S L v K S
| Jurisdiction | Jamaica |
| Judge | O. Smith, J (Ag.) |
| Judgment Date | 14 November 2022 |
| Court | Supreme Court (Jamaica) |
| Year | 2022 |
| Docket Number | CLAIM NO. SU2020CV03794 |
[2022] JMSC CIV 219
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU2020CV03794
Ayana Thomas instructed by Nunes, Scholefield and Deleon for the Claimant
Joerio Scott instructed by Samuda and Johnson for the Defendant
Application for Leave to Appeal — Real Chance of success, overriding objectives, Strict adherence to the Case Management time lines, best interest of the child, welfare of the child
This is an application for leave to appeal filed by the Claimant as a result of the orders made by Mrs. Justice Reid-Carr on November 3, 2022.
The orders were made pursuant to a Notice of Application for Court Orders filed on July 6, 2022 and an Amended Notice of Application for Court Orders filed on October 27, 2022. The applications sought among other things, permission
“…to file and serve further affidavits in the Claim herein and that the affidavits filed herein by the claimant after the 1st of February 2022 be allowed to stand namely Affidavit of Kali Leslie in support of Fixed Date Claim Form filed on May 30 2022, Affidavit of Shana Kay Hanson in support of Fixed Date Claim Form filed on June 3, 2022 and Affidavit of S L in support of Fixed Date Claim Form filed on July 6, 2022”.
The Amended Notice also sought to have the affiants Kali Leslie and Shana Kay Hanson give evidence by video link. In terms of relevance to the current proceedings, it also sought to have
“… Dr. Kai A Morgan, Registered Clinical Psychologist, be appointed as an expert witness and the Claimant be given permission to rely on the report of Dr. Kai Morgan dated 26 th of October 2022 at the trial without calling let me come thereof.”
Having heard the submissions Justice Reid-Carr made the following orders:
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“1. The amended Notice of Application filed on the 27 th October 2022 is permitted in terms of (sic) graph 3 only.
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2. The amendment to the Fixed Date Claim Form is permitted as per the draft amended Fixed Date Claim Form in terms of paragraph(sic) 1 —9 and under the heading particulars pursuant to rule 8.8 of CPR 2022(sic) in terms of paragraph(sic) (1) i, ii, iii and V.
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3. The amended Fixed Date Claim Form is to be filed and served by 4:00 PM on the 4 th of November 2022.
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4. The issue of cost of this application is reserved to be determined by the Trial Judge at the conclusion of the trial.
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5. Claimants attorney-at-law to prepare, file and serve this order.
On the day the ruling was handed down no leave to appeal was sought. However, on the following day, November 4, 2022, the Claimants Attorney-at-law filed a Notice of Application for Court Orders for leave to appeal.
The Notice of Application seeks permission for leave for the applicant to appeal the orders of Mrs. Justice T. Carr made on November 3, 2022 namely;
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“a. the refusal of the Claimant's application for leave to rely on the Affidavit Evidence of Kali Leslie filed on May 30, 2022.
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“b. the refusal of the Claimant's application to appoint Dr. Kai Morgan as an expert witness and rely on her report dated the 26 th of October 2022.
The trial of the claim herein be stayed pending the outcome of the appeal”.
At paragraph 3 of the Notice of Application, in the alternative, that if the court refused to grant the order sought in paragraph 1 of the Notice of Application for leave to appeal then it sought;
“An order that the Court appoints a clinical psychologist or psychiatrist as an expert witness to assess the following:
a. The impact of weekly weekend visitations with K. S on P, a minor and
b. the impact or effect on P of removing her from her current home environment.
The Applicant/Claimant also seeks for the matter to be transferred to the Family Division of the Supreme Court of Jamaica and that a further Pretrial Review be scheduled in the Family Division of the Supreme Court at which time a trial date is to be scheduled. The Affidavit of S. L addressed her application for leave to appeal the judge's refusal to allow Affidavit of S L filed on July 6, 2022 to stand. Although this was not included in the Notice of Application for Court Orders filed on November 4, 2022, counsel addressed the matter in her oral submissions to the Court. There were others orders sought however they were not pursued, in particular, the Applicant Claimant was not seeking leave in relation to the affidavit of Shana Kay Hanson.
This application cannot be properly considered without a brief history of the matter. The Applicant/Claimant, S L, is the biological aunt of P, a minor, born on the 24 th of April 2020. The Defendant/Respondent, K S has accepted paternity of the said child and is registered on her birth certificate as her father.
