La Fon v Velasquez

Citation:           TT 2008 HC 275

Title:                 LA FON v. VELASQUEZ

Country:           Trinidad and Tobago

Court:               High Court

Suit No.:           FH 01054 of 2006

Judge(s):          Ramkerrysingh, J.

Date:                November 19, 2008

Subject:           Family law

Subsubject:                  Common-law relationship – Applicant sought lump sum payment – Judge preferred evidence of respondent – Respondent entitled to claim monies spent directly on the house, monies paid to lease applicant’s secured car and a sum to represent significant contribution to the family.

 

Appearances

Mrs. Lynette Seebaran Suite for the petitioner

Mrs. Janice Clarence-Quamina for the respondent

 

1. RAMKERRYSINGH, J.: Although I have already delivered judgment in this matter I thought that it was important to write a full judgment, in the hope that it adds to the development of the law with respect to cohabitational relationships. We are often guided by the Australian cases, the country from which we have adopted our legislation governing cohabitation, but it is always useful, I think, to weave one’s indigenous culture into the legal fabric.
2. I have found that the respondent in the case before me has contributed to the property which is the subject of these proceedings and therefore is entitled to have a property adjustment order made in his favour. However, because of the limited evidence presented, calculating the extent of the respondent’s financial, but moreso his non-financial contribution proved quite challenging.

The Applications

3. This is a case brought by Margaret La Fon (“the applicant”) in June 2006 in the form of a Form 12 Application at first instance, by which she sought injunctive relief, as well as a lump sum payment from Aquinas Velasquez (“the respondent”) with whom she had hared a cohabitational relationship. Rather bizarrely, although she was asking for a lump sum from him, she was at the same time seeking a declaration that the respondent acquired no interest in the cohabitational home (“East Montague”). Her Application for Financial Relief (Form 8) was eventually filed on 5th December 2007. The respondent, by his Form 9 filed on 29th November 2007, and affidavit of 18th July 2006, claimed a lump sum to represent half the market value of East Montague or such other sum as deemed fit by the court.
4. I would like to mention here, how invaluable Case Management Conferences and Directions Hearings are to both the court and attorneys. This case is an example of the chaos that can occur if proper care is not taken in the early stages. It seems that this matter was chugging along quite haphazardly towards trial of the substantive issues for over a year, before it was realized that no formal applications had been filed. The situation was only rectified in November 2007; by which time the narrative affidavits had already been filed. This accounts for the untimely filing of the financial forms.
5. The trial proceeded over two days, the 4th and 9th of January 2008 and after hearing submissions from both attorneys on the 14th April 2008, judgment was deferred to the 25th day of June 2008. Perhaps in an attempt to cure any perceived defect in the orders he sought in his Form 9, the respondent filed an application of his own on 26th May 2008 for a declaration that he had acquired an interest in the cohabitational home. No narrative affidavit was filed in support, which if it had been, would no doubt have been a repetition of what he had said in his July 2006 Affidavit. This application only came to my attention on the very day I was scheduled to deliver the judgment and I saw no point in this matter repeating itself, albeit in a role-reversal of the parties nor in further delaying the determination of the issues. I thought it best to deal with the matter once and for all and had both actions consolidated. I delivered judgment as scheduled as I did not think the respondent’s application would have affected the outcome either way.

