Isabelle Vacante Barnes v Christopher Barnes
| Jurisdiction | Jamaica |
| Judge | C. Barnaby, J |
| Judgment Date | 07 May 2021 |
| Neutral Citation | [2021] JMSC Civ 81 |
| Docket Number | CLAIM NOS. SU2020 CV 03386 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NOS. SU2020 CV 03386
Sherry-Ann McGregor and Deborah Dowding instructed by Nunes Scholefield Deleon & Co., Attorneys-at-Law for the Claimant/Applicant.
Gordon Steer instructed by Chambers Bunny & Steer, Attorneys-at-Law for the Defendant/Respondent.
Family — Children (Guardianship and Custody) Act — Maintenance Act — Jurisdiction to grant interim order for maintenance of children pending determination of substantive claim for their custody and care and control.
The Claimant, a Canadian is the estranged wife of the Defendant. They have lived in Jamaica during marriage and share two minor children. Consequent on the breakdown of the marriage, the Claimant wishes to relocate to Canada with the children and the family pets where she will have the support of family and an opportunity to start afresh. Efforts to arrive at an agreement in those regards proved futile.
On 10 th September 2020 the Claimant filed a Fixed Date Claim Form seeking an order for the sole custody and care and control of the parties' minor children; orders permitting her to emigrate with the children to Canada; for the Defendant to cover reasonable expenses for relocation of herself, the children and the family pet; access to the children by the Defendant; and the payment monthly of a specified sum towards the maintenance of the children together with all educational, extracurricular activities, medical, dental and optical expenses. She also asks the court to grant such further or other relief that it deems just. A Notice of Application for Court Orders (hereinafter called “the Application”) was also filed by the Claimant on the said date. With the exception that she seeks an interim order for the sole custody and care and control of the children and that the Defendant be permitted access to the children pending their emigration to Canada, the relief sought in the claim and on the Application are the same.
The Application came on for hearing before me on the 8 th April 2021 and following the submissions of Counsel, a decision thereon was reserved to today's date.
On commencement of the hearing before me Mr. Steer submitted that the matters on the Application could not be determined solely on affidavit evidence and that he intended to cross examine the Claimant. This belated indication follows an adjournment of the hearing of the Application on account that documents which were filed and ought to have been before the court were not before it.
While the timing of Counsel's indication that he wished to cross examine the Claimant in respect of the Application was regarded as unfortunate, I shared his concern that it would be impossible to properly determine some aspects of the Application on affidavit evidence alone based on the positions taken by the parties. Additionally, I was of the view that if some of the orders sought on the Application were granted, they would significantly disrupt the lives of the children as they know it, well before the substantive claim is determined, in which similar but more “final” relief are being sought.
While Ms. McGregor initially argued that the court could properly consider the Application, she eventually conceded that some difficulty would be experienced in respect of orders relating to the removal of the children from Jamaica. Accordingly, it was proposed and accepted by Counsel for the parties that the trial of the claim be fixed to commence in the shortest possible time and that only the issue of an order for interim maintenance for the children be dealt with at the hearing. Accordingly, a date for the trial of the substantive claim was fixed.
Ms. McGregor indicated that the dispute which remained to be resolved concerned an interim order relative to the medical, dental, optical and educational expenses of the children. This is on the basis that the Honourable Ms. Justice J. Pusey had previously ordered the Defendant to pay $50,000.00 per week towards the maintenance of the children, and that he be permitted reasonable access to them while they continued in the care and control of the Claimant.
The Defendant has indicated his willingness to pay the medical, dental and optical expenses for the children. It his evidence that he paid educational expenses, specifically the school fees for both children at Jamaican schools in anticipation of their attendance in the 2020/2021 school year. The Claimant says this is without her consent. As it transpires, the children, who still remain in Jamaica, have been enrolled and are in attendance at a Canadian School since September 2020. They receive online instructions in English and French under the Claimant's supervision. The Claimant's evidence is that their attendance at the institution is being financed by their maternal grandparents who she will be required to repay.
It is the Defendant's contention that although he and the Claimant had had discussions about enrolling the children in a school in Canada when they attempted to settle issues relating to her relocation with them to that jurisdiction, those discussions had broken down prior to the start of the 2020/2021 school year. Consequently, he says that they are in attendance at the Canadian School without his consent and without his financial contribution. There is a substantial difference between the cost of educating both children in Jamaica as opposed to Canada. The Defendant therefore objects to an interim order being granted requiring him to pay the costs associated with the children's education in Canada.
This court's jurisdiction to make orders for maintenance arise on three pieces of legislation, the Matrimonial Causes Act, the Maintenance Act and the Children (Guardianship and Custody) Act. The Claimant's Application is grounded on the last two of the referenced Acts in addition to a number of factual grounds which need not be repeated for present purposes. I will briefly address the court's jurisdiction in respect of maintenance under the two pieces of legislation on which the Claimant relies.
Mr. Steer submitted that I did not have the jurisdiction to grant an interim maintenance order under the Maintenance Act. I agree with this assessment.
The obligation on each parent to maintain a minor child is recognized in the Maintenance Act, section 8 of which prescribes that the obligation is to the extent that the parent is capable of maintaining the child. There is however a limitation on this court's jurisdiction under the legislation. Pursuant to section 3 (1), applications for maintenance orders in accordance with the Act are to be made to the Parish Court or the Family Court. Where an application is made for the division of property under the Property (Rights of Spouses) Act (PROSA) however, this Court is permitted to make a maintenance order in accordance with the provisions of the Maintenance Act. While the Claimant has issued a claim under PROSA, the application for maintenance of the children was made in a separate claim. As a result, the court is not authorised to grant a maintenance order in respect of the children under the Maintenance Act.
The Claimant's application for interim maintenance is also grounded on the Children (Guardianship and Custody) Act. It was submitted by Mr. Steer that there was no order made for custody under that Act and that in the absence of the Defendant's consent to pay the educational expenses claimed for the children, the court was without jurisdiction to grant an order for maintenance under this legislation. While I agree that a custody order under the Act is a prerequisite for a maintenance order thereunder, I do not agree with Counsel that there was no order for custody in...
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