Burton (Daphne) v Errol Burton
| Jurisdiction | Jamaica |
| Judge | Mangatal J: |
| Judgment Date | 18 April 2008 |
| Judgment citation (vLex) | [2008] 4 JJC 1802 |
| Court | Supreme Court (Jamaica) |
| Date | 18 April 2008 |
FAMILY LAW - Maintenance - Child's education - Claim for maintenance of
This is a Claim by the Claimant "the mother" against the Defendant "the father" for maintenance in respect of the parties' son Ryan Burton, born 15 th June 1987. The claim is for the husband to pay 50 % or such other percentage as the Court deems fit of Ryan's educational expenses in respect of tertiary education at the University of Charleston, West Virginia, United States of America, until he reaches the age of 21 years on the 15 th June 2008. The mother is also asking the Court to order the father to make some reimbursement to her of sums already spent by her on Ryan's education.
This claim was filed many years ago and circumstances have undergone a number of changes since then. Originally there had been a claim by the mother for occupancy of the matrimonial home which the parties own as joint tenants at 37 Lily Way, Mona Heights, Kingston 6, Saint Andrew, seeking that Ryan be allowed to remain in the matrimonial home until he completes his tertiary education. However, this is no longer an issue since Ryan is now studying abroad, the mother is in occupation of the premises at Lily Way and although the property disputes between the parties are still being sorted out, when Ryan is in Jamaica he has without any problem or contention been staying at Lily Way.
The father has in turn filed a counter-application seeking the following orders:
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(a) That the father pays to the mother the sum of $15,000.00 monthly for the maintenance of Ryan until Ryan attains the age of 21 or completes tertiary education, whichever is sooner;
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(b) That the father be responsible for half the educational, medical, dental, optical expenses for Ryan, subject to paragraph (d);
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(c) That the mother is required to consult and seek the written agreement of the father in relation to any educational, medical, dental, optical and air travel expenses for Ryan, such consent not to be unreasonably withheld; if the parties fail to agree, an application to be made to the court;
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(d) That Ryan enroll in a tertiary institution in Jamaica, unless the mother undertakes to be financially responsible for any expenses incurred above what it would cost if Ryan lives and attends school in Jamaica;
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(e) That the Defendant not be called upon to repay any debts incurred by the Claimant without his prior knowledge and consent.
The issues in this case have chrystallized as follows:
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(a) How much maintenance should the father be ordered to pay?
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(b) Should the father be required to reimburse the mother for sums already expended by her in relation to Ryan's education in the United States?
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(c) Should the father be required to contribute to the cost of Ryan's education in the United States or should the mother be responsible for any expenses incurred above what it would cost if Ryan lived in Jamaica and attended school here?
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(d) Does the father owe any money to the mother based on previous orders made in this matter or other matters between the parties, and if so, how should such sums be dealt with?
The parties were married on January 31 1987. They separated in or about September 2003. When the Claim was filed in 2004 the Mother in her Affidavit sworn to on the 1 st October 2004 had stated that the father earned at least $ 150,000.00 per month and she was asking for an order that the father pay $150,000.00 per month as maintenance for Ryan or such other sums as the court deems fit. At this time the mother wants the father to contribute by paying 50% of what Ryan's expenses are, and if not 50%, such other percent as the Court deems reasonable.
In her Affidavit sworn to on the 1 st October 2004 the mother had set out in her list of estimated expenses to do with Ryan's education some fairly substantial sums regarding SAT classes, i.e Scholastic Achievement Tests. In his Affidavit sworn to on the 18 th January 2005, the father stated that as far as he was concerned, there was no necessity for the child to be doing SAT classes because from all accounts Ryan if he kept performing consistently at the standard at which he had been performing, would be fully qualified to enter the University of the West Indies.
In Suit No. 570 of 2004 between the mother and the father in relation to the matrimonial property at Lily Way, a consent order was entered by the parties on the 27 th day of September 2005 agreeing that each party was entitled to a 50% interest in the property and agreeing that each would pay and be responsible for half of the monthly mortgage payments, which at the time of the court order amounted to $48,710.56.
