Janet Adams Bostick v Hadley Wendell Bostick
| Jurisdiction | Barbados |
| Judge | Justice Olson DeC. Alleyne |
| Judgment Date | 08 July 2022 |
| Neutral Citation | BB 2022 HC 31 |
| Docket Number | No. FL0061of2018 |
| Court | High Court (Barbados) |
| Year | 2022 |
Dr. the Honourable Justice Olson DeC. Alleyne, Judge of the High Court
No. FL0061of2018
THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Robert Simmons for the Applicant/Husband
Ms. Renee Peterkin in association with Mr. Andrew Willoughby for the Respondent/Wife
The parties are divorced. They were married on 1 August 2002 but lived together at First Pelican Avenue, Husbands Gardens, St. James (“the matrimonial home”) prior to that date.
By an application filed on 10 September 2018, the Husband seeks a declaration of his interest in the matrimonial home pursuant to section 56 of the Family Law Act, Cap 214 (“the FLA”) and, pursuant to section 57, an order altering the parties' existing interests.
The parties agree that the matrimonial home has a market value of $242,000.00. Through his counsel Mr. Robert Simmons, the Husband urges this Court to vest a 30% interest in that property in him, and to order the Wife to pay him its monetary value of $72,000.00.
The Wife counters that the Husband should be granted no more than a 5% share for which she is willing to pay him $12,100.00. Ms. Renee Peterkin appeared on her behalf in association with Mr. Andrew Willoughby.
It is helpful at this stage to set out the provisions of sections 56 and 57 of the FLA. Section 56 reads:
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56. (1) In proceedings between the parties to a marriage or union in respect of the existing title or rights to property, the court may declare the title or rights, if any, that a party has in respect of the property.
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(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition, and interim or permanent orders as to possession.
Section 57 of the FLA provides:
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57. (1) 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
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(a) an order for a settlement of property in substitution for any interest in the property; and
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(b) an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage or union, such settlement or transfer of property as the court determines.
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(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
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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 by a party to the marriage or the union, including any contribution made in the capacity of homemaker or parent, to the welfare of the family which constitutes
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(i) the parties to the marriage or the union; and
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(ii) where applicable, any child of that marriage or union;
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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
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(e) any other order that has been made under this Act in respect of a party.
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(4) …
Section S7(3)(d) enjoins courts to take account of any relevant factor set out in section 53(2). The full list of factors reads:
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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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(c) whether either party has the care or control of a child of the marriage or a union other than a marriage, who has not attained the age of 18 years;
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(d) the financial needs and obligations of each of the parties;
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(e) the responsibilities of either party to support any other person;
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(f) the eligibility of either party for a pension, allowance, or benefit under any Act or rule, or under any superannuation fund or scheme, or the rate of any such pension, allowance, or benefit being paid to either party;
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(g) where the parties have separated or the marriage has dissolved, a standard of living that in all the circumstances is reasonable;
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(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party be enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
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(i) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
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(j) the duration of the marriage or union other than a marriage, and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
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(k) the need to protect the position of a woman who wishes only to continue her role as a wife and mother;
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(l) if the party whose maintenance is under consideration is cohabiting with another person, the financial circumstances relating to the cohabitation;
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(m) the terms of any order made or proposed to be made under section 57 in relation to the property of the parties; 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.
The Court received evidence from the Husband, the Wife and Mr. Dale Callender who prepared a valuation report on 16 March 2018 in respect of the matrimonial home (“the valuation report”).
The Husband filed affidavits on 10 September 2018, 22 January 2019 and 5 May 2021, and statements of financial circumstances on 10 September 2018, 5 August 2020 and 26 July 2021.
The Wife filed affidavits on 14 November 2018, 22 March 2019 and 2 March 2022, and statements of financial circumstances on 14 November 2018 and 1 April 2022.
Each party gave additional evidence at the trial. Mr. Callender gave oral testimony and his valuation report was admitted into evidence.
Before turning to Mr. Callender's evidence, I will highlight those aspects of the valuation report about which he was questioned. In respect of the dwelling house which forms part of the matrimonial home, it states that “[t]he roof covering was changed about 17 years ago”. After describing the land and the dwelling house, it continues:
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There is an extension to the original patio to allow for a ramp for wheelchair access. This extension is of very basic construction of concrete floor and wallaba poles, the wallaba poles are not in a good condition. The roof is of permaclad sheets on wood without a ceiling. This extension comes within 4 ft of the neighbour's fence and is likely to be in violation of Town Planning regulations. However, based on its very limited use, condition and Town Planning risk, no market value is attached to this structure.
Also attached to the house is a carport of about 600 sq ft. It is long and narrow (12 ft wide). It is constructed of wallaba post supports with some lattice sheet inserts to provide a little privacy at the sides. The roof is of Permaclad sheets on wood with no ceiling. The floor is of concrete for about 30 ft. in length and this is adequate to provide parking for two cars (one behind the other). The remainder of the floor is not concreted and this section is used as a shed.
To the rear of the building is a wooden chattel building of about 100 sq ft part of which is enclosed. It is of no market value based on its wooden construction, chattel nature and poor condition.
The valuer was summoned to give evidence at the Husband's request. Based on his training, qualifications, and experience, I accepted him as an expert witness with expertise in valuing real estate. He gave his evidence in a matter-of-fact manner without a hint of bias. I accept it entirely and unreservedly.
In response to Mr. Simmons, Mr. Callender reiterated that the patio extension and the wooden chattel building had no market value. He explained the meaning of the term “market value” and indicated why he had reached that conclusion. He also demonstrated by reference to the report, that he had assigned a value to the carport. His explanations were not challenged by counsel.
In response to Ms. Peterkin and the Court, Mr. Callender said that the statement about the age of the roof covering of the dwelling house was based on information provided by the owner. He said that (i) he had not viewed the roof covering; (ii) from one of his photographs, he could see that the ceiling looked old; and (iii) he had seen nothing to suggest that the roof covering was not 17 years old.
Unsurprisingly, the parlies' evidence focused on the contributions made by them to the acquisition, conservation, and improvement of the matrimonial home, or otherwise in relation to it, and to the welfare of the family.
I found the Wife to be the more reliable witness. Often, the Husband could not recall details and he sometimes contradicted himself. That is not to say that the Wife was a perfect witness. She was inconsistent about the Husband's monetary contributions to the household bills. Generally, though, I preferred her evidence to that of the Husband.
I come next to the evidential details and the material findings made. Thematically, the discussion covers the...
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