Richard Stephen Wilson v Jason Smith and Joan Ferguson (Personal Representatives of Estate of Yvonne Elizabeth Cammaert Wilson)

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeSir Michael Barnett, JA (Actg.),The Honourable Sir Hartman Longley, P,The Honourable Mr. Justice Jones, JA
Docket NumberSCCivApp. No. 136 of 2016
Date21 March 2018

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Sir Hartman Longley, P

The Honourable Mr. Justice Jones, JA

The Honourable Sir Michael Barnett, JA (Actg.)

SCCivApp. No. 136 of 2016

Between
Richard Stephen Wilson
Appellant
and
Jason Smith And Joan Ferguson (As Personal Representatives Of The Estate Of Yvonne Elizabeth Cammaert Wilson)
Respondent
Appearances:

Mrs. Marylee Braynen-Symonette, Counsel for the Appellant

Mrs. Cathleen Johnson-Hassan with Mrs. Khadra Hassan-Sawyer and Mrs. Tracy Ferguson-Johnson

Bond v Dunster Properties Ltd [2011] EWCA Civ 455 considered

Burns v Burns [2004] EWCA Civ 1258 applied

C v L [2010] 2 BHS J No 6 mentioned

Interroute Telecommunications (UK) Ltd v Fashion Gossip Ltd et al [1999] Times 10th November, 1999 considered

J v G [1993/Fam/DIV/568] considered

K v K [2005] 1 HKC 303 mentioned

Lord Mayor and the Citizens of the City of Westminister v Addbins Ltd et al [2012] EWHC 3716 (QB) considered

Macdonald v Macdonald [1964] P 1 applied

McMinns v McMinns [2002] EWHC 1194 (Fam) applied

Warden v Warden [1981] 2 W.L.R. 435 applied

Civil appeal — Contempt of court — Arrears of maintenance — Enforcement of arrears more than twelve months old — Remittance of arrears — Variation or discharge of maintenance order — Jurisdiction of the court to pronounce judgment after the death of one of the parties to an action — Rules of the Supreme Court Order 52 — Matrimonial Causes Act Sections 35 & 36 — Court of Appeal Act Section 10

In December 2001 Small J ordered, inter alia, that Richard Wilson (R) do pay Yvonne Wilson (Y) the sum of $3,000 monthly. R duly paid the sum until 2009, notwithstanding that he had, in 2007, applied to discharge the order of Small J. In August 2013 Y sought leave to commence committal proceedings against R for failing to pay the periodical payments as ordered. Leave was granted and a Notice of Motion, praying for R to be committed, was filed in October 2013. In May of 2014 R filed a summons praying that the order of Small J be discharged and any arrears accruing thereunder be remitted. The motion and summons were heard by a judge of the Supreme Court and decision reserved on the 23rd June, 2015. However, Y died on the 13th April, 2016, before judgment was delivered. The judge was advised by letter dated the 22nd April, 2016 of Y's death. On the 27th April, 2016 the learned judge delivered judgment; finding R in contempt and ordering him to pay arrears of maintenance of $150,000 and a fine of $5,000, plus Y's costs on the motion for contempt. R appeals that decision.

Held:

appeal allowed; each party to bear its own costs, both here and in the court below.

R complains that the judge erred in law by giving judgment after the death of Y. However, there is no general rule that when one of the parties dies, the divorce suit abates so that no further proceedings can be taken in it. If an ancillary relief order has already been made by the time of death of one of the parties, it is therefore possible for there to be a cause of action which survives that death. Whether there is such a cause of action, depends on the precise nature of the order and of the proposed proceedings in relation to it. Just as a claim for arrears of maintenance due at the death of the payer survives the death of the payee, the claim for the enforcement of arrears of maintenance is a cause of action that survives the death of the payee. In short, the claim for arrears of maintenance survives the death of both of the parties to an action and can be pursued by their respective estates. This is because the obligation created by the maintenance order already exists. If no maintenance order has been made, a claim for maintenance would not survive the death of one of the parties. Thus the action is not abated and the judge did have jurisdiction to pronounce judgment on the motion for contempt for nonpayment of the arrears.

R also complains that the trial judge was wrong to have ordered the payment of arrears in the sum of $150,000 which represented arrears in excess of twelve months before the application for the committal order was made. Section 36(1) of the MCA provides that arrears due more than twelve months before proceedings to enforce the payment of them are begun may not be enforced without the leave of the court. In such a case the burden is on the applicant to show good reason why ‘stale arrears’ should be enforced. Y's affidavit provided no credible explanation as to why no attempt was made prior to 2013 to enforce the arrears of maintenance. Whilst an appellate court will not lightly interfere with the exercise of a discretion by a trial judge, judicial discretion must be fairly and consistent with well settled judicial authorities. In the circumstances of the case the trial judge erred in granting leave to enforce arrears in excess of 12 months from the date of the application.

