JUDGMENT
[1] Worrell,J: Leopold Esdras Brewster (hereinafter referred to as “the Applicant”)sought by his Application dated and filed June 14, 2004 the following relieffrom the Court pursuant to sections 56and 57 of the Family Law Act, Cap214 of the Laws of Barbados:
(i) A Declaration that the Applicant/Husband is entitled to a share and an interest in the matrimonial home situate at Lot 230 Maycock’sTerrace in the parish of Saint Lucy in this Island;
(ii) An Order pursuant to section 57 of the Family LawAct altering the interest of the parties in the property situate at Lot 230Maycock’s Terrace in the parish of Saint Lucy transferring one half share tothe Applicant/Husband;
(iii) Further or in the alternative that the Respondent payto the Applicant within 3 months from the date of the Order such sums asordered by the Court representing his share and interest in the said propertyfailing which the said property be sold and the proceedings of sale beapportioned between the Applicant and the Respondent; and
(iv) Such further or other relief as the Court mightconsider just in all the circumstances.
[2] The Application was supported by the Affidavitof the Applicant filed on even date. OnSeptember 26, 2005, the Respondent, Marcia Yvette Brewster, filed an affidavitin response.
[3] Both parties have also filed Statements ofFinancial Circumstances and at trial they not only provided further evidenceorally but were cross-examined on their evidence.
[4] To prove his case, the Applicant also called andsought to rely upon the evidence of Verton Thomas and Joseph Sonson, both ofwhom were also cross-examined by Counsel for the Respondent.
BACKGROUND
[5] The parties to this action were married onDecember 25, 1983 when the Applicant was thirty-eight years of age and theRespondent 10 years his junior. Theirfirst child, Nicholas, was born less than a year later on April 25, 1984 and hewas subsequently joined by Rhea, born on November 24, 1986 and Jansen, who wasborn on August 8, 1988. All of thechildren have reached adulthood and are gainfully employed.
[6] At the time of their marriage, the Applicant wasemployed by Tropic Filters for just over $1,000.00 per month while theRespondent was a primary school teacher earning a similar salary. She has remained in the teaching servicewhile he became a taxi driver for Paramount Taxi Services before purchasing anddriving his own taxi. He also attempted,with the financial support of the Respondent, to buy, repair and sell used carsand subsequently tried to start his own business teaching people to drive. From 1997 until the date of trial, he hasbeen employed as a security guard.
[7] On or about 1999, after just over 16 years ofmarriage, the parties separated as a result of irreconcilable differences. The Applicant left the matrimonial homeshared by the parties, leaving the Respondent and their children inoccupation. He returned to the home fiveyears later in January 2005 when he assumed occupation of a part of the home separateand distinct from that part occupied by the Respondent and their children. Co-habitation, however, was never resumed.
[8] When the Applicant returned to the matrimonialhome in 2005, the parties had by that time already divorced. The Applicant hadapplied to this Court for dissolution of the marriage on December 5, 2003. A decreenisi had been granted on May 3, 2003 and this decree had become absolute onJune 4, 2004.
[9] Upon the dissolution of their marriage, custodyof the children to the marriage was vested jointly in the parties with care andcontrol to the Respondent and access to the Applicant. At that time the Court also made an Orderthat the Applicant pay $560.00 monthly towards the maintenance of the childrenand one half of all educational, medical, dental, pharmaceutical and ophthalmicexpenses.
ISSUE
[10] The broad issue left for the Court to determinein this action is how the matrimonial property of the parties should be dividedpursuant to sections 56 and 57 ofthe Family Law Act, Cap 214 of the Laws of Barbados.
[11] The Applicant has claimed that it is just andequitable that he receive a half-share in the equity of the property while theRespondent has insisted that as a result of his contribution to itsconservation and improvement and his sporadic contribution as homemaker and parentany interest to which he is entitled should be calculated at no more than 15%.
THE APPROACH OF THE COURT
[12] It is well established that a Court hearing anapplication for property settlement under the Family Law Act is required (i) to first identify and value the netassets of the parties; (ii) to then consider and evaluate their respectivecontributions under section 57(3) ofthe Act; and (iii) to finally consider the factors set out in section 53(2) insofar as relevant: Proverbsand Proverbs (unreported) Court of Appeal of Barbados, Civil Appeal No 7 of2001, Decision of May 28, 2002 per Simmons CJ.
[13] It is clear that the structured approachrecommended by Proverbs requires the Court to conduct a determination thatcontains a retrospective element, where the Court determines the value of pastcontributions made by each party, as well as a prospective element where itexamines the future economic means and needs of both parties to determinewhether an alteration of the parties’ respective interests is just andequitable.
[14] In conducting this determination any order madeby the Court must only be made if it is just and equitable in all thecircumstances: section 57. The requirements of justice and equity aretherefore an overarching or overriding principle underlying the exercise of theCourt’s extraordinarily wide discretion over the division of matrimonialproperty.
