DJ v BJ

• Jurisdiction: Cayman Islands
• Judge: Cheryll Richards
• Judgment Date: 29 July 2019
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO. FAM 66 OF 2014

Between:

DJ

Petitioner

and

BJ

Respondent

Before:

The Hon. Justice Cheryll Richards Q.C.

CAUSE NO. FAM 66 OF 2014

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Family Law — Final Ancillaries — Sharing of Matrimonial Assets, Construction and Application of Pre-nuptial Agreement

Appearances:

Mr. Nicholas Yates Q.C. instructed by Mr. Andrew Woodcock of Hampson & Co for the Petitioner

Mr. Guy Dilliway-Parry of Priestleys for the Respondent

Introduction

1 This is a final ancillary hearing following the filing of a Petition of divorce by the Petitioner wife (“the wife”) on the 15 ^th April 2014. The wife, and the Respondent husband (“the husband”) were married on the 17 ^th February 2012, so that the marriage lasted a little over two years. At the time of the marriage, the parties executed a pre-nuptial agreement (“the Agreement”) which is dated 16 ^th February 2012. There is a fundamental issue between the parties as to the interpretation of this Agreement. This is, as to whether the terms of the Agreement require that assets acquired during the marriage are to be assessed and shared as at the date of the separation of the parties which was on the 28 ^th March 2014 or as at the date of dissolution of the marriage.

2 At the time of the marriage the Petitioner was pregnant with the couple's only child, a son J., who was born on the 4 ^th July 2012. He is now seven years old. This was the second child for the wife and the husband's first. He has since had a second child, D. now 3 months old, and is engaged to be married.

3 J. was diagnosed with Down syndrome shortly after his birth and is thus a child with special needs. Multiple reports have been provided by the parties in the course of their Affidavit evidence and there is very little dispute between them on this aspect of the case. As a result of the diagnosis, J. will have global developmental delays and requires additional and specialist care to foster and support his development and growth throughout his life. J.'s present therapy needs include speech and language therapy to develop his language skills, and, twice weekly physiotherapy sessions to address any delays in his motor skills 1 He also requires ongoing occupational therapy

which is currently twice weekly to address his cognitive and gross motor skills, self-care and social skills. Some of his needs cannot be met on Island and he requires twice yearly travel off Island to a specialist treatment centre in the United States. He will continue to require intervention to support skills towards independence such as meal preparation, topography navigation, money management and job skills 2. One of his doctors noted that J's treatment plan and progression are not expected to be linear. The reports also indicate that his skills will ebb and flow, dependent on his routine and structure, consistencies in behavioral interventions and his medical health. 3 He has been progressing well and there have been positive outcomes from his treatments

4 Additionally, at the time of his birth J was also diagnosed with a heart murmur and a transient leukemoid gene. This latter is described as a condition which pre-disposes him to leukemia at a higher rate than the typical child. Following several tests, his hearing also requires to be monitored over time.

5 J is currently in his first year at a local school. By arrangement with the school, the school provides a special aide to be with him throughout the school day and the cost of this is borne by the parents.

6 Prior to the hearing, the only area of disagreement between the parties as to J's treatment needs was as to whether he also requires Applied Behaviour Analytic Intervention for children with developmental delays (‘ABA Therapy”). This is described as therapy to address any non-compliance issues on the part of the child and as being central to ensuring the effectiveness of his other therapies. In short this

therapy would improve his compliance with instructions in relation to other therapies. The husband now agrees that J is to have this additional treatment and he has agreed to meet the cost of it

7 Both parties are professionals, who married later in life. The wife is now 46 years old. The husband is 47 years old. The wife is a certified public accountant and since 2011 is also an attorney by profession. The husband is a certified public accountant. At the time of the marriage in 2012, the wife was employed as an attorney at a law firm and the husband was employed as a partner in an Accounting Firm. He had commenced employment with the Accounting Firm in October 1997 and was made a partner in July 2010 prior to the marriage. Following J's birth, the wife took a short leave of absence from work. After a return to paid employment, she determined to start her own companies in order to allow her to be more present in J's life, given the level of attention which he requires. Since November 2016, she has been self-employed in her own law Firm while operating a second sister company which provides corporate services.

