B v B

• Jurisdiction: Cayman Islands
• Judge: (Quin, J.)
• Judgment Date: 22 June 2010
• Court: Grand Court (Cayman Islands)
• Date: 22 June 2010

Grand Court, Family Division

(Quin, J.)

B (M.)

and

B (J.)

N. Dyer, Q.C. and Ms. L. Briggs for the petitioner;

N. Cusworth, Q.C. and Ms. A.R.M. Hernandez for the respondent.

Cases cited:

(1) AR (A Child) (Relocation), Re, [2010] 2 FLR 1577; [2010] 3 F.C.R. 131; [2010] Fam. Law 932; [2010] EWHC 1346 (Fam), dicta of Mostyn J. applied.

(2) C (A Minor), In re, 2008 CILR 400, applied.

(3) D (Children), Re, [2010] 2 FLR 1605; [2010] Fam. Law 1175; [2010] EWCA Civ 50, dicta of Wall, L.J. considered.

(4) H (A Child), Re, [2010] 2 FLR 1875; [2010] Fam. Law 1069; [2010] EWCA Civ 915, dicta of Wilson, L.J. considered.

(5) Martinez v. Arch, 2003 CILR N[20], applied.

(6) Payne v. Payne, [2001] Fam. 473; [2001] 2 W.L.R. 1826; [2001] 1 FLR 1052; [2001] 1 F.C.R. 425; [2001] EWCA Civ 166, dicta of Thorpe, L.J. applied.

Legislation construed:

Guardianship and Custody of Children Law (1996 Revision), s.19: The relevant terms of this section are set out at para. 40.

Children Act 1989 (c.41), s.1(3): The relevant terms of this sub-section are set out at para. 39.

Family Law-children-removal from jurisdiction-Guardianship and Custody Law (1996 Revision), s.19 requires decision to be made according to welfare of child only-need to consider detrimental effect of refusal on child but no legal presumption in favour of one parent”s reasonable request-neutral approach in line with Washington Declaration on International Family Relocation-observing checklist in English Children Act 1989, s.1(3) to help ensure child”s welfare paramount consideration

The petitioner applied to remove the children of her marriage to live with her in Canada.

The parties, both Canadian citizens, had moved to the Cayman Islands, where they married, lived together for a number of years, and had two children who, by the time of this proceeding, were 8 and 10 years old respectively. The children held both Canadian and Cayman passports, and were being educated at school in the Cayman Islands. The marriage broke down irretrievably-the father (the respondent) moved out of the matrimonial home, the mother (the petitioner) filed for divorce, and the parties agreed on an equal division of their substantial matrimonial assets. Nonetheless, both parties maintained a loving, committed and supportive relationship with the children, and co-operated to arrange a regime for spending time with them whereby both were fully involved in their children”s lives on a regular basis. The mother subsequently retired from work.

The mother applied for an order that she be permitted to remove the children from the Cayman Islands to live with her in Ontario, Canada. She submitted that she should be allowed to do so since (a) she and the father had agreed on a plan to educate them in Canada, where she believed they would obtain a better education than in the Cayman Islands; (b) this was the right time to move them, as the elder child was about to enter high school, and the younger would adapt better to a move at this time than later on; (c) the father would be able to look after them every long weekend during the school holidays, to spend any other weekend with them in Canada and to have daily telephone or internet communication with them; and (d) the refusal of her application would be likely to affect their welfare detrimentally. She accepted, however, that, should her application be rejected, she would remain in the Cayman Islands in order to stay with the children.

The father submitted that the mother”s application should be dismissed, since (a) the agreement to educate the children in Canada was based on the parties” remaining together; (b) their emotional, physical and educational needs were being adequately met by the current regime; and (c) the proposed move would have a detrimental effect on them and his relationship with them, since he would no longer play as large a part in their lives.

Held, dismissing the application:

(1) The mother would not be allowed to remove the children to Canada at this time. When determining whether to allow a parent”s request to remove children from the jurisdiction, the court would apply s.19 of the Guardianship and Custody Law (1996 Revision), which required the decision to be made according to the welfare of the child only. This would involve a consideration of the detrimental effect that a refusal of the mother”s reasonable proposal would be likely to have on the children. However, since the court needed to exclude from consideration all factors which had no bearing on the child”s welfare, there would be no legal presumption in favour of one parent”s reasonable request-a neutral approach that was in line with the Washington Declaration on International Family Relocation, as well as the English case-law. Observing the checklist in the English Children Act 1989, s.1(3) would help ensure that the welfare of the children was always the paramount consideration (paras. 28–44; para. 64).

