Sc Petitioner v Sr Respondent
| Jurisdiction | Cayman Islands |
| Judge | The Hon. Mr. Justice Robin McMillan |
| Judgment Date | 04 November 2016 |
| Judgment citation (vLex) | [2016] CIGC J1104-1 |
| Docket Number | CAUSE NO. FAM 177 OF 2013 (RMJ) |
| Court | Grand Court (Cayman Islands) |
| Date | 04 November 2016 |
The Hon. Mr. Justice Robin McMillan, IN CHAMBERS
This Judgment is distributed on the strict understanding that in any report of this kind no persons other than the counsel or the attorneys instructing them (and other persons identified by name in Judgment itself) may be identified by name or location and, in particular, the anonymity of the child and the adult members of the family must be strictly preserved.
The division of Matrimonial Property and the principle of a clean break—The relevant aspects of need, compensation and sharing—The equitable nature of Notional Occupational Rent — The appropriate division of pension contributions paid during the course of the marriage.
The Petitioner's application is for a final determination of ancillary matters.
The parties have one relevant child and there are assets that the Court is requested to consider in order to make a final determination as to the respective interests of the parties. The Petitioner's position is that, of the assets, the property at Secret Gardens, George Town, Grand Cayman, registered in the joint names of the parties, and along with the relevant portion of a Roth Account her local pension, are matrimonial assets are and therefore subject to division along with a Roth IRS Account. The Respondent however disputes the scope of the assets and their apportionment.
The Petitioner seeks an Order as follows:-
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(a) A declaration that her Merill Lynch and Wells Fargo accounts in the USA are not marital assets and therefore not subject to division.
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(b) That each party is entitled to 50% of the net equity in the property located at Secret Gardens, Fairbanks Road, George Town, Grand Cayman.
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(c) That the Respondent be ordered to pay‘notional rent’ in respect of his sole occupation of the former matrimonial home and that this sum for notional rent be set off against any sums ordered due and payable to him by the Petitioner in particular, the value of his share in the net equity of the former matrimonial home.
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(d) That the award of costs (and the sum for costs of Cl $39,145.50 taxed by the Taxing Officer) per Order dated November, 2015, be set off against any sums ordered due and payable by the Petitioner herein.
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(e) That the Respondent shall pay towards the Petitioner's legal costs for the Florida legal proceedings, in the sum of USD $13,000.
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(f) That the relevant commuted portion of each party's pension be set off against the other.
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(g) That any relevant commuted portion of the Petitioner's local pension be set off against the award of costs made against the Respondent, and
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(h) That each party keeps the benefit of any and all bank accounts registered in his or her name.
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(i) That the Petitioner is entitled to 1/2 the value of the Respondent's motor vehicle in the USA.
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(j) That each party keep any other motor vehicle registered in their name.
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(k) That the Petitioner be allowed to travel with the minor child out of the jurisdiction, for a period of two weeks, in July, 2016.
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(I) That there shall be a joint residence Order in favour of both the Petitioner and the Respondent regarding their child.
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(m) The child shall spends his time with his parents in a 2-weekly cycle as follows:
Week 1: With the Respondent from Saturday morning at 11:30 am until Wednesday morning when the Respondent will drop the child off at Day Care/School. With the Petitioner from Wednesday afternoon when she will collect the child from Day Care/school, until Monday morning when she will drop the child off to Day Care/School.
Week 2: With the Respondent from Monday afternoon after Day Care/School, until Wednesday morning when the Respondent will drop the child off to Day Care/School.
With the Petitioner from Wednesday afternoon when she will collect the child from Day Care until Saturday morning at 11:30 am, when she will drop the child off with the Respondent.
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(n) In the holiday periods, the child's time shall be shared equally between his parents.
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(o) In addition to the above arrangements, The child's shall spend the following ‘special days’ with his parents, as set out below:
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(i) Canadian Thanksgiving: the child to be with the Respondent
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(ii) American Thanksgiving: the child to be with the Petitioner (in) Christmas Eve: the child to be with the Petitioner
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(iv) Christmas Day: the child to be with the Respondent
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(v) New Year's Eve: the child to be with the Respondent
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(vi) New Year's Day: the child to be with the Petitioner
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(vii) The child's birthday Both parents to have time with the child
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(viii) Mother's Day: the child to be with the Petitioner
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(ix) Father's Day: the child to be with the Respondent
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(x) Additional days when the child will be with the Respondent: March 26th, October 10th, November 8th and Divali (2 days).