[15] Since what is just and equitable will depend onthe particular facts and circumstances of a case and the contributions of theparties to the matrimonial property, previous precedents are of limitedvalue. These precedents establishfirmly, however, that in considering the contribution of each party under section 57(3), the Court is notexamining the evidence of each and every contribution in meticulous detail withthe aim of conducting a precise mathematical exercise, but is instead taking abroad approach in which it examines each party’s overall contribution to theacquisition, conservation and improvement of the matrimonial property indispute.
NET MATRIMONIAL ASSETS
[16] There is no difficulty in this case ofidentifying and valuing the net matrimonial assets of the parties. The sole asset of significant value owned bythe parties, and thus the asset that is the subject of this dispute, is theparties’ matrimonial home.
[17] The matrimonial home consists of house and landsituate at #230 Maycock’s Terrace in the parish of St. Lucy. At present, the house is a walled structurewith five bedrooms, two of which are in a self-contained apartment that had beenconstructed on the second floor of the house which has its own kitchen, diningroom, living room and bathroom and can be accessed without going through thedownstairs part of the house. It is inthis apartment that the Respondent currently resides. The Applicant resides in the downstairsportion where there are three bedrooms and two bathrooms, as well as a washroom, kitchen, dining and living room.
[18] Both parties have accepted that the matrimonialhome is valued at $390,000.00. Theproperty is subject to a mortgage from the Bank of Nova Scotia and the partieshave further agreed that the equity in the property amounts to$335,599.00.
THE RESPECTIVE CONTRIBUTIONS OF THE PARTIES
[19] Having ascertained the property owned by theparties and the value to be ascribed to it, I now turn to look at the actualcontribution made by each of the parties to the matrimonial property pursuantto section 57(3) of the Family Law Act.
[20] Section57(3) provides as follows:
“In consideringwhat order should be made under this section the court shall take into account thefollowing:
(a) the financial contribution made directly or indirectlyby or on behalf of a party to the acquisition, conservation or improvement orotherwise in relation to the property;
(b) the contribution made directly or indirectly to theacquisition conservation or improvement of the property by either partyincluding any contribution made in thecapacity as homemaker or parent …”
[21] Section57(3) therefore requires the Court to identify and evaluate the direct andindirect economic contribution made to the acquisition, conservation andimprovement of the property as well as the direct and indirect non-economiccontribution made in relation to the same. The section specifically requires the Court to examine, in relation tothe non-financial contribution under section57(3)(b), the contributions made by any party in their capacity as eitherhomemaker or parent.
[22] In considering the contribution made in thecapacity of homemaker or parent, I am guided by the observations of Simmons CJin Proverbs(supra) that care should be taken to ensure that such contribution isnot undervalued and is instead recognized in a substantial rather than tokenmanner. I also accept the submission ofCounsel for the Respondent, that given the gender-neutral terms of the Act,contribution made in this capacity by either party should be treatedequally.
[23] It is also important to point out thatcontributions in the capacity of homemaker or parent are not limited tonon-economic activities; the Court can and does take into account allcontributions to the welfare of the property including any financialcontributions made in this respect.
[24] Finally, the Court notes that the Act does notlimit the Court to an examination of contributions made during the marriage orunion and the Court may therefore have regard, where it is appropriate to doso, to contributions made before the parties began cohabitation and after theyseparated.
Acquisition of the Matrimonial Home
[25] The parties agree that the land at #230Maycock’s Terrace, St. Lucy was acquired prior to their marriage. They accept that the Applicant not onlyacquired the land but that he also built a house on it before they married,although the Respondent maintains that when they got married, it was stillincomplete.
[26] The Applicant testified that he constructed a3-bedroom wood and walled house by working on it “from month to month” from 1981 until 1983 and that he had done mostof the work himself but employed workmen to do what he could not manage on hisown. He paid for the labour and allmaterial used in the construction. Hisevidence on this point is not challenged and is accepted by the Court.
[27] It is likewise accepted (and undisputed) thatthe home could not have been acquired without the assistance of theRespondent. The Applicant deposed thatthe Respondent had “assisted when shecould” while the Respondent alleged that the house was purchased as aresult of their “joint effort”. Whileit is clear that the Applicant made the initial payments on the purchase of theland, it is also clear that he had to take out a loan of $5,000.00 in order topay the balance of the purchase price and obtain bathroom furnishings. This loan was repaid entirely by monthlydeductions from the Respondent’s salary. The Applicant did not assist in its repayment.
[28] The Applicant revealed in cross-examinationthat, to the best of his recollection, he had purchased the land at #230Maycock’s Terrace at the cost of $1.00 per square foot. As land tax receipts submitted into evidencereveal that the property is by admeasurement 7, 735 square feet, the estimatedcost of the property is, as Counsel for the Respondent rightly pointed out,approximately $7,735.00 not including the expenses associated with itspurchase.
[29] The Court therefore finds that not only did theRespondent make a contribution to the acquisition of the matrimonial home, buther contribution is far from insignificant. It is unlikely that the Applicant could have purchased the land on whichit stands without her or he would, in any event, have found it very difficultto do so. It is, however, alsoabundantly clear that the Applicant played a far greater role in the initialacquisition of the matrimonial home as he alone shouldered the responsibilityfor its construction.