In paragraphs 3 and 5 of his Affidavit filed April 25 2005, the father said that he paid the whole of the mortgage and loan to First Caribbean Bank in respect of the matrimonial home which at the time meant that he paid monthly the sum of $56,245.56. He states that the mother is responsible for one half of the sum of the mortgage, which he has asked her to apportion in the tranches, $20,000.00 for maintenance of Ryan, and $8,122.78 to be deposited to the father's account at Scotia Bank.
At paragraph 4 of her Affidavit sworn to on 22 nd of May 2006, the mother claims that as an employee of BNS, who is a Senior Banking Officer, employed to BNS for close to 27 years, the father enjoys several benefits including an overdraft facility which is similar in nature to a loan, and which has a low interest rate of only 3 ½ %. The mother also states that the father is able to access Education Loans at very preferential rates.
In her Affidavit sworn to on the 22 nd of May 2006, at paragraph 35 the mother states that since September 2005, Ryan has been pursuing under-graduate studies in the field of computer sciences at the University of Charleston in the United States of America where his undergraduate programme will last for five years. She then sets out the costs of Ryan's maintenance, well-being and educational expenses since September 2004 and states that she has been the one meeting these expenses since September 2004 without any contribution from the father. These expenses up to the date of that Affidavit totalled in excess of $26,360.00 U.S. or $1,737,400.00 Jamaican at a conversion rate of US$1.00 to Ja. $65.00.
In paragraph 37 of the same Affidavit the mother states that she has had to borrow various sums of money, from her employer and other commercial banks totaling approximately $550,000.00.
The mother states that her staff loan is repaid at a concessionary interest rate of about 10% while the commercial loans are being repaid at interest rates of about 25%. The mother in paragraphs 38 and 39 of her Affidavit goes on to state:
Both the father and Phyllis Orlebar are registered as joint tenants on the title to the property at the Aviary.
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38. While I undergo these hardships, it has recently come to my attention that in or about the 13 th September 2005 the(father) purchased property located at Lot 272 in the Aviary, St. Catherine, which is registered at Volume 1383 Folio 641 of the Register Book of Titles......
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39. I therefore have good reason to conclude that the (father) is not undergoing severe financial constraints as he claims or at all.
In the same Affidavit the mother goes on to set out the projected cost for the remainder of Ryan's tertiary education and related expenses, which was projected for the next 3 years, at US $67,400.00 or J$4,381,000.00. At that time the mother was asking for an order that the father pay half of Ryan's educational and other expenses since September 2003, as well as half of the cost for the 4 years of Ryan's undergraduate studies.
In his Affidavit in response sworn to on the 15 th of November 2006, the father states at paragraph 3 that BNS no longer grants personal overdraft facilities to its customers or employees. He said that he sought assistance by way of an Education Loan for Ryan in August 2005, but he was informed by BNS that they do not grant unsecured Education Loans to employee's children pursuing studies overseas, if the same programme is offered locally.
According to the father (paragraphs 20–28 of his Affidavit); Ryan is studying Information Technology at the University of Charleston and not Computer Science. He states that Ryan was successful in his application to the University of the West Indies, Mona, where he could pursue his under-graduate studies in the field of computer science, which was what Ryan really wanted to pursue and which would cost approximately $189,807.00 for the academic school year. The father says that although he too wants the very best for Ryan, based on his income it is impossible for him to find one half of the educational expenses for Ryan to study overseas. The father states that if Ryan was pursuing his undergraduate studies at the University of the West Indies, Mona Campus in the Parish of Saint Andrew it would have cost approximately $569,421.00 to complete the three year studies, as opposed to the approximately J $6,004,400.00 which is estimated for Ryan's study overseas. The father says that if Ryan had studied here in Jamaica then the mother would not have had to borrow the sums amounting to $550,000.00 which she claims to have borrowed.
According to the father, the University of the West Indies is the best tertiary institution in the region and a BSc. in Computer Science is more recognized and more established than a BSc. in Information Technology, hence Ryan would have received more for less if he had pursued studies at U.W.I here in Jamaica and which would have been more affordable to the father.
The father also states that it only came to his attention that the mother intended...
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