Factual Matrix and Evidence

6. As far as probing the veracity of statements made by both parties, it is difficult to come to a definite conclusion, but on a balance of probabilities I find that the respondent’s assertions have a more truthful ring to them over the applicant’s. The applicant is a very nervous and anxious woman who at times during her cross-examination seemed overwhelmed by the entire experience. She was overcome with emotion, several times during her testimony and I have found that these episodes coincided with questions being posed to her in connection with issues revolving around High Court Proceedings numbered 3895 of 1988 (p. 5 et al below) (“the Blackman Case”). The respondent on the other hand, although abrasive at times and somewhat curt in his response, generally came across as being truthful, and wherever there was a disparity in the evidence I preferred his version of the facts.
7. Briefly the facts of the case, are that the applicant and the respondent shared a cohabitational relationship for approximately 16 years, if one is to accept the evidence of the respondent, 14 years according to the applicant, during which they both worked and contributed to the household and family expenses. The relationship apparently began as a visiting one, with the applicant going over to the respondent’s rented Curepe apartment, particularly on Sundays. They had been seeing each other even before that, while the respondent lived in Belmont with his estranged wife, his daughter and his mother and the applicant was herself sharing a relationship with a Mr. Blackman. Eventually the respondent moved to East Montague with the applicant and her two sons, who were then minors.
8. The applicant contends that during their cohabitation she was a good domestic partner, taking care of the respondent and her sons, sponsoring trips abroad, purchasing furniture for the home and such like and she did all of this with little or no help from the respondent. The relationship started off well enough but eventually became very rocky. The applicant complained that when the respondent resigned from his job prematurely, things got decidedly worse between them. The respondent accused her of being unfaithful and she in turn accused him of some very offensive behaviour, not the least of which was that he only gave her a paltry $400.00 a month as his contribution to the family. During the course of the relationship the parties embarked on a food-sale business (Margaret’s Sales) in which the applicant accepts that the respondent helped, but, according to her, only minimally.
9. Not surprisingly, the respondent tells a far different story. According to him, he and the applicant had an arrangement whereby he promised to help he repair the roof of East Montague and she in return, would provide him with “a place to rest his head”, which he took to mean that he would not have to worry about a place to live for the rest of his life, since they were now a couple. He took a loan of $27,500.00 ‘the proceeds of which were used to fix the roof and carry out other repairs. The applicant disagreed with this saying that the respondent offered to fix the roof and she considered it a gift.
10. The respondent also claimed that he was a major contributor to the family and the household, before, as well as during their cohabitation, as the applicant, at the time worked for far less than he, and without his help it would have been impossible for her to maintain the household, meet the demands of the two boys and pay the mortgage on East Montague. The respondent said that he also assisted the applicant by paying the sum of $13,000.00 allegedly embezzled by her from her former employers, for which they held her car, until the said monies were repaid. He also claimed to have borne the cost of repairing the damage done to East Montague by Mr. Blackman, after the applicant succeeded in removing him from the premises in High Court proceedings (the Blackman Case) mentioned above and brought by the applicant against the said Mr. Blackman upon the breakdown of that relationship. Further, the respondent insists that his involvement in Margaret’s Sales was also considerably downplayed by the applicant and that in fact, he played a vital role in its operations, using his experience and expertise as a customs clerk to obtain the items for sale, as well as assisting the applicant in the distribution and general transportation of the goods.
11. It is not disputed that East Montague belongs to the applicant and that the asset was acquired long before the parties entered their relationship, but it is interesting to examine, or at the very least, take notice of the history surrounding this property as it has, in part, helped me to form a more complete picture of the applicant. This history was gleaned from the affidavits exhibited to the respondent’s Affidavit of 18th July 2006 which were, deposed to by the applicant herein and Mr. Blackman, the respondent in the Blackman Case. From the outset let me say that, although I did not have the benefit of the entire proceedings that formed the Blackman Case, nor was I privileged to observe the parties while giving their evidence in the matter, I find the facts in favour of the Mr. Blackman. I found that the applicant’s affidavit filed in support of her application against Mr. Blackman, which, incidentally bears a striking similarity to the Application before me, and which sought to declare that the applicant was the owner of East Montague, was rather vague and did not, to my mind conclusively support her claim that she purchased the property. Where her affidavit fell short, Mr. Blackman’s affidavit shed more light and the details and particulars provided in his affidavit, filled the gaps in the evidence as given by the applicant and for that reason I accept his version of the facts.
12. So what follows is a brief history of the acquisition of East Montague from Mr. Blackman’s point of view.
13. The applicant and Mr. Blackman had been living in a cohabitational relationship for about three (3) years, when they decided to purchase East Montague. I believe the applicant’s evidence that she was allotted the property through her then employer, John Gillette, and I also believe that she paid the down payment. Mr. Blackman’s evidence is that East Montague was purchased in the applicant’s sole name because at the time, he was the registered owner of another property which was the subject of matrimonial proceedings between himself and his former wife, and as such he would not have qualified for a mortgage with the Trinidad and Tobago Mortgage Finance Company, as it was contrary to that mortgagee’s policy of lending to first-time owners only. It was under those circumstances Mr. Blackman said, that East Montague was purchased in the name of the applicant, since she had never before been the registered owner of real property. It was Mr. Blackman however, who paid the mortgage instalments, furnished and equipped the home, took care of the utility bills and other outgoings and purchased food for the household, which comprised himself, the applicant and her two boys, who were then aged 15 and 9. He said that he carried out these responsibilities dutifully during the time of their cohabitation. As it turned out the story did not end happily. The parties began to argue, one of the main sources of contention between them was an alleged amorous affair by the applicant. The situation deteriorated rapidly and the applicant succeeded in removing him from the premises by filing the action against him (the Blackman Case).
14. On another note, I cannot ignore the glaring similarities between the Blackman Case and the one before me. I find it all too coincidental, that the applicant would be afflicted with troublous affairs in duplication, among other things involving two individuals, both of whom drank to excess, and who in turn claimed that, it was not them, but the applicant herself who often fell victim to over drinking. Both men also claimed that the applicant was dependant on them for payment of bills and other expenses; including caring for her children during the time that they lived together. There were also mirrored claims of an adulterous affair on the part of the applicant, leading to the eventual breakdown of the otherwise harmonious relationship and ending with the applicant filing actions to exclude each from any beneficial interest in the cohabitational home.

