“A” v “R”
| Jurisdiction | Cayman Islands |
| Judgment Date | 08 August 2022 |
| Docket Number | CAUSE NO. GC 102 of 2012 |
| Court | Grand Court (Cayman Islands) |
Hon. Chief Justice
CAUSE NO. GC 102 of 2012
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Amanda Minto of Travers Thorpe Alberga for the Applicant
The Respondent in person
This matter comes before the Court on the Applicant Mother's (hereinafter “A”) summons for enforcement of child maintenance Orders. The first of the Orders is that of Swift J (Acting), delivered on 12 December 2014.
To the extent relevant for enforcement purposes, that Order provided as follows:
“1. The Respondent shall pay to the Applicant for the benefit of the children ‘N’ and ‘K’ child maintenance at the rates and for the terms as set out below:
(a) From 31 July 2013 to 1 August 2014 at the rate of CI$700.00 per child per week;
(b) From 1 August 2014 at the rate of CI$630.00 per child per week.
2. The child maintenance payments are to be:
i. Paid monthly to the Applicant on behalf of the Children:
ii. In the total sum of CI$5,460.00;
iii. On the 15 th business day of each month;
iv. By electronic transfer;
v. Into the Applicant's bank account at Cayman National Bank (Account Number 01112863).
3. The Respondent shall, in addition, pay forthwith to the Applicant the sum of CI$8,7 75.00 made up of the following individual amounts:
i. Maintenance arrears for 5 previously missed payments in the sum of CI$3,000.00;
ii. The CUC invoice paid by the Applicant in the sum of CI$509.00;
iii. Costs incurred with reference to N's operations in the sum of CI$3,266.00
iv. A lump sum payment of CIS2000.00”
There was an appeal by the Respondent (hereinafter “R”) against the Order of Swift J (Acting) but the Court of Appeal refused leave to appeal on the quantum of payments (ie: as set out above). A's application for enforcement, is therefore made on the basis that the Order of Swift J (Acting) of 12 December 2014 (and subsequent related Orders to be discussed below) comprise a binding and appropriate dispensation as between the parties and expressed in terms with which R has been obliged strictly to comply.
There was nonetheless, by 2 December 2015, an already developing history of non-compliance. On that date, the matter returned before the Court on a summons and Notice for Committal filed by A against R, for failure to pay. The matter then came before me and on the same date, I settled an order by consent of the parties expressed in the following still relevant terms, including the recitals:
“ And upon the Parties agreeing to compromise the sums due by the Respondent under a Judgment of Swift J (Acting) of 12 December 2014 (“the Judgment”), as recorded in two orders of the Court dated 12 December 2014 (“ the Order”) and 13 February 2015 (“ the 13 February 2015 Order”);
It is hereby ordered by consent that:
1. The Respondent shall pay to the Applicant CI$8,775.00 due under paragraph 3 of the Order in three tranches as set out below:
(a) The first tranche in the amount of CIS3000.00 shall be paid to the Applicant on the 8 th day of December 2015;
(b) The second tranche in the amount of CI$3000.00 shall be paid to the Applicant on the 15 th day of January 2016; and
(c) The final tranche in the amount of CI$2,775.00 shall be paid to the Applicant on the 15 th day of February 2016.
2. …
3. The Respondent shall pay CI$30,000 into a trust on the following terms and conditions:
(a) The beneficiaries of the trust shall be the two children of the Parties, “N” and “K”. The children shall be able to access the capital once each child is 18 years of age.
(b) The parties shall be the Joint Trustees of the trust;
(c) The Clerk of the Court shall act as the Protector of the trust;
(d) The Respondent shall make an initial capital payment of CI$1,000.00 to set up the trust fund; and
(e) The balance of the capital in the amount of CI$29,000.00 shall be paid into the Trust by the Respondent on or before the 30 th day of June 2016.
(f) The final details of the Trust shall be agreed between the Applicant and the Respondent, and in the absence of Agreement as to the terms, shall list the matter for determination of the same to be finalized by the Chief Justice
4. …
5. The Notice of Motion for Committal dated 20 November 2015 is hereby dismissed by consent.
6. The Respondent shall refrain from making an application for variation of child maintenance for a period of 9 months of the date of this Order.
7. …
8. Save as varied by this Order, the Order shall remain in force.
9. There shall be liberty to apply in connection with the working of this Order.” [emphasis added].
The Order, the 13 February 2015 Order and this last mentioned Order made by me on 2 December 2015, are together hereinafter referred to as “the Orders”.