[30] According to Ms. Franklyn, the Respondent hadsought, somewhat unfairly, to downplay the contributions of the Applicant tothe initial acquisition of the matrimonial home. She submitted that it was as a result of hisefforts that the Respondent and their children had a roof over their heads forthe bulk of the marriage and she urged the Court to give due regard to hiscontribution in this respect.
[31] While the Court accepts that the Applicant’srole in acquiring the matrimonial home is indeed a fact carrying quite a bit ofweight, it must be remembered that in long marriages, such as this one, theinitial contribution made by any party carries far less weight than in a shortmarriage as the value of such contribution erodes “not by the passage of time but by the offsetting contribution of theother spouse”: In the Marriage of Lee Steere [1985] FLC 91-626 at 80,078.
[32] The initial contribution of the Applicant to thematrimonial property, although greater than that of the Respondent, may wellhave been counterbalanced by the Respondent’s subsequent contribution to theimprovement and conservation of the matrimonial home and as homemaker andparent, the evidence of which is considered below.
Improvements and Conservation
[33] After more than ten years of marriage theparties decided to undertake significant improvements upon their home byconverting the wooden parts of the structure into concrete and extending thehouse upwards. At first they decided toadd a roof deck to the house, but the Applicant managed to persuade theRespondent that it would be better to add a two bedroom apartment which could,on completion, be rented out to earn additional income. The Respondent says that she agreed to thischange in their plans with some reluctance as she was unsure whether themortgage they had taken out to complete the renovations would be adequate tocover the cost of constructing an apartment.
[34] To carry out the improvements on their home, theparties secured two mortgages from Scotiabank. The first mortgage was of $55,000.00 and when this mortgage provedinsufficient, a second mortgage of $65,000.00 was taken. These mortgages were used to pay the cost ofmaterials and labour required for the improvements, although the Applicant hasalleged that he also used some of his own money to pay for materials especiallyafter the mortgage funds ran short.
[35] It is undisputed that both mortgages, whichtogether total around $120,000.00, were repaid solely by direct deductions fromthe Respondent’s monthly salary. Although the mortgage was taken out jointly by the parties and it wasthe Respondent’s understanding that it was to be repaid by both of them, theApplicant never made any effort to help her in its payment. She alone shouldered the burden of paying offthe mortgages. She did so while theparties lived together, continued to do so when they separated and theApplicant left the matrimonial home and she alone continued to do even when theApplicant returned to live rent free in the matrimonial home after theirdivorce.
[36] The fact that responsibility for the mortgagefell upon her alone is a significant contribution whose weight cannot beunderestimated for there is no doubt in my mind that the improvements to thematrimonial home, which added significant value to the property, could nototherwise have been undertaken.
[37] The Applicant deposed that he “worked on the house [himself]” in orderto keep down the costs of labour. Whilehe admitted that he had employed people to help him, he claimed that he “worked side by side with them” withoutreceiving a salary or remuneration for the work he did. He further testified that he worked on thehouse so late into the night that the neighbours used to complain about thenoise he made. As to the services heperformed, his evidence was that he did the “labour work”, plumbing, tiling and indoor painting and that he wasalso responsible for half of the electrical work. He said that he also constructed thecupboards in the house.
[38] The evidence of the Respondent somewhat contradictedthe Applicant’s evidence of his involvement in the improvements. The Respondent accepted that the Applicanthad been responsible for hiring the workers and had used the mortgage proceedsto pay their salaries and purchase the required materials. She accepted also that it was possible thatthe Applicant may have rendered some assistance in the construction of thehome, but disputed the extent of his assistance. She firmly denied that he had ever worked onthe house late into the night and further claimed that the renovations wereactually done by the workmen who had been hired by him as the Applicant had infact been “gainfully employed drivingtaxi” and could not have regularly worked alongside them as he hadclaimed. On this point, the Applicantdisclosed in re-examination that he had not been employed when the renovationson the home were carried out but was instead engaged in the renovations.
[39] As to the electrical work, the Respondenttestified that this had not been personally done by the Applicant but that hehad in fact gotten a friend of his to do it. The Respondent agreed that the Applicant had been responsible for theplumbing when the home was being renovated and extended, testifying that he hadnot wanted to use the mortgage proceeds to hire a plumber. She alleged, however, that he did not do theplumbing properly and not one of the bathrooms on the ground floor of the housewas functional. It was in fact revealedin the Applicant’s cross-examination that a number of the bathrooms had notbeen completed for a variety of reasons – failure to connect the shower, toconnect the sink, to connect the toilet or not to put in any pipes at all.
[40] On the issue of the work done by the Applicanton the improvement of the house, the Court has the benefit of the evidence ofVerton Thomas and Joseph Sonson, both of whom had been hired to work on theconstruction of the matrimonial home at entirely different stages. They claimed to have known the Applicant onlybecause they had worked on the matrimonial home and were called to giveevidence on his behalf. As witnessescalled by the Applicant but otherwise unconnected in any way with theproceedings before this Court, their evidence is of some persuasive value.
