Tameeka Corion v Arthur Corion
| Jurisdiction | British Virgin Islands |
| Judge | Ellis J |
| Judgment Date | 17 December 2021 |
| Judgment citation (vLex) | [2021] ECSC J1217-1 |
| Docket Number | Claim No. BVIHMT 2019/0027 |
| Court | High Court (British Virgin Islands) |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(MATRIMONIAL)
Claim No. BVIHMT 2019/0027
Ms. Marie Lou Creque, Counsel for the Petitioner/Respondent
Ms. Nelcia St. Jean, Counsel for the Respondent/Applicant
Following the grant of decree nisi in December, 2019 the husband (“the Applicant”) then filed an application for ancillary relief on 25 th May 2020. He seeks a number of orders relating to the child of the marriage, Taraji Azana Milan George-Corion born on the 22 nd day of April 2010 (“the Child”). In addition, the Applicant seeks to have the wife (“the Respondent”) to vacate their residence within 14 days of the Court's order on the basis that there are no marital assets. However, in her response to the Application, the Respondent seeks a lump sum payment representing her interest in the matrimonial home, which she places at 33%.
Happily, the Parties have been able to arrive an agreement in respect to the following matters in relation to the Child:
-
(i) Joint custody, with the Respondent having primary care and control.
-
(ii) The Applicant shall have the following access to the Child — every other weekend and overnight visits every Tuesday. The Child shall also spend one month of summer vacation with the Applicant and alternating Christmas and Easter vacations and such other visitation as the Parties may agree.
-
(iii) The Applicant shall pay maintenance in respect of the Child in the sum of $300.00 per month until the Child attains the age of 18 years or completes her first degree of tertiary education, whichever is later.
-
(iv) The Parties shall equally bear all uninsured medical expenses until the Child attains the age of 18 years or completes her first degree of tertiary education, whichever is later.
The Parties have however failed to arrive at any agreement regarding the education expenses incurred by the Child.
It follows that the following issues remain for determination:
-
i. Whether the Parties should equally share the educational expenses incurred in respect of the Child.
-
ii. Whether the property located at Block 3139B Parcel 211 Registration Section East Central is matrimonial property (“the Property”).
-
iii. What, if any, interest does the Respondent have in the Property.
Turning first to the order sought in relation to the minor child, the Court notes that at the time of the Application, the Child attended First Impressions Primary School. This is a private school in the Virgin Islands in respect of which Parents are expected to pay tuition and related costs. The Child is expected to complete her primary education in 2023.
The Respondent asks that the status quo be maintained such that the Applicant ought to continue to pay for the further tuition costs associated with the Child's private school primary education ($435.00), while she continues to pay for uniforms and books. Thereafter, she proposes that the Parties should equally share in the cost of the Child's public school secondary education. The Respondent argues that the status quo ought to be maintained given the already stressful matter of divorcing parents and imminent change of accommodation. Counsel for the Respondent submitted that a sudden change in educational environment could potentially have far reaching psychological effects on a child. More particularly, she submitted that in this era of COVID-19, it has been the private schools that have maintained more in-house education than the public schools which have had limited on-line classroom study.
In support of this contention, Counsel for the Respondent relied on the case of Aldridge v Aldridge 1 in which the Court observed:
“ In determining an application of this nature, the first and paramount consideration is therefore the welfare of the child. It has however been long recognized that the welfare of the child though of “paramount importance” is not exclusive and must take into account other just as important considerations. The “other considerations include the wishes of the child old enough to be considered, the wishes of the parent, conduct of the parents towards each other and the child, maintenance of the family unit, material standards and advantages which the child reasonably expects or preserving the status quo in the child's life.”
This was further enunciated by the words of d'Auvergne J in Alvin Hodge v Maguerite Densie Hodge who said “… much weight is now given to the child's sex, age, the 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.” 2
Counsel concluded that as the interests of the child are paramount, maintaining the status quo, such that the Child remains at First Impressions Primary School, is in the best interests of the Child. The Respondent further submitted that the Child should fare no less than the Applicant's other daughter such that the Applicant ought to pay 100% for the Child's tuition and accommodation for tertiary education, if same is pursued, until she attains her first degree, save and except library expenses and books which will be borne by the Respondent. It is further proposed that any travel associated with such tertiary education will be equally borne by the parties. The Petitioner argues that parity of treatment of the Respondent's children ought to obtain.
While the Applicant submits that he may concede to paying more than 50% of all educational expenses while the Child is in primary school, he does not believe that the Respondent should pay less than 40% of all educational expenses. The Applicant submits that shoes, clothes and books are purchased either per term or per school year and that after school lessons are offered at the Child's school for free or at a much lower fee and that the reading classes which the Respondent states that the Child started in September 2019, which may not been going on for some time due to the current pandemic.
The Applicant submitted that the standard rule should be equality between the Parties and such equality should not apply to distribution of assets but also to obligations as well. Counsel for the Applicant relied on the judgment in White v White 3 in which Lord Nicholls stated that:
“ as a general guide, equality should not be departed from, only if, and to the extent that there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination”.
According to the Applicant, the evidence before the Court does not show that the Applicant is in a better financial position that the Respondent. Rather, Counsel for the Applicant submitted that in fact the Applicant's financial obligations far exceeds those of the Respondent and should the Court apply the relevant consideration of section 26 (2) of Matrimonial Proceedings and Property Act 4 (“the Act”), it would appear that:
“… to so exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in subsection (1) (a) and (b), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each had properly discharged his or her financial obligation and responsibilities toward the child” that both parties should equally contribute to the child.
At law, parents have an equivalent financial obligation to maintain their children. It is equally undeniable that “ arranging for education commensurate with the child's intellectual needs and
When exercising its discretion to decide whether to make an order of financial provision for the child of the family and if so in what manner, a court must consider all of the circumstances of the case including all of the factors listed in section 26 (2) of the Act. This provides that in deciding whether to order a party to make financial provision for a child under section 24 the court must have regard to the financial needs of the child, the income, earning capacity (if any) property and other financial resources of the child, the standard of living enjoyed by the family before the breakdown of the marriage and the manner in which he or she was being educated and in which the parties to the marriage expected him or her to be educated or trained.
Section 26 (2) mandates the court to:
“and so exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in subsection (1) (a) and (b), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards the child.”
In determining whether or not an order should be made compelling the Parties to equally share the costs of the Child's private school fees, the Court has considered the factors mandated by the Act. The Court notes that neither Party has averred that the Child suffers from any disability. In the same way, the Court was not presented with any evidence regarding the income and/or earning capacity of the Child, neither have the Parties asserted that the Child owns any property and other financial resources which would be relevant.
The Court has considered the needs of the Child...
To continue reading
Request your trial