Miles et Al v McKay et Al
| Jurisdiction | Bahamas |
| Judge | Osadebay, Sr. J |
| Judgment Date | 09 December 1999 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Divorce & Matrimonial Side No. 41/1999 |
| Date | 09 December 1999 |
Supreme Court
Osadebay, J.
Divorce & Matrimonial Side No. 41/1999
Mr. Cedric Parker for the petitioner.
Ms. Jeannie Thompson for the respondent.
Family law - Custody — Petitioner sought custody of children and maintenance and a property adjustment order — Court granted custody to respondent — Section 29 of the Matrimonial Causes Act, Chap. 111 considered — Marriage lasted for nine years — Property shared equally.
On the 7th. May 1999, both parties in this matter were each granted a Decree Nisi in respect of their petition and cross-petition. The petitioner was granted a decree nisi on ground of the respondent's cruelty to her. The respondent was also granted a decree nisi on grounds of the petitioner's adultery and cruelty.
The petitioner and the respondent, each now applies for the settlement of ancillary matters. In her application the petitioner asks for the following relief: –
- That the petitioner be granted custody of the children of the marriage with supervised access to the respondent. 2. That the respondent does pay maintenance to the petitioner with respect to the said children of the marriage. 3. That the respondent does pay maintenance to the petitioner. 4. Property adjustment order. 5. Costs.
In his application, the respondent asks, inter alia, for the following relief: –
- That the respondent be granted custody of the children of the marriage with supervised access to the petitioner. 2. Property adjustment order. 3. Costs.
The petitioner and the respondent are Canadian citizens. They met in Canada, fell in love and were married in Toronto, Canada on the 22nd. April 1989. At that time, the respondent was a successful money-broker. He was President of Yamane Prebon, Canada and “Forex” Canada and a Director of the Ethics, Practice and Procedure committee for the Bank of Canada. Although his affidavit sworn and filed in this matter on 5th August 1999, the respondent deposes that “the petitioner herein was a bar waitress” when he met her and had made a salary of U.S. $80-$100 weekly, the petitioner has not challenged that allegation that she was a bar waitress when they met. She stated in her affidavit filed on 10th August 1999 that when the respondent met her, she earned an average of $1000 per week but did not state what her occupation at the time was. Infact the evidence is that except for the small amount of money the petitioner earned in the Bahamas as a part-time music teacher — a job that was neither regular nor permanent — the petitioner was not gainfully employed from the time the parties were married to the time of the marriage breakdown. There is no evidence that she was a woman of independent means. With regard to her income, the petitioner in her affidavit filed on 10th August 1999, says –
“He agreed that I would stop working and he would match my income of $1,000 per week. This he did and continue (sic) to do until sometime after we moved to The Bahamas. From those funds I ran the home i.e. mainly groceries.”
(see: paragraph 2.)
From the evidence it appears that the respondent took care of the couples expenses and provided for the family.
The couple's first child, Winston, a boy was born in Toronto, Canada, on the 23 rd of April 1992.
In or about January 1993, the respondent's employment came to an end. The respondent, upon entering into a contract not to engage in business as a money-broker in Canada for 3 years received a handsome compensation of two million dollars Canadian currency. (Can. $2,000,000). In view of this restriction on the respondent and to save the taxes, the couple decided to move to the Bahamas. It was hoped that in the Bahamas, the respondent would be able to find employment as a money-broker free from the restriction.
Upon arriving in the Bahamas, in 1993, the couple set up home in an exclusive gated community of Lyford Cay on New Providence where they engaged themselves in the life style of the rich giving parties from time to time. A first they rented a house in Lyford Cay.
It is the respondent's evidence that on their arrival in the Bahamas, they set up a bank account in their joint names and into that account he deposited his compensation receipts from his previous employer. While in the Bahamas, the respondent continued to received installments of his severance compensation which sums he deposited in that account in joint names.
