Ak Petitioner v Tk Respondent

• Jurisdiction: Cayman Islands
• Judge: Honourable Mr. Justice Richard Williams
• Judgment Date: 07 February 2017
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO: FAM 39 OF 2015
• Date: 07 February 2017

Between:

AK

Petitioner

and

TK

Respondent

[2017] CIGC J0207-1

Before:

Hon. Mr. Justice Richard Williams

CAUSE NO: FAM 39 OF 2015

IN THE GRAND COURT OF THE CAYMAN ISLANDS FAMILY DIVISION

HEADNOTE

Financial provision — ancillary relief — conduct — spouse supporting other spouse's career to detriment of own potential career in middle length marriage — approach to be taken by Court as set out in McTaggart v McTaggart [2011] 2 CILR 366 — clean break principle — time limited spousal; maintenance — duty of experts — guidance on obtaining valuation expert reports if valuation not agreed — effect of delay in processing of permanent residency applications — requirement to provide sufficient evidence if asking court to make orders about chattels — taking into account legal fees paid by both counsel for matrimonial assets — level of legal costs and proportionality

Appearances:

Mrs. Sheridan Brooks from Brooks & Brooks for the Petitioner

Mr. David McGrath from Samson & McGrath for the Respondent

The Application

1 This is an application for ancillary relief made by AK, the 44 year old Petitioner husband. The application is made against his 43 year old wife TK. AK filed a Summons for ancillary relief on 25 February 2016 and his Amended Petition dated 12 March 2016 contains the relief sought in its prayer.

2 I hope that the parties will not be offended if from now on I refer to them, for convenience, as the husband and the wife.

The Background — The Divorce Proceedings and the Children

3 The parties were married on 7 September 2002. The parties in effect separated in March 2015. 1 On 9 March 2015 the husband filed his Petition for the Dissolution of the Marriage. The wife filed her Acknowledgement on 23 March 2015, indicating her intention to defend. The wife filed her Answer and Cross-Petition to the Petition on the same date. On 7 March 2016 McMillan J. granted leave to the husband to amend his Petition. The husband filed his Amended Petition on 13 April 2016. The wife filed her Acknowledgement of Service of the Amended Petition on 15 April 2016, indicating her intention not to defend, but also indicating a non-acceptance of the content of paragraphs 12 (b), (c) and (f). On 2 May 2016 leave was granted to the wife to withdraw her Cross Petition. The husband's Amended Petition was proved on 3 May 2016. It has been a medium length marriage.

4 There are two children of the marriage, K aged 12 and M aged 10. On 28 October 2015, following a contested hearing, McMillan J. made a shared residence order in favour of

the parents in relation to both children. The Learned Judge ordered that the children reside with each parent on an alternating week pattern and with each parent for half of every school holiday.

5 After the conclusion of the main ancillary relief hearing, the Court was informed that the wife had been charged for driving under the influence and careless driving following her involvement in a road traffic accident on 20 July 2016. The husband had concerns that this happened at a time when the wife was due to be collecting M from swimming. The parties were informed that I would be fixing a mention date on my own motion at which directions may be given about the filing of evidence and a welfare report. They were also informed of my view that the Court “may well have to reconsider the current arrangements for the children, which may have a knock-on effect on the ancillary relief orders.”

6 Although the parties understood why I had to recuse myself in the children proceedings, they were content for me to deal with the mention hearing on 24 August 2016. The Court was informed that the husband intended to issue a formal application to vary the s.10 Children Law orders made by McMillan J., the most significant variation being an order that the children would only stay with the mother on alternate weekends and possibly at agreed times during the week. I directed that the proposed Summons 2 should come before McMillan J., he being the Judge who had recently made the relevant order. In light of those developments, I extended the time to 30 November 2016 for the parties to file the closing written submissions. The parties were invited to speak in their submissions as to whether I should go on to conclude my ancillary relief judgment, or whether I should

limit myself to making only certain orders or whether I should delay making any decision pending the hearing of the children proceedings.

