STEPHEN v. STEPHEN

TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

No. M-255 of 2000

Between

                                  ANTHONY STEPHEN                                  Petitioner

And

                       GILLIAN ELIZABETH STEPHEN               

Respondent

 

Before the Honourable Mr. Justice J. Tam

Appearances:

Ms. J. Julien for the petitioner

Ms. L. Francis for the respondent

 

 

Decision

 

Before the Court is the Petitioner/Husband’s Notice dated 15^th February, 2002, to vary an order of Stollmeyer, J., dated 9^th February, 2001, for periodical payments for the 3 children of the family by decreasing the same from $1,050.00 per month for each child, to $500.00 per month for each child. The application is made pursuant to section 31 of the Matrimonial Proceedings and Property Act (hereinafter referred to as “the Act”). The basis of the application is the changed financial circumstances of the husband. Essentially, he contends that at the time the order was made, his income was such that he could, and did, easily meet the monthly periodical payments that he had consented to make. However, he says that his situation changed drastically in August, 2002, and that he can no longer meet his obligations under the order because, inter alia, his income has dramatically decreased while his obligations have increased.

 

Section 31(1) of the Act provides that “Where the Court has made … an order to which this section applies, then, subject to this section, the Court shall have power to vary… the order…”. It is not in dispute that the order of Stollmeyer, J., is one to which this section applies and is therefore capable of being varied.

 

Section 31(7) of the Act further provides that “In exercising the powers conferred by this section the Court shall have regard to all the circumstances of the case, including any change in any of the matters to which the Court was required to have regard when making the order to which the application relates…”.

 

Further, in Rayden and Jackson on Divorce & Family Matters, 16^th Edition, paragraph 32.6, at pages 739-740, the learned authors state that “In exercising the provisions conferred by Section 31 the Court has to have regard to all the circumstances of the case, first consideration being given to the welfare, while a minor, of any child of the family who has not attained the age of eighteen. The circumstances of the case include any change in any of the matters to which the Court was required to have regard when making the order to which the application relates… The Court now looks at the application to vary on the basis of the means of the parties as they stand at the time when the case is before it, and approaches the matter as if it were assessing the payments de novo.  The same basic approach applies to variation of consent orders.  The power to vary reflects changes in circumstances subsequent to the date of the order… The Court should consider not only the descending income of one party but also any ascending income of the other, and will take into account any increase or decrease in responsibilities or liabilities on the part of each party.”

 

Thus, in making the original order, the Court was mandated to consider the matters set out in section 27 of the Act and is again now called upon to re-consider those matters as they relate to the present circumstances of the parties and the children of the family.

 

Section 27 provides that –

“(1)     In deciding whether to exercise its powers under section 24 or 26 in relation to a party to the marriage and, if so, in what manner, the Court shall have regard to all the circumstances of the case including the following matters:

• the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
• the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;…

 

(2)       … it shall be the duty of the Court in deciding whether to exercise its powers under section 25 or 26 in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters:

• the financial needs of the child’
• the income, earning capacity (if any), property and other financial resources of the child;
• any physical or mental disability of the child;
• the standard of living enjoyed by the family before the breakdown of the marriage;
• the manner in which he was being and in which the parties to the marriage expected him to be educated or trained

and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in subsection (1) (a) and (b), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.”

 

The parties were married on the 21^st May, 1994, when the husband was 20 years old and the wife 19.  The husband was already a jockey. The wife had no occupation. Their first child, Christopher Anthony Stephen, was born on the 17^th March, 1995. They subsequently had 2 other children, namely, Crystal Elizabeth Stephen, born on the 5^th May, 1996 and Celine Sarah Stephen, born on the 17^th October, 1998. These children are now aged 8, 6 and 4 respectively. Two years after getting married, the husband left Trinidad & Tobago to work in Maccau in the Far East. Between 1996 and 1999, the Respondent/wife visited and stayed there with him on about 3 occasions. The husband also returned to Trinidad on an average of about once per year to spend time here with the wife and the children. In fact, when the last 2 children were born, the husband was already working in Maccau. He says that in August, 1999, he discovered that the wife had withdrawn the sum of US$100,000.00 from their Citibank account and had applied the monies as she alone had seen fit, without any reference to himself. This sum represented his total savings from his earnings in Maccau up to that time. The wife has not disputed this.

