EJ v LJ

JurisdictionBahamas
CourtSupreme Court (Bahamas)
JudgeMadam Justice G. Diane Stewart
Judgment Date07 October 2022
Docket Number2017/FAM/Div/No.00400
Between
EJ
Petitioner
and
LJ
Respondent
Before:

The Hon. Madam Justice G. Diane Stewart

2017/FAM/Div/No.00400

IN THE SUPREME COURT

Family Division

Appearances:

Mrs. Glenda Roker for the Petitioner

Mr. V. Alfred Gray for the Respondent

RULING ON ANCILLARY RELIEF
1

On the 13 th February 2018, a Decree Nisi was granted to the parties, dissolving their marriage. The marriage lasted for a period of five years from 2013 to 2018. Thereafter, the Petitioner filed a Notice of Intention to Proceed with Ancillary Relief for property adjustment orders over Lot 23 Dundas Town, Crown Allotments Abaco (“Lot 23”) and Lot 66 Government Subdivision (now known as “Cove Estates”) Marsh Harbour, Abaco (“Lot 66”) (“the Matrimonial Property”).

2

Both the Petitioner, and the Respondent filed numerous Affidavits in support of their respective positions giving particulars of the properties and income.

3

The Petitioner seeks an Order that the Respondent's interest (if any) in Lot 23 and Lot 66 be conveyed to him solely or alternatively that he relinquish all his interest in Lot 23 and that the Respondent relinquish all interest in Lot 66 or in the further alternative that he pay the sum of $10,000.00 to the Respondent for her interest in the properties.

RELEVANT FACTS
4

The Petitioner and the Respondent, were married on 31 st August 2013 and were married for five years from 2013 to 2018. There are no children of the marriage.

5

By Deed of Gift dated 17 th April 2014, the mother of the Petitioner, gifted the couple with Lot 23 as joint owners. The Petitioner was responsible for all legal fees associated with the transfer of the property from his mother to himself and his wife.

6

By an Agreement of Sale dated 27 th October 2016, the parties agreed to purchase Lot 66 by way of a loan from APS and his wife which was to be secured by a mortgage. The parties became joint owners of Lot 66 which was encumbered by the mortgage to the lenders dated the 28 th October 2016. Pursuant to the Agreement of Sale the parties agreed on a deposit of $40,000.00 towards the purchase.

7

The Petitioner maintains that at all material times, he was responsible for all mortgage payments and bills associated with Lot 66 until Hurricane Dorian. However, the Respondent averred that she made helpful contributions towards the home, although not equal to that of the Petitioner. The Parties differ as to their respective contributions toward the purchase price.

8

The parties jointly shared a vehicle. However the Petitioner has released his title and interest in the vehicle to the Respondent.

PETITIONER'S EVIDENCE
Affidavit filed 13 th February 2020
9

The Petitioner, in this Affidavit in support of his application for Ancillary Relief sworn on 29 th January 2020, avers that he is employed with Cherokee Aviation as a Ramp Manager, but since Hurricane Dorian, Cherokee Aviation has ceased its operation and he has not received any remuneration since August 2019. He further maintained that he does not own any shares, stocks, bonds or securities of any kinds or any other assets.

10

The Petitioner's monthly expenses were:-

a) Mortgage

$1,571.00

b) Fidelity Bank Car Note

$900.00

c) Fidelity Bank Credit Card

$60.00

d) Royal Bank of Canada Credit Card

$60.00

e) Medical insurance (Petitioner & Respondent)

$808.51

f) House Insurance

$300.00 p/m

g) Food, Grocery & Personal Care Items

$400.00

h) Car Insurance, License & Registration ($650.00 p/a)

$54.17

i) Car Gas ($60.00 p/w)

$260.00

j) Caregiver/ Maid

$866.67

k) Haircuts ($12.00 p/w)

$52.00

TOTAL

$5,332.35

11

The Petitioner is a dialysis patient which results in his having to take considerable time off from work.

12

By Deed of Gift dated 17 th April 2014, his mother conveyed Lot 23 to both the Petitioner and Respondent jointly. Lot 23 was a wedding gift to both parties. It was the Petitioner's mother desire that they would build a home on the property. The lot forms a part of a larger tract of land which is occupied by several of the Petitioner's family members.

13

The Petitioner confirms that he nor the Respondent paid any consideration for that property, but, he was solely responsible for the payment of the legal fees associated with the transfer.

