Howard George Hylton v Natalie Antonette Hylton
| Jurisdiction | Jamaica |
| Judge | Sarah Thompson James, J |
| Judgment Date | 13 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2015M03329 |
[2023] JMSC Civ. 204
Sarah Thompson James, J
CLAIM NO. 2015M03329
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
MATRIMONIAL DIVISION
Family Law — Divorce — Application for Decree Absolute — Issues relating to custody of relevant child unsettled — Whether Decree Absolute should be granted — Matrimonial Causes Act Section 27 — Civil Procedure Rule 76.12, 76.14
Karolin Jones instructed by Nigel Jones & Company for the Petitioner
The petitioner, Howard George Hylton on December 3, 2015 filed a Petition for Dissolution of Marriage seeking to dissolve the marriage between himself and the respondent Natalie Antonette Hylton on the ground that the marriage has broken down irretrievably. Two relevant children were named in the Petition, Howard Nathaneal Hylton born October 19, 2004 and Brianna Alyssa Hylton born November 8, 2011. In the Affidavit Accompanying the Petition filed December 3, 2015, the petitioner, particularized the arrangements for the care, maintenance, education and upbringing of the relevant children. He sought custody of Howard and requested that custody of Brianna be given to the respondent. The Petition was uncontested.
On October 20, 2016, the petitioner filed a Notice of Application for Court Orders in which he sought, among others, an order relating to custody in similar terms as requested in the Petition. The application came on for hearing on March 17, 2017 before Laing J. The application was not granted. The Record of Proceedings and Minutes of Order indicates that only counsel for the petitioner was present at the hearing.
On March 5, 2018, the petitioner filed a Notice of Application to Dispense with Hearing with affidavit in support, a draft Decree Nisi for Dissolution of Marriage, Affidavit of Search and Affidavit of Service of the Petition. On March 19, 2019, the petitioner filed amendments to these documents. He also filed a Husband's Amended Petition for Dissolution of Marriage and a Supplemental Affidavit Accompanying Petition. The petitioner did not pray for an order for custody in the Amended Petition. His Supplemental Affidavit in Support of the Petition made no mention of custody instead the petitioner stated under the heading custody “the Petitioner has care and control of the Howard while the Respondent has care and control of Brianna” (sic). In his Supplemental Affidavit in Support of Notice of Application to Dispense with Hearing of Petition, the petitioner's evidence as to custody remained the same as set out in his Supplemental Affidavit Accompanying Petition with the addition that his application for custody was not granted.
After further amendments were made to the Notice of Application to Dispense with Hearing. Master P. Mason, on June 28, 2019, granted the Decree Nisi and certified that the arrangements for the maintenance, care and upbringing of the relevant children were the best that could be devised in the circumstances.
On March 24, 2023, the petitioner filed Notice of Application for Decree Nisi to be made Absolute along with Affidavit of George Howard in Support of Application for Decree Absolute, draft Decree Absolute, Affidavit of Delay and Affidavit of Search. The information relating to custody in the Affidavit in Support of the Application for Decree Absolute remained the same as that filed in the Supplemental Affidavit in Support of Notice of Application to Dispense with Hearing of Petition.
The issue for the court's determination is whether the court can grant the decree absolute in circumstances where an order for custody of the relevant child was not granted and there is no evidence in the Affidavit in Support of the Application for Decree Absolute regarding arrangements for custody of the said child.
Section 23 of the Matrimonial Causes Act (herein after referred to as the “MCA”) empowers the Supreme Court to make orders relating to the custody, maintenance and education of any relevant child. The court may make such orders in any proceedings for dissolution of marriage before, by or after the final decree.
By rule 76.4 (5) of the Civil Procedure Rules (herein after referred to as the “CPR”).
A petition for a decree of dissolution of marriage, for a decree of nullity of marriage or for a decree of presumption of death and dissolution of the marriage may include a claim for maintenance, custody, education of or access to children, division of property and any other relief relating to matters concerning the marriage, the union between the parties or any relevant children.