In an application to vary or discharge an order for periodical payments the court has the power to remit arrears of maintenance by backdating the variation order.

Section 10 of the Court of Appeal Act gives this court all the powers of the trial judge on the two applications that were before it namely the application for the committal order and the application to vary the order of Justice Small. Full and frank disclosure of assets lies at the very core of an application for periodical payments in matrimonial matters. Having regard to the additional evidence adduced by R at the hearing of the appeal which demonstrates that the Wife misled the court as to her assets and means at the time the various orders for periodical payments were made, the Court is of the view that the order of Justice Small should be varied with effect from the 29th June, 2009.

Relative to the payment of the fine of $5,000.00, there is no basis to interfere with the judge's finding that R had the means to pay and was simply refusing to pay. This court cannot countenance litigants electing whether or not to comply with orders of the court.

Sir Michael Barnett, JA (Actg.)

Judgment delivered by the Honourable

1

This is an appeal by Richard Wilson (“the Husband”) against the order of Justice Rhonda Bain (“the trial judge”) delivered on the 27th April, 2016 whereby she held him in contempt of court and ordered him to pay arrears of maintenance of $150,000 and a fine of $5,000 plus the costs of the Wife on her motion for contempt.

The Facts
2

By an Ex parte Summons filed on the 2nd August, 2013 Yvonne Wilson (“the Wife”) sought leave to commence committal proceedings against the Husband for failing to pay periodical payment as ordered by Small J.

3

Leave was granted by the trial judge on the 2nd October, 2013 and by Notice of Motion filed on the 8th October, 2013 the Petitioner prayed for an order that:

“[The Husband] be committed to Her Majesty's Prison for his contempt of the order made by Justice Hugh Small filed on the 8th January 2002 which was confirmed by the order of the Court of Appeal on the 12th September 2011 by failing to pay the arrears of periodical payments.”

4

On the 20th May, 2014 the Husband filed a Summons praying that –

1
    The Order dated the 18th day of December A.D., 2001 be discharged; and 2. Any arrears found by the Honourable Court to have accrued thereunder be remitted or such portion thereof be remitted…
5

That motion and summons were heard by the trial judge in 9 hearings over an 18 month period beginning on the 27th January, 2014. The last hearing was on the 23rd June, 2015. At that time the trial judge reserved her decision.

6

On the 13th April, 2016 the Wife died and the judge was advised of the same by the Husband's attorneys by letter dated the 22nd April, 2016.

7

On the 27th April, 2016, after she was made aware of the death of the Wife, the judge delivered her Ruling which is the subject of this appeal and the appellant relies on the following grounds:

  • “1. The decision of the Learned Judge in granting the Respondent leave to enforce maintenance arrears for a period in excess of the statutory period was wrong because:

    • a. the Respondent's application made ex parte was heard and determined by the Learned Judge without notice or reference to the Appellant in breach of his fundamental right to be heard;

    • b. in exercising her discretion to grant such leave to enforce maintenance arrears for a period in excess of twelve (12) months the Learned Judge predetermined the substantive issue as to whether or not such arrears of maintenance had in fact accrued and thereby capable of enforcement without affording the Appellant an opportunity to be heard.

    • c. In exercising her discretion to grant such leave on an ex parte application the Learned Judge failed to take account sufficiently or at all the Appellant's outstanding application seeking a discharge of the order of Small J.

    • d. In further breach of the rules of natural justice the Appellant was not subsequently provided with the evidence of the Respondent on which the Learned Judge relied to grant such leave, nor was he served with the order of the Learned Judge granting the Respondent such ex parte leave and/or the Court's reasons, if any, for granting such leave to the Respondent in the absence of the Appellant or at all.

    • e. The exercise by the Learned Judge in granting such ex parte leave the Respondent resulted in a grave injustice to the Appellant.

  • 2. The Learned Judge erred in fact and in law in finding that the Appellant owed the Respondent the sum of $150,000.00 from July 2009 up to August 2013 representing arrears under the Order of Small J. whereas the Appellant contends that from July 2009 to September, 2011 the Order of Small J. was supplanted by the Order of Albury J.

  • 3. The Learned Judge erred in fact and in law in finding that the Appellant willfully refused to pay...

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