[41] Mr. Thomas was a contractor who had been hiredto work on the home after the first mortgage was taken out. He testified as to working on the home foralmost 7 weeks during which he employed between one to three people. He testified that he had to terminate peopleas the money which he received started going down and he himself was finallyforced to leave as a result of not having been paid for his work for twoweeks. Mr. Thomas admitted in evidencethat he had received some help from the Applicant. The Applicant, he said, helped to dig the foundationand to mix concrete, both of which had to be done by hand. As Mr. Thomas’ own work was confined tomasonry he could not say whether the Applicant had done the electrical work andplumbing or some other person had been engaged to do so.
[42] Like Mr. Thomas, Mr. Joseph Sonson, who was amason, had worked on the matrimonial home for approximately 5 weeks and 3days. He had not worked with Mr. Thomasbut was hired after Mr. Thomas had left and the second mortgage had beensecured. It was the evidence of Mr.Sonson that the Applicant helped when he was there. In particular, the Applicant had helped withthe digging of the foundation, the masonry and labour and the plastering of thesteel and ring beam. Mr. Sonson, againlike Mr. Thomas, could not say whether the Applicant was responsible for theelectrical work and the plumbing.
[43] Counsel for the Respondent pointed out thatwhile the Applicant’s claim was founded on his indirect financial contributionas plumber, mason and labourer on the improvement of the matrimonial home,neither he nor any of the witnesses he had called had actually provided theCourt with satisfactory evidence on which to assess this contribution. No attempt had been made to ascribe a valueto these services or the cost that would have been incurred by having anotherperson perform them. In making thissubmission she directed the Court’s attention to Wilson v Wilson (unreported)Court of Appeal of Barbados, Civil Appeal No. 5 of 2003, Decision of March 22,2007.
[44] In Wilson one of the grounds of appealwas that the trial judge had undervalued the Appellant’s indirect financialcontribution in the form of labour provided during the construction of thematrimonial home. The Appellant hadclaimed that he had worked on the construction of the matrimonial home as acarpenter, mason and foreman without receiving any financial remuneration forthe same.
[45] The Court of Appeal noted that in making thisclaim the Applicant had failed to give any evidence of his experience in theconstruction industry, the services that he had performed on the matrimonialproperty or the value of those services and that the judge had therefore quiterightly found that there was no evidence to support his bare allegation. The Court of Appeal saw no reason to disturbthe judge’s finding, observing at para 32 that:
“It should have been possible forthe husband, as workman and builder, to produce detailed evidence as to thecosts of constructing the matrimonial home. He should have been in a position to describe and quantify the work thathe did. In the absence of himselfproviding such evidence in support of his claim, he could have used theservices of a quantity surveyor to cost the materials and labour and the use ofplant, tools and equipment and to quantify the value of his services. The judge would then have had expert evidenceon which to assess his financial contribution…”
[46] Ms. Franklyn, counsel for the Applicant, inattempting to distinguish the case of Wilson, pointed out that theAppellant in Wilson was described as a “virtualcontractor” who had no prior history as a builder and claimed to havesupervised the persons actually hired to work on the site. She argued that in contrast it was undisputedthat the Applicant had constructed the first house and had worked on itsrenovations with Verton Thomas and Joseph Sonson.
[47] It is clear that the Applicant has provided morethan a mere allegation of his indirect financial contribution to theimprovements made on the matrimonial property. He has given evidence of theservices he has performed and called two witnesses who have been able tocorroborate some of his evidence. Hehas, however, neglected to give any evidence whatsoever of either the value ofthese services or the cost that would have been otherwise incurred had theparties been required to hire another person to perform them. This is despite the fact that he called acontractor and mason of some experience to give evidence on his behalf. There was no effort made to inquire fromeither witness an estimated value of the work performed by the Applicant. In the absence of such evidence, it is notthe responsibility of the Court to determine the value of these services. The Court can only make its decision on theevidence it has before it.
[48] As to that evidence, the testimony of Mr. Thomasand Mr. Sonson did not indicate that the Applicant worked with either witnesson a regular everyday basis as his evidence appeared to imply but that heassisted them either on specific task or when he was available to do so. It is nonetheless clear from their evidencethat the Applicant was directly engaged in the improvements that were made tothe matrimonial home, even if he may have exaggerated his involvement.
[49] The Court accepts that while the Applicant didnot work into the night and was not on site with the workmen all the time, hedid carry out the tiling and plumbing, as he alleged, and also helped to digthe foundation, mix concrete and provide general labour. Given the evidence ofa contractor and a mason employed on the house, the Court finds no difficultyin so holding. The Applicant has givenno evidence of his ability to conduct electrical work; his witnesses were notable to say whether he was responsible for doing the electrical work on thematrimonial home. The Court does nottherefore accept his evidence on this point.
[50] There is no evidence before the Court as to thevalue of the services the Applicant performed or as to the money saved by hisdirect involvement in the improvements. In the absence of such evidence, while the Court finds that he worked onthe renovation of the matrimonial home, it is unable to fully evaluate orassess this contribution or attach any value to it, although it has certainlyborne this contribution in mind.
Mortgage Proceeds
[51] As the Applicant and the Respondent jointly tookout the mortgages on the matrimonial home. Both of their names were placed on the account in which the mortgageproceeds were held and both of them had access to the funds contained withinit. On this fact there is no dispute.