The Issues in this case and Submissions by Counsel

15. It is accepted that the parties shared a cohabitational relationship as provided in the Act (Cohabitational Relationships Act 1998), but Mrs. Seebaran-Suite contends on behalf of the applicant, that the respondent is not entitled to a share in the assets, because he had already been more than adequately compensated during the course of the relationship and therefore deserves to benefit no further. On the other hand, Mrs. Clarence-Quamina’s argument is that the respondent is indeed entitled to a share of the assets because:- (i) he contributed both directly and indirectly to the improvement of East Montague; (ii) was the applicant’s financial saviour when her employers confiscated her car; (iii) paid the mortgage instalments on East Montague when Mr. Blackman abandoned his obligation towards same; (iv) was instrumental both financially and otherwise in repairing the damage done to East Montague by Mr. Blackman; (v) rendered assistance with the care of her two boys; and (vi) was of invaluable assistance to her in Margaret’s Sales.
16. The issues in this case as I see it are twofold. Firstly, whether the respondent has already benefited from the applicant’s alleged generosity during the cohabitation to such an extent, that he has used up his entitlement to share in East Montague and secondly if he still has something left to draw down on in terms of property adjustment, how is that to be represented?
17. Before commenting on counsel’s respective submissions, in examining the case of Bennett v Parker [2000] VSC 401 (5 October 2000) cited by Mrs. Seebaran-Suite, I note Justice O’Bryan’s statement at paragraph 20 that “the evidence of the defendant down played the working role of the plaintiff on the properties.” who was not impressed by the tenor of his evidence. In similar vein, I find that the applicant seems focused on lessening the non-financial role of the respondent. The learned judge went on to say: “His testimony, in my opinion was motivated by a perceived need to minimalise the non financial contribution which his former partner made …”. Similarly, I find that Ms. La Fon deliberately tried to underrate the respondent’s overall role, particularly, what must have been his contribution to the general welfare of the family in the early days of their relationship. She also suggests quite strongly that apart from the money to repair the roof, the extent of the respondent’s contribution consisted of a monthly sum of $400.00. She fails to accept that the respondent contributed in any other way towards the family throughout, but equally fails to say how she managed to meet all the outgoings and other household expenses, during the difficult times following Mr. Blackman’s departure.
18. Mrs. Seebaran-Suite surmises that the respondent had outlived any interest that he may have had in the cohabitational home because his meager weekly contribution of $ 40.00 per week and later $60.00 per week was grossly inadequate to compensate for rent-free accommodation and comfortable lodging at the applicant’s expense. She also said that this contribution was finally raised to $100.00 per week with a further monthly contribution of $400.00, which is hardly enough according to her, for providing the respondent with “board, shelter and utilities”. However, I think that the applicant’s comments do not take into consideration, that were it not for the respondent taking a loan and applying its funds to repair the roof of East Montague, his financial assistance with the other repairs to the home, his financial and domestic support of the applicant’s children, his financial rescue of the applicant’s motor car and mortgage and his involvement in Margaret’s Sales, the applicant would not have been able to preserve East Montague, amass any assets, or indeed survive her near desperate circumstances when they met. It is clear from the evidence that it was her dire financial straits after the breakdown of her relationship with Mr. Blackman, that caused the applicant to seek out the respondent in the first place. The respondent’s emotional and financial support in those early years (1988 to about 1992/3 or thereabouts) enabled the applicant to get back on her feet, so that she was able to fully recover from her misfortunes and thereafter, improve the standard of living for the family. It is my opinion that the applicant’s position today is as a direct result of the respondent’s contribution prior to and continuing (like Mr. Blackman), throughout their relationship and the entirety of this contribution must be recognized.
19. Recognition of financial and non-financial contributions was given by Justice O’Bryan in the Bennett v Parker Case (p. 7 above) when he awarded the plaintiff 40% of the interest of the partners’ property although it was clear that the defendant’s financial contribution was far greater. Unlike this case, however, Ms. Bennet gave detailed accounts of her involvement on the farm, supported by the evidence of several witnesses which allowed the Court to get a comprehensive look into her non-financial contribution, with the result that a proper assessment could have been made of that contribution. Unfortunately, and as I will point out throughout this judgment the respondent has given very little helpful information in this regard.
20. Relying on the Appeal case of Jones v Grech [2001] NWSCA 208 (10 July 2001), Mrs. Seebaran-Suite, in support of her submission that the respondent was not entitled to share in any interest in East Montague, alluded to the fact that his primary contribution (the loan to fix the roof and the payment of funds to release the applicant’s car) occurred prior to the period of cohabitation and no doubt, in this regard, she adopted Justice of Appeal Powell’s approach, when he concluded in Jones v Grech that the contribution made by a party outside the period of cohabitation should be excluded for account, otherwise it would risk that situation being likened to a marriage, which was clearly not the intention of the De Facto Relationships Act and in our case the Cohabitational Relationship Act. If this interpretation is correct then the vast majority of the respondent’s contribution would have to be ignored.
21. But Powell JA’s judgment was the dissenting one in that case and Justices of Appeal Davies and Ipp agreed at paragraph 24 of the report that: “The actions of the parties must be placed into context and given weight and relevance according to the incidents of their relationship over time, including during any prior time when a relationship existed between them. As Gleeson CJ and McLellend CJ in Eq said in Evans v Marmont [1977] 42 NSWLR 70 at 75:- It would be unrealistic to attempt to evaluate contributions of the kinds referred to in par (a) and par (b) for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationships as a whole ..”
22. It is to be noted that section 20 “par (a) and par (b)” of the De Facto Relationships Act (Australia) referred to in the above quotation is equivalent to section 10 (1) (a) and (b) of our Act. (See Addendum.)
23. I have no doubt that this is the better approach, if one has to be fair and just in the circumstances. It is only reasonable to assume that one would invest generously in a relationship, especially prior to living together, where there is a very real prospect that the relationship would evolve into a long and meaningful one, with the intention, to use Davies AJA’s words (Jones v Grech [2001] NSWCA 208 para. 28) “… to become, a de facto relationship with the parties and the children living together as a family in the … house – the acts of the parties and statements made by the parties at the time.”
24. I am aware that in interpreting the section in this way the effect is to uplift the cohabitational relationship to something akin to a matrimonial union, by including for consideration the activities of the parties prior to the marriage, which Mrs. Seebaran-Suite was at pains to explain was not the intention of the Act. However, I am of the view that that is precisely what Parliament intended when this Act was introduced. The Act was created to give recognition to relationships that are more or less on par with marital status, but for the legality of the latter by a marriage ceremony.
25. The present case can be compared and distinguished from the Jones Case in two main respects. Firstly, it was concluded in the Jones Case at the time of acquisition of the family home at Drouin, that it was intended by the respondent, that the appellant from the outset was to have a beneficial interest in the property. By that time too, the parties had already been in the relationship for a year, Mr. Grech had used his own monies to pay for it, and the property was put into his name alone. Ms. Jones worked tirelessly to improve the property and when it was sold the proceeds were used together with a mortgage to buy the second property (La Bertouche), which was also put into the defendant’s sole name, but created a constructive trust for the parties. That is not to say that the situation before me created a resulting trust or a constructive trust in favour of the respondent, particularly in light of the circumstances under which East Montague was originally acquired; but it is unclear whether by her offer, the applicant intended the respondent to have a beneficial interest in the property, apart from “a place to rest his head”, in much the same way that Mr. Grech promised Ms. Jones that he would get her somewhere to be able to keep her horses. In this case East Montague had already been purchased in the name of the applicant who, according to the respondent promise him that he would always have a roof over his head in return for his assistance in repairing it.
