Monalisa Veronica Walker v Deno Alexander Smith Jr
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Loren Klein |
| Judgment Date | 30 November 2021 |
| Docket Number | 2021/CLE/gen/01410 |
| Year | 2021 |
| Court | Supreme Court (Bahamas) |
IN THE SUPREME COURT
The Honourable Mr. Justice Loren Klein
2021/CLE/gen/01410
Bjorn Ferguson, Ciji Smith-Curry and Rhodreka Strachan for the Plaintiff
Ms. Maria Daxon and Mr. Benjamin McKinney for the Defendant.
Intestacy — Right to bury infant child — Dispute between mother and presumed father over who should have custody and carriage of the funeral of the deceased — Factors to be considered at common law — Mother charged with offence in connection with child's death — Probate Rules 2011, Rule 9, order of priority for grant in case of intestacy — Status of Children Act, ss. 3,7 — Presumption of Paternity — Whether mother and presumed father have equal ranking — Practice and Procedure — Suing by Attorney — Declaratory Relief
This is a very distressing application. It concerns a dispute between the parents of a deceased four-year-old girl as to who should have the right to bury her — a dispute made more heartrending because of the tragic circumstances in which the toddler met her demise.
The child, D'onya Bella Walker, whom I shall refer to mainly as “Baby Bella” as she has affectionately been referred to publicly (or at times “the deceased”), is reported to have died from blunt force trauma. At the time of her death, she was living with her mother, Ostonya Logan Walker (“Ostonya”), and a male, Darion Smith, described as the mother's live-in boyfriend. The boyfriend has been charged with her murder and the mother has been charged with exposing a child to grievous bodily harm and cruelty to children contrary to the Child Protection Act. Both were remanded into custody at the Department of Corrections, Fox Hill, to await trial. However, the mother was released on $20,000 bail, subject to various reporting and other conditions, on the morning of the 30 November 2021, while the hearing of this matter was in train. Incidentally, the named plaintiff — Monalisa Veronica Walker (“Monalisa”) — is the child's maternal grandmother, even though (as will be explained further) it is the mother who is agitating this application.
The criminal charges are matters for the criminal courts, and the allegations against the persons
allegedly responsible for Baby Bella's untimely demise are only stated here as background facts. The issue for this court to decide is who of the disputing parents is entitled to have possession of the body of Baby Bella for the purposes of making funeral arrangements and determining her final resting place.
Having said that, I will indicate at the outset that it is not the province of the courts to determine
or direct where or how a deceased person ought to be buried (see Anstey v Mundle [2016] EWHC 1073 (Ch.), per Deputy Judge Johnathon Klein). But the court has a power and indeed a duty to determine based on the law and legal principles who is entitled to bury the deceased where there is a dispute among family members or other persons entitled to make a claim.
It is not a task that the court delights in, considering the deep personal and painful emotions evoked in such situations, and many of the reported cases indicate that the Courts are astute to impress on the parties that the best outcome would be a compromise. As has been adverted to in several of the cases, such matters require the “wisdom of Solomon”, which no judge can profess to have. Therefore, both at the outset of these proceedings and after hearing the parties' claims, I entreated them to explore the possibility of an agreed position. To their credit, I must commend the parties for attempting to settle the issues, and just before the weekend it was brought to my attention that an agreement in principle was in the works. However, it did not appear as if the parties were ultimately able to resolve their differences, and the court must therefore resolve the matter.
The application was commenced by an originating summons filed 25 November 2021, seeking a number of declarations and other relief, which in material part are as follows:
“1. A Declaration that OSTONYA LOGAN WALKER is the mother of the deceased child D'ONYA BELLA WALKER;
2. A Declaration pursuant to section 21 of the Child Protection Act Chapter 132 that D'ONYA BELLA WALKER was born out of wedlock and OSTONYA LOGAN WALKER is the guardian of the said deceased child;
3. A Declaration that only the Plaintiff has the authority at law to conduct the affairs for and on behalf of OSTONYA LOGAN WALKER;
4. A Declaration that the Defendant is the putative father pursuant to section 7 of the Status of Children Act;
5. A Declaration that the Coroner erred in law by releasing the body of D'ONYA BELLA WALKER to the Defendant as he is not so entitled;
6. An Injunction pursuant to Order 29 of the Rules of the Supreme Court refraining ( sic) Serenity Funeral Home & Crematorium from obtaining and acting upon instructions from the Defendant;
7. An Injunction pursuant to Order 29 of the Rules of the Supreme Court refraining ( sic) Serenity Funeral Home & Crematorium from arranging and preparing the body of the deceased child D'ONYA BELLA WALKER for burial and/or cremation; and
…
AND, as a consequence an Order that the body of D'ONYA BELLA WALKER be handed over to the maternal grandmother, MONALISA VERONICA WALKER.”