[52] It was the evidence of the Respondent that theApplicant alone undertook the responsibility of withdrawing money from themortgage proceeds in order to pay the salaries of the workmen that had beenhired and to purchase the required materials. She claimed that all she did was sign when necessary and further allegedthat the Applicant had actually withdrawn some of the mortgage funds to use forhis own purposes. She has alleged thathe has as a result been compensated for the work he had done on the improvementof the home.
[53] The Court notes that her allegation is supportedby the evidence of Verton Thomas, the first contractor who had been hired tocarry out the improvements. Mr. Thomasexplained that he had quoted Mr. Brewster $7,300.00 for the labour on the houseand he was paid for this labour in different stages but did not receive paymentfor two of the weeks that he worked. Heestimated the cost of the materials used to have been around $30,000.00. However, the first mortgage, which was usedto finance the stage of the work for which he was in charge, was for $55,000.
[54] The evidence of Mr. Sonson, who was paid withthe money received from the second mortgage of $65,000.00, was that he hadgiven the Applicant the sum of $4,500.00 as the estimated cost of hislabour. Mr. Sonson employed less peoplethan Mr. Thomas and also spent less time working on the house. Unlike Mr. Thomas, he was not asked to anddid not give the Court any idea as to the cost of the materials that would havebeen used to carry out the renovation or even that specifically used by him andthe apprentice labourer he employed. Like Mr. Thomas, he testified that he was informed by the Applicant,before he could complete his job, that the money being used to pay him had runout. He had therefore left theApplicant’s employment before the job for which he had been hired wascomplete.
[55] If the evidence of the contractors, andparticularly Mr. Thomas, is accepted then it is quite reasonable to concludethat a portion of the mortgage proceeds remains unaccounted for, even withinadequate evidence as to the cost of the materials used on the house. Of course, this evidence alone may not havebeen sufficient to buttress the Respondent’s allegation against the Respondentbut it finds support in the evidence of the Applicant himself.
[56] The Applicant revealed in cross-examination thathe used money from the mortgage proceeds to pay for the light and telephonebills. The Respondent said he did thisentirely without her knowledge and she had only discovered this after he hadgiven his evidence in these proceedings. Given this evidence, the Court finds on a balance of probabilities thatthe Applicant used the mortgage proceeds for a purpose other than that forwhich it had been obtained and that he did so without the knowledge of theRespondent and thus in betrayal of her trust.
[57] As to the effect of this finding, it amounts towhat has been described as a “negativecontribution” which may be offset against or discount his positivecontributions: Dickey, Family Law (Fifth Edition) at pp. 576-577. The evidence clearly casts some doubt on theextent of his contribution to the utilities. Indeed, as the mortgage was financed solely by the Respondent it meansthat some of the utilities which the Applicant claimed to have paid areactually to be credited to her. Furthermore, this negative contribution may also be a factor to beconsidered under section 53(2) whenthe Court examines these factors below.
[58] Moreover, in light of the fact that theApplicant also admitted to being in arrears of the utility payments for whichhe was responsible and required financial support from the Respondent for hisbusiness ventures, the Court is also unable to accept that he spent any significantportion of his own money, the exact amount having been undisclosed by him, onthe purchase of materials to improve the house.
House Insurance and Land Tax
[59] As a requirement of the mortgage, the partieswere required to have the matrimonial home insured. The Applicant alleged that both partiesassumed responsibility for the insurance policy and both made payments towardsit. However, the Respondent says thatthe house insurance was his responsibility although she assisted him in payingfor it when he found it difficult to do so. She further testified that it was only after she was informed in 2007that the insurance had lapsed because of his failure to pay the insurancepremium that she herself insured the house and she has since then assumedresponsibility for the insurance. TheApplicant has not disputed this. It istherefore not in dispute that the Applicant initially financed the insurancepolicy on the matrimonial home with the assistance of the Respondent but thatshe has now taken over responsibility for the same.
[60] There is also little dispute on the payment ofthe land tax. The land tax bills were inthe name of the Applicant but appeared to have been sent to the care of theRespondent (in her maiden name) at the address of her father’s home in whichshe resided before her marriage to the Applicant. Both parties accept that the bills fell intoarrears and they each claim to have paid the same. They have produced copies of the receipts asevidence of their payment.
[61] The Court notes that the receipts entered intoevidence by the Applicant were for payments for the tax years 1983-1988, aswell as for the tax year 1995-1996. These payments were made either in 1992 or 1996 lending support to hisevidence that he paid arrears after he sold his taxi in 2006.
[62] The receipts produced by the Respondent are notfor the same years. It is evident fromher receipts that she paid the arrears for the tax years 1988-1999, save andexcept the year 1995-1996. She explained that the bills went into arrears in1988, which is clear from a notice from the Land Tax Department dated December2, 1998, and that she cleared the arrears using her back-pay and a loan fromthe credit union which was made into a draft for the Land Tax Department. She produced the receipt for this draft.
