Courtney Oneil Colley v Karen Janice Silvera Colley
| Jurisdiction | Jamaica |
| Judge | Calys Wiltshire, J |
| Judgment Date | 02 March 2018 |
| Neutral Citation | [2018] JMSC Civ 47 |
| Docket Number | CLAIM NO. 2014 M1450 |
| Court | Supreme Court (Jamaica) |
| Date | 02 March 2018 |
[2018] JMSC Civ 47
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FAMILY DIVISION
Calys Wiltshire, J (Ag.)
CLAIM NO. 2014 M1450
Mrs. Khadine Colman for the Petitioner/Applicant
Ms. Vivienne Washington for the Respondent/Applicant
Maintenance - Maintenance of child who is not a minor — Division of matrimonial property — Family home constructed on land belonging to other family members — Maintenance Act, sections 2, 8 (1) — Property (Rights of Spouses) Act, Sections 2, 6, 13.
The parties were married on 29 th June, 1996. The Applicant filed a Petition for divorce on 10 th June, 2014 in which he pleaded that they separated in 2010. The union produced one child, Deanna Janice Colley born on 17 th August, 1997.
On the 11 th July, 2014 the Applicant filed a Notice of Application for Court Orders where he sought the following orders regarding premises situated at Faiths Avenue, Duanvale, in the parish of Trelawny:
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(i) A declaration that the Petitioner and the Respondent are the joint owners of a dwelling house situated on the premises in equal shares.
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(ii) An order for the division of the dwelling house on the premises in accordance with the respective shares of the parties declared at (i) above.
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(iii) An order that a valuation of the dwelling house be undertaken by a Valuator to be agreed between the parties within sixty (60) days of the date of this order, failing which the Registrar of the Supreme Court to be empowered to appoint a competent Valuator.
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(iv) The cost of the valuation report be borne by the parties in equal shares.
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(v) The attorneys-at-law for the Petitioner/Applicant shall have carriage of sale.
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(vi) That the Respondent shall have the first option to purchase, such option to be exercised within ninety (90) days of the order.
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(vii) That the house be sold on the open market and the net proceeds of sale divided in accordance with the respective shares of the parties declared at (i) above.
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(viii) That if the Respondent refuses to sign any document of transfer upon sale within a period of twenty-one (21) days of their receipt, the Registrar of the Supreme Court shall be empowered to sign.
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(ix) All other costs attendant on the transfer on the sale of the dwelling house be borne by the parties equally.
The Petitioner/Applicant relied on Affidavits filed on 10 th June, 2014, 11 th July, 2014, 10 th March, 2015 and 7 th August, 2015 in support of his application and in response to the Respondent's application for maintenance for Deanna Colley, who I will hereafter refer to as Deanna.
On 14 th March, 2016 a Notice of Discontinuance of the Petition for Divorce was filed by Mr. Colley. He was subsequently permitted to withdraw his Notice of Discontinuance, by order of D. Palmer J. on the 29 th June, 2016.
The Respondent/Applicant filed an answer and cross petition on the 9 th February 2015 seeking, among other things, orders that,
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(i) The Respondent is legally entitled to remain undisturbed in the building which was constructed on the land given to the parties by the parents of the Respondent.
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(ii) The Petitioner is not entitled to be paid any money for any portion of the dwelling
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(iii) The current Maintenance Order be varied for the Petitioner to pay an increased amount for maintenance of the relevant child of the marriage.
Mrs. Colley filed further affidavits on the 27 th July, 2015, 27 th November, 2015, 16 th May, 2016, 16 th August, 2016, and 25 th November 2016, in support of her application and in response to Mr. Colley's application for division of matrimonial property.
Pursuant to Mrs. Colley's Notice of Application for Court Orders filed on 27 th November, 2015, D. Palmer J. on the 18 th April, 2016 made interim orders that
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(1) The period of maintenance for Deanna Colley was extended effective 1st September, 2015 until the determination of the application for maintenance and
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(b) The weekly sum be increased from One Thousand Five Hundred Dollars ($1,500.00) to Three Thousand Dollars ($3000.00)
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On the 29 th June, 2016, Mr. Justice D. Palmer made further orders as follows:
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(1) The Petitioner is ordered to pay the sum of Five Hundred Dollard ($500) per week from, the date of the filing of the cross petition up to the 18 th birthday of the subject child Deanna Colley.