26. That being said however, leads me to ask the question, “What did the applicant intend to ‘convey’ by this offer?” The genuine intent of it too, is questionable. The bare offer without more seems, a bit over-compensatory and unnecessarily kind, for the repair of a roof, by someone who was just a friend. The only way I could see this “offer” making any sense is if there was something more to it, like the common intention of the parties to form a family. If I am correct in this interpretation, then it should follow that the applicant intended to share her home with the respondent, in the truest sense of the word, as an equal partner in a cohabitational relationship, thereby creating, together with his contributions, a beneficial interest in East Montague in his favour.
27. What is also distinguishable in this case is that Mr. Grech and Ms. Jones were in a genuine joint partnership, business as well as domestic; the business side of which consisted of the running of the horse stud farms; on which she worked laboriously to make into a successful venture.
28. The second distinction between the Jones Case and this one is that from the evidence I find that the respondent’s “homemaker” contributions may not have been as exhaustive as Ms. Jones’. The respondent has been quite brusque during cross-examination and his Affidavits did not provide details and the nature of his contributions, other than the roof repair and car, but rather gave a generalized, yet vehement overview of his contribution to the family and household in addition to his monthly monetary contributions. This is unfortunate because he is unable to substantiate what must have been significant contributions and any inferences are drawn from a preponderance of doubt and probabilities. This makes for a difficult assessment of the respondent’s total contribution.
29. Nonetheless, I believe him when he said that he helped the applicant care for her boys financially, discussed their future plans with them, dropping them to school and taking them back home and so forth, and that he helped her quite significantly in the Margaret’s Sales food business. It is also undisputed that he took a loan to repair East Montague. He also says that he worked in the yard, paid bills, cooked and bought foodstuff. Where Mr. Velasquez’s position differs from Ms. Jones’ however, is that she “… devoted all her energies to the welfare of Mr. Grech and the two children, that is, the common household. The inference to be drawn from the findings is that she could not have contributed more, financially, than she did and she contributed all that she could as homemaker and parent (Jones v Grech [2001] NSWCA 208 para. 97 per Ipp AJA).”
30. Regrettably, I cannot say that in all respects I find in the same degree for the respondent, not only because of the vagueness of his evidence, but more pointedly because of the hoarding of the proceeds of his separation package from Nestle. He may have had good reason for withholding his VSEP funds from the respondent, but I found it rather alarming that he showed no remorse for the fact that he kept it all for himself. Perhaps it was he rather than the applicant, who thought that he had spent quite enough on the household and the family over the years and it was time that he saved something for himself. Whatever the reason I was not satisfied with the one he gave for not sharing this fund with the applicant, which was that he had to spend vast amounts of medication. Furthermore, after the loan taken for the repair of the roof was liquidated, one would have expected that his contribution, would have increased significantly, but instead, his weekly sum increased by a mere $40.00 and he contributed an additional $400.00 per month for a total of $800.00 per month. Could he have contributed more financially? I believe that he could have but in the last stages of the relationship refused to do so, because of his misgivings about the non-contribution of the boys now adults, as well as his suspicions about the applicant’s alleged infidelity. Did he do all that he could as a parent? The limited evidence makes this impossible to answer, but I believe that he did share the burden of the responsibilities the extent of which I am unable to assess. For these reasons I find a lesser weight being accorded to the respondent’s contribution than to Ms. Jones in Jones v Grech. Failure of the respondent to provide more substantial proof makes it difficult to measure his contribution on equal footing with the applicant’s.
31. Mrs. Seebaran-Suite also relied on the judgment of Gobin J in the case of La Borde v Gilbert HCA No. 3424 of 2001, where the learned judge dismissed the applicant’s is claim for a lump sum and/or periodical payment in respect of property owned by the respondent. In that case, the parties had shared a six (6) year cohabitational relationship during which, Gobin J found, the applicant had been more than adequately compensated, having enjoyed the benefit of comfortable living accommodation, overseas travel, significant financial contribution in pursuit of studies and an overall high standard of living. In that case, the respondent’s income surpassed the applicant’s, and although the applicant maintained that she contributed significant sums during the relationship via her salary from Telecommunication Services of Trinidad and Tobago, as well as her Voluntary Separation (VSEP) proceeds from the company, Justice Gobin concluded that she exaggerated those financial contributions. Accordingly, the applicant’s claim was refused because it was found that she had already been heavily compensated throughout the relationship, over and above her contribution as determined by Justice Gobin.
32. Mr. Velasquez, on the other hand, apart from room and board, (which in my view is an integral part of any significant relationship and should not be treated as a set-off against monetary contribution), also enjoyed the occasional holiday trip that Ms. La Fon funded. Arguably, this can be considered the receiving end of contribution by a homemaker, but when the essence of it is on par with what is the normal expectancy of such a relationship, I hardly think it is worthwhile to look upon it as payment for services rendered. Furthermore, when one compares Ms. La Borde’s benefits to those of Mr. Velasquez we find that Ms. La Borde enjoyed far greater returns over a much shorter period, with less comparative output than Mr. Velasquez, Therefore to equate them I think would make for an unfair comparison and an unfair outcome.
33. Furthermore, the applicant, as I have found, was far greater help to Ms. La Fon than Ms. La Borde was to Mr. Gilbert throughout their respective relationships. The respondent literally and figuratively saved the applicant from certain financial doom and as I have pointed out earlier. Without his assistance she would have certainly lost everything. The magnitude of his help cannot be compared to Ms. La Borde’s.
34. Returning to the case of Bennett v Parker [2001] VSC 401 used by Mrs. Seebaran-Suite in support of the applicant’s case, I would like to point out that there was a marked contrast between the contributions of the parties there and the instance case. In Bennett’s Case the common law wife, though clearly not the financial contributor, gave tirelessly of her labour on the stud farm and homemaking skills, whereas, taking all of the respondent’s contributions as I see them, they are of a lesser degree to those of the wife in Bennett v Parker. This, I fear, would necessarily have a negative impact on the adjustment application for the respondent and tip the scales in favour of the applicant.
35. Mrs. Clarence-Quamina also relied on the very cases referred to above, but came to the conclusion that Mr. Velasquez, by his contribution, was indeed entitled to half the interest of East Montague. The essence of her argument was that because he played a significant role as financial and non-financial contributor he should be awarded half the value of East Montague.
36. Mrs. Clarence-Quamina wondered whether it had have been the applicant’s calculated initial intention all along, to lure the respondent into helping her out of a sticky situation only to discard him as soon as she achieved her goal. While that may be an extreme way of looking at it, one cannot help but compare the circumstances of this case to that of the Blackman Case and wonder if this thought bears some merit. I have already discussed the significance of this earlier on this judgment (page 6 above).