 

On the 14^th March, 2000, the husband filed a petition for divorce and on the 7^th July, 2000, was met by an application filed by the wife for maintenance pending suit for herself and for periodical payments for their 3 children. The husband filed his affidavit of means on the 20^th September, 2000, and on the 25^th September, 2000, at the first hearing of the application, he consented to an interim order for payment of $1,050.00 per month for each child. When the matter came before Stollmeyer, J., on the 9^th February, 2001, a consent order was entered whereby the interim order was made final, and the wife withdrew her application for maintenance pending suit.

 

 

A decree nisi was pronounced in favour of the wife on the 10^th April, 2001, and on the 3^rd July, 2001, the wife filed another application for maintenance for herself. The decree nisi was made absolute on the 6^th December, 2001 and the husband subsequently remarried in March, 2002. On the 13^th Februar,y 2003, the Court heard and dismissed the wife’s application for maintenance for herself.

 

The husband is now a 28-year old racehorse jockey, residing in Vancouver, British Columbia, Canada, with his second wife and their infant daughter. At the time of the making of the order of Stollmeyer, J., he was residing and working in Maccau and earning the equivalent of TT$40,000.00 per month.  In his affidavit filed on the 20^th September, 2000, he deposed to the high cost of living in Maccau whereby he expended just under $33,000.00 in monthly expenses, inclusive of the sum of $3,150.00 in monthly maintenance of the 3 children of the family. In August, 2001, his licence to work in Maccau having expired, he travelled to the United States of America in search of work. At that time, he possessed about US$30,000.00 in savings. For the period August, 2001 to January, 2002, he earned a grand total of US$1,879.50 in the USA while expending over US$20,000.00 for housing and setting-up costs. In this period he continued to meet his obligations to pay the monthly maintenance for the children of the family. However, by February, 2002 he found that he could no longer do so and on the 15^th February, 2002, his attorneys filed the application that is now before this Court.

 

Subsequent to filing the application, the husband relocated to Vancouver, Canada, in April 2002, and has been employed since May, 2002, at the Hastings Race Track earning an average of about Can$5,500.00 per month (The current exchange rate to the Trinidad & Tobago dollar is roughly TT$4 to Can$1). His average monthly expenses amount to about Can$4,600.00, leaving him with roughly Can$900.00 in his hands. Out of this sum, about $790.00 must be paid towards the present order, leaving him about $110.00 with which to meet incidental household and other expenses.

 

The wife has challenged the husband’s earnings by stating that she believes that he also rides at other racetracks in Vancouver. She has not however been able to provide suitable evidence of this other than a document showing that between 5^th April to 16^th June, 2002, he had 1 mount at the Stampede Park Race Track. When this is compared with his 309 mounts between 20^th April to 1^st December, 2002, at Hastings, the evidence suggests that the husband’s sojourn at Stampede Park was very short-lived and that he has since settled at Hastings. The Court therefore accepts that he now rides almost exclusively at Hastings and that his average earnings at Hastings are as he has stated.

 

In September, 2002, the husband sustained 2 serious falls during races. These left him with a fractured shoulder blade and wrist. This was not good news for him because it meant that he could not work as a jockey for the period required for his injuries to heal properly. He deposes to the fact of having to live off of savings, primarily those of his present wife, since his own savings have been largely depleted. The Court accepts this, having regard to the nature of his occupation. He earns his living as a jockey and, obviously, when injured, he is unable to work. Such are the hazards of his occupation. Counsel for the wife has submitted that the husband has provided no medical evidence of his injures. By this submission, Counsel has implied that perhaps the injuries are neither real nor serious. However, the wife has nowhere in her affidavit disputed either the injuries or their seriousness, and the Court consequently accepts them to be both real and serious.