A now complains that, except for eight (8) monthly payments the last of which was made on 31 August 2016, there has been gross non-compliance with the Orders by the failure of R to make any other payment. She therefore now seeks enforcement of payment of unpaid maintenance in the amount of CIS377,140.00, as set out in the following Schedule of Arrears filed on her behalf:
| Date Payment Made | Payments Made | Balance Owed |
| 17-Dec-15 | S 5,440.00 | $ 20.00 |
| 20-Jan-16 | $ 5,440.00 | $ 20.00 |
| 22-Feb-16 | $ 5,400.00 | $ 60.00 |
| 29-Mar-16 | $ 5,400.00 | $ 60.00 |
| 19-Apr-16 | $ 5,400.00 | $ 60.00 |
| 26-May-16 | $ 5,400.00 | $ 60.00 |
| 22-Jun-16 | $ 5,400.00 | $ 60.00 |
| Jul-16 | $ | $ 5,460.00 |
| 31-Aug-16 | $ 5,400.00 | $ 60.00 |
| Sep-16 | $ | $ 5,460.00 |
| Oct-16 | $ | $ 5,460.00 |
| Nov-16 | $ | $ 5,460.00 |
| Dec-16 | $ | $ 5,460.00 |
| Jan-17 | $ | $ 5,460.00 |
| Feb-17 | $ | $ 5,460.00 |
| Mar-17 | $ | $ 5,460.00 |
| Apr-17 | $ | $ 5,460.00 |
| May-17 | $ | $ 5,460.00 |
| Jun-17 | $ | $ 5,460.00 |
| Jul-17 | $ | $ 5,460.00 |
| Aug-17 | $ | $ 5,460.00 |
| Sep-17 | $ | $ 5,460.00 |
| Oct-17 | $ | $ 5,460.00 |
| Nov-17 | $ | $ 5,460.00 |
| Dec-17 | $ | $ 5,460.00 |
| Jan-18 | $ | $ 5,460.00 |
| Feb-18 | $ | $ 5,460.00 |
| Mar-18 | $ | $ 5,460.00 |
| Apr-18 | $ | $ 5,460.00 |
| May-18 | $ | $ 5,460.00 |
| Jun-18 | $ — | $ 5,460.00 |
| Jul-18 | $ — | $ 5,460.00 |
| Aug-18 | $ — | $ 5,460.00 |
| Sep-18 | $ — | $ 5,460.00 |
| Oct-18 | $ — | $ 5,460.00 |
| Nov-18 | $ — | $ 5,460.00 |
| Dec-18 | $ — | $ 5,460.00 |
| Jan-19 | $ — | $ 5,460.00 |
| Feb-19 | $ — | $ 5,460.00 |
| Mar-19 | $ — | $ 5,460.00 |
| Apr-19 | $ — | $ 5,460.00 |
| May-19 | $ — | $ 5,460.00 |
| Jun-19 | $ — | $ 5,460.00 |
| Jul-19 | $ — | $ 5,460.00 |
| Aug-19 | $ — | $ 5,460.00 |
| Sep-19 | $ — | $ 5,460.00 |
| Oct-19 | $ — | $ 5,460.00 |
| Nov-19 | $ — | $ 5,460.00 |
| Dec-19 | $ — | $ 5,460.00 |
| Jan-20 | $ — | $ 5,460.00 |
| Feb-20 | $ — | $ 5,460.00 |
| Mar-20 | $ — | $ 5,460.00 |
| Apr-20 | $ — | $ 5,460.00 |
| May-20 | $ — | $ 5,460.00 |
| Jun-20 | $ — | $ 5,460.00 |
| Jul-20 | $ — | $ 5,460.00 |
| Aug-20 | $ — | $ 5,460.00 |
| Sep-20 | $ — | $ 5,460.00 |
| 0ct-20 | $ — | $ 5,460.00 |
| Nov-20 | $ — | $ 5,460.00 |
| Dec-20 | $ — | $ 5,460.00 |
| Jan-21 | $ — | $ 5,460.00 |
| Feb-21 | $ — | $ 5,460.00 |
| Mar-21 | $ — | $ 5,460.00 |
| Apr-21 | $ — | $ 5,460.00 |
| May-21 | $ — | $ 5,460.00 |
| Jun-21 | $ — | $ 5,460.00 |
| Jul-21 | $ — | $ 5,460.00 |
| Aug-21 | $ — | $ 5,460.00 |
| Sep-21 | $ — | $ 5,460.00 |
| Oct-21 | $ — | $ 5,460.00 |
| Nov-21 | $ — | $ 5,460.00 |
| Dec-21 | $ — | $ 5,460.00 |
| Jan-22 | $ — | $ 5,460.00 |
| Feb-22 | $ — | $ 5,460.00 |
| Mar-22 | $ — | $ 5,460.00 |
| Apr-22 | $ — | $ 5,460.00 |
| $ 377,140.00 |
A now acknowledges and accepts however, that this sum of arrears of $377140 must be reduced to reflect the fact that the elder child N, turned 17 on 22 January 2020 and that, in keeping with paragraph 3(1) (a) of the First Schedule to the Children Act (2016 Revision), in the absence of any provision in the Orders extending their effect, the provisions for payment may not extend beyond that age. Accordingly, as of 22 January 2020, the liability for payment was reduced by half, from $5460 per month to $2730 and thus A's claim for payment of arrears to April 2022, is reduced from $377140 by $76440 to $300700.
A and R were in a relationship from 2001 until their separation in 2011. They have two children, N (now 19) and K (16). N is still in full time education at St. Ignatius High and is due to commence University studies in England in September 2022. K remains in full time education at Cayman Prep and is also expected to attend University in due course. While the Orders do not extend to provide for their tertiary education, R has expressed his commitment to ensuring that this is provided.
In response to A's claim for enforcement of arrears, R asserts that responsibility for the children's physical care has changed since the time of the hearing before Swift J in 2014, such that he should be regarded as having become, for some considerable time, the primary care giver. In disputing the sum of arrears claimed, he invites the Court to place great emphasis on the fact that the children reside at his home for two weeks of each month and return to his home each evening after school to be fed a meal by his helper, until they are picked up by A in the evening during her ‘Week 1 and 3’.
However, as A retorts, this is not a new arrangement, nor is it a change of circumstance that has occurred since the making of the Orders. Indeed, this arrangement for after school care, is reflected by Swift J (Acting) at [5] and [6] of his Reasons for Judgment:
“[5] …The Applicant has been criticized both in the course of the hearing before me and in the Respondent's contributions to these proceedings…on the grounds that she “refuses to support in/assist in supporting the children” and I am satisfied she felt under pressure eventually to take some form...
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