own costs in this application.

Kipps v Lord

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