14

The Petitioner and Respondent acquired Lot 66 by a Conveyance dated 27 th October 2016 from APS to the Petitioner and Respondent. Lot 66 is encumbered by a mortgage from the Petitioner to APS to secure a loan of the purchase price. Lot 66 was purchased after much agitation from the Petitioner to the Respondent as he felt it was an amazing deal. APS who is his current employer, was able to provide an interest free arrangement for the purchase of the property. The Respondent eventually agreed to the purchase of Lot 66, which had a home built on it.

15

The Petitioner avers that the Respondent contributed $15,000.00 towards the purchase and that he contributed $25,000.00 and that he was also responsible for both the Vendor and Purchasers legal costs of the transaction.

16

Both parties lived at Lot 66 for approximately eleven months. During this time, he was responsible for paying the utilities and all other outgoings relative to the property and house. He maintained that he was also responsible for providing all fixtures and chattels in the home.

17

Prior to Hurricane Dorian he resided at Lot 66 with his minor child and current wife.

18

During the course of the marriage, the Respondent was unable to maintain any full time employment, therefore he was responsible for handling all financial obligations within the household.

19

The Respondent often had access to the Petitioner's accounts during the duration of the marriage. The Respondent had spent a substantial amount of the money from the Petitioner's bank accounts.

20

The Petitioner now suffers from a serious illness with rising medical costs.

21

Since the dissolution of the marriage, the Petitioner has released to the Respondent all his interest in a vehicle valued at $18,000.00 and provided documentation of the same to the Respondent. He has continued to maintain the Respondent on his medical insurance for two years since the breakdown of the marriage and has paid roughly $600.00 for the Respondent's personal items to be shipped to Bimini where she currently resides.

22

Since the dissolution of the marriage, the Respondent has accessed his credit card and accumulated charges amounting to almost $1,000.00. He had informed the Respondent that he would take responsibility for her credit card charges in exchange for her giving him a portion of her interest in Lot 23 and Lot 66.

23

The Petitioner maintained that due to his serious health complications, he is no longer in a financial position to maintain the Respondent on his health insurance.

24

Any interest that the Respondent may have in Lot 66 would be dissipated through transfer of his interest in the vehicle to her, maintaining the Respondent on his medical insurance, moving cost, and her credit card charges.

25

Lot 66 was severely damaged during Hurricane Dorian. The property was insured and a payout check for repairs was issued to the mortgagees and both parties in December 2019. The Respondent was advised of the insurance payout and the need for repairs to the property. The Petitioner maintained that he made and paid for travel arrangements amounting to $230.00 for the Respondent to travel to Nassau to endorse the check to allow the Mortgagee to access the money for repairs. The Respondent travelled to Nassau, but fail to fulfill her obligation of going to the bank to endorse the check.

26

The Mortgagee has, since the passing of Hurricane Dorian, granted the parties forbearance on the mortgage payments as the property was uninhabitable. The Mortgagees have since advised that because of the time elapsed since the last payment and the failure of both parties to endorse the check, they would exercise their powers under the mortgage to obtain vacant possession, judgment and costs.

Supplemental Affidavit filed 10 th June 2020
27

This Affidavit was filed in support of an urgent application to compel the Respondent to endorse the insurance claim check with respect to Lot 66 and for ancillary relief orders.

28

The buildings on the property were insured with Royal Star Assurance and were valued without the land prior to Hurricane Dorian as foliows:-

Building

$217,000.00

Carport

$7,282.85

Patio

$8,700.00

Shed

$7,500.00

29

Significant wind and water damage was sustained during the Hurricane and the adjusted value after the hurricane was:-

Building

$162,750.00

Carport

$7,282.85

Patio

$7,996.60

Shed

$3,263.70

30

A cheque in the sum of $181,293.15 in settlement of the claim was made payable to both the parties and the mortgagees from the insurance company.

31

The mortgage is now in default having last been paid in August 2019. Due to Hurricane Dorian, the Petitioner becoming unemployed and due to the uninhabitable state of the property, the mortgagees extended some forbearance regarding the mortgage payments. Some seven months has elapsed since the insurance payout and the mortgagees have expressed their concerns and frustration that there have been no repairs and no mortgage payments. Since filing the initial affidavit, there has been an additional ten months of arrears incurred from September 2019 to June 2020. The calculated mortgage payout to June 2020 is estimated to be $184,757.00. This amount does not include any interest.

32

There is no agreement for the Respondent to be paid $30,000.00 for her interest in the matrimonial properties. The Petitioner has made several attempts to settle these issues with the Respondent but she refuses to negotiate.

33

The Petitioner...

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