The CPR require that where there are relevant children, who are minors or are under the age of twenty-three and are being educated in a tertiary institution, that an affidavit accompanies the petition. That affidavit should set out the particulars of the arrangements for the care, maintenance, education and upbringing of any relevant child – see rules 76.4(7) and 76.4(8). At the initial stages of the proceedings the petitioner complied with these rules by setting out in an affidavit the arrangements for the care, maintenance, education and upbringing of the relevant children which included arrangements made for custody. Notwithstanding, the petitioner sought to have the issue of custody resolved by filing a Notice of Application for Court Orders. Rule 76.4(8) allows for the grant of an order for custody, maintenance, education of or access to children or division of property upon an application for court orders. The use of this method to settle the issue of custody was however unsuccessful as the orders requested were refused. The reasons for the refusal is unknown. Therefore, the issue of custody was still left to be determined.
Rule 76.12(2) permits a petitioner to proceed in default. He does so by filing an application to dispense with hearing accompanied by an affidavit in support of the application. Where there are relevant children, the affidavit should set out evidence to include arrangements made for their care, maintenance and upbringing sufficient to satisfy a judge or master that in the circumstances the welfare of the relevant children is adequately protected – see rule 76.12(2)(iv). In this case, the petitioner in his Supplemental Affidavit in Support of Notice of Application to Dispense with Hearing of Petition filed March 19, 2019 set out the arrangements for the welfare of the relevant child. However, no evidence of the arrangements regarding the custody of the relevant children were provided. Notwithstanding, the petitioner was granted a decree nisi with the Master's certification that the arrangements for the maintenance, care and upbringing of the relevant children were the best that could be devised in the circumstances.
Section 16 of the MCA provides that “A decree of dissolution or nullity of marriage under this Act shall, in the first instance, be a decree nisi.” The MCA does not make the grant of the decree nisi conditional on the courts satisfaction of arrangements for the maintenance, care and upbringing of the relevant children as is required by Section 27(1) which deals with the grant of the decree absolute. However, CPR 76.12 (6) provides as follows:
Where the decree nisi is being granted the Judge or the Master:
(a) must, if satisfied, certify that, having regard to the evidence of the applicant together with any other relevant evidence, the arrangements for the maintenance, care and upbringing of any relevant child are satisfactory or are the best that may be devised in the circumstances.
(b) may make such orders as to the custody, care and upbringing of the relevant children as, in all the circumstances, he deems fit.
(c) if not satisfied with the arrangements for the maintenance, care and upbringing of any relevant children or that the arrangements are not the best that can be devised in the circumstances, must defer consideration of the certification.
In Keisha La-Georgia Watson Bailey v Floriziel Al Bailey JM 2008 SC 3, Brooks J (as he then was) had for consideration whether an application for decree nisi is to be refused or deferred where the judge is satisfied that the marriage has broken down but the evidence in respect of the arrangements for the children is insufficient or unsatisfactory. He held that the decree nisi should not be granted until there is satisfactory evidence from the petitioner concerning the arrangements made for the maintenance, care and upbringing of the relevant child. He reasoned that rule 76.12(4)(a) impliedly requires that the judge at the decree nisi stage be satisfied as to the arrangements concerning the maintenance, care and upbringing of the relevant children in order to reach the decision that the decree nisi should be granted and to make the mandatory certification to that effect. He adjourned the hearing of the decree nisi pending the furnishing of evidence to satisfy the court of the financial provisions made for the relevant child.
The learned judge considered rule 76.12(4) which was then the applicable rule. Rule 76.12(4)(a) was replaced by rule 76.12(6)(a) on September 10, 2015. However, rule 76.12(4)(a) is similar to both rules 76.12(6)(a) and 76.14(11)(a), except that the word nisi replaces absolute in the latter rule and the court is now permitted to consider not only the applicant's evidence but any other relevant evidence. Rule 76.12(4) was in the following terms:
Where the decree nisi is being granted the judge must:
(a) certify that, having regard to the...
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