 

The evidence also shows that subsequent to August, 1999, the husband accumulated a further sum of US$100,000 in savings which he said represented the joint savings of himself and his present wife while they lived together in Maccau prior to their marriage. He accounted for this sum in the following manner: (a) $40,000.00 for medical treatment (mainly a cochlear implant) for his infant daughter from his second marriage, (b) $20,000.00 to purchase a parcel of land for his grandfather, (c) $10,000.00 as security for a credit card, but later applied towards living expenses, including the monthly maintenance for the 3 children of the family, and (d) the balance of $30,000.00 in relocation and setting-up costs in the USA and in Canada, as well as for his second wedding. The wife has contended that by expending these monies in this fashion, the husband has squandered the funds because all of these represent “unnecessary causes”. She further contended that she herself did not squander the US$100,000.00 which she took for herself because she used most of it to purchase a house for the children and herself, plus a foreign-used motorcar, while the balance of about TT$60,000 was used for living expenses as the husband was not paying the monthly order of the Court. However, a closer examination of this argument will show that the husband’s use of his money can hardly be described as “squandering”, while the wife’s use of the money she took can at best be described as “unwise”.

 

The wife cannot seriously be contending that the money spent by the husband for medical treatment for his hearing-impaired child was an unnecessary cause. In any event she has produced no evidence that can contradict the husband’s in this regard. Nor can she seriously be contending that the money spent on setting-up and relocation costs in North America was an unnecessary cause, as the husband could not otherwise continue to earn his living. Further, the husband has explained that he lived with his grandfather as a young boy and that his grandfather was more like a father, rather than a grandfather. In those circumstances, the Court can find nothing unreasonable in the husband’s expenditure towards the purchase of land for his grandfather. The Court also finds nothing unreasonable in the husband’s use of the money as security for his credit card, and eventually to assist in the monthly maintenance payments.

 

On the other hand, the monies of which the wife has had the benefit amounted to about TT$630,000.00 (approximate exchange rate of TT$6.30 to US$1.00). She chose to purchase a home for $500,000.00. She did not take out a mortgage or any loan whatever in doing so. She was thus left with about $130,000.00. She then purchased a motorcar for $65,000.00 and was left with a balance of about $65,000.00 that she says she has since utilized in living expenses for the children and herself. In effect, she utilized the money in 2 major investments, the house and the car. The car itself is a wasting asset. It is a convenience that provides no income while bringing liabilities. The house also provides no income as no part of it is rented out. However, outgoings such as property taxes, water and sewer rates, electricity and telephone bills and repair and maintenance costs are incurred. No doubt the wife may have received advice from various sources before she utilized the funds. Whether she took advice or chose to act on her own has not been disclosed. The Court however views the use to which she put the monies as unwise and foolish. Had the monies been placed on fixed deposit, or in some other secure investment, for example, there can be no dispute that she would have received a minimum return of at least 8.5% per annum, thus guaranteeing her an income of at least $53,000.00 per annum or about $4,400.00 per month. This money could have been used to either pay a rent or a mortgage on a cheaper home, while leaving something to pay some of the monthly expenses and preserving the original lump-sum. Further, the present home appears to be far above the parties’ former living standard and one questions the wisdom in purchasing a property for half a million dollars with no return in terms of an income with which to upkeep that home and to live on. However, it may not be too late. The wife can still consider other options, including rental of all or part of the home, or even a sale and reinvestment of the proceeds to provide her with an income.

 

As for the parties’ obligations and responsibilities, the Court accepts that a large part of the husband’s additional obligations would be towards the running of his new household and, in particular, for the maintenance of his youngest daughter. Although this child was born with a hearing deficiency, it does not appear that she will in the foreseeable future require any further major medical care or treatment, apart from the major operation she has already had to undergo. The Court imagines however that this child will have to attend a special school and to take special lessons and courses tailored to hearing-impaired children. This assumption is supported by a letter dated the 23^rd January, 2003, from the Vancouver Oral Centre for Deaf Children.

 

The husband’s present wife is not employed outside of their home. He has not stated the reason for this. The evidence shows that she did in fact work and contribute financially to their household when they lived in Maccau. She also attended University in Maccau as a Business Management student on a student exchange programme. It is reasonable to presume therefore that she will in time be able to contribute financially to their household and thus lighten the burden on the husband.

