BC v EC
| Jurisdiction | Cayman Islands |
| Judge | (Richards, J.) |
| Judgment Date | 23 January 2020 |
| Date | 23 January 2020 |
| Court | Grand Court (Cayman Islands) |
(Richards, J.)
Family Law — financial provision — children of marriage — final ancillary order varied to require father to pay increased maintenance for children — change in circumstances since order made: deterioration in child’s health, requiring mother to cease employment to care for him
Held, ordering as follows:
(1) The court had power under s.23 of the Matrimonial Causes Law to vary the terms of an ancillary order. Section 19 provided that the court would have first regard to the best interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and deserts of the parties. The order had been in place for a significant period of time. The court was required to carry out a review that was proportionate to the circumstances of the case. In respect of the first consideration of the best interests of the children, the children continued to require adequate housing, education and ongoing general maintenance. The court would consider to the extent that it was necessary to do so the responsibilities, needs, financial and other actual and potential earning power and the deserts of the parties as well as the relevant factors raised in s.25(2) of the Matrimonial Causes Act 1973. The court would consider in particular any changes in the matters considered by the court on the making of the original maintenance orders (paras. 19–20; paras. 28–29).
(2) It was clear that the children of the marriage were in need of financial support. The petitioner’s circumstances had changed significantly because of V’s need for continuing care which had led the petitioner to cease gainful employment to look after him. The court was not satisfied that the respondent’s earnings were at the higher level suggested by the petitioner. There was therefore insufficient evidence that he would be able to afford maintenance payments at the level of $2,000 per month for the children. To order payment at this level would be futile. The court considered that, particularly in high season, the respondent had the opportunity to increase his level of income. In addition, as he would finish work by 3 p.m. he had the ability and opportunity to supplement hisincome should he wish to do so. As to the actual level of his earnings, the court considered the respondent in evidence to have minimized his earnings. The court assessed his monthly earnings at US$3,800. Having taken account of the parties’ submissions and the facts and circumstances, the respondent would be ordered to make monthly payments of US$250 per month for each child. The respondent was also to pay half of the medical and dental expenses for the children. No order would be made in respect of J’s tuition fees as there was insufficient evidence that the respondent could afford to pay half of the school fees in addition to the other payments (paras. 50–62).
(1)C v. F (Disabled Child: Maintenance Orders), [1998] 2 FLR 1, referred to.
(2)Cato (née Peters) v. Cato, Eastern Caribbean Supreme Ct., Cause MT42/2013, considered.
(3)Lauder v. Lauder, [2007] EWHC 1227 (Fam); [2007] 2 FLR 802; [2008] 3 F.C.R. 468, referred to.
(4)Miller v. Miller, [2006] UKHL 24; [2006] 2 A.C. 618; [2006] 2 W.L.R. 1283; [2006] 3 All E.R. 1; [2006] 2 F.C.R. 213; [2006] 1 FLR 1186, considered.
(5)Morris v. Morris, [2016] EWCA Civ 812; [2017] 1 W.L.R. 554; [2016] 3 F.C.R. 224, considered.
(6)SD v. AL, Grand Ct., Fam. Div., Cause No. 145/2006, September 12th, 2017, considered.
(7)SS v. NS (Spousal Maintenance), [2014] EWHC 4183 (Fam), considered.
(8)VB v. JP, [2008] EWHC 112 (Fam); [2008] 1 FLR 742; [2008] 2 F.C.R. 682, considered.
(9)Wachtel v. Wachtel, [1973] 2 W.L.R. 366; [1973] 1 All E.R. 829, referred to.
Matrimonial Causes Law (2005 Revision), s.19: The relevant terms of this section are set out at para. 20.
s.22: The relevant terms of this section are set out at para. 5.
s.23: The relevant terms of this section are set out at para. 19.
The petitioner applied for the variation of a final ancillary order.
The parties had two children, V, born in 1992 and J, born in 2002. J attended a local private school. V had autism and epilepsy and severe cognitive delay. In a final ancillary order made in July 2009, the petitioner had retained sole custody, care and control of the children with reasonable access to the respondent. The respondent had been ordered to pay maintenance for the children in the fixed nominal annual sum of CI$1 for each child. The respondent’s interest in the former matrimonial home was transferred to the petitioner.