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(2) The Petitioner to pay the sum of Three Thousand Dollars ($3000.00) per week from the first day of the following month after the child turned eighteen (18) up to August 2016.
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(3) The Applicant must apply thereafter for any extension and show proof that the child Deanna is enrolled in full time school.
Mr. Colley testified that during the course of his marriage to the Respondent, they acquired property at Faiths Avenue, Duanvale, in the Parish of Trelawny by way of a Deed of Gift from the Respondent's parents.
He stated that he alone contributed financially to the construction of the house by way of his securing of several loans from various financial institutions. Further that he has been solely responsible for repaying those loans.
Mr. Colley described the house as the principal residence during the marriage, and indicated that he was seeking a seventy (70%) interest in the matrimonial home since he contributed all the funds for its construction.
Mrs. Colley's evidence is that the land on which the house was built was not owed by the persons who purportedly gave the land to her and Mr. Colley. She stated further that although the parties lived there as man and wife, they had no legal rights to the land.
Mrs Colley denied that the loans taken by Mr. Colley were used in the construction of the house. She stated that she engaged her brother to build the house and paid him on a monthly basis from her partner draws and money received from her older brother in Canada. She also said that she put in physical labour in the construction of the house.
She testified further that she had made an application to the Falmouth Resident Magistrate's Court in May 2014, to increase the sums being paid for maintenance for Deanna. She also made an application for an extension of time for maintenance of Deanna beyond her 18 th birthday, in April 2015.
Miss Colman submitted that the application for division of matrimonial property was made pursuant to section 13 of the Property Right of Spouses Act 9 (PROSA), where subsection (1) (a) allows spouses to apply to the court for a division of property “on the grant of decree of dissolution of marriage or termination of cohabitation”. Further that the land on which the house stands was gifted to both parties and the house is their matrimonial home. Miss Colman argued that although there is no registered title, the parties have been in open, continuous and undisturbed occupation for over 12 years. They have shown not only the act of possession but an intention to possess the land to the exclusion of all others, which has placed them in a strong position to establish title by adverse possession.
Miss. Colman contended that based on the definition of family home in section 2(1) of PROSA the house in question so qualifies and because it was built on family land did not take away from its standing as the family home. Counsel conceded that, despite Mr. Colley's claim that he is entitled to seventy percent (70%), because of his financial contribution, the facts of the case do not merit an order for an unequal division.
Counsel maintained however that the house was wholly owned by both parties and was also their principal place of residence and hence Mr. Colley would be entitled to a fifty percent (50%) interest in the property.
On the application for extension of maintenance for Deanna until she turned 23 years old, Counsel argued that it was made after she turned 18 years old and further that no evidence was been presented confirming Deanna's enrolment at University of Technology.
Miss Colman relied on the following cases:
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(2) Smith v. Pinnock [2016] JMCA Civ 37
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(4) Cunningham v Cunningham 2009 HCV 02358
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(5) RVR [1992] 1 A.C. 599
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(6) Bowes v. Taylor 2006 HCV 05107
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(7) Hendricks v. Hendricks [2014] JMSC Civ 149
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(8) Midland Bank PLC v. Cooke [1995] 4 All ER
Mrs. Washington cited the following cases in support of her submissions.
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(1) A v. B [2017] JMSC Civ 103
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(2) Gibbs v. Stewart [2016] JMCA Civ 14
Counsel contended that a maintenance order was in effect for Deanna when the application for extension was filed on 27 th November, 2015. Reference was made to the undetermined application for extension of maintenance from 18 to 19 years which was before the Parish Court and then transferred to Supreme Court. Miss Washington submitted that in light of that transfer the Supreme Court has the jurisdiction to make the order sought.
On the application for division of matrimonial property Mrs. Washington argued that Mr. Colley did not tell the Court that the property in question was the family home or petition the court to make that determination. Further that Mr. Colley had not furnished any proof of ownership of the property, or shown that the person who allegedly gave the gift was legally entitled so to do. Counsel contended that the exhibited deed of gift should be rejected as it was neither stamped nor registered.
Mrs. Washington also submitted that the court could not make an order for division of the property as other interested parties would be affected, and those persons had not been joined. She stated finally that even if the court considered Mr. Colley's application...
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