Kanchan v Kanchan
| Jurisdiction | Trinidad & Tobago |
| Judge | Ramkerrysingh, J. |
| Judgment Date | 20 January 2012 |
| Neutral Citation | TT 2012 HC 18 |
| Docket Number | FH 2175 of 2007 |
| Court | High Court (Trinidad and Tobago) |
| Date | 20 January 2012 |
High Court
Ramkerrysingh, J.
FH 2175 of 2007
Mr. Samuel Saunders holding for Mr. Wesley Rarajattan for the petitioner.
Mr. Chateram Sinanan for the respondent.
Family Law - Matrimonial property division — Maintenance.
The parties to whom I shall refer as “W” and “H” respectively in spite of the decree nisi having already been pronounced, began living together sometime in 2004, when H moved into W's parents' home at Hermitage Village, Claxton Bay. They were subsequently married in February of 2006, a mere three months before the birth of their only child Trevor. The marriage did not last long and W filed her petition for divorce on 3rd December 2007 relying on the fact of the H's intolerable behaviour. The decree nisi was pronounced on 27th February 2008.
On the 19th December 2007 W filed a Form 10 Application seeking among other things that H be afforded supervised access to Trevor. The Affidavit in support of that application raised a matter of some concern to this court, which was denied by H. In the end orders were made on 26th April 2010 for maintenance and custody of the child with supervised access to H. All that remains to be determined is Ws Form 8 Application filed on 19th March 2008, by which she seeks:
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a. maintenance for herself;
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b. all the household contents and
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c. one-half share in property situate at Caratal Road, Claxton Bay which was valued at $140,000.
Oddly enough W's financial application was filed three months after H filed his Form 9. His narrative affidavit was also filed some considerable time before W could file one of her own. This reverse order of things was no doubt due to W's delay in making her application and H's anxiety to resolve the financial issues.
It is Ws case that in March 2007 she and H decided to build their matrimonial home on the parcel of land at Caratal because, according to her, they had already been married a year and had a child. She said that H's aunt Tara gave H permission to construct the home on the parcel of land which had belonged to her. During the early months of the construction she said she accompanied H to the building site on Sundays and cooked for him and the other workmen. It was her idea she said to construct a two-storey home and most significantly she said that she had contributed $20,000 to purchase materials. The construction stopped immediately upon the breakdown of the marriage in October 2007 and the structure has remained incomplete up to the time of the trial.
H on the other hand denies that he has any interest in the Caratal property. It is his evidence that Trevor's birth and tension with his in-laws were put pressure on him to find a place of their own. He approached his father who agreed to build a house for them on lands he occupied. H and W then moved into a rented apartment in Couva and construction of the home began. While acknowledging that the property is owned by his aunts, H claims that the house that was being built, belongs to his father Mancad, who financed its construction without any financial assistance and that the project stopped when he ran out of money.
In support of this allegation Mancad filed an Affidavit deposing to the circumstances surrounding the building of the house, saying that sometime in 2006 H told him that he was experiencing difficulties living with his in-laws and desired to return home with W and Trevor. Mancad said that while he was unable to accede to this request, he was prepared to build a two-storey house on lands that he occupied and to permit H and his family to live in the downstairs portion. He said that pursuant to this, his sisters, who owned the land granted him permission to construct the house with the understanding that the land would subsequently be conveyed to him (Mancad) and an Agreement was signed to that effect on 16th December 2006. He went on to say that he started building the house with his own monies but he ran low on funds and with the breakdown of the marriage, he stopped construction altogether.
With respect to the household contents H said that W took all of these items with her when she moved out of the apartment, leaving him with only his clothes and other personal effects. He contends that these items were wedding gifts received upon their marriage and he is seeking a division of these items between them or alternatively, that he be awarded a sum to represent half their value. He also accuses her of refusing to return his jewellery which was left at his in-laws' home when they moved to Couva.
