Drayton v Drayton
| Jurisdiction | Barbados |
| Judge | Kentish, J. |
| Judgment Date | 30 May 2014 |
| Neutral Citation | BB 2014 HC 68 |
| Docket Number | 106 of 2008 |
| Court | High Court (Barbados) |
| Date | 30 May 2014 |
High Court
Kentish, J.
106 of 2008
Lady Beverley Walrond Q.C. for the wife.
Mr. Alwyn Archer Q.C. for the husband.
Family Law - Husband and wife — Matrimonial property — Alteration of property interest — Guidelines established in Proverbs v. Proverbs applied — Maintenance — Division of assets prior to marriage.
The parties to this action were married on 25 November 1995. On 25 February 2011 the husband, William Drayton, applied for dissolution of the marriage. On 17 April 2008 a decree nisi was granted under s. 27 of the Family Law Act, Cap. 214 (“the Act”) dissolving the marriage.
On 16 April 2009 the wife, Ingrid Drayton, nÉe King, filed an application for the following orders:
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(a) That joint custody of the minor children of the marriage JOY SALINA DRAYTON, born on the 18th day of June, 1996; JAYDON JOSIAH WILLIAM DRAYTON born on 24th November, 1997 and JAMIE ESTHER DRAYTON born on the 24th day of November 1999;
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(b) That the applicant/wife do have the care and control of the said children;
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(c) That the respondent/husband do have reasonable access to the said children;
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(d) That the respondent/husband do contribute not less than the sum of $800.00 towards the maintenance of each minor child of the marriage together with the medical, dental, ophthalmic and pharmaceutical expenses and the educational expenses of the said children inclusive of uniforms, books, school shoes, petty fees supplies and curricular actives of the said children;
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(e) A declaration that the former matrimonial home situate at 79 Cane Vale, New Road in the parish of Christ Church in this Island is owned by the parties in equal shares;
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(f) An order altering the ownership rights in the said property so as to vest all or so much of the right, share and title and interest of the respondent/husband in the applicant/wife as the court may seem just;
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(g) Further, a declaration that the vehicle ZM5 a Toyota Hine van and the permit thereof is owned by the parties in equal shares; and
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(h) Such further or other relief as the court may deem necessary or just.
On 3 June 2009 I made the following orders:
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(a) The applicant/husband to pay the respondent/wife the sum of $1,060.00 per month towards the maintenance of the three minor children of the marriage with effect from 1 June 2009 and thereafter on the first day of each succeeding month until further order of the court, together with one-half of all educational, medical, ophthalmic, dental and pharmaceutical expenses; and
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(b) Both parties shall file a statement of financial circumstances within 28 days.
On 15 April 2013 I ordered the parties to file updated statements of financial circumstances. In compliance with that Order, the husband filed an updated statement of financial circumstances on 6 June 2013 and on, on that date, the wife also filed a statement of financial circumstances.
The wife then filed an amended application on 23 October 2013 in which she sought the following additional orders:
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(f) An order altering the ownership rights in the said property so as to vest all or so much of the right, share and title and interest of the respondent/husband in the applicant/wife as the court may deem just and that the husband do pay all sums outstanding in respect of the mortgage on the said property;
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(g) Further, a declaration that the vehicle ZM5 a Toyota Hiace van and the permit thereof was and is owned by the parties in equal shares;
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(h) Such further or other relief as the court may deem necessary and/or just;
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(i) An order under section 57 of the Family Law Act altering the interests of the parties in the property situate at Maxwell Hill in the parish of Christ Church in this Island consisting of land and a dwelling-house and an office situate thereon so as to vest such share in the wife as the court may deem just;
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(j) That the respondent do indemnify the applicant in respect of all monies owed to the National Insurance Department arising out go the operation of Drayton Transport Management by the parties and/or any debts registered in their joint names; and
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(k) That the respondent do account for the monies arising from the operation of the assets of Drayton Transport Management and the licenses owned by the applicant/wife and the respondent/husband but operated solely by him and in default thereof, that the court do grant her a lump sum in respect of her contributions and ownership of the said assets.
