SC v LC
| Jurisdiction | Cayman Islands |
| Judge | Cheryll Richards |
| Judgment Date | 11 September 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. FAM 0107 OF 2015 |
The Hon. Justice Cheryll Richards Q.C.
CAUSE NO. FAM 0107 OF 2015
THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Family Law—Final Ancillaries, applicable principles, conduct of one party, concealment of assets, Mesher Order.
Ms. Sheridan Brooks Q.C. of Brooks & Brooks for the Petitioner
Ms. Keva Reid of McKinney Reid Attorneys for the Respondent
This matter is before the Court for a final ancillary hearing following the filing of a petition for divorce on the 9th June 2015 by SC, the Petitioner wife (“the wife”). On the 22 nd June 2015, LC, the Respondent husband (“the husband”) filed an Answer and Cross Petition. By written consent filed on the 19 th July 2019, he agreed to an Amended Petition which was filed by the wife on the 10 th July 2019. He consented to an order for the dissolution of the marriage on the grounds of separation for a continuous period of over two years and has withdrawn his Answer and Cross Petition. The wife's Petition was therefore ordered proved shortly before the commencement of this hearing on the 14 th August 2019.
The Parties were married on the 12 th May 2007 and there is agreement that there was a period of continuous cohabitation of about one year prior to the marriage. This is a marriage of about 8 years. The wife is 33 years old, a Jamaican national who has been resident in the Cayman Islands from she was about 17 years old. She has an Associate's degree in accounting and a bachelor's degree in business administration, both obtained from a local college. Over the years through to October 2016, she was steadily employed in various jobs, either in an accounting or administrative capacity. The husband is a Caymanian Status holder and is 48 years old. He is a carpenter by trade who since Hurricane Ivan in 2004 has operated a local construction business.
By Order of McMillan J. dated 26 th October 2015, there are two children of the marriage, neither of whom are the biological children of the husband. The older child, a son L, aged 17 years was born on the 29 th March 2002 and is from a prior relationship which the wife had before the marriage. L has Jamaican nationality. He also has Caymanian Status until age 18 years. He resided with the parties from he was one year old. The younger child is a son LL, aged six years who was born on the 3 rd January 2013. He has American nationality and he also has Caymanian Status. The wife says that this child was conceived during a period of temporary separation from the husband. The wife says further, that after their reconciliation the husband well knowing the child's paternity due to knowledge of his own medical issues, agreed to welcome the child as part of the family. The husband denies this and says that he was deceived and that it was not until he received the results of a DNA test dated 10th September 2015, that he became aware that he was not the biological father of the child.
By the said Order of 26 th October 2015, sole residence of the children was awarded to the wife and the husband was required to make child maintenance payments of $375.00 per month for each child beginning at the end of November 2015. The husband contended then as he does now that the father of L who is resident in Jamaica provides for L financially and that he should not have to pay maintenance for this child. At the time of the making of the Order he sought no contact with the children and a no contact order was made at his request. His position on contact has changed. He now says that he loves the children dearly and that they are distraught at his absence. He asks to be allowed reasonable contact with them.
During the marriage the parties resided in a home in George Town. By Consent Order made on the said 26 th October 2015, the husband was ordered to vacate the home by the 31 st October 2015. The wife was to reside there with the children and pay the mortgage of $1,077.00 per month.
In the course of his vacating the home, there was a physical altercation between the parties. The wife alleged further that on vacating the home, the husband removed a number of items of furniture and appliances from the home and that the family had no bed to sleep on, leading to them having to seek shelter at the Crisis Centre. By Order of McMillan J., made on the 11 th November 2015 the husband was ordered to return all items removed from the home.
At the time of the making of the Orders relative to the matrimonial home, the wife had then been employed in an administrative capacity at a local office earning a salary of CI $2,916.00 per month. As the spouse of a Caymanian the wife had the right to work without a work permit and to acquire Caymanian Status after some years of marriage. She lost her job on the 28 th October 2016 and was unable to make the mortgage and strata payments. As a result of nonpayment of the mortgage the home was placed into foreclosure by the mortgage lender. By Order made on the 9 th August 2018, the lender was ordered to pay into Court the net proceeds of the sale of the property and paid into Court the amount of CI$37 266.73.