7 The written closing submissions prepared on behalf of the wife were filed on 30 September 2016, and those submitted on behalf of the husband were filed on 3 October 2016. Although, at various parts in the husband's written submissions, criticism was levelled at the wife due to the circumstances surrounding the charges for driving whilst under the influence, the parties contended that the ancillary relief proceedings should not be postponed pending the determination of the children proceedings. I understand that McMillan J. has given directions in relation to the Children Law proceedings, including the instruction of a Welfare Officer and a hearing of the husband's Summons in January 2017.

8 On 15 November 2016 the husband issued a Summons seeking directions in relation to alleged nondisclosure of the wife concerning her employment and income. At the hearing of that Summons on 9 December 2016 the husband, having had the opportunity to read the unsworn affidavit of the Managing Director of the wife's employer 3, invited the Court to make no order on the Summons. No order was made on the Summons, and the Court indicated that it could now go on to conclude the preparation of this judgment which had been delayed by the above-mentioned supervening events.

9 During the preparation of this Judgment I required and requested clarification from the parties about (i) the wife's investment accounts; (ii) the husband's legal costs; (iii) the use of the funds in one of the husband's investment accounts; (iv) whether the wife was seeking a sale of the former matrimonial home; (v) each party's permanent residence

applications and the effect on such an application if the former matrimonial home is sold; (vi) what type of property the husband feels would be appropriate for him to purchase if the former matrimonial home is sold; (vii) the mechanics for the payment of future child related expenses; (viii) the parties' position about the investment in to a college fund for the children; (ix) the length of the term for payment of spousal maintenance by the husband sought by the wife; and (x) the date of the parties' separation. The parties appeared before me on 17 January 2017 when they were afforded the opportunity to give the clarification.

10 This is my reserved written judgment given after careful consideration of the parties' oral and written evidence, which includes the evidence given by the Managing Director of the wife's employer, by the wife's property valuer and by the husband's property valuer. I have also carefully reviewed the oral submissions as well as the opening and closing written submissions provided by Counsel.

The Background — The Parties

11 The husband and wife are both Canadian nationals. The parties met in Canada in 1999. The husband moved to Barbados in around April 2001 to take up employment with RBC. The wife followed him to Barbados shortly thereafter, arriving in around September 2001. In cross-examination the husband said that he and the wife had been dating for a year and a half and, after she sold her house 4, they cohabited for a few months, albeit with a roommate in a property rented from the husband's father. Despite Counsel's unattractive submission that the wife “decided” to join the husband “no doubt because of the weather and the other advantages living in Barbados brings” and the husband's expressed view that the wife only joined him in Barbados as it was “her free-will choice”

as she saw it to be a “ great opportunity to live in the Caribbean,” I prefer the wife's evidence when she said in her evidence in chief that the parties had “ been together for one and half years”, were living as a couple in a “ fully committed” relationship, were “ very much in love” and “ whilst not engaged” they had “ talked about the prospect of marriage.” I prefer her evidence that this was an agreed and planned move to accommodate and support the change in the husband's career path. I accept her evidence when she said in chief that “ I had no doubt that we would marry, we knew we wanted to be together” and “ I gave up a great job to be together and support him.”

12 On Valentine's Day, 14 February 2002, five months after the wife joined the husband in Barbados, they became engaged. After a short engagement, seven months later, the parties married on 7 September 2002. These significant events and their timing are highly consistent with the wife's contentions about the nature of her relationship with the husband when she moved to Barbados, as well as with the reasons given by her for her move there.

13 The wife, who had completed postgraduate studies in sales and marketing, gave up her employment with SMART Technologies, an international technologies company, in Canada to join the husband in Barbados. Due to employment restrictions for non-nationals in Barbados, the wife was only able to find limited employment. She worked in a position that involved administrative responsibilities and some marketing functions at the Canadian High Commission, where she did not require a work permit. Only sixteen months after the marriage ceremony, in April 2004, K was born and the mother ceased work to enable her to be at home to care for him. When she was pregnant with M, the wife took up a six month contract for part-time work from home marketing a sports bar in Barbados. Although the mother found employment in Barbados, due to the nature of that employment...