Discussion on the Law

36. There is no dispute that the parties shared a cohabitational relationship as defined by the Act and it is clear that the court has jurisdiction under section 4 to make orders with respect to property, whether real or personal and to award periodical as well as lump sum payments.
37. Before examining the factors as outlined in the Act to which consideration must be given when making these orders, I must comment on the timing of the applicant’s application. I cannot help but think that her attitude throughout may have been prompted by a deep-seated belief, that the respondent may have indeed been entitled to some interest in the very property to which she was claiming he has no share, and for fear that he may make a claim of his own at some indefinite time in the future, she decided to commence proceedings at the earliest possible time, rather than be faced with this lingering uncertainty so that, as Mrs. Clarence-Quamina said in her submissions “she could move on”. I believe that this was because she must have felt that the respondent was entitled to some interest in East Montague.
38. On the other hand, would the respondent have been prepared to walk away from this unfortunate situation and leave well enough alone, if the applicant had not filed her application? He was not the instigator of these proceedings and it was only after the trial, was over that the respondent, as an after-thought, decided to file his own application. Just as had happened in the Blackman Case the applicant was the moving party. The answer to this question may not be forthcoming, but the applicant’s prompt action certainly reminds us of the old adage “once bitten twice shy”. Having already been seared by the unsavory outcome of the relationship she shared with Mr. Blackman, but now arrived with some knowledge of the legal ramifications emerging from that situation, the applicant must have been aware of the probability of a legal battle with the respondent over East Montague, because by then she would have known that the respondent, having made certain contributions would be entitled to a share in the property. She would also have been aware from the Blackman Case, that certain financial contributions of a partner are considered by the court in determining a division of assets.
39. Indeed in her application against Mr. Blackman she claimed inter alia, a declaration that she was the owner entitled to possession of East Montague to the exclusion of Mr. Blackman, when it was clear that he contributed to its acquisition in a monumental way. Could this have been her motive for underrating the respondent’s role during the relationship while at the same time highlighting his faults, so that she could once more extinguish her cohabitee’s interest in the property?
40. As I stated earlier where there is conflicting evidence I prefer the respondent’s version of the facts. In testing some of the applicant’s statements I found many inconsistencies, the most glaring one being, according to her, that she continued to shower the respondent with gifts of holidays and other apparent extravagances, in spite of his alleged minimal contribution to the family and altogether unwholesome behavior, which I am loathe to repeat here. Does it seem reasonable to reward such miserly an abhorret conduct of the sort complained by the applicant? I think not. On the contrary her actions are more akin to gratitude for a well-deserving partner. Another example are the claims made by the applicant which present an anomaly in themselves. On the one hand she is saying that the respondent is not entitled to share in East Montague, yet in recognition of their cohabitational relationship she seeks from him a lump sum.
41. Turning now to the factors to which the court must give consideration in determining the adjustment applications, section 10 of the Act 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;

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

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

42. The above section directs my main concern in this case to the contributions of parties throughout this relationship whether those contributions are of a financial or domestic nature. Justice Davies summed up the purpose of section 20 of the Australian Act at paragraph 29 of the Jones v Grech judgment thus: “in general, an inquiry under s.20 requires, first of the identity and value of the respective assets of the parties, secondly, of the contributions of the type contemplated by paras (a) and (b) made by each partner, and, lastly, [and in my opinion most relevant to the case before me] whether in all the circumstances of the case, the contributions have already been sufficiently recognized and compensated for and, if not, whether it is just and equitable to make an order so that the contributions of one or other of the parties are sufficiently recognized and compensated for.” I am guided by these steps as outlined in the above extract and I apply them to this case under the following three headings: (i) Identity and Value of the assets; (ii) Contributions, of the parties and (iii,) recognition and compensation of contributions.

(i)         Identity and Value of the Assets

43. What are the assets that fall to be considered in this case? (1) First, and most obviously, East Montague. The other assets comprise (2) the business enterprise known as Margaret’s Sales, in (which the respondent) says he played a crucial role during the relationship (3) the following accounts of the applicant to wit: (i) savings at Scotiabank standing at the time of filing her Form 8 at $65,590.60 (ii) Major League with Republic Bank of $15,000.00 (iii) joint savings (with the respondent) of $800.00 (iv) RBTT account with a balance of $24,000.00 (v) Nestle Credit Union account – $60,000.00. (4) motor vehicles in the name of the applicant: (i) Peugeot 307 registration number PBT 129 valued at approximately $90,000.00; (ii) Peugeot 306 registration number PBJ 8725 valued ail $35,000.00. (5) Savings and Investment account held at Republic Bank belonging to the respondent in the amount of $9,000.00 as at 29th November 2007 the date of filing of his Form 9. (6) the respondent’s motor vehicle a Toyota Corolla Wagon registration number PBP 1915 in the value of $35,000.00.
44. The above list seems to cover all the significant assets that were accumulated during the relationship by the parties and which were disclosed by them in their Forms 8 and 9 respectively. However, I noted with disfavour that the respondent perhaps unwittingly, perhaps not, failed to give full details of the disbursement of the proceeds of his separation package from Nestle, other than to say “a major portion of it [sic] was expended on mediation for my diabetes” and that he spent as much as $1,500.00 per month on this expense,) [no receipts, time periods or costing for medication were provided], but more succinctly and without any show of guilt or other selfless emotion during cross-examination, conceded that he did not share any of it with the applicant.