[63] The Court finds, from the documentary evidenceproduced, that both parties paid property taxes although from the receipts theRespondent took a greater share of this responsibility. Her evidence was that she continues to makethe payments and the Applicant has not alleged otherwise.
Contributions as Parent and/or Homemaker
[64] It is apparent from the evidence before theCourt that both parties assumed the roles of parent and homemaker. TheApplicant has specifically sought to rely on the contribution he has made inthis capacity to justify the alteration of interests in the matrimonialproperty that he seeks.
[65] It is undisputed that both parties furnished theoriginal and the renovated matrimonial home. Similarly it is not in dispute that the Applicant bought and repairedused cars with financial support from the Respondent although they disagree onthe amount of cars he purchased. It isagreed though that these cars were available for use and were in fact used bythe Respondent.
[66] The Applicant further testified that he helpedin the housework by doing everything other than cook. He mentioned washing and pressing the clothesfor the whole family and looking after the children so that the Respondentcould rest when she came home but made no mention of cleaning.
[67] As to the financial maintenance of the children,he claimed to have maintained the children to the best of his ability. He spoke of buying clothing for them, butaccepted that he did not normally buy their school uniforms. He said that he gave the Respondent money fortheir schoolbooks but could not say how their school fees had been paid. Hedrew particular attention to money expended by him on music lessons, thepurchase of various musical instruments (a recorder and harmonica) and on atrip abroad, most of which appears to have been for the parties’ onlydaughter.
[68] It cannot be disputed that the Applicant madesome contribution as homemaker and/or parent. The Respondent accepted, for example, that he washed and ironed thechildren’s clothes and either dropped them to and from school or provided moneyfor their bus fare. She revealed that heeven dropped her to school sometimes and also helped her purchase some coursematerials once but denied that he washed or ironed for her. She did not deny that he had paid for musicalinstruments and admitted that he had on occasion also chipped in with thepurchase of the school uniforms. Shefirmly denied, however, that he spent any substantial time looking after thechildren.
[69] The Applicant also gave evidence of repairingthe house and maintaining the lawn even after he had vacated the matrimonialhome in 1996. The Respondent explainedthat he had returned a few times “to cutthe grass” and had also come back once “todeal with the pipes”.
[70] The Applicant agreed that the Respondent broughtthe groceries for the family but said that he assisted her in doing so. The Respondent’s evidence was that shepurchased the groceries every month; the Applicant never purchased thegroceries from his pocket but only bought the occasional item that ran out.
[71] The Respondent does not seek to contend that theApplicant neglected his obligations towards their children, but claims that hissupport and maintenance was sporadic and inconsistent. It is quite clear thatthe Applicant failed to follow the Order made by the Court on their divorcethat mandated him to pay monthly maintenance of $560.00. He admitted having no knowledge of theOrder. He nonetheless testified that hegave money towards the Respondent, saying that the amount he gave her variedbut could be $70.00, $100.00, $120.00 or more, but he conceded that themajority of the support came from the Respondent as his money, he said, wenttowards the house.
[72] While aware of the Order, the Respondent made noeffort to enforce it, explaining that she became tired of asking the Applicantto contribute towards the children’s expenses as he never seemed to have moneyto do so. She nonetheless accepted thathe sometimes gave her around $100.00 but stated that he only did so if it was aweek in which she did not receive her salary.
[73] As to the utility bills, the Applicant hadclaimed in his affidavit that while the Respondent undertook responsibility forthe mortgage, he paid all the other bills. At trial, he explained that he contributed to the paying of thetelephone bill and electricity bills not that he alone paid them.
[74] It is clear that the water, electricity andtelephone bills were in the Applicant’s name and that he was at some point intime responsible for paying all of them. It is also clear that he found it difficult to do so. He admitted that the bills fell into arrearsand the utilities were even disconnected at some point although he was unableto recall when this happened and, specifically, whether it was after renovationof the matrimonial home had commenced. It is reasonable to assume that it was because of his inability to paythe utility bills for which he had responsibility that he resorted to using themortgage proceeds for these purposes.
[75] In light of the above, the Court finds littledifficulty in accepting the Respondent’s evidence that well before theApplicant left the matrimonial home, she had assumed responsibility for payingthe utility bills and that she continues to do so with some assistance from theApplicant.
[76] The Court accepts the Applicant’s evidence thathe acted as parent and homemaker by helping to furnish the house, paying orcontributing towards the payment of utility bills and assisting with thehousework. This is, however, not a rolethat he appropriated from the Respondent but one that, on the evidence, heclearly shared with her and that she performed with equal or much greaterzest.
[77] The Court further finds that although theApplicant has in fact provided financial support or maintenance to hischildren, the Respondent was the person on whose shoulders financialresponsibility for the children primarily rested.
[78] Accordingly, while the contribution of theHusband in the capacity of homemaker and parent cannot be ignored, the credithe is to be accorded for this role is far from sufficient to justify the figurehe has claimed as a result of his contribution to the matrimonial property.