This was supported by a certificate of “extreme” urgency. Mr. Ferguson for the plaintiff was at pains to explain the impetus for the application and the reasons for its urgency. It appears that after the child's death, the maternal grandmother identified the body at the morgue, dealt with police and other authorities in respect of the deceased, and was in the process of giving instructions to a particular funeral home for burial. However, unbeknownst to her, the child's body was released to the presumed father, Deno Alexander Smith Jr. (“Deno”), who had it taken to another funeral home with a view to making burial arrangements.
It was also indicated to the court that an investigation into the circumstances in which the body was released from the morgue to the father is afoot, and this may explain the declaration sought at paragraph 5 of the originating summons (a matter I will return to later in this ruling). Concerned, however, because of reports apparently circulating on social media and elsewhere (although no evidence of this was before the court) that an imminent funeral was being planned by the paternal family, the mother was spurred into making the application through the grandmother, and to seek injunctive relief. The mother executed a power of attorney on 24 November 2021, which, inter alia, granted power to the grandmother to see to the child's burial.
The application first came before me on Friday 26 November 2021 in the urgent list. At that point, counsel for the Defendant had only just been instructed, and had not yet had an opportunity to file any response on his behalf. I therefore gave leave to counsel for both parties to file additional affidavit evidence and to lodge skeleton submissions. The matter was adjourned to the afternoon of Monday 29 November 2021. I also made an interim order to preserve the status quo by restraining either party from taking any steps to obtain or procure the release of the body of Baby Bella from the funeral home in whose custody it was for the time being for burial and/or cremation pending the hearing and determination of this matter.
Monalisa and Baby Bella's maternal aunt, Oscara Logan Walker (“Oscara”), who is the twin sister of Ostonya, attended the hearings in person, while Deno participated via Zoom. As indicated, Ostonya was granted bail on the 30 November 2021, but did not attend that day's hearing. I should say for completeness, also, that because of the enormous public interest generated in this case, several members of the media were present at the start of the hearings on the afternoon of 29. However, I indicated that I would be hearing the application in camera, both to protect the privacy of the parties and the dignity of the deceased, and also because there were criminal proceedings extant which could be impacted by any inordinate publicity or disclosure of allegations made in the dispute over burial rights.
Baby Bella was born on 2 June 2017 at the Rand Memorial Hospital in Freeport, Grand Bahama. Her mother Ostonya was not married to Deno, but it appears that they were in a cohabiting relationship which lasted from some point in 2016 to a few months before the child was born in 2017. The father is not registered on her birth certificate, and she carries her mother's surname, but it does not appear that the father's paternity has ever been disputed.
I will examine the evidence in more detail a little later in this judgment, but for now it suffices to say that for much of her short life, Baby Bella lived in Freeport with her father, paternal grandmother, aunts and other relatives, being cared for by them. According to the affidavits filed by the defendant, the father's family had Baby Bella from two weeks after her birth, while her mother pursued various job opportunities in Grand Bahama, Marsh Harbour Abaco and New Providence. It seems she was content to leave the child in the care of her father and paternal relatives, although her evidence is that she did on a few occasions assume custody and care of Baby Bella. In what turned out to be a cruel twist of fate, she was returned to her mother in New Providence on 31 August 2021, apparently at the mother's request. Two months and 5 days later she was dead.
As adverted to, her death generated much public furore, and it has been reported by police authorities that she died as a result of blunt force trauma. However, I did not have before me a death certificate and I am therefore only able to indicate...
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