In 1994 he decided to invest in what he describes as a “family home.” They found a suitable lot of land in the Lyford Cay and decided to purchase it and build the “family home.” The petitioner in the meantime, by reason of her interest in music became a member of the Nassau Music Society through which she met Mr. Sean Hanna, the first party cited in the divorce, an attorney-at-law by profession, who assisted the couple in their purchase of Lot 5, Block 45, Subdivision No. 3, Lyford Cay, on which their home was finally constructed. The couple was happily married. The respondent said that he was unaware that a secret love affair was going on between Mr. Sean Hanna and his wife, the petitioner at that time. His wife, the petitioner dealt with Mr. Hanna all the time and he was unaware that title to the said lot of land in the name of the petitioner as he never saw the title deed. This assertion is of course denied by the petitioner. I should state however that the fact that the respondent was granted a decree nisi on the ground of the petitioner alleged adulterous relationship with Mr. Sean Hanna is an indication that the court believed the respondent's evidence of that adulterous relationship. The respondent states that he did not instruct Mr. Sean Hanna to convey the title to the lot into his wife's name. He claimed that the conveyance was surreptitiously placed in the petitioner's name by Mr. Sean Hanna. It was not until their quarrels that he realized that the conveyance is in the petitioner's name. It was never his intention to make a gift of the Lyford Cay property to his wife. He had intended it to be a “family home”.
It has not been denied by the petitioner that the funds used to purchase lot and to build the house on the said lot came from that joint account set up by the respondent and the petitioner on the arrival of the couple in the Bahamas from Canada. There is no evidence however before me as to what extent, if any, the petitioner contributed money to the joint account. There is evidence however that a larger percentage of the cheques drawn on that joint account and used in both the purchase of the lot and the construction of the house thereon was signed by the respondent. No outside financial assistance was either needed or obtained for the project. The evidence is that all the funds that were needed came from that joint account set up by the respondent and the petitioner on the arrival of the couple in the Bahamas from Canada. There is evidence that at the construction of the building, it was the respondent who dealt with the architects and the contractors. (See: Exhibit A.M. 4 — cheque in the sum of $15,400.00 signed by the respondent Adrian Miles — 10% deposit for lot purchase, Exhibit A.M. 5 – cheque in sum of $127,820.00 issued by Nottage, Miller Johnson, client's account to Lyford Cay Co. Re: Adrian Miles).
Construction of the house commenced in late 1994 and completed in late summer 1995. In his evidence the respondent said — “the cheques for the construction were mostly, if not all, signed by me.” “Jayne would write some of the cheques for the bills in connection with the house 100% of the money came from my earnings and was deposited by me in our joint account, and in every sense of the word it was our family home.”
The couple lived well and enjoyed the social life of Lyford Cay giving parties, as the respondent would say — “enjoying expensive wines, good clothes and travel”
Their second child, Montana, a girl, was born in Ontario, Canada, on 15th March 1995. By December 1995, no more money was coming to the respondent from the severance contract with his previous employer in Canada. The well was getting dry, so to speak, and reality began to set in. They could no longer live the life of the rich to which they had become accustomed. The couple began to experience ‘marital difficulties’. Neither the respondent nor the petitioner was employed. The respondent suggested to the petitioner that it was time for them to sell the “family home” and return to Canada where neither of them would be faced with any impediment in the search of an employment, as they were both Canadians. Most of all the respondent wanted to save his marriage with the petitioner. The respondent started to sell some of his prized-possessions such as his wine collections. In the spring of 1996, he told the petitioner that it was time for them to sell the “family home” and return to Canada. It was then that the petitioner disclosed her intention not to return to Canada but instead she told the respondent that the Lyford Cay property was in her name and therefore belonged to her alone. She was not prepared to sell the property. She asked the respondent to leave her children in the Bahamas while he returned to Canada to work and to send her money for maintenance of herself and the children. She told the respondent that she wanted to live in the Bahamas and pursue her music interest.
By the end of 1997, the couple had run out of money sufficient to meet their living expenses and other obligations such as school fees for the children, real property tax on the said “family home”, electricity, telephone and other bills. They were living off credit cards at the Lyford Cay Club. School fees for the children were in arrears. Notwithstanding the couple's financial situation, in April 1998, the petitioner borrowed $20,000.00 from the bank secured by the property to...
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