(ii)         Contributions of the parties

45. Davies AJA concluded that the contributions of the respective parties as homemaker and financial provider, without more, are to be considered on equal footing. He stressed this point when he referred to the case of Mallet v Mallet at paragraph 37 of the Jones v Grech judgment where he said: “I have already referred to the approval by Wilson J in Mallet v Mallet at p. 636 of the statement by Evatt CJ in the Marriage of Rolfe that: “While the parties reside together, the one earning and the other fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and the contribution of each should be given equal value.”
46. This case is also instructive in the position already alluded to that contributions made before the relationship are to be taken into account and furthermore, both financial and non-financial contributions are to be considered in that regard.
47. What then are the contributions of the applicant? It is clear that she enjoyed and still enjoys the comforts that are now affordable to her. It is evident that she ensured that the family was well fed; that the living accommodation was adequately furnished and equipped; that the family enjoyed worthwhile leisure time, including holidays abroad, timely payment of utility and other household bills and that generally the essential needs of the family as a whole, were met. But it is also evident that the situation was not always like this. It must be remembered that she had a good head-start with Mr. Blackman’s help, so that by the time he exited or was pushed out of the picture her status had improved dramatically. She started that relationship virtually empty-handed and seven (7) years later emerged as the legal owner of real estate with exclusive right of occupation, with very little output on her part; but with Mr. Blackman’s disappearance she was now plunged into debt. She turned to the respondent who rescued her from certain financial ruin. According to the respondent he was the one who kept the family afloat for some considerable time after Mr. Blackman left, with little or no help from the applicant and it was only towards the latter part of the relationship, when both boys were working adults and not beings called upon to contribute to the family’s expenses, that he refused to contribute more. I have already expressed disappointment at the lack of detail provided by the respondent making it difficult to appreciate the true extent of his contributions both financial and non-financial but there is no doubt that it must have been significant, to enable the applicant to be so financially well-off at this time.
48. I turn now to examine the contributions of the respondent. It is not disputed that he made a financial contribution to repair of the roof of the family home, but he goes further to say that he helped the applicant financially even before they began their relationship. He says that when the relationship with Mr. Blackman ended in 1988, resulting in a sudden drop in funds for the applicant to run the household, it was he who came to the her rescue, by paying her mortgage and taking care of the two boys, repairing the damage to East Montague and repaying the alleged embezzled funds to her employers.
49. Although the respondent produced no evidence to substantiate this claim, the reasoning of the circumstances support him, particularly when one looks at the situation prevailing at the time. According to Mr. Blackman’s affidavit of filed in the Blackman Case, a copy of which was exhibited to the respondent’s affidavit and which remained largely unchallenged by the applicant, East Montague, although bought in the applicant’s sole name, was purchased jointly by herself and Mr. Blackman. Mr. Blackman contributed significantly to the property, not only by way of the mortgage payments but by the several subsequent loans taken to substantially improve it. He said that he also contributed to the financial needs of the children, assisted in the furnishing of the house and the purchase of foodstuff and took care of other household needs. At the time of the breakdown of that relationship in 1987 the applicant was working for about $2,000.00 supplemented by monthly contributions of $300.00-$400.00 from the children’s biological father, which would have made it difficult if not impossible altogether for her to make ends meet on her salary alone, (the mortgage alone being in the amount of $1,350.00) hence her move to approach the respondent for help. I therefore accept the respondent’s version of the facts and find that he must have supported her quite substantially during this difficult time, by making contributions to her mortgage instalments and meeting the financial household requirements prior to and during the early half of their cohabitation. The applicant has given no explanation to refute hat the respondent says, as to how she managed her affairs during this period, which makes me more resolute in my finding that he assisted her significantly.
50. It is arguable, as I have already stated, that a significant portion of these contributions preceded the cohabitation and therefore should not be taken into account as being contributions contemplated by section 10. However, a strict interpretation of that section would certainly result in an unfair and unjust conclusion for someone realizing that he or she shared a firmly established intimate relationship, somewhat short of living together, but with the common intention for that to be the next progressive step in the relationship, and who had contributed significantly to the other party’s welfare. Depending on the extent of the contribution, then, unless the contributor in such an instant is a kind and wealthy benefactor, it is reasonable to assume that contributions during that time would be considered an investment so to speak in the relationship, with a view to that relationship taking root and flourishing into a more permanent one and therefore, by all means, such contributions should be taken into account as part and parcel of the cohabitation that naturally evolved from such a relationship. The result would be therefore that all the contributions prior to and during cohabitation are taken and considered as a whole.
51. This view was employed by Justice of Appeal Davies in the Jones Case and he supported his proposition by making reference to two other cases where similar conclusions were drawn. I have already made reference to what he said at paragraph 24 of that judgment but he went on to say at paragraphs 25 and 26:

“In McDonald v Stelzer [2001], NSWA 302: Priestly JA held that Bergin J had been titled to take into account, ‘matters very closely connected in subject matter, time and relevance to financial and non-financial contributions during the period of the full de facto relationship’ provided that her Honour gave ‘some weight, but not fundamental weight’ to such factors. Moreover, the factors specified in s. 20 (p. 9 above) may include actions, which have taken place prior to the commencement of the period of relationship which gives rise to the jurisdiction of the court. Thus, one or both of the parties may have contributed to the acquisition, conservation to improvement of the subject at an earlier time. One or both of the parties may then have contributed in the capacity of homemaker or parent to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and a child of the partners or a child accepted by the partners into the household. These are factors which may require examination.”

52. It is quite clear to me from the excerpt above and from what it must be reasonable to assume, that it is wholly unfair and unjust, in examining any case of cohabitation to ignore the contributions of any party prior to the time when they actually lived together, if the factual matrix shows activities being carried out in contemplation and with a clear intention of entering into a cohabitational arrangement. This is especially so when in many such instances there is likely to be no specific, documentary or other proof other than the parties’ own words that the relationship blossomed from a visiting one to one of living together. One must look at the circumstances and the activities of the parties in order to determine whether there was a common intention to form a family and when that family is finally created, there should necessarily be an inclusion of contributions made during the pre-cohabitation phase, when determining adjustment applications, in order to truly reflect the intentions of the parties at all critical phases of the relationship.
53. According to the respondent, the parties had been seeing each other romantically for about two years prior to their living together – 1988 to 1990 – at which time he was still living in Belmont, with his estranged wife, daughter and mother. During this time too, the applicant was still living with Mr. Blackman, albeit on the verge of a break-up and she was going through a difficult time at work. As their relationship deepened, the respondent moved to an apartment in Curepe, where the applicant visited him regularly, bringing him cooked meals and spending most Sundays with him. It is his evidence that she “virtually spent most of the week with him [sic] until he [sic] moved into her home in [sic] 1990” She confided in him about her troubles, and because they were romantically involved, he naturally became her knight in shining armour, during the two-year period just prior to his moving in with her and made the several contributions referred to earlier. Is it fair then that contributions made by him during this time should be discounted because they were hot cohabiting at the time? If my reasoning above is correct then the answer must clearly be “no”.
54. I am therefore minded to include in the respondent’s portfolio of contributions to this relationship [his assertions which I accept for reasons outlined earlier] the following contributions: (1) mortgage payments on East Montague after the breakdown of the relationship between the applicant and Mr. Blackman; (2) his contribution to the applicant’s household including the needs of the children during that time; (3) payment of legal fees in the action against Mr. Blackman, which involved injunctive relief, which by itself is a costly process, no details of which were given by the respondent. At first glance it may be thought that this item ought to be excluded for consideration, but I am of the opinion that this action enabled the preservation of the asset for the applicant and therefore should be considered; (4) repairs, at the respondent’s cost, to East Montague which as damaged allegedly by Mr. Blackman which damage included (i) prising of the burglar roofing (ii) broken doors (iii) destruction to the porch (iv) damage to the roof (v) broken louvre panes (vi) destruction to the window surround. The respondent said that he also contributed of his time and labour to effect these repairs. I accept his evidence in this regard. The applicant denies that the cost of these repairs was met by the respondent. It is her evidence that it was she who financed and arranged the repairs. However this is inconsistent with the reality of the situation that during this time the applicant would have been burdened with financial woes that on her own she would have been unable to manage. The respondent said that she confided to him that at this time she was saddled with her own household needs and that of the children, the mortgage payments, which, until then, were being met by Mr. Blackman, the confiscation of her car, and her employer’s demand for the re-payment of the allegedly embezzled funds; all this while facing the cost of repairs to the damage done on the property by Mr. Blackman. It would have been virtually impossible for her to meet all these expenses on a salary of $2,000.00 per month. (5) the $13,000.00 paid to release the applicant’s car held by her employer’s pending re-payment of funds, which, when she was once more in possession of was used as the security that facilitated the respondent’s loan to effect the repairs; (6) contributions to the day to day running of the household and purchase of foodstuff, while doing his fair share of household chores, washing up the dishes, doing the laundry and clearing the yard; (7) the expertise and physical involvement in Margaret’s Sales, the foundation of which he was an integral part.

