K.A.H v Y.H

• Jurisdiction: Bahamas
• Judge: Madam Justice G. Diane Stewart
• Judgment Date: 08 March 2023
• Docket Number: 2018
• Court: Supreme Court (Bahamas)

Between

K.A.H

Petitioner

and

Y.H

Respondent

Before:

The Hon. Madam Justice G. Diane Stewart

2018

FAM/div/00549

IN THE SUPREME COURT

FAMILY DIVISION

Appearances:

Alton McKenzie for the Petitioner

Maria Daxon for the Respondent

RULING

BACKGROUND FACTS

1 The Petitioner, K.A.H was married to the Respondent Y.H on 9 ^th December 2000. There are three children of the marriage, namely K.A.H born 14 ^th August 1998, K.A.H.J born 12 ^th February 2002 and K.A.H born 26 ^th January 2008. K.A.H is the only minor for the court's consideration.

2 The Petitioner filed his Petition on 16 ^th August 2018 seeking a divorce on the ground that since the celebration of the marriage the Respondent had lived separate and apart from him for a period in excess of five years.

3 The Decree Nisi was granted on 18 ^th September 2019 and the ancillary matters were adjourned to Chambers.

4 The Petitioner sought the following by his Amended Notice of Intention to Proceed with an Application for Ancillary Relief filed 6 ^th August 2019:-

• i. That the parties be granted joint custody of the minor child of the marriage with day to day care and control to the Petitioner with reasonable access to the Respondent

• ii. That the Petitioner continue to cover all day to day of the minor child. Additionally that the Petitioner continue to cover half of the medical, dental and optical expenses of the minor child

• iii. That the matrimonial home's title be transferred solely to the name of the Petitioner

5 The Respondent sought the following relief as set out in her Affidavit of Means:-

• i. That the Petitioner pay $300.00 per month in child maintenance

• ii. The Petitioner is to have access to the child of the marriage every weekend from 3:00pm Friday to Monday 8:00pm

• iii. The child will spend Father's Day with the Petitioner and Mother's Day with the Respondent. Additionally, the child will spend one half of her birthday with the Petitioner and the other half with the Respondent or as they will agree otherwise

• iv. The Petitioner is to have access to the child for the month of August during summer school holidays or as otherwise agreed by the parties

• v. The child will send one half of the Christmas holiday and one half of the Easter holiday with the Petitioner, and the Petitioner and the Respondent will alternate access to the child on Christmas Day and New Year's Day

• vi. is the Petitioner is to travel with the child during his periods of access, he shall notify the respondent and the Respondent shall hand over the child's passport to the Petitioner one week prior to the travel. The Petitioner shall return the child's passport to the Respondent when the child is returned

• vii. The Petitioner is to pay clothing allowance of $200.00 every June and December for the minor child

• viii. That the Petitioner and Respondent shall share equally all medical, dental and optical expenses of the minor child

• ix. That the Petitioner and Respondent have joint custody of the minor child with care and control to the Respondent and reasonable staying access to the Petitioner

6 By an Interim Order made 13 ^th July 2021, it was ordered that—

• i. The Petitioner and the Respondent share joint custody of the minor child with primary care to the Respondent and liberal access to the Petitioner

• ii. A seat be reserved at both Stapeldon School and PACE Christian Academy in respect of the minor child.

• iii. Until the Court has made a determination as to which institution is best suited to meet the educational needs of the child she shall be fully enrolled in the Stapeldon School and shall attend the same

7 By an Interim Order made 25 ^th July 2022, it was ordered that:-

• i. The Petitioner shall to the Respondent $350.00 per month for maintenance for the minor child of the marriage

• ii. The Petitioner pay $625.00 which is a portion of the outstanding amount owed for arrears in maintenance in addition to the regular monthly payment by 15 ^th August 2022

• iii. The said child be evaluated by Dr. Novia Carter

PETITIONER'S EVIDENCE

8 The Petitioner filed his Affidavit of Means on 6 ^th August 2019. He was self-employed as an Auto Body Repairman earning approximately between $1,500.00 – $2,500.00 per month.

9 He maintained that he purchased the land where the matrimonial home is located in 2000 and solely began to slowly develop the land out of his pocket. The construction of the home started in 2005. The Respondent and their two children moved into the matrimonial home in 2007. He always paid the mortgage on the matrimonial home alone, without the assistance of the Respondent.

10 He currently resides in the matrimonial home. He has paid off the mortgage with considerable difficulty.

11 The Petitioner maintains that he was responsible for the overall maintenance and all bills associated with the household, the Respondent did not assist him.