On the 4 th October 2018, by Order of Mangatal J., the sum of $18,633.37 was approved to be paid to the wife out of the funds paid into Court following the sale of the former matrimonial home. This sum is to be taken into account upon determination of final ancillaries.
By letter dated 14 th July 2018, the Immigration Department revoked the wife's right to be Caymanian which had been granted on the grounds of her marriage.
The wife asserts that the husband earns substantial sums of money from contractual employment with a local Quantity Surveying company, his janitorial business, building contractor business and the importation of cars for sale and profit. She is presently unemployed. In light of her circumstances and the passage of time which has elapsed since the initial maintenance order, the wife seeks the following:
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i. An increase in the amount of child maintenance from $750.00 to $1,200.00 per month an increase of $250.00 per child.
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ii. Payment of one half of the health insurance and educational expenses for the children until they reach the age of 18 years.
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iii. Spousal support in the sum of $1,000.00 per month for a period of 3 years.
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iv. Payment of the balance of the funds being held by the Court or alternatively title to the house in Jamaica in order to provide a home for herself and the children.
It is her position that the matrimonial assets which are to be considered for distribution are:
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i) Mini warehouse at George Town East Block 20 B Parcel 243 H14.
This is registered in the sole name of the husband but the wife contends that it was acquired some months after the marriage and that the financing to secure the purchase was by means of a mortgage which was paid off during the marriage with matrimonial funds. Additionally that it was used to store matrimonial items during the marriage.
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ii) Two bedroom house in St. James, Jamaica, Volume, Folio 579, Lot 129
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iii) Construction Business
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iv) Janitorial Business
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v) Bank Accounts — two for the wife, held in Cayman and Jamaica
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vi) Bank Accounts — three for the Husband held in Cayman and Jamaica and USA
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vii) Pensions
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viii) Motor vehicles
The wife's proposal is that if she is allowed an increase in child maintenance, temporary spousal support and title to the house in Jamaica as well as the balance of the proceeds from the sale of the matrimonial home held in escrow by the Court, then the Respondent may keep the warehouse, various businesses, his bank accounts, pension and vehicles. She further seeks a contribution towards her costs to the Legal Aid fund.
In support of the wife's position, Counsel on her behalf relies on the case of AK v. TK. 1 The Court's attention was drawn to the factual circumstances of that case in so far as there may be similarities and to the detailed exposition of the Law and applicable principles by Williams J. as set out at paragraphs 24 to 32 of that judgment. At paragraph 31 of that judgment the Learned Judge summarised the approach to be taken by a court on ancillary applications as follows:
“The position is that the Court should determine, whilst reminding itself that it must have regard to the best interests of the children first at the outset as well as when then considering the other factors in s. 19 of the Law, what the matrimonial assets are and their value and then deciding how they should be fairly divided.”
The wife also raises issues as to the conduct of the husband with respect to his assault upon her in the course of the marriage, actions taken against her and his role in the loss of her Caymanian Status which it is said has directly impacted her ability to work and provide for the children.
The husband's position is that the following issues arise for determination on this hearing:
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i) Whether the maintenance should be continued for the older child of the marriage.
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ii) Whether maintenance should be varied for the children of the marriage.
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iii) Whether an order should be made for spousal support in the short term.
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iv) How the remaining assets should be distributed.
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v) Whether a contact order should be made.
The husband's position is that he should not be responsible for maintaining the older child and that this should be the responsibility of the child's biological father. He is willing to maintain the younger child, LL. In respect of both children, he does not challenge the sole residence order previously made, but asserts that he is closely bonded with the children and should have some contact with them. As to the request for spousal maintenance, his position is that the wife is young and fully capable of maintaining herself....
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