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(xi) Additional days when the child will be with the Petitioner: the Easter break period (Good Friday to Easter Monday inclusive) and 1 other day of her choosing each year).
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(p) There shall be other arrangements for time spent by the child with the parties, as can be agreed.
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(q) The child Is to remain in Day Care.
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(r) That the Respondent father shall pay 50% of the costs of the child's school fees, directly to the school.
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(s) A specific issue Order, that the Petitioner mother is to seek to enroll the child in a school within the Cayman Islands, as she deems appropriate. The child shall attend the school in which he is appropriately enrolled, in due course.
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(t) A specific issue order that the Respondent father shall not be entitled to participate in the process of choosing the school to enroll the child.
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(u) That once the child is enrolled in school, the Respondent father shall pay 1/2 of the child's school fees.
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(v) That the Respondent father shall be responsible for 1/2 of the minor child's medical, dental and optical expenses.
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(w) The Prohibited Steps Order made against the Petitioner, shall be discharged.
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(x) The Prohibited Steps Order made against the Respondent shall remain in place. The Respondent is prohibited from removing the child from the Cayman Islands without the express written consent of the Petitioner, or in the absence thereof, without further Order of this Court.
In addition, it appears that the Respondent disagrees with the Petitioner as to her position in relation to (a) what assets are/are not marital assets (b) the distribution of the marital assets and (c) a further request for maintenance contribution from the Respondent towards the child's school expenses.
The parties were married on 26 March 2010 and by December 2012 according to the Petitioner, or possibly until around July 2013, according to the Respondent, they lived together in the matrimonial home in George Town, Grand Cayman.
On 26 August 2013 the Petitioner filed her Petition for Dissolution of the Marriage on the grounds of the Respondent's unreasonable behaviour.
The Petition was contested by the Respondent. In a lengthy Judgment dated 10th August 2015, Mr. Justice Williams concluded at paragraph 86 that the Petition was proved. The learned Judge also stated at paragraph 86:
‘From the evidence, the wife has satisfied me at this hearing that any right-thinking person would come to the conclusion that the husband has behaved in such a was that she cannot not be reasonably expected to live with him, especially when having regard to the impact of his conduct on her. Having established this, when considering the history of this marriage and the characteristics of the parties, I am satisfied that this marriage has irretrievably broken down’
It is clear that relations between the parties on an ongoing basis present challenges both for the Court and for the parties themselves.
The difficulties of the relationship have been compounded by an incident in July 2013, when the Respondent unilaterally took the child with him to Florida without returning. Subsequent legal steps by the Petitioner both in Florida and the Cayman Islands were taken to rectify the situation, which was in due course rectified.
By Order of Mr. Justice Williams the learned Judge directed that the child be returned to the Cayman Islands and that the Respondent facilitate this return. This is reflected in the subsequent Judgment of the Court dated 9th September 2013, at paragraph 43.
Notwithstanding this troubled history, it is necessary for the Court to decide the ancillary matters which remain outstanding on the basis of the current legal principles as applied to the facts and circumstances of this case, and on that basis only.
The Court notes that while the best interests of the child are of course paramount in these matters, that does not appear necessarily to constitute a consideration of addedcomplexity in the instant case, where the child resides with the Petitioner and Respondent and the contact is shared. In approaching this matter the Court bears in mind the relevant terms of section 19 & 21 of the Matrimonial Causes Law (2005 Revision).
The Court of Appeal in the case ofMcTaggart v. McTaggart, 2011 (2) CILR 366, states at paragraph 40 that in relation to the Court exercising its ancillary powers that are three strands: need, compensation and sharing.
In terms of approaching what are found to be matrimonial assets, there is a presumption of equality although having regard to equitable principles in relation to need andinter alia to compensation this presumption may be displaced. Likewise in appropriate equitable circumstances, redistribution of non-matrimonial assets may become appropriate in order to take account once again of need, compensation and sharing.
In the instant case the Respondent...
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