12 He also has a whole life insurance policy with BAF Financial Bahamas with a value of $150,000.00.

13 In a Supplemental Affidavit of Means filed 20 ^th March 2020, the Petitioner further stated that the mortgage was secured for $36,000.00 to assist with the construction of the home.

14 The Petitioner maintained that the Respondent moved out of the matrimonial home in 2013 with one of the children of the marriage, while the other two children remained living with him in the home. From 2013, he has been solely responsible for the needs of the minor child and has been solely responsible for ensuring that the child is taken to and from school.

15 The Petitioner also operated his auto body mechanic repair business from the matrimonial home.

16 As of 22 ^nd February 2020, the matrimonial home was appraised at a value of $177,000.00.

17 The Petitioner's monthly expenses as of 11 ^th May 2021 were:-

i.	Electricity	$200.00
ii.	Internet & Phone	$100.00
iii.	Boat Maintenace & Fuel	$400.00
iv.	Water	$60.00
v.	Telephone	$60.00
vi.	Grocery & Toiletries	$300.00
vii.	Gas (vehicle)	$200.00
viii.	NIB	$121.53
ix.	Cell Phone Card	$80.00
X.	Child Support	$350.00
xi.	Gas (cooking)	$20.00
xii.	Yard Maintenance	$60.00
	TOTAL	$1,951.53

18 His yearly expenses were:-

i.	Insurance (car)	$332.00
ii.	Vacation	$3,000.00
iii.	School Supplies	$250.00
iv.	School Books	$400.00
v.	School Uniform	$300.00
vi.	Clothing (myself & child)	$1,000.00
	TOTAL	$5,282.00

RESPONDENT'S EVIDENCE

19 The Respondent filed her Affidavit of Means on 28 ^th January 2020. At the date of filing the Respondent was employed with the British Colonial Hilton Hotel as a maid, earning a salary of $840.00 per month.

20 Her monthly expenses were:-

i.	Credit Union Loan	$332.00
ii.	Rent	$600.00
iii.	Water & Sewage	$120.00
iv.	Grocery	$300.00
v.	Grooming & Notions	$200.00
vi.	Clothing	$50.00
vii.	Union Dues	$40.00
viii.	Family Life Ins.	$40.00
	TOTAL	$1,682.00

21 In 2004 the parties obtained a mortgage for the purchase of a vacant lot located at #28 Victoria Gardens for $36,000.00. The mortgage was paid by both parties equally until 2013, when the Respondent was thrown out of the matrimonial home by the Petitioner in 2014 after he had hit her and screamed at her. The Petitioner became solely responsible for the mortgage payments after such time.

22 The Petitioner remortgaged the property in 2012 to purchase a fishing boat and not to construct the matrimoniai home. The home was built by cash payments. The Respondent maintained that every week she purchased blocks, cement, steel and other building supplies for the construction of the matrimonial home.

23 The Petitioner refused to provide any financial assistance to the Respondent of the children of the marriage after she was thrown out of the home. The child of the marriage was not left in the home with the Petitioner when she was thrown out

24 In 2015, the male child of the marriage went to live with the Petitioner while the female children of the marriage remained living with the Respondent until the Petitioner refused to return the minor child to her mother's house where they presently live.

25 Both parties have had numerous arguments regarding pick up and drop off times of the minor child, which has caused the child's school performance to decrease drastically.

26 It was agreed that the Petitioner would operate his auto mechanic business from the matrimonial home. Prior to the construction of the house, they lived with the Respondent's mother and he operated his business from there.

DECISION

PROPERTY ADJUSTMENT

27 Section 28 of the Matrimonial Causes Act enables the Court to make property adjustment orders in divorce proceedings. The Court's starting approach in these type of proceedings is the equal sharing principle unless there exists a compelling reason to depart from it. The Court must consider the established principles in Section 29 of the Matrimonial Causes Act when making these orders. The equal sharing principle is not immoveable or inflexible.

28 The Petitioner submits that the Court should depart from the equal sharing principle on the basis that the Respondent moved out of the matrimonial home and that he solely was responsible for paying the entirety of the mortgage and the upkeep of the property. The Petitioner is seeking an order that he be granted 100% interest in the matrimonial home.

29 The Respondent submits that the Court should not depart from the equal sharing principle as she paid half of the down payment on the matrimonial home and that she was equally responsible for expenses and utility bills during the course of the marriage....