Samaroo v Samaroo

• Jurisdiction: Trinidad & Tobago
• Judge: Ramkerrysingh J.
• Judgment Date: 21 October 2014
• Neutral Citation: TT 2014 HC 360
• Docket Number: FH 144 of 2014
• Court: High Court (Trinidad and Tobago)
• Date: 21 October 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 Joseph Toney & Co. - Ms Adana Toney) for the respondent

Family law - Child of the family — Whether the children referred to were children of the family — Treatment of the children by the parties — Definition of child of the family — Acceptance of a child into a family — Whether the petitioner maintained the children — Liability of the petitioner to assume responsibility for the children's maintenance — Whether provision of a home satisfies treatment within the meaning of the Act — Integration of a child into the family — Section 27(3) and 2(1) of the Matrimonial Proceedings and Property Act.

Ramkerrysingh J.

1 On the 30th June 2014 the respondent Wife filed Notice of Application for maintenance pending suit in the amount of $30, 000 per month, ‘until a property settlement order and/or maintenance orders are made for the children of the family and for herself in this matter’. She based her application on the following grounds inter alia that:

) four years into the marriage she had given up her job as a Flight Attendant at the petitioner Husband's request and in exchange he gave her a monthly allowance of $20, 000; 2) the Husband had assumed responsibility for her children and in that respect paid the monthly sum of $1500 USD toward their maintenance; 3) the Husband reneged on his promise to pay off her credit card debts; 4) the Husband had paid her $30, 000 per month after he initiated divorce proceedings in January 2014 and continued to do so until May 2014 when he reduced the sum to $10, 000.

1 She now wants reinstatement of the $30, 000 payment until final financial orders can be made.

2 At the time of the filing of her application for maintenance pending suit, the petition had not yet been heard, and an issue arose for determination in relation to the Wife's children, twin girls aged 16 years and still at school, and whether or not they were children of the family. That being the more significant of the two urgent applications had been dealt with first and is the subject of an earlier judgment [Samaroo v. Samaroo FH0144/2014; Judgment dated 21/10/2014]. I mention it briefly here as it sets the pace for deliberation on the instant application. Much dispute surrounded the Wife's three children including the twins and whether they were children of the family. This issue was tried and it was determined that they were not children of the family to whom section 47 of the Act applied. The significance of that determination in relation to today's application is that the Wife seeks interim provision for her children as well, which now will no longer be directly relevant.

3 As part of the injunctive proceedings, on 27th March 2014 an order was made, by consent of the parties, for the Wife to be accommodated at the HYATT Hotel at the Husband's expense. She was later relocated to an apartment at Bayside Towers, again at the expense of the Husband, where she has been since 28th March 2014. The Husband is prepared to continue meeting the cost of the rental of this apartment until the matter is finally determined. The monthly rental rate is a little over $18, 000 per month. Bayside Towers comprise luxury-apartments befitting the Wife's marital standard of living. It is not disputed that during the course of the marriage the Husband met the Wife's daily needs and assisted her in meeting her financial commitments, especially as they related to her children. It is also not disputed that the matrimonial home which is currently occupied by the Husband, was acquired during the marriage and that he is responsible for the mortgage.

4 Another interesting aspect of maintenance pending suit is that such orders only operate up to the decree absolute and there being no children of the family, time started to run as early as December 2nd 2014, long before the financial matters are expected to be heard. While the relief will not be pending suit once the absolute is granted, it will extend to interim maintenance until final determination of the financial application. I shall therefore refer to the financial relief sought by the instant application loosely as ‘MPS’ and any order I make shall continue until the determination of the substantive applications [Cross-decrees having been granted in this cause and there being no children of the family means that either party may apply for the decree absolute by 2nd December 2014 leaving the respondent free to remarry before the determination of the substantive financial application. If that event occurs, any maintenance pending suit order will lapse], if the Wife does not remarry before then.

SUBMISSIONS BY COUNSEL

5 Both sides relied on section 24 and by extension section 27 of the Matrimonial Proceedings and Property Act as the relevant section under which MPS orders are made, but it is to section 23 that one must turn for financial relief pending suit or final ancillary relief. The thrust of Mr Toney's submission is that since there is evidence that the Husband had in the past, given the Wife $30, 000 the court ought to order a similar amount as an MPS order. But as the judgment explains there are other factors to be considered. On the other hand Mrs Byrne argues that while she accepts that the Husband gave the Wife $30, 000 per month, the sum represented money to run his household and assist the Wife in maintaining her children and paying her debts, particularly her credit card debt. She argued further, that since it has been determined that the Husband bears no responsibility for the children and the Wife is no longer in charge of a household, the Husband's voluntary reduced offer of $10, 000 is adequate for the time being.

6 Mrs Byrne also wants the court to bear in mind that the Wife has admittedly been in receipt of $800, 000 as well as a further $50, 000, but the circumstances surrounding these two payments are best left for the substantive application. Finally, Mrs Bryne asks the court to keep the Court of Appeal decision of Persad v. Persad[Persad v. Persad Civ Ap 130/2008] in mind, and while I accept that the section 27 guidelines are relevant to sections 24 and 26, the marginal note to section 27 does not include section 23. Accordingly, I am of the view that Persad v. Persad is not applicable to this case as far as the section 27 factors are concerned. Counsel on both sides made reference to section 27 and the tailpiece, but if my interpretation of sections 23, 24, 26 and 27 of the Act is correct, the guidelines and the replacement of parties to their pre-breakdown positions, are reserved for final financial orders, and are not necessarily the focus of interim relief.

7 This matter is far from trial-readiness and the court cannot be expected at this early stage to take into consideration the intricacies involved in the substantive analysis of the case. MPS orders are geared toward ensuring basic needs are met, until the matter can be fully argued. These needs will, understandably, vary from one case to the other.

APPLICATION OF LAW

8 Calculating the amount of an MPS award is entirely within the discretion of the court. Section 23 gives the court the power to order interim maintenance ‘as the Court thinks reasonable’. The Act does not provide guidelines to determine reasonableness and what is reasonable is bound to differ from case to case. What might be basic to a millionaire's wife may be ultra luxurious to the wife of a teacher and allowances must be made for these differences. With this in mind I would proffer that the court's exercise should involve the examination of three main features in order to satisfy the statutory requirement of reasonableness: (i) the immediate needs of the applicant, (ii) the broad ability of the payer to meet those needs and (iii) the general standard of living enjoyed during the marriage. This is by far not a complete list, but in my view it is a very sound place to start.

9 The objective of an MPS order is to meet an applicant's immediate needs that would enable him or her to cope until the court can deal with the financial matters in a more detailed fashion. Coleridge J...