On October 7, 2020 a Fixed Date Claim Form was filed on behalf of Ms. Lloyd pursuant to section 3(2) of the Children (Guardianship and Custody) Act, CGCA, seeking inter alia, to be appointed Legal Guardian of P. However, rather than commence there, I will start with the Case Management Conference on November 30, 2020. On that day Justice Kirk Anderson made a comprehensive set of Court Management Conference Orders. The orders gave deadlines for the filing of Affidavits and responses to the affidavits. Those deadlines were by and large met with the exception of those to be filed by the Respondent/Defendant which did not meet the deadline as K. S had self-quarantined due to exposure to the Novel Corona Virus. The matter was fixed for trial on May 17, 18 and 19, of 2021. Those dates were subsequently vacated on March 24, 2021 and new trial dates were fixed for February 1-3 and 7-10, 2022.
However, as fate would have it, the trial did not commence on February 1, 2022, as an application for change of attorney was been filed on behalf of the Applicant/Claimant. Consequently, the trial dates were again vacated. Justice Kirk Anderson made yet another set of orders geared towards managing the matter and ensuring that it was trial ready. They are in part, set out below and are numbered in accordance the orders as given:
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“1. …
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6. No further affidavit evidence shall be filed or relied on by either party or by the Office of the Children's Advocate as Intervener but at the Trial, it shall be open to the trial judge to permit amplification of affidavit evidence in accordance with the principles as set out in Rule 29.9 of the Civil Procedure Rules as regards amplification of witness statement at trial.
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7. The Intervener/Office of the Children's Advocate, shall file and serve before March 31, 2022, Supplemental Submissions specifically addressing the following:
i) Making recommendations as to who should be granted custody as well as/or alternatively, to care and control of the child who is the subject of this claim.
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i. Specifying why it is that said recommendation(s) has been made.
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ii. Making recommendation (s) as to whether any of the parties to this claim are suitable persons to whom access to the child who is the subject of this claim should be granted by this Court and if so why and under what conditions or subject to what stipulations.
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iii. Specify the reason for the recommendation(s) made as regards access to the said child.
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iv. …”
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There are two Affidavits of Keisha Rodriques-Mills filed March 25, 2021 and April 26, 2021. She is the Director of Investigations at the Office of the Children's Advocate, OCA, the Intervener. Both affidavits exhibit Investigation Reports, the first ordered by Justice Kirk Anderson on March 21, 2021. However, having received the two reports, the Court on February 1, 2022 made further orders for the OCA to file supplemental submissions as set out above. These submissions were filed on March 31, 2022. It is those submissions counsel informed the court which confirmed that the Defendant did not have four but five children. The 5 th child being the product of carnal abuse for which he was convicted in 2009.
It is these supplemental submissions, counsel indicated, in addition to the documents listed in the submissions that led the Claimant's attorney to conduct further investigations which culminated in the filing, of an affidavit from Kali Leslie on May 30, 2022, Affidavit of Shana Kay Hanson, former student of the Respondent/Defendant on June 3, 2022 and supplemental affidavit of S L filed on June 6, 2022. Kali Leslie, based on her affidavit is the mother one of S. L's children, (the 5 th child) and complainant in the Carnal Abuse case for which the defendant was convicted.
The listed documents are:
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a) Certified copy of the indictment charging Carnal Abuse
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b) Statement of K. S
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c) DNA Report – paternity analysis
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d) Witness Statement of Nora Finnikin
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e) Witness Statement of Annie Anglin
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f) Witness Statement and further statement of Kali Leslie (complainant) g) Statement of Winnifred Finnikin
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h) Report of Jamaica Constabulary Force (JCF) Rape Investigation Unit
On July 6, 2022 the Claimants Attorney filed a Notice of Application for Court Orders seeking permission for the affidavits of Kali Leslie, Shana Kay Hanson and Supplemental Affidavits of S L to stand as filed. No date was received up to October 27, 2022 when an amended application was filed for the appointment of Dr. Kai Morgan, Clinical Psychologist, as an expert witness and for her report dated October 26, 2022 to be relied on without calling the maker thereof.
This Application was placed before the court on the eve of the trial on November 3. 2022. The application was refused. However, by November 4, 2022, as previously stated. the Applicant/Claimant filed an Application for Leave to Appeal. With the fast approaching trial date, the Registry accepted the documents but no date for hearing was given nor could one have been given before the scheduled trial date of November 7, 2022.
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