Fiona Kadesha Alfred v Mario Raphael Alfred
| Jurisdiction | Jamaica |
| Judge | Reid, Icolin J. |
| Judgment Date | 18 February 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2019CV04907 |
[2022] JMSC Civ. 50
CLAIM NO. SU2019CV04907
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Husband and wife purchased property — Property (Rights of Spouses) Act — Adverse possession — Whether the property is the family home — Whether the property is matrimonial property — Whether it would be unjust to give each spouse a 50% share in the property.
Mrs. Dameta Franklin and Mrs. Denise Senior-Smith instructed by the Law offices of Gayle Franklin & Company for the Claimant
Mr. Anthony Williams instructed by Messrs. Usim, Williams & Company for the Defendant
This is an application for division of property under the Property (Rights of Spouses) Act (PROSA) located at Exchange, Lot 907, Bogue Village, Phase 3, P.O. Box 7020, Reading, Montego Bay in the parish of Saint James (the Bogue property). It was filed by Mrs. Fiona Kadesha Alfred (the Claimant) against Mr. Mario Raphael Alfred (the Defendant). The Claimant sought, among other things, a declaration that both parties are entitled to a 50% share in the property. However, the Defendant claims that he is the sole owner of the property by virtue of adverse possession in accordance with the Limitations of Actions Act (LAA).
Both parties filed affidavits in these proceedings and gave sworn testimony. The evidence presented is summarised as follows: The parties were married on September 9, 2000. They first resided at a house owned by the Defendant and his mother in the parish of St. Catherine. The Defendant worked with Sandals International and lived on the hotel compound as part of his contractual arrangements. He usually visited his home on weekends. The Claimant subsequently got transferred to work in the parish of St. James and moved there with their two infant children. The Defendant, thereafter, lived with his family at West Gate Hills, St. James.
After paying rent for several months, the parties pooled their funds from their savings and made a payment of $1,000,000.00 as a deposit towards purchasing a house at Lot 907 Bogue Village, Phase 3, P.O. Box 7020 Reading Montego Bay St. James. The purchase price was $3,250,000.00. The Claimant obtained a mortgage at the employee rate from her employer, Capital and Credit Merchant Bank, for $2,000,000.00, which she serviced via salary deduction. Both parties were registered as tenants in common on the Certificate of Title.
When the property was purchased, it was a one-storey residence with two bedrooms, a bathroom, a living room and a kitchen. They both pooled their funds for the expansion of the house, and the Defendant claimed that he obtained a loan from his mother to assist with the development of the premises. With the pooled funds, they improved the property to a two-storey dwelling-house consisting of 4 bedrooms, 3 1/2 bathrooms, a kitchen, living, dining and a family room.
After substantial completion of the premises, the family moved in with their two children in February 2006. They lived there together until 2007 when the Claimant migrated to the United States of America (USA) to take a job at Chase Manhattan Bank. The two children later joined their mother in 2008. The Defendant would frequently travel to visit and spend time with them. During that period, the Claimant was filing a petition for the Defendant to become a resident in the USA so that he could live with the rest of the family. The Defendant finally left Jamaica in December 2009 but regularly returned until he obtained a full-time job in the USA in May 2013.
While the Claimant worked at Capital and Credit Bank, the loan was at the employee's rate. However, within three months of her resignation, it was converted to the customer/commercial rate. Her last three salaries and monies owed to her from the Capital and Credit Merchant Bank were used to service the loan for that period. Thereafter, the Defendant took over the repayment of the loan. He later obtained a more favourable loan from the Bank of Nova Scotia (BNS) and transferred the loan from Capital and Credit Merchant Bank. The Defendant stated that for over three years, he bore sole responsibility for the repayment of the mortgage until it was ultimately discharged.
The Claimant insists that the property was purchased and lived in as the family home. She refuted the Defendant's allegations and declared that she never abandoned her family, property, or financial obligations.
