Samaroo v Samaroo

• Jurisdiction: Trinidad & Tobago
• Judge: Ramkerrysingh, J.
• Judgment Date: 15 December 2014
• Neutral Citation: TT 2014 HC 405
• Docket Number: FH 144 of 2014
• Court: High Court (Trinidad and Tobago)
• Date: 15 December 2014

High Court

Ramkerrysingh, J.

FH 144 of 2014

Samaroo

and

Samaroo

Appearances:

Mrs. Joan Byrne (instructed by Mr. Naresh Ramchandani) for the petitioner

Mr. Joseph Toney (instructed by Ms Adana Toney) for the respondent

Family law - Husband and Wife — Maintenance — Whether the Court should order maintenance for the spouse — MPS award — Immediate needs of applicant — Ability to meet those needs — General Standard of Living enjoyed during marriage — Transfer of car — Finding that the Respondent should pay maintenance pending suit and transfer of car — Section 23 of the Matrimonial Proceedings and Procedure Act.

Ramkerrysingh, J.

1 On 23rd January 2014 the husband to whom I shall refer as ‘Mr. S’, filed a petition for the dissolution of his four-year marriage to the wife (‘Mrs. S’), based on the fact of her intolerable behaviour. The matter was scheduled for a Directions Hearing on 17th March 2014. Mrs. S on the 10th March 2014 filed an Answer and Cross-Petition on a similar fact. The DH had to be postponed not only because of Mrs. S's late filing, but because she included three children of the family not mentioned by the husband. He was given leave to amend his petition to address the omission. He also filed a re-amended petition and a further amended petition prompting appropriate responses from Mrs. S, all of which pushed the DH to 26th September 2014.

2 At the hearing both sides agreed that the matter would proceed on mutual decrees. The issue of whether or not the children Kelly and Shannon (hereinafter called ‘IC and ‘S’) were children of the family, was raised and deferred to the 16th October 2014. It is the subject of this judgment. Mr. S maintains throughout that the children are not children of the family while Mrs. S claims that they are.

THE FACTS

3 When Mr. and Mrs. S met she had already been divorced from her former husband John Carroll (Mr. C) with whom she had twin girls K and S now 16 years old. Mr. C was also stepfather to her first child of another relationship, Shanta, who was just about two years old when she married Mr. C. When she and Mr. C separated but while still married to him, Mr. and Mrs. S moved in together in 2003, but by that time K and S had been living with their grandparents. The girls came to live with them in 2004 and moved with them into the matrimonial home when it was bought. Mrs. S claims that it was on Mr. S's insistence that the children were brought to live with them, while Mr. S said that they came without his consent and without prior consultation. Nonetheless, they all lived under one roof. Mrs. S claims that Mr. S maintained the children, paid for their holiday trips abroad and generally looked after and provided for them.

4 The gist of Mr. S's case is that he did not invite the children to live with him, but rather that it was Mrs. S who insisted upon it, and although he had his reservations he did not object to them coming there to live. He avers however that he never accepted them as his family.

WEIGHING THE EVIDENCE

5 The question of whether a child who is not a child of both parties is a child of the family is a question of fact. Both parties' affidavits and pleadings are punctuated with the feelings of resentment that Mr. S held for the children. By an unusual twist, Mrs. S's allegations of Mr. S's treatment of the children are corroborated by his evidence. He said that K and S came to live with them only to please Mrs. S as it was when she insisted that they accompany the parties on holiday trips, which were planned to coincide with the children's school holidays. But there is evidence from both sides that at every turn when he was fed-up with the children and their friends he did not hesitate to let them know. He also made it a habit of returning home and searching the house for stray hair accessories and other items belonging to the girls, who faced the brunt of his wrath on his discoveries. These rantings are not indicative of someone who was pleased having the children around.

6 Mrs. S's pleadings contain many examples of Mr. S's indignation for the children which, when put together paint a picture of a man whose attitude reflects that meted out to unwanted houseguests rather than children of the family. Particulars (b) to (i) of Mrs. S's cross-Petition show that throughout the time that the parties lived together, that is to say from the time of their pre-marital cohabitation and all during the marriage, Mr. S did not treat the children as though he wished them to be a part of the family. The following are some examples of his treatment of the children as mentioned by Mrs. C in her Cross Petition:

• (i) his constant reminders to the children that they should look to their biological father for financial assistance;

• (ii) rowing with Mrs. S when she approached him for as little as $20 to give one of the girls for pocket money;

• (iii) his refusal to assist in transferring one of the girls to another school after sitting the Common Entrance examination;

• (iv) his continuous protestations whenever Mrs. S approached him for money for the children; and

• (v) his frequent objections to the girls spending his money.

7 Mrs. S admitted in her cross-petition that Mr. S's behaviour towards the children caused her stress, which does little to help her case. What she describes is not the behaviour of someone who wanted these children to be a part of his family. And all of this is Mrs. S's own evidence.

8 Mrs. S claimed that while on holiday in Barbados Mr. S introduced K and S to his staff, family and friends as his step-children, which he denies. One wonders why he did not do the same at home in Trinidad; but introducing the children as step-children and attending functions together are meaningless without the everyday treatment that accompanies such an appellation.

9 Mr. S maintained throughout that K and S were not children of the family and that he kept, and was kept at a distance from any involvement in their lives. They now live with Mr. C their biological father and the parties do not agree on the circumstances that led to that change of residence, but that is irrelevant. The issue is the manner in which the girls were treated by Mr. S when they resided with him. From the evidence he had little input in their lives and even from Mrs. S's standpoint that seems to have been the case.

10 The evidence points to a fragmentation of the members living in that household, consisting of Mr. and Mrs. S on the one hand and Mrs. S and the children on the other. K's and S's presence in the home in circumstances where Mrs. S was unemployed placed a humanitarian responsibility on Mr. S to feed and house them, but not because he cared for them as a parent, but because it was the decent thing to do for the children of this wife.

11 It is Mrs. S's case that K and S are children of the family and it is her burden to show how. I am not satisfied that she has fully discharged that burden. Paying for holiday trips and being fed and sheltered are not enough.

12 As far as credibility goes I find Mr. S to be the stronger witness and his explanation of how the children came to be living in the household with him and Mrs. S is plausible. I also accept his version of the ‘maintenance’ payments discussed below. Par 20 et al

TREATMENT OF THE CHILDREN BY THE PARTIES

13 The statutory definition (Matrimonial Proceedings and Property Act Ch 41:51, section 2(1)) of ‘child of the family’ is:

‘a child of both parties; and any other child who has been treated (My emphasis) by both of those parties as a child of the family’

It has been submitted that treatment entails acceptance, but from my reading of the evolution of the definition of ‘child of the family’, while acceptance with the knowledge and consent of the other side was a statutory requirement prior to 1973, that is no longer the case and has been replaced by ‘treatment’. (See W (RJ) v. W (SJ) [1971] 3 All ER 303.

14 How is ‘treatment’ to be defined? A v. A [1974] 1 All ER 755 defines ‘treat’ as ‘act or behave towards’. A v. A [1974] 1 All ER 755; Held - D was not a child of the family. Although the husband's mistaken belief at the time of the marriage that he was responsible for the wife's pregnancy could not of itself...