Conclusion
[79] Ms. Franklyn submitted that given theApplicant’s contribution to the acquisition of the property, his substantialcontribution to its renovation, improvement and maintenance and the financialand non-financial contributions he had made to the maintenance of his childrenand the upkeep of his family, there is no basis for an award of less than halfof the share and interest in the property. Mrs. Lee- Brace, however, argued that on the evidence before the Court,the Applicant’s contribution to the acquisition, conservation and improvement ofthe matrimonial property merited an award of no more than 10% of the equity inthe property.
[80] The Court has carefully considered thesubmissions of both counsel, as well as all the evidence before it. It has found that despite the primary roleplayed by the Applicant in acquiring what was the original matrimonial home,this initial contribution is overshadowed by the contribution of theRespondent. The Respondent alone hascarried the mortgages jointly secured on the property by the parties. She has done so while caring and providingfor the Applicant and the children of the marriage, supporting the Applicant inhis business and assuming payment of the utilities and land taxes when theyfell short. She has been, like manywomen in this region, the financial backbone of her family. This is not to say, however, that theApplicant has neglected his role. He wasresponsible for the paying the utilities for a significant portion of theirmarriage and provided support to his children when he could, but it is clear tothe Court that he was not as consistent in doing so as she has been. The Court also cannot ignore the services heprovided in the improvement and maintenance of the home.
[81] Accordingly, on the basis of all the evidencebefore it, the Court finds that the Applicant is entitled to 20% share in theequity of the matrimonial home. It nowturns to consider whether it is just and equitable to alter each party’s sharein the equity of the matrimonial property on the basis of the section 53(2) factors.
THE SECTION 53(2) FACTORS
[82] Section57(3)(d) provides that the factors set out in section 53(2) of the FamilyLaw Act, the factors to be considered when determining maintenance, i.e.financial resources, the means and needs of the parties and other matters, arealso to be taken into consideration by the Court when it is seeking to exerciseits discretion to alter interests in matrimonial property. The Court examines these factors to determinewhether they justify an adjustment being made to the entitlement of each partyto the matrimonial property on the basis of their respective contributions: Wilsonv Wilson (unreported) Court of Appeal of Barbados, Civil Appeal No. 5 of 2003,Decision of March 22, 2007, per Williams JA at para 35.
[83] The factors listed in section 53 which are of relevance to an application under section 57 are as follows:
(a) the age and health of the parties;
(b) the income, property and financialresources of each of the parties and the physical and mental capacity of eachof them for appropriate gainful employment;
(c) the financial needs and obligations ofeach of the parties;
(d) the responsibilities of either party tosupport any other person;
(e) the eligibility of either party for apension, allowance, or benefit under any act or rule, or any superannuationfund or scheme, or the rate of such pension allowance or benefit being paid toeither party;
(d) a standard of living that is in all thecircumstances reasonable;
(e) the duration of the marriage;
(f) any facts or circumstances that in theopinion of the court the justice of the case requires to be taken into account.
[84] Williams J stressed at para 17 of Noelv Noel (unreported) Court of Appeal of Barbados, Civil Appeal No. 27 of 2001,Decision of December 17, 2004 that there is “no hierarchy in relation tothe [section 53] factors”and the weight to be accorded to a given factor will therefore vary dependingon the facts and circumstances of a given case.
[85] Inrelation to the first factor of section53, the Applicant is now 68 and the Respondent 58. Given the difference in their ages, it isclear that the Respondent will be likely to remain employed and receive asalary for some time after the Applicant’s retirement. No evidence was adduced at trial as to thehealth of the parties and, in the absence of any evidence to the contrary, theCourt can only assume that the parties were in good health and are not facedwith any serious health challenges.
[86] Their marriage was long, spanning 16 years induration. During that time the parties appeared to have enjoyed a reasonablestandard of living but one that was very far from luxurious.
[87] Atthe time of trial, the Applicant was working as a security guard earningapproximately $1,200.00 per month but has likely now retired and is livinginstead on a pension. This pension wasexpected to be around $750.00 per month. On the other hand, the Respondent, now 58, was employed as a teacheremployed by the Ministry of Education and attached to Selah Primary School andreceived a salary of approximately $3,500.00 per month. She had been working as a teacher for overthirty-five years now and is likely to join the Applicant in retirement withina few years, if she has not already done so.
[88] Whileit was accepted that the Respondent would receive a pension, there was noevidence before the Court as to the amount she expected to receive. However, given the amount of years she hasdedicated to the public service and the fact that both parties appeared toaccept that she was entitled to not one, but two pensions, it is reasonable forthe Court to conclude that her expected pension is significantly greater thanthat of the Applicant.
[89] As aresult of her three decades in the civil service, it was also anticipated andagreed that she would receive a gratuity of around $110,325.00. Both parties accepted that the expectation ofthe gratuity could be properly considered by the Court although the Applicanthas made no claim to any share of it.
[90] TheCourt now turns to consider the property and financial resources of the partiesand their financial needs and obligations under sections 53(2)(b) and 53(2)(c). There is no doubt that the asset of greatest value to which either partyhas a claim is the house and land forming the subject of the dispute before theCourt. The Applicant in his Statement ofFinancial Circumstances has disclosed the existence of no other assets ofvalue. The Court notes, however, that hehas listed vehicular expenses as his greatest single expense but his failure tolist the said vehicles as assets casts some doubt on whether all assets towhich he may have been entitled have indeed been disclosed.