On the basis of the amended application and the affidavits filed in support of and in opposition to the amended application, the following issues arise for the court's determination:
- What assets of the parties comprise matrimonial property for the purposes of distribution; 2. Did the parties carry on the business of Draytons Transport Management as a partnership and, if so, what vehicles formed part of that business; 3. Should the respective interests of the parties in the matrimonial property at No. 79 Cane Vale be varied so as to vest the half share or interest of the husband therein in the wife; 4. Should the husband be liable for the payment of the monies due to CIBC Trust & Merchant Bank (Barbados) Limited (“CIBC”) on the mortgage over the property situate at No. 79 Cane Vale; 5. Is the wife entitled to an order altering the interest of the parties in the property situate at Maxwell Hill, Christ Church comprising a dwelling-house and an office; 6. Should the husband indemnify the wife in respect of all monies owed to the National Insurance Department arising out of the operation of the business; 7. Should the husband account to the wife for monies arising from the “operation” of assets of the business and the licenses owned by the wife and the husband but operated solely by him and, in default thereof, is the wife entitled to a lump sum in respect of her contributions and ownership of the assets; and 8. Should the existing order for the maintenance of the minor children of the marriage be varied so as to increase the amount thereof?
In support of her application as amended the wife filed two affidavits. The first affidavit was filed on 30 April 2009 in support of her application filed 16 April 2009. The second affidavit was filed on 11 March 2010 in response to the husband's sole affidavit filed 14 October 2009.
At trial both parties were tendered for cross-examination on their respective affidavits and supplemented those affidavits by oral evidence.
The affidavits and the cross-examination thereon produced a substantial body of evidence and I propose to discuss the evidence in relation to and under the issues raised.
Under s. 56(1) of the Act, the court may declare the title or rights, if any, that a party to a marriage has in respect of property of the parties. S. 57(1) of the Act provides that:
“In proceedings in respect of the property of the parties to a marriage or union, or of either of them, the court may make such order as it thinks fit altering the interests of the parties in the property, including…”
S. 57(3) of the Act, provides that:
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“(3): In considering what order should be made under this section, the court shall take into account the following:
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(a) the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property, or otherwise in relation to the property;
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(b) the contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of home-maker or parent;
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(c) the effect of any proposed order upon the earning capacity of either party,
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(d) the matters referred to in section 53(2) in so far as they are relevant; and
any other order that has been made under this Act in respect of a party.”
In so far as relevant to this case, s. 53(2) of the Act provides that:
“The matters to be taken into account for the purposes of this section are as follows:
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(a) the age and state of health of each of the parties;
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(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
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(d) the financial needs and obligations of each of the parties;
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(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable; and
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(n) any fact or circumstance that, in the opinion of the court, the justice of the case requires to be taken into account.”
Finally, the court must engage the guidelines established by the Court of Appeal in Proverbs v. Proverbs, Civil Appeal No. 7 of 2001 (date of decision 28 May 2002). At para 31 thereof Simmons, C.J. stated:
“In the determination of a property application under Section 57, the proper approach involves a process of three steps.
(i) The net property of the parties must be identified and valued by the court.
(ii) The respective contributions of the parties within the terms of section 57(3) must next be considered and evaluated.
(iii) The section 53(2) factors, so far as relevant, should then be considered.”
The general view is that the court will recognise a financial contribution made directly to the original purchase price of an asset, in this case the business known as Draytons Transport Management, when such a financial contribution has been established on the evidence.
In looking at the assets of the parties in this case I am guided by the dicta in Aroney and Aroney (1979) F.L.C. 90–709 at 78,785 that:
“In my opinion no distinction can usefully be drawn between so called matrimonial assets on the one hand and business assets on the other…This means that the Court must look at the totality of the assets of...
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