(iii)Recognition and Compensation of Contributions

55. The respondent has not put figures to all of his contributions as outlined above, but his failure to do so does not in my mind negate the fact that he indeed made the contributions to which he has attested. The difficulty now is in quantifying those contributions, while at the same time recognizing that there are some activities for which an arithmetical calculation is impossible. Justice O’Bryan in the case Bennett v Parker [2000] VSC 401 faced a similar exercise and addressed it by estimating the “salary” Ms. Bennett would leave earned as a homemaker for the period of the cohabitation. If I were to apply the same thinking to this case, the result would be purely guess work, for it is not at all clear from the evidence before me what the true extent of the respondent’s non-financial contribution was. He did not elaborate on this in his evidence except to say that he must have helped because the alternative, that is that the applicant met all costs, or at the very least the major portion of the costs herself, was virtually an impossibility, given her salary. I do agree with this trend of thought, but it does not make the task of putting a figure to the respondent’s obvious contribution any easier.
56. What I am clear about however is that for all the contributions as I have outlined above that the respondent made throughout the relationship (including the two years prior to the parties living together), 1 do not think that the cooked meals, shared bedroom and holiday trips are enough to compensate and/or recognize him for his efforts. At the very least the scales are balanced; at most they are tipped in favour of the applicant but only moderately so.