[91] Incontrast to the Applicant, the Respondent’s Statement of FinancialCircumstances revealed that although she has shouldered the burden ofall the mortgages alone, because of her steady and higher salary, she stillappeared to have greater financial resources than the Applicant. She has disclosed that she has accounts to the credit of $11,241.41 andinsurance policies valued at $125,000.00. However, her expenses are also greater than that of the Applicant withher single largest expense being mortgage payments of approximately $12,108.90per annum the burden of which she alone continues to bear. From the evidence before the Court, it isunclear for how long she will have to continue making mortgage payments beforethe mortgage is entirely paid off.
[92] Althoughthe Respondent received care and control of the children of the marriage afterthe parties’ divorce, these children are now all adults and gainfully employedand, while they reside in the matrimonial home, there is no indication thatthey continue to require support from either the Applicant or theRespondent. Neither the Applicant northe Respondent has claimed responsibility for supporting any other person.
[93] Finally, Counsel for the Respondent argued thatas a factor under section 53(2)(n)the Court should take into account the Applicant’s treatment of the mortgagefunds and the fact that he has deceived his wife and abused her trust bysquandering the proceeds of the mortgage and using these funds as his own “personal piggy bank”. She submitted that on the circumstances ofthis case, the factor carrying the greatest weight in this case should not befinancial resources of each of the party.
[94] Section53(2)(n) confers a wide discretion that permits the Court to take intoconsideration any facts or circumstances that in its opinion the justice of thecase requires to be taken into account. The Court accepts that the section is broad enough to permit the Courtto consider any negative contributions made by a party to matrimonial propertyand also accepts that where one party has behaved in such a way as to lead tothe deliberate diminution of the matrimonial assets this is a factor which itis just and equitable for the Court to take into account under section 53(2)(n). The Court cannotgenerally use this section, however, to have regard to financial loss wherethis loss was not the result of blameworthy conduct on the part of a party butarose simply from unsuccessful investments as like economic gains, economicloss is expected to be shared by the parties to a marriage neither of which canbe made to pay the other for the vagaries of fate: Dickey, Family Law (Fifth Edition) at p. 595.
[95] It is apparent from the evidence in this casethat a significant portion of the mortgage funds, particularly those fundsreceived under the first mortgage, appear not to have been used on therenovations of the matrimonial home for which they were obtained. It is undisputed that the account in whichthese funds were placed could only be accessed by the parties and the Courtaccepted the evidence of the Respondent that it was the Applicant who primarilywithdrew money from the account to pay for the labour and material used in thehouse.
[96] As the Court noted earlier, the Applicant hasactually admitted to taking the money and using it for purposes other than forwhich it was intended to be used. It isunclear from the evidence when and how often he did so. It is clear, however, that in some of theseinstances, the money went for the payment of the utility bills. Such a use indirectly benefited both partiesand their family.
[97] The Court accepts on a balance of probabilities,and without any evidence to the contrary, that it is likely that the Applicantdid use this money for other purposes as well. This is a factor that the Court may rightfully consider but, despite thesubmissions of Counsel for the Respondent, it is not a factor thatsignificantly outweighs the others.
[98] The section 53(2) factor carryinggreatest weight in this case is without doubt the disparity in income andfinancial resources between the parties. Through no fault of the Respondent, the Applicant is in a substantiallyweaker economic position than she. TheCourt stresses that, in exercising its discretion under section 57, its aim isnot to equalize the financial position of the parties. The Court does, however, have to consider howto apportion the matrimonial property in which both parties have investedconsiderable time, resources and effort so as ensure an apportionment which isnot only fair but will allow both parties to adequately satisfy their futureeconomic needs.
[99] In considering section 57, the Court hadto ask itself whether there any section 53(2) factors that wouldconvince the Court that it would be just and equitable to alter the interest ofthe parties to the equity of the matrimonial property. The Court finds that despite the Applicant’srole in the diminution of the mortgage proceeds, the burden of which theRespondent continues to shoulder, the significant disparity in the financialresources of the Applicant and the Respondent favours an alteration of 10% inhis favour.
DISPOSAL
[100] Inlight of the foregoing, the Court declares that the Applicant is entitled to20% of the equity of the matrimonial home which equity has been accepted asbeing $335,599.00.
[101] Onthe basis of the section 53(2) factors, however, I hereby order that theinterest of the parties in the equity of the matrimonial property be alteredpursuant to section 57 of the Family Law Act so as to vest 30% inthe Applicant, and 70% in the Respondent.
[102] Itis accordingly ordered that on a value of $335,599.00, the Respondent pay tothe Applicant $100,679.70 in a lump sum payment within 6 months of the date ofthe order, failing which the property is to be sold by public auction orprivate treaty and the net proceeds distributed according to the percentagesoutlined at paragraph 101 of this judgment.
COSTS
[103] Inaccordance with section 94(1) of theFamily Law Act, each party will bearhis or her own costs of these proceedings.
Randall I. Worrell
Judge of the High Court
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