Phyllis Shand-Cummings v Tago Cummings
| Jurisdiction | Jamaica |
| Judge | M. Jackson, J (Ag.) |
| Judgment Date | 22 September 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2017HCV01019 |
[2022] JMSC Civ. 165
CLAIM NO. 2017HCV01019
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Application for DNA Testing — The Status of Children Act (SCA) — Section 7(1)(b) — Succession — Errors on the Birth Certificate-Whether the Presumption of Paternity is displaced — Standard of Proof — Whether there exists a higher standard of proof.
Mr Leroy Equiano for the Defendant/Applicant
Mr Bertram Anderson for the Claimant/Respondent
. This is an application brought by Mrs Phyllis Shand-Cummings (“the Defendant”) for an order that Mr. Tago Cummings (‘the Claimant’) submit himself to a deoxyribonucleic acid test (“DNA test”) to confirm whether he is the biological child of Mr Winston Cummings, her husband, who died, intestate, on September 3, 2011 (“the deceased”).
. The Defendant's application is a direct challenge to the Claimant's claim that he had brought under The Intestates' Estates and Property Charges Act (“ IEPCA”) against the estate of the deceased seeking certain declarations, including a declaration that the Applicant deliberately failed to include him and other children born outside her and the deceased's marriage in her application for the grant of letters of administration for the deceased's estate.
. The deceased died leaving property known as Burns Run, for which he made no testamentary provision. There were seven houses located on the property which comprised 34 acres of land. The Claimant along with other tenants were in occupation of the houses.
. On March 15, 2013, the Defendant obtained the grant of letters of administration. She then served a notice to quit on the Claimant. The Claimant refused to give up possession of the property, contending that the Defendant was aware that he is a child of the deceased and was, therefore, entitled to an interest in the property.
. The Defendant vehemently denied the Claimant's assertions.
The following grounds are relied on by the Defendant in pursuit of the application:
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(a) That paternity is a live issue in the case;
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(b) It is settled law that where the issue of paternity concerns inheritance of a deceased's estate, which affects the rights in rem of other beneficiaries, the threshold is on a higher balance of probabilities;
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(c) The Claimant's mere provision of a Birth Certificate, without more, is insufficient to satisfy the higher threshold on a balance of probabilities;
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(d) The deceased's purported signature on the Birth Registration Form differs from his signature on the other original documents in the Defendant's possession, raising issues of authenticity;
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(e) The age and address of the “Winston Cummings”, stated in the Claimant's Birth Certificate, is at odds with the deceased's known address and date of birth.
. The legal context within which this application is to be determined is well-known and established within this jurisdiction and does not require much elucidation. On November 1, 1976, with the enactment of the Status of Children Act (“the SCA”), it was declared that the rights and status of a child born to an unmarried woman became indistinguishable from those born in wedlock upon the existence of certain facts. Section 3(1) of the SCA gives pre-eminence to that new platform and provides that:
“3. –(1) Subject to subsection (4) and the provisions of sections 4 and 7, for all the purposes of the law of Jamaica the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other, and all other relationships shall be determined accordingly.”
. Accordingly, all children are placed on equal standing concerning the right to succession to property, construction of will and testamentary disposition once the statutory requirement is met. Section 7 of the SCA directly captures this entitlement and provides that:
“7. –(1) The relationship of the father and child, and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or the construction of any will or testamentary disposition or of any instrument creating a trust, be recognized only if –
(a) the father and the mother were married to each other at the time of its conception or at some subsequent time; or
(b) paternity has been admitted by or established during the lifetime of the father (whether by one or more of the types of evidence specified by section 8 or otherwise):
Provided that, if the purpose aforesaid is for the benefit of the father, there shall be the additional requirement that paternity has been so admitted or established during the lifetime of the child or prior or prior to its birth.
(2) In any case where by reason of subsection (1) the relationship of father and child is not recognized for certain purposes at the time the child is born, the occurrences of any act, event, or conduct which enables that relationship and any other relationship traced in any degree through it, to be recognized shall not affect any estate, right, or interest in any real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise, before the act, event, or conduct occurred.” (Emphasis mine)
. Section 7(1)(b), which makes the connection to section 8, adumbrates several circumstances. Section 8(1) provides:
“8. –(1) If, pursuant to section 19 of the Registration (Birth and Deaths) Act or to the corresponding provisions of any former enactment, the name of the father of the child to whom the entry relates has been entered in the register of births (whether before or after the 1st day of November 1976), a certified copy of the entry made or given in accordance with section 55 of that Act or sealed in accordance with section 57 of the said Act shall be prima facie evidence that the person named as the father is the father of the child.”
. With respect to section 19 of the Registration (Birth and Deaths) Act (“the RBDA”), this section provides that:
19. –(1) Where the parents of a child are not married to each other at the time of the child's birth and were not married to each other at, or since, the time of its conception, the name of, and any particulars relating to, any person as the father of that child shall be entered by the Registrar in the registration form and counterfoil in the circumstances specified hereunder and subject to subsections (2) and (3), not otherwise, that is to say –
(a) if the mother and the person acknowledging himself to be the father jointly request at the time of the registration that such an entry be made and both the mother and that person together sign the form and counterfoil:
Provided that, if the mother is dead or cannot be found. It shall be sufficient if the request is made by the father alone, and the signature of any other person required to give information as to the birth may be accepted in place of the mother's signature; or
. In the court's view, the resolution of this application falls to be determined on the following issues:
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(1) Whether paternity is a live issue in the case rendering it necessary for the DNA test to be ordered;
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(2) Whether in relation to proceedings under section 7(1)(b) of the SCA, the standard of proof is on a higher balance of probabilities; and
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(3) Whether the court has an inherent jurisdiction to make an order for DNA testing.
. The evidence relied on by the parties is captured in their respective affidavits. Being mindful that the substantive claim is still to be determined, this court will only outline the evidence pertinent to the final determination of the application.
. For the most part, the evidence is indisputable in respect of the following fundamental areas:
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(i) The Defendant is the widow of the deceased.
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(ii) There are four children between the Defendant and the deceased.
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(iii) The Defendant had migrated to the United States of America, and it became the home for her and the children.
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(iv) The Defendant and the four children were not living with the deceased up to the time of his death.
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(v) The deceased operated a chicken farm until his death, having moved from Kingston to Saint Thomas, where he established the business.
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(vi) The deceased owned two properties in Saint Thomas, the disputed property and another, the Albion property, which was jointly owned by the deceased and the Defendant.
. The Defendant deposed that she met the deceased when she was twenty years old and got married on December 7, 1988. Together, they established themselves as chicken farmers, operating initially from Mountain View Avenue but later relocated to 69 1/2 Deanery Road.
. The Defendant said she and the deceased employed a secretary, with respect to the business, who remained employed to them until the death of the deceased.
. With regard to the Claimant's assertions that he is a child of the deceased, the Defendant deposed:
“My husband died leaving four (4) children, whom we share. I have no knowledge of any other children, and I do not know if the Claimant is my husband's son. My husband, during his lifetime, never acknowledged to me that Mr Cummings was his son.
Mr Cummings has never previously identified himself to me as a child of my husband.”
. The Claimant staunchly rejected those assertions and respondent with his account as follows:
“The Defendant is of the view that I am not entitled to a share of my father's estate because, in the Defendant's view, I am illegitimate. He has acknowledged me as his child from birth, and there was never any question of paternity.”
. He deposed that he resided with the deceased from a very young age, and after...
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