(2) On balance, the mother”s proposal would be rejected. Although it was genuine, it was unrealistic given the short period of time in which the children would have to leave their life and friends in the Cayman Islands. Any pre-separation discussions between the parties as to the children”s future education had been based on the parties remaining together, whereas a move with the mother only would be a major upheaval. Furthermore, the mother, now retired and willing to stay in the Cayman Islands if necessary, was in a good position to be able to cope with the refusal of her application-whereas the father would suffer considerably were it granted, since he would lose important regular contact with the children. The detriment this would cause to the children and the father would not be offset by any contact with new friends or family in Canada. Nor was the proposed removal in the children”s best interests more generally, since they did not wish to move away from their father and their emotional, physical and educational needs were being met well by the current regime. The application to remove the children to Canada would therefore be dismissed, with a recommendation that no change should be considered for at least a year (paras. 54–63; paras. 65–73; para. 76).

1 QUIN, J.: The petitioner issued a summons on March 31st, 2010 for an order that the petitioner be permitted to remove the children of the marriage, M and J, from the Cayman Islands, to live with her in Ontario, Canada.

Matrimonial proceedings

2 The parties are both Canadian citizens and accountants who came to live in the Cayman Islands in 1992. The parties were married in the Cayman Islands on May 21st, 1994. Since the celebration of their marriage they lived in two matrimonial homes in Grand Cayman-in one home from October 1994 to 2000 and in the second home from 2000 to January 2008. This second home is the matrimonial home where the petitioner and the two children reside. There are two children of the marriage, namely M, born on July 26th, 1999, and J, born on June 27th, 2001.

3 The father is a chartered accountant and certified management accountant and is employed in the financial services industry. The mother is a chartered accountant who worked full-time until her job ceased in April 2010. The father and the mother have both obtained Caymanian status. Their children have both Canadian and Cayman passports. The children of the marriage were both born in the Cayman Islands and to date have been educated at their current school in the Islands.

4 On June 17th, 2009, the petitioner filed her divorce petition on the grounds of the irretrievable breakdown of the marriage and sought dissolution of the marriage. In January 2010, the petitioner filed a summons for general directions, requesting the preparation of a welfare

report to address, inter alia, the question of the petitioner returning to Canada with the children or, alternatively, the possibility of the parties and the children remaining in the Cayman Islands.

5 On March 19th, 2010, Jones, Ag. J. made an order for the preparation of a welfare report which addressed:

(a) the ascertainable wishes and feelings of the children concerned (considered in the light of his/her age and understanding);

(b) his/her physical, emotional and educational needs;

(c) the likely effect on him/her of any change of circumstances;

(d) his/her age, sex (i.e. gender), background and any relevant characteristics;

(e) how capable each of his/her parents are of meeting his/her needs;

(f) the possibility of a move to Canada; and

(g) the possibility of remaining in the Cayman Islands.

6 On March 31st, 2010, the petitioner issued a summons for an order that she be permitted to remove the children of the marriage from the Cayman Islands to live with her in Ontario, Canada. [The learned judge then listed the 15 affidavits, reports and documents which had been put before the court, and continued:]

Relevant chronology

7 During 2006 and 2007, difficulties between the parties started to emerge. Eventually the marriage broke down irretrievably towards the end of 2007 and the beginning of 2008 as a result of fundamental irreconcilable differences between the parties and, consequently, the respondent left the matrimonial home on February 1st, 2008. The children have continued to live with the mother in the matrimonial home. The parties have negotiated and agreed a financial settlement and, their assets have been divided equally (even though implementation has not been entirely finalized) leaving them each with substantial financial resources.

8 The mother is in a relationship with a Canadian, Mr. M, who lives in Canada. Mr. M is separated from his wife and also has two children, aged 6 and 8, who live with their mother in Canada. The father in this case is in a relationship with a woman who has an 11-year-old son. They both live in the Cayman Islands. Over the 2½ years since the parties separated, they have...