 

The wife, on the other hand, is unemployed. She has said that she is unable to secure employment at this time because the 3 children of the family are young and need constant care and supervision. The 2 older children are attending primary school while the last child will begin primary schooling in September coming. Additionally, the wife has described her standard of education as “limited” and has stated that she is lacking in skills. There is no evidence that she has done anything to try to acquire either a better education or skills that would equip her for the job market. The children will all soon be at school. The wife has an obligation to try to better herself and to earn a living. She has an equal obligation under the law to maintain the children, though what she may actually be called upon to contribute financially must be viewed in light of all of the other surrounding circumstances. She cannot simply sit back in the present circumstances and expect the husband to shoulder all of the burden since to do so is to require him to indirectly support her as well in circumstances in which the Court, by the dismissal of her application for support for herself, has found that she herself is not entitled to further financial support from the husband. The monies taken by her from the husband were more than adequate to meet her own needs. The fact that she chose to utilize those funds unwisely is no fault of the husband. As far as present and foreseeable obligations and responsibilities go, the evidence suggests that the wife’s only obligations will be towards the children during their minority. Financially speaking, the husband is already responsible for most of this.

 

The Wife has set out the monthly expenses she has for the children and for household bills as follows:

 

Market and meat –                                            300.00

Groceries –                                                       800.00

Phone –                                                             300.00

WASA –                                                           100.00

Electricity –                                                       150.00

Clothes for children –                                       200.00

Gasoline –                                                         400.00

School supplies and donation to school –         200.00

Toiletries –                                                        100.00

Medicine and drugs –                                       200.00

Schools allowance of $5.00 per day

for 3 children –                                                 300.00

                                                                     ———–

                                            Total –            $  3,050.00

                                                                     ———–

Each of these items must be considered by the Court in order to arrive at what can be considered a reasonable sum for the monthly maintenance of the children. Thus, the Court considers the following as reasonable sums attributable to the financial needs of the 3 children alone (i.e., exclusive of the wife) –

 

Market and meat –                                            200.00

Groceries –                                                       600.00

Phone (including cell phone) –                         150.00

Electricity –                                                       100.00

Clothes –                                                           200.00

Gasoline –                                                         200.00

School supplies and donations –                       100.00

Toiletries –                                                        100.00

Medicine and drugs –                                       200.00

                                                                ———-

Total –        $  1,850.00

 ———-

 

The Court notes that the WASA bill is an expense payable whether or not the children live with the wife. The Court does not consider that children of the tender ages of these 3 children require an allowance of $5.00 each per day and, in any event, the youngest child is not at school as yet. However, even allowing the full extent of the amount stated by the wife (i.e. $300.00), the Court considers that a total monthly figure in the region of $2,100.00 is more than reasonable and sufficient to maintain the 3 children for the time being and is in keeping with the parties’ standard of living before the breakdown. The claim for medicine and drugs is reasonable because the children suffer from asthma. This has not been disputed by the husband.

 

The wife has further set out the following as her annual expenses –

 

Motor vehicle insurance (third-party) –                                    400.00

Projected cost of school books, shoes and uniforms –          3,000.00

Vehicle maintenance/tyres etc. –                                            2,500.00

Medical and Dental expenses –                                              3,000.00

Maintenance of home –                                                          5,000.00

                                                                                ________

      Total –     $ 13,900.00

                                                                                 ————

 

The expenses stated for motor vehicle insurance, vehicle maintenance and maintenance of house are payable whether or not the children are with the wife. She has not stated whether the medical and dental expenses outlined cover her as well.  The Court however acknowledges that she will incur additional expenses for the children that do not occur on a monthly basis and that it reasonable that the husband contribute to these expenses. The husband shall therefore be required to contribute to the children’s school expenses, as well as expenses for any medical, dental or optical treatment that they may require.

 

In all the circumstances, the Court considers it reasonable to require that the husband pay a monthly sum of $600.00 for each child, as well as two-thirds of each child’s school expenses and medical, dental and optical expenses. Thus, the order dated 9^th February, 2001, is hereby varied so that:

 

• the husband shall pay to the wife the sum of $600.00 per month for each of the 3 children of the family with effect from the 1^st March, 2003 and thereafter on the first working day of every month until each child attains the age of 18 years, or until further order;
• the husband shall bear two-thirds of the cost of all school books, school uniforms and reasonable school supplies for the said children; and
• the husband shall bear two-thirds of the cost of all reasonable medical, dental and optical expenses for the said children.

 

Each party shall bear their own costs of the application.

 

Dated this 17^th day of March, 2003.

 

 

Joseph Tam

Judge.