Mr. D v Mrs. D; Mrs. D v Mr. D
| Jurisdiction | Jamaica |
| Judge | Simmons J |
| Judgment Date | 23 January 2018 |
| Neutral Citation | [2018] JMSC Civ 106 |
| Docket Number | CLAIM NO. 2015 M 32353 |
| Court | Supreme Court (Jamaica) |
| Date | 23 January 2018 |
[2018] JMSC Civ 106
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
FAMILY DIVISION
Simmons J
CLAIM NO. 2015 M 32353
CLAIM NO. 2017 HCV 02427
Consolidated with
Miss Jacqueline Cummings instructed by the Kingston Legal Aid Clinic for the claimant/respondent
Miss Marjorie Shaw & Miss Carleen McFarlane instructed by McNeil & McFarlane for the defendant/petitioner
NF v. CB [2016] Civ 22
Poel v. Poel [1970] 1 W.L.R. 1469
Hurwitt v. Hurwitt [1982] 3 F.L.R. 194
Hewer v. Bryant [1969] 3 All E.R. 578
Yeoh v. Liew 10 HCM [2005] 3 Amr 272
Cowell v. Cowell 2004 (2) B.L.R. 235
Gordon v. Goertz (1996) 2 S.C.R. 27
Tropea v. Tropea 665 NE 2d 145 (NY 1996) .
Sections 7 and 18 of the Children (Guardianship and Custody) Act
Family Law — custody of children — application to vary of order — change in circumstances — custodial parent no longer resident in the jurisdiction
The parties in this matter were married on December 22, 2005. At the time Mr. D was a Pilot and Mrs. D, a student. The union produced two children; a daughter D, who is now nine years old and a son DA, who is now 4 years old. Both children and Mr. D are also Canadian citizens.
Their relationship deteriorated and they separated in 2015. Mrs. D who had Canadian resident status removed with the children and went to live in another parish. She subsequently decided to migrate to Canada and took the children with her without the knowledge of her husband. Mr. D sought and obtained the assistance of the Canadian Courts and the children were returned to Jamaica. He later brought proceedings for custody in this Court. The application was heard by Tie J and was resolved in his favour.
This is an application by Mrs. D to vary the order made by Tie J made on the 9 th December 2016. By that order, the respondent, Mr. D was awarded custody, care and control of the two children. The other terms of that order are as follows:-
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(i) The mother is to have electronic access to the children, including telephone calls Mondays to Thursdays between the hours of 6:00 p.m. and 7:30 p.m. and on Fridays to Sundays between the hours of 5:30 p.m. and 7:30 p.m.
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(ii) The mother is to have supervised access in Jamaica as follows:-
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(a) The last two weeks in July between the hours of 1:00 p.m. and 5:00 p.m. The first two weeks in August between the hours of 10:30 a.m. and 5:00 p.m. The mother was also required to pay the travel and associated expenses of the nanny who would accompany the children.
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(b) There was also provision for the mother, who then resided in Canada to have supervised access outside of the school holidays whenever she travelled to Jamaica.
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(iii) The father is to advise the mother any time he wished to take the children out of the jurisdiction or if he changed residence.
Mrs. D stated in her affidavit sworn to on the 17 th January 2017 that she learnt that Mr. D planned to relocate outside of Jamaica permanently. In a later affidavit she stated that he planned to relocate to Dubai as he was finalizing his contract with Emirates Airlines.
It is common ground that Mr. D has in fact, relocated to Dubai and would like the children to join him there.
It is against that background that Mrs. D has filed the application to vary the order of Tie J. The application which was amended seeks the following orders:-
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(i) That the parties be granted joint custody of the children;
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(ii) That the mother be given care and control of the children with residential access to the father on alternate weekends;
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(iii) That the children be permitted to resume their studies at the Sts. Peter and Paul Preparatory School.
The ground on which the application is based is that there have been material changes in circumstance since the order was made. The changes as particularized by Mrs. D are as follows:-
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(i) Mr. D is no longer resident in Jamaica;
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(ii) The circumstances surrounding the children's care, control, education and accommodation have changed for the worst;
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(iii) Mrs. D has undergone counselling as recommended by Dr. Samms-Vaughn;
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(iv) The children are being abused by Mr. D and their caregiver Miss C.
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(v) Mr. D is unable to satisfy the emotional and day to day needs of the children; and
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(vi) Mr. D is deliberately interfering with Mrs. D's access to the children contrary to the order of Tie J and has not encouraged a stable and healthy relationship with their mother, Mrs. D.
