Martha Josefina Ramirez Torres Applicant/Petitioner v Pedro Miguel Castellanos Basto Applicant/Respondent [ECSC]

• Jurisdiction: British Virgin Islands
• Judge: Ellis J.
• Judgment Date: 03 April 2014
• Neutral Citation: VG 2014 HC 8,[2014] ECSC J0403-2
• Court: High Court (British Virgin Islands)
• Date: 03 April 2014
• Docket Number: CLAIM NO. BVIHMT2012/0041

[2014] ECSC J0403-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

CLAIM NO. BVIHMT2012/0041

Between:

Martha Josefina Ramirez Torres

Applicant/Petitioner

and

Pedro Miguel Castellanos Basto

Applicant/Respondent

Appearances:

Tamara Cameron for the Petitioner

Susan Demers for the Respondent

JUDGMENT

Ellis J.

[1] By Notice of Application for Ancillary Relief filed on 26^th February, 2013, the Mother (Mother) applied for sole custody and primary care and control of the minor child of the marriage. Her Affidavit in Support makes clear that her wish is to temporarily relocate to Barbados with six year old, Luca (the Child) and she asks the Court for permission to remove the Child from the jurisdiction. The Mother also proposes the following access arrangements for the Father (Father):

1. (1) When the Child resides within the Territory with the Father:

   1. (a) visitation every other weekend; and

   2. (b) visitation on Thursday night of the week when the child is not visiting the Father for the weekend;

   3. (c) visitation on alternative birthdays and school holidays.

2. (2) When the child resides outside the Territory with the Mother:

   1. (a) visitation every summer holiday and alternate Christmas holidays and such other times as shall be agreed by the parties.

   2. (b) She also seeks an order that the Father bear the costs of any travel expenses necessary to effect such access.

[2] By Notice of Application dated 11^th April 2013, the Father applies in essence for orders refusing the Mother permission to remove the child from the jurisdiction. The Father seeks instead, an order of joint custody of the child with primary care and control to him and visitation to the Mother on a schedule to be agreed by the Parties. In regards to maintenance of the child he asks that both parties equally contribute to the maintenance of the child including the medical and educational expenses until the child attains the age of 18 or until he attains the age of 21 if he pursues higher education. The Father also seeks his costs of the Application.

The Law — Statute

[3] The starting point must be the relevant statutory framework. In the British Virgin Islands, custody of children within the context of matrimonial proceedings is governed by the Matrimonial Proceedings and Property Act 1995 (the Act). Section 44 of the Act gives the Court a wide discretion to make any order it sees fit in the circumstances of this case in respect of custody, access or financial provision.

[4] Section 44 (1) of that Act provides as follows:

"The Court may make an order as it thinks fit for the custody and education of any child of the family who is under the age of eighteen,

1. (a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree,

2. (b) where such proceedings are dismissed after the beginning of a trial, either forthwith or within a reasonable period after dismissal, and in any case in which the court has the power by virtue of this subsection to make an order in respect of a child, it may, instead if it thinks fit, direct that proper proceedings be taken for making the child a ward of Court.

[5] This provision reinforces section 11 of the Guardianship of Minors Act Cap 270 of the Laws of the British Virgin Islands which also makes clear that the Court may make such orders as it thinks fit regarding custody of an infant and the right of access of either parent. Section 3 of that Act however provides that in exercising its discretion, the Court shall regard the welfare of the child as the first and paramount consideration. It provides as follows:

"Where in any proceeding before the Court the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

[6] It therefore follows that it is the interests of the child which are to be regarded as paramount and not the personal desires or preferences of the parents. A parent who has been granted primary care and control of a child would ordinarily have the right to determine where the child should live (including outside of the jurisdiction), unless the court makes an order prohibiting the removal of the child. It is abundantly clear in the case at bar that the Parties have very different views on this critical issue and this has no doubt informed their respective Applications.

Analysis – Custody and Access

[7] The relevant legislative framework regulating custody and financial provision in respect of children enjoins the court to take into account the welfare of the child as the first and paramount consideration. Unfortunately, the legislation provides little guidance as to what constitutes the "welfare of the child". In the Eastern Caribbean however, the courts have increasingly been guided by the welfare principles set out in the section 3 of the UK Children Act and in Brathwaite Jr. v Brathwaite1 Olivetti J made the following observations which are adopted by this Court.

"The welfare checklist as set out in section 3 of the Children Act, 1989 (UK) is also useful as to the words of d'Auvergne J. in Alvin Hodge v Marguerite Denise Hodge 33/2002, where the learned judge made reference to the UK Children Act section 3 noting – "much weight is now given to the child's sex, age, his physical, emotional and educational needs, the likely effect on the child with regard to any change in his circumstances and any harm he or she may be at risk of suffering as a result of the change." Thus, it is apparent from these provisions and the authorities cited by both counsels that each case must in the end turn on its own particular circumstances."

[8] The Court is guided by the useful check list and guidance provided by section 3 of the Children's Act and will now consider the criteria in light of the particular evidence in this case.

The Child's Wishes and Feelings

[9] At a little over six years old Luca lacks the maturity to properly articulate his views on what is best for him. It is therefore understandable that no evidence was led as to his wishes and feelings. However, all of the experts have reported that he has repeatedly expressed his desire to have both of his parents living together with him as a family.

[10] It is also apparent that the child enjoys the love and support of his parents both of whom have demonstrated to the Court that they are committed parents who have for the most part diligently tried to minimize the adverse impact of the separation and divorce on him. It would certainly be in the child's best interest to be raised by both his parents in circumstances where they all reside in the same jurisdiction and where the parents are able to maximize their support of him. Unfortunately, the Court in this case must consider an alternative scenario in which the parents do not intend to reside in the same jurisdiction, which will inevitably mean that the child will be deprived (at least temporarily) of the constant presence, attention and access to one of his parents.

The Child's Physical, Emotional and Educational Needs

[11] The Court notes that from all accounts that the Child has adjusted to the arrangements which are currently in place. It is apparent that he has a strong relationship with both parents and that his current needs are being met under both households and in the current arrangements. The report form the experts reflect that:

"Luca appears to be a well-adjusted member of a bi-nuclear family and has not presented any symptoms of maladjustment or distress to this clinician." Dr. Rubaine.

"…the current custody arrangements for Luca should be maintained. This arrangement has been in place for approximately two years – and has worked well for Luca. He accepts residing with his mother and visiting with his father. He has adjusted well to this plan –and, therefore the arrangement should not be changed." Dr. Ronald McAnaney:

"…both parents engage Luca in educational and other activities that he clearly enjoys and benefits from. The atmosphere at both homes …is adequate for the growth, rearing and development of a child." Ms Freeman, Social Worker.

[12] Both parents have the capacity to meet the child's physical needs. Both parents are gainfully employed and from all indications earn fixed salaries. The Mother's evidence is that she intends to undertake specialist training in the field of medicine which will improve her earning capacity. The Father is currently employed as a commercial attorney in a reputable local firm.

[13] There can be no doubt that an education is an important aspect of a child's upbringing and it appears from all accounts that both parents have an appropriate regard for its importance. The child's educational needs are currently being met at First Impressions Child Care Centre. He commenced his attendance in 2011 when he began pre-school. He is described as intelligent and is currently on the honour roll.

[14] Further, it is common ground among all of the experts that the Child is attached to both of his parents, and that they have attempted to minimize the effect of the separation and divorce on him. From all accounts the parents have each provided a safe, loving and conducive environment for his growth and development. Luca has almost daily physical access to both Parents and strong bonds have developed as a result. Under the current shared care arrangements, the Mother has primary...