The petitioner sought a variation of the order so as to require the respondent to pay maintenance of CI$1,000 per child as well as half of the children’s medical, education and other expenses. An interim order was made by consent that the respondent pay US$200 per month for maintenance for V pending the completion of the hearing.
The petitioner submitted that circumstances had changed since the final ancillary order was made in 2009. She was now struggling to afford to care for V and J. She had previously been assisted by her parents but they had become prone to illness. V’s health had deteriorated and he now required 24-hour supervision. In the course of caring for him, she had found it difficult to make the mortgage payments on the former matrimonial home and the bank had foreclosed on the property. The petitioner andthe children now lived with her parents. V required a professional carer. She had had to take on this responsibility and was therefore no longer able to work. She received CI$750 from the Government for V and otherwise depended on financial support from her parents and other family members. The petitioner alleged that the respondent earned significantly more than the US$2,500 per month that he claimed.
The respondent submitted that the petitioner’s application was unreasonable and excessive. He could not make payments at the level sought by the petitioner. His monthly expenses and payments towards debts usually exceeded his earnings as a tour bus operator and he was often in arrears with his rent and utilities. He declined to make any contribution in respect of continued maintenance for J on the basis that at the time of the parties’ divorce the petitioner had received the former matrimonial home for the benefit of the children, and he never consented to J attending private school.
The court had jurisdiction under s.22 of the Matrimonial Causes Law (2005 Revision) to order the continuation of maintenance payments in respect of V, who was now 27 years old.
L. Cacho for the petitioner;
K. Ryan for the respondent.
1 RICHARDS, J.:
Introduction
By summons filed on September 6th, 2018, the petitioner (the wife) applies for the variation of a final ancillary order made on July 1st, 2009 by Henderson, J. By para. 3 of that order, the respondent (the husband)was ordered to make maintenance payments in the fixed nominal annual sum of CI$1.00 for each of two children of the marriage, sons, V and J. I shall refer to the parties as the husband and the wife although they are no longer married.
2 By para. 1 of the said order, the wife retained sole custody, care and control of the two children of the marriage with reasonable access to the husband. By para. 2 thereof, the husband was released from all past and present liabilities arising from the previous interim order which had been made on July 31st, 2008 by Harrison, Ag. J. This interim order, which was revoked, required the husband to pay the sum of CI$400 per month (CI$200) per child. By para. 4 of the said final order, the husband’s interest in the former matrimonial home at Registration Section West Bay North West, block 1D, parcels 451 and 452 was to be transferred to the wife subject to the consent of the chargee, and the husband was released from all past and present liabilities in relation to it. Paragraph 5 is in the following terms:
“That either party may apply for a variation of paragraphs 1 and 2 above should circumstances warrant variation and there shall also be liberty to apply as to the working of this Order generally.”
3 The wife now seeks an order that the husband make maintenance payments in the sum of CI$1,000 per child together with one half of the medical, educational and other expenses in relation to both children.
4 The parties were married for some twenty years between June 15th, 1985 and the date of separation in July 2005. Following the filing of a petition by the wife on July 25th, 2008, the marriage was dissolved on July 21st, 2009. There are two children of the marriage, V, born August 6th, 1992 and J, born July 9th, 2002. J is attending a local private school. The parties agree that in December 1995, V was diagnosed as suffering from autism and mental retardation and as requiring lifetime care and supervision. This is supported by reports in the hearing bundle dating back to November 27th, 1995 which diagnosed him as having an autism spectrum disorder1 and as requiring intensive speech therapy, developmental training and neurological follow up. A report on tests conducted on him in April 20122 described him as a nineteen-year-old young man with severe delay cognitively, who had lost language since age 3 and who demonstrates a slow adaptive skill level across the communication, social skills and socialization domains. That report concluded that the results obtained from tests were consistent with reports previously issued in 1995, 2000 and 2009.
______________________
1Report of Dr. Oscar Papazian.
2Dr. Ellen Strot, dated May 17th, 2012.
5 A more recent report is produced from the Health Services Authority dated February 21st, 2019. Dr. G. Christian concludes that due to significant impairment in social functioning, as evidenced by the lowest possible score on the Lawton scale, which is as a result of his medical...
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