The application is supported by the affidavit of the applicant sworn to on August 18, 2017. She has also relied on the following affidavits:-
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(i) Affidavit of Urgency of Mrs. D filed on January 20, 2017;
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(ii) Further affidavit of Mrs. D filed on January 31, 2017;
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(iii) Affidavit of Mrs. D in response to affidavit of Mr. D filed on February 24, 2017;
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(iv) Affidavit of Urgency of Mrs. D filed on May 22, 2017;
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(v) Further Affidavit of Mrs. D filed on June 1, 2017;
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(vi) Affidavit of Mrs. D in response to affidavit of Mr. D filed on February 24, 2017;
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(vii) Further Affidavit of Mrs. D in response to affidavit of Mr. D filed on July 3, 2017;
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(viii) Affidavit of Mrs. D filed on July 25, 2017;
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(ix) Affidavit of Mrs. D in response to affidavit of Miss C filed on July 25, 2017.
In her affidavit filed on the 18 th August 2017, the applicant states that she believes that Mr. D will not return the children to Jamaica if he is given the opportunity to take them out of the jurisdiction. She indicates that he currently lives in Dubai, United Arab Emirates which is not a signatory to the Hague Convention and as such, any order of this Court could not be enforced.
She has alleged that Mr. D has breached the order of Tie J by denying her access to the children. She stated that it is her belief that he will continue to disregard the orders of the court. She has also stated that she is unable to afford the cost to seek the return of the children to Jamaica from Dubai or elsewhere.
Mrs. D has also stated that she believes that if the children are taken to Dubai, the difference in culture, environment, language and schooling will “further traumatize and magnify the maladjustment of the children since March 2016”.
In her affidavit filed on January 20, 2017 Mrs. D states that since the making of the custody order Mr. D has changed seven (7) nannies. She also states that if the children are taken out of the jurisdiction she will be cut out of their lives.
Mr. Fritz Bailey in his affidavit stated that in his opinion, Miss C, the children's caregiver is a “sickly old woman” who “does not do well under pressure/stress and can snap”. In his opinion, she is not fit or competent to care for the children. Miss C is the deponent's mother-in-law.
Mr. D in his affidavit filed on the 17 th February 2017 has asserted that if Mrs. D is given unsupervised access to the children she may remove them from Jamaica without his knowledge as she did in the past. He also states that he has always been a pilot and is fully responsible for the financial needs of the children.
He asserts that he sought to put the best arrangements in place for them when he was leaving Jamaica to take up employment in Dubai. He says that Miss C is his second mother and knows the children well. He also stated that his sister resides in Hanover. The children also have cousins in that parish. The children's Paediatrician lives close by and the children attend church with Miss C. The daughter also does piano lessons on Wednesdays.
Mr. D has also asserted that Mrs. D has chosen not to visit or contact the children on a regular basis. He stated that he has no difficulty facilitating Mrs. D's reasonable access to the children if they move to Dubai as she is entitled to be part of their lives.
Counsel submitted that the application ought to be granted as there has been a material change in the circumstances which obtained at the time when the matter was heard and determined by Tie J.
The change in circumstances as outlined by counsel are as follows:-
Mrs. D has relocated to Jamaica;
i.) She now lives in Kingston 6 and is a sole practitioner with her own legal practice;
ii.) Mr. D has left his job in Jamaica and has taken a contract to work in Dubai;
iii.) Mr. D wants to take the children to live there in spite of his previous statement to the court that he wanted them to grow up in Jamaica;
iv.) The children no longer attend Saints Peter and Paul Preparatory School but now attend Hanover Preparatory School since April 2017;
v.) The children no longer live in Kingston or Saint Andrew with Mr. D and are now resident in Hanover with his 64-year-old step-mother, Miss C.
Counsel identified the issues as being:-
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(b) Whether the original order for sole custody to Mr. D should be disturbed; and
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(c) If so in what way;
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(d) Whether Mr. D should be granted permission to take the children with him to live in Dubai;
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(e) Should care and control of the children be granted to Mrs. D.
Miss Cummings submitted that a variation of the order would be in the best interest of the children as the circumstances which now obtain are quite different from those which Tie J had considered when making the order. She also stated that had the learned Judge been privy to fact that Mr. D intended to migrate and remove the children from the school to which they were accustomed, she may have arrived at a different conclusion.
She stated that custody orders are never considered to be final and can be amended, varied, repealed or discharged at any time if such action is in the best interest of the children. Reference was made to section 7(1) of The Children (Guardianship and Custody) Act (the...
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