8 The wife is the primary caregiver for J, who resides with her for most of each month. He resides with the husband from Friday evening to Sunday evening of every other weekend. It is the wife who takes J to his various appointments and has endeavored to find the best treatments, facilities and specialists for his care. The husband has provided financial support for J including payments for his various treatments and extracurricular activities such as horseback riding and swimming. Various orders have been made by the Court for J's interim maintenance pending this final hearing.

Interim Maintenance Orders

9 On the 23 ^rd July 2014, by order of the Hon. Chief Justice, the husband was ordered to pay interim maintenance to include $4,465.00 to meet the monthly special needs costs for J, in addition to any other costs which may arise, $3,700.00 to assist the wife to establish a second home, $4,000.00 for the first month's rent on the wife's new home and a further sum of $1,135.00 for the purchase of essential items.

10 On the 4 ^th September 2015, by order of Williams J. made pursuant to the wife's Summons of May 2015 seeking clarification of the July 2014 Order, the Order of the Hon. Chief Justice was varied to the effect that the husband was required to pay all the costs for therapy for J, interim child maintenance of $7,182.00 per month and arrears accrued under the July order. He was also to make disclosure of certain items and pay 50 % of the Petitioner's costs.

11 On 21 ^st October 2015, the husband sought leave to appeal the Costs Order, which leave was refused on the 30 ^th October 2015. 4

12 By summons dated 23 ^rd November 2017, the wife sought an increase in interim maintenance on the basis that the passage of time and changes in their living arrangements made such a review necessary. On the 14th December 2017 by order of Gunn J. (Actg.), the order of Williams J. was varied to the extent that the interim maintenance pending suit was increased by CI $495.00 to $7,677.00 per month. The Court found on doing so that the wife's current and likely future earnings had improved since 2014 and that she should bear 45 % of the costs of rent and J's travel.

The Court also gave directions for disclosure which are referenced in more detail below

13 Thus between July 2014 and December 2017, the husband paid CI $86,184.00 per annum in maintenance for J, in addition to the costs of his specialist treatments. The position now is that the husband pays interim maintenance of CI$7,677.00 per month or $92,124.00 per annum, as well as the costs for special needs/care required for J, which are now in the region of $5,000 per month or $60,000.00 per annum.

The Marriage

14 The parties first met in 2004 — some eight years before the marriage. There is disagreement between them as to the level of consistency of the relationship. The wife says that they began what she describes as a serious and exclusive relationship and initially resided in a condominium which she owned. The husband did not then own property. She says that they separated on two occasions during this eight-year period but reconciled. At the time of the husband's purchasing his first home in 2007, she assisted him with a loan for closing costs which he has since repaid. She describes herself as having made many sacrifices for him during their relationship including having to sell her shares in a company because of conflicts with his work. She says also that she supported him during his long nights of work and provided emotional support in the years he was passed over for partnership.

15 The Husband disagrees with her description of their pre-marital relationship and says that they had a volatile relationship during which they were separated for extended periods, one being for more than a year from autumn 2009 through to the end of 2010. They did remain in contact but only because they had mutual friends. He points out that they were not even together when he became a partner in his Firm. During the eight-year period, he says that the wife had other serious relationships with other people, as did he. He does not consider that she made sacrifices. He accepts that he did request her to sell her shares because of work conflict but contends that there were many other similar stocks which she could have invested in but did not, and instead she spent the money.

16 As best as can be determined from the evidence of both parties, and eliminating the two periods of separation, it appears that they were together for a non-continuous period or at least five years prior to their marriage. They were together for a continuous period of two years just prior to the marriage.

17 Both agree that following their reconciliation in 2010, they decided to get married and have children. The wife says that the decision was primarily driven by...