The Claimant further stated that her moving to the USA was a mutual decision and a means of paving the way for the family's transition. She asserted that to seek residency for the Defendant, the Immigration Department required proof that she had sufficient finances to maintain a family of four when they arrived in the USA. She exhibited tax returns as proof of her filing to support this assertion. She explained that she was never forced to seek residency in the USA for the Defendant, or she would have stopped the process and moved on with her life. She said that she sponsored both the Defendant and her mother-in-law.
The Claimant highlighted that before she left Jamaica, she asked her mother-inlaw, Mrs. Holdene Alfred, to assist her son with taking care of the children. The children came to her only a year later, in the summer of 2008. Additionally, the Defendant made several trips to the USA to be with the family. An email sent by the Defendant to the USA embassy on November 23, 2008, was admitted into evidence to substantiate her claim that they had good relations as he stated that he “ would love to spend time with his family”. The Defendant was also with her on the first day she went to work in the USA.
It is the Claimant's case that she had an agreement with the Defendant that he would take care of the financial responsibilities in Jamaica. She would work and use the money earned to take care of the financial side of things in the USA to pave the way for the accommodation of the children and, later, the Defendant. She had discussions with the Defendant, and it was agreed that he would rent a portion of the house, and the funds earned would be put towards the payment of the mortgage and maintenance of the premises. It should be noted that the Claimant initially asserted that they decided to share the rental proceeds equally, but she received none. In her later affidavits and after being pressed in cross-examination, she changed her evidence and stated that the rent was to pay the loan and maintain the premises.
The Claimant stated that she had used her own money to purchase household furniture, pay utility bills and take care of the children after they migrated to live with her. She bore sole responsibility for the rent for the house in which she lived with the children in the USA as the children migrated at short notice, at the insistence of the Defendant and she had to relocate from her mother's house to accommodate them adequately. She also sent money to Jamaica to invest but lost it in the Olint scheme. She worked as a team with the Defendant, and they shared responsibility as a couple. She relied on the Defendant to handle their affairs. She, however, disagrees that the loan that the Defendant had obtained from his mother is related to her as she deemed it a transaction between him and his mother.
The Claimant contended that she maintained her interest in the property and had never abandoned it. She had constant communication about the matrimonial home with the Defendant and was updated. She also knew of the change of the loan to the Bank of Nova Scotia for a lower interest rate and that the previous loan was discharged in 2010. She spoke of discussions she had with the Defendant as he would keep her informed about the tenants and issues regarding the property. An email sent to Claimant by the Defendant dated November 18, 2013, about a problematic tenant, was further proof of their discussions. Another email dated January 3, 2019, concerning the application for a replacement title was also admitted into evidence. Furthermore, she stated that over the years, whenever she returned to Jamaica, she would visit the premises. She visited the property after her father's passing in 2007 and later in 2008 and 2012 when she prepared the property for incoming tenants.
The Defendant asserted that after they were married, the Claimant made the unilateral decision to change her job and relocate to Montego Bay with the children. He said he visited them at the rented premises at West Gate Hills on the weekends but did not live there with them. He also stated that the Claimant again unilaterally decided to resign her job and migrate to the USA, thereby abandoning her family and the house they bought together.
He said the property at Bogue was never purchased as a family home but rather as an investment for himself. He defined investment property in cross-examination as “something you buy into”. He insisted that there was no discussion between the Claimant and himself about the property becoming the matrimonial home. He further elaborated that there was no agreement, indication or intention that the property was matrimonial property but was to “honour our obligations jointly”. He said that the matrimonial home was in New Jersey, USA, purchased in 2012.
The Defendant asserted that the Claimant abandoned her family in July 2007 when she left for the USA, leaving him with two children and all the financial obligations. The Claimant only lived in the house for approximately one and a half years before moving to the USA. She left without telling him of her plans, nor did she communicate with the family for some time after moving. He had to demand that she get the children into school by September 2008 and that she files his immigration petition.
The Defendant further declared that after the...
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