The issues that arise from the evidence are as follows:
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a. Whether the house (Caratal Road) is a matrimonial asset that falls for distribution.
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b. Whether W has established an interest in the said property by virtue of her alleged $20,000 contribution.
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c. Whether W has discharged her burden of proof that she did indeed contribute $20,000 to the construction project.
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d. Whether W is entitled to maintenance and if so how is that sum to be assessed.
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e. Whether W is the owner of the bar in which she works.
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f. Whether H's unwillingness to pursue his full earning capacity has any impact on the final award.
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g. Whether H's health is to be taken into account.
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h. Whether the chattels received by the parties as wedding gifts should be divided between them or at all.
As far as the parties' respective incomes are concerned, H is a driver working for his father at a monthly salary of $2,800, while W works in her family-owned business as a Bartender. Although she claimed in her narrative affidavit that she was not paid for her services, her Form 8 indicated that she is in receipt of a salary of $3,000 per month. At trial she explained that before Trevor's birth she was not paid when she worked, but that she only began receiving a salary in January of 2010. Later in her cross-examination she stated that she did not work “all the time” in the business but rather “in and out” and that when she and H were together they both worked in the business, but she was not paid. There is some discrepancy in her evidence and even if I accept that W worked inconsistently during the periods of their pre-marital cohabitation and subsequent marriage, I do find that at the time of filing her Form 8 in March of 2008 she was being paid a monthly salary of $3,000.
H admits that he worked in the bar with W but insists that the business belongs to her, referring to the bar license which is registered in her name. He said further that while he was involved in the enterprise she earned as much as $7,000 per month. W accepts that her name appears as owner on the bar licence but she insists that she is not the owner of the business. She said that her brother and sister also work in the bar but she was unaware if the litter was in receipt of a salary, but as far as she was aware she believed that her brother was paid. She seemed to know very little else about the business. She appeared to be sincere in her answers and I accept her testimony in this regard, if not only because, no documentary proof has been produced to support that she is the owner of the bar. I therefore reject H's allegation that the bar belongs to her or that she earns $7,000 per month.
In relation to Caratal Road W was cross-questioned about the Agreement dated 16th December 2006 [MK1] and made between Tara Kanchan and Kasarie Samuel the Owners of the One Part, and Mancad Kanchan, the Occupier of the Other Part, whereby the Owners gave Mancad permission to build a house on a portion of land. W said that she had first come across the Agreement in 2009 and accepted that it gave her former father-in-law permission to build, and that it contained a provision that a conveyance would be made to him at a later unspecified date. I take judicial notice that this Agreement was entered into at a time when the marriage was still intact and neither Mancad nor H had anything to prove or hide. I observe that it was prepared by Mr. George Ojar, who had initially represented W in these proceedings and indicated that he knew both families. In those circumstances I would have to conclude that the terms of the Agreement were bona fide and prepared with the deliberate intention of preserving Mancad's future interest in the property and at the same time, with the clear and express intention that no interest would pass to either H or W. I do not think therefore that the Agreement was a sham and I accept the terms on its face.
Further, W was questioned about the bundle of receipts and invoices exhibited to H's affidavit as [Ala] all of which bear Mancad's name. While admitting that the receipts represent monies spent on the purchase of material for the house at Caratal, W insists that she contributed about $20,000 towards purchase of materials. Mr. Sinanan interrogated her about a joint account which she said was held by H and Mancad from which she insisted part of the construction costs were met, but she produced no evidence in support of this allegation.
It is undisputed that the parcel of land belongs to H's aunts, but H contends that the house was being built by Mancad for his own use as an investment and intimates that he was only permitting H and W to live there. He also denied that W contributed $20,000 or any sum towards its construction. In fact he said in his affidavit that “[his] father was responsible for the building of the house and the purchasing of all material for the house” and exhibited several receipts [AK]) in support of that claim.
W was also cross-questioned about the circumstances surrounding the decision to build on the land and she gave details of the discussion which, to my mind she would not have fabricated. She...
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