Summary and Conclusion

57. In consideration of the applications by both parties for a lump sum, the Court must determine what their respective contributions were during the course of the relationship. Like Justice O’Bryan in the Bennett Case [2000] VSC 401 para 17 I find that the evidence supports the view that the Husband made more than just a token contribution throughout the relationship and that combined contribution though impossible to place a financial value must be recognized. I do not think that the applicant, providing the respondent with meals, holiday trips and a place to sleep, in any way adequately compensated him for his contributions, as suggested by Mrs. Seebaran-Suite, but at the same time the paucity of the evidence to fully appreciate the magnitude of the respondent’s contribution, according to him, puts him at a disadvantage when it comes to assessing his non-financial contributions. It is no easy task to weigh these activities in light of the evidence.
58. In summary the parties’ contributions consisted of:
59. The former co-habitational home at East Montague, Trincity which was purchased by the applicant before the relationship;
60. The cost of repairs to the property borne largely by the respondent to restore it after it was damaged by the applicant’s first co-habitee;
61. The joint venture by the parties which evolved into Margaret’s Sales;
62. The financial assistance rendered by the respondent during the relationship and particularly during the applicant’s troubles with her former employers;
63. The assistance rendered by the respondent to recover the applicant’s car from her former employers;
64. The respondent’s care and support of the applicant’s children while they were still minors, cooking, cleaning and doing yard work;
65. The role of the applicant as homemaker preparing meals purchasing foodstuff, furniture etc; and
66. Providing holiday trips for the family abroad and attempting to maintain a certain standard of living for the family.
67. During happier times the relationship exhibited true partnership qualities with the parties working together to support each other and contribute to the household and family life as best they could. The respondent contends that he made further contributions in the form of mortgage payments and others but unfortunately these claims were unsubstantiated. Even the contributions that he made during the relationship and not disputed remain largely un-quantified as he failed to produce documents in support of his claim.
68. The applicant had managed to accumulate significant savings no doubt through her shrewd business acumen, but I believe the respondent when he says that he helped her during the lean times, without which, having regard to her salary and her financial woes she would not have been able to survive, let alone recover to the extent where the family was able to enjoy a substantially improved standard of living.
69. I therefore find that the respondent did contribute in a significant way to the improvement of East Montague and the financial resources, and that the applicant too contributed by acquisition of the property and as homemaker. I also find that Margaret’s Sales was a combined effort of the parties, capable of generating moderate profits at first and then climbing to quite lucrative heights. Unfortunately, the statements of the joint account into which these profits were allegedly ploughed, only date from 2006 and are not helpful as to what transpired prior to that time. Furthermore, as I have said over and over again in this judgment, the vagueness of the evidence does not give me enough information with which to properly weigh the respondent’s non-financial contributions over the years. I am aware that whatever figure I settle on in this regard may wholly undervalue the respondent’s contribution, but at the same time I must be careful not to give him an unfair advantage by over-estimating it in light of the lack of evidence. The important point to note however, is that for reasons given throughout this judgment, I am of the firm opinion that some compensation must be awarded the respondent, not only for the obvious financial contributions, prior to and during the cohabitational relationship, but more so, to the non-financial contribution that I have found that he made as part-provider, step-father, homemaker and business partner, during the said periods.
70. On the negative side when the relationship started to unravel the parties stopped supporting each other and communication and trust deteriorated to a level that neither could tolerate, the other. This may have led to the respondent hoarding the $107,000.00 he received as his VSEP package. He freely admitted that on receipt of the said sum he refused to share it with the applicant, using it instead to pay off for his car, help his daughter acquire one of her own and meet his medical expenses. The applicant for her part, grudgingly continued to prepare meals for the respondent and even this led to quarrels between them. The respondent slipped more and more to the status of a hoarder, contributing insignificant sums, while accusing the applicant of infidelity. She too complained of the respondent’s sometimes abominable behavior which he of course denies.
71. I need to mention here that although both parties have alluded to several incidents of misconduct by the other, these accounts do not help me in making any determination in this case. According to Tam J in Lorna Blacks v Solon Douglas Case No. FH01796 of 2005 (para. 10 of the judgment) “Unlike the provisions of the Matrimonial Proceedings and Property Act the Cohabitational Relationships Act does not accord any consideration to the conduct of the parties except in so far as it related to their contributions, financial or otherwise. Therefore unless it can be shown that these allegations are true and or true that they detrimentally affect the applicant’s contributions, they have no effect on any quantum that should be awarded …”
72. This position was reiterated by Gobin J in La Borde v Gilbert (p. 13 above): “Let me say here that I do not consider that conduct was an issue in this case and I thought that this had been made early on. s. 27 of the MPPA makes specific reference to the Courts jurisdiction to take into account the conduct of 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”.
73. I am of like mind as my brother and sister and would just add that the time spent by parties recounting incidents of misbehavior, only serve to lengthen the process and promote further animosity between them. More importantly these accounts do not assist the court in determining the crucial issues in adjustment applications and should, in the vast majority of cases be left out altogether.
74. As it now stands the respondent has vacated the former cohabitational home and is once more residing in rented accommodation. The applicant contends that the respondent has formed another cohabitational relationship. Apart from not accepting her thoughts in that regard I will make no further comment as I am of the view that this is of no assistance to the issues at hand. The respondent has two motor vehicles in his name although he says that one of them for which he facilitated a mortgage belongs to his daughter and she pays the mortgage instalments. The applicant is on same footing with two cars of her own, one of them being paid for by her son. Both sets of cars seem to be of similar value.
75. Of the other assets as held by the applicant mentioned above (pp 17 and 18), I find that the respondent would have been entitled to a share in the RBTT account, at Park Street representing proceeds from Margaret’s Sales, since it is a direct link to the joint venture of the parties. I must however take into consideration the respondent’s refusal – justified or not – to share his retirement benefits with the applicant. The three sums above-mentioned amount to $90,190.32, which is in the vicinity of the respondent’s VSEP lump sum less approximately $17,000.00.
76. Both parties have money invested in Nestle Credit Union – $57,600.00 belonging to the applicant; $20,000.00 to the respondent. The respondent has $9,000.00 standing to the credit of his Republic Bank account. The respondent receives $3351.00 per month made up of pensions (Nestle and Clico) and state benefits. The applicant receives a salary of $7,000.00 (net). Both parties have significant personal expenses apart from the usual household expenses, she as it relates to hair, dental and optical; he as regards his diabetic condition and/or health concerns.
77. All in all it seems that the parties are almost on the same level when their combined liquid assets are taken together, an allowance for lump sum to either would primarily result in a cancellation exercise. The two motor vehicles that each party has in his possession also put them on equal stand. With that in mind I leave these assets untouched.
78. It seems to me therefore, that the only asset left for me to consider for adjustment is the Est Montague Trincity property. It is not in dispute that the respondent paid $27,500.00 to repair the roof. The respondent also claims that he spent further sums over the years in the vicinity of $65,000.00 in improvements to the home. These claims were not supported by evidence as I have said before. The applicant says that the $27,500.00 was meant as a gift by the respondent, who says she promised him a roof over his head. I believe him when he says it was not a gift but a contribution to the home to which he was soon to be a part of and that he contributed to the household over the years.
79. I think that in order to meet the justice of this case I would invoke section 9 of the Act and make orders that will end the financial relationship between the cohabitants and avoid further proceedings between them.
80. The applicant states that the respondent should not be awarded anything to represent his interest in the property and indeed that he has no interest therein. The respondent is claiming as much as a half of its market value. In my opinion I do not think that the respondent should walk out of the relationship with nothing. I think that it is just and equitable that he should receive something for his contribution, but at the same time with the evidence as I have it before me I do not think his interest can be assessed as one half the value of East Montague.
81. I find that the respondent is entitled to claim the following to represent a lump sum:
82. The $27,500 he spent on the house
83. The $’3,000.00 he paid to release the applicant’s car.
84. A sum to represent his contribution that he must have made during the relationship to the family as a whole, including the mortgage payments. I do not accept that the applicant bore the lion’s share of the expenses particularly during the early part of the relationship; rather, it must have been the other way around. I quantify this contribution in the amount of $34,500.00.

 

ORDER

73. (1) I therefore order that the applicant pay to the respondent the sum of $75,000.00 within six months from today’s date to represent his share and or interest in the property situate at 22 4th Street East Montague Trincity. (2) Upon payment of the said sum the respondent’s shall relinquish ALL THAT his share and or interest in the said property. (3) The Injunction granted 14th June 2006 is discharged.

Allyson Ramkerrysingh

Judge

 

ADDENDUM

De Facto Relationship Act, 1984 20.

20. Application for adjustment

(1)  On an application by a de facto partner for an order under this Part to adjust (interests with respect to the property of the de facto partners or either of them, a court may make such order adjusting the interests of the partners in the property as to it seems just and equitable having regard to:

(a)  the financial and non-financial contributions made directly or indirectly or on behalf of the de facto partners to the acquisition, conversation or improvement of any of the property of the partners or either of them of to the financial resources of the partners or either of them and

(b)  the contributions, including any contributions made in the capacity of homemaker or parent made by either of the de facto partners to the welfare of the other de facto partner or to the welfare of the family constituted by the partners and one or more of the following, namely:

1. a child of the partners,
2. a child accepted by the partners or either of them to the household of the partners, whether or not the child is a child of either of the partners.