A v A

JurisdictionBermuda
Judgment Date07 January 2016
Neutral Citation[2016] SC Bda 2 Div
Date07 January 2016
Docket NumberDIVORCE JURISDICTION 2014 No: 141
CourtSupreme Court (Bermuda)

[2016] SC (Bda) 2 Div

In The Supreme Court of Bermuda

DIVORCE JURISDICTION 2014 No: 141

Between:-
A
Petitioner
and
A
Respondent

Mrs Georgia Marshall, Marshall Diel & Myers Limited, for the Petitioner

Ms Jacqueline MacLellan, MacLellan & Associates, for the Respondent

RULING

(In Chambers)

Introduction
1

This is an application by the Petitioner, Mr A, to vary downwards the child maintenance payments and periodical payments to the Respondent, Mrs A, (together, ‘the periodical payments’) to which he agreed under a consent order (‘the Consent Order’ or ‘the Order’) dated 6 th February 2015. He alleges the Respondent failed to make full and frank disclosure and that there has been a material change in the circumstances of both parties.

The facts
2

The Petitioner and the Respondent were married for some 19 years, during which he was the breadwinner and she was the homemaker, although she earned a little money on the side. They were domiciled in Bermuda. The Petitioner was Bermudian and the Respondent, who was born in Montreal of Canadian parents, was Canadian. The Petitioner issued a petition for divorce in dated 18 th August 2014. Decree Nisi was pronounced on 28 th November 2014 and Decree Absolute on 14 th January 2015.

3

On 2 nd February 2015 the parties' respective applications for ancillary relief came on for hearing with a time estimate of three days. However most of the first day of the hearing was spent in negotiations between the parties, both of whom were represented by their current legal advisors. The negotiations proved fruitful, and at around 4.35 pm on the first day of the hearing counsel for both parties informed the court that agreement in principle had been reached as to the terms of a consent order. Counsel then explained the terms to the Court. Over the next few days the parties finalised the terms of the Order and filed it with the Court. I reviewed the terms and signed the Order on 6 th February 2015.

4

The Order, which is evidently the product of careful consideration by both parties and their legal advisors, consists of three recitals and 21 paragraphs and runs to five pages of 1.15 spaced typing.

5

The Order provided inter alia that the Petitioner would retain as his absolute property the former matrimonial home in Bermuda and that the Respondent would retain as her absolute property a property in Montreal, Canada. I note from affidavit evidence filed by the Respondent that the Montreal property was no longer subject to a mortgage.

6

A recital to the Order provided that the Petitioner would undertake various specified repairs to the former matrimonial home. The background to the recital was that, as the parties explained to me on 2 nd February 2015, the Respondent would for the time being go on living at the former matrimonial home on a rent free basis, but would vacate it on or before 30 th June 2015.

7

The Order dealt not only with ancillary relief but also with the custody, care and control of the parties' five children. It provided that the parties should have joint custody of all the children, with care and control of the two oldest children going to the Petitioner and care and control of the two youngest going to the Respondent. There was to be joint care and control of the middle child who was to be free to spend as much time as he wished in the respective homes of the parties.

8

Under rule 94(2) of the Matrimonial Causes Rules 1974, unless otherwise directed, any order relating to the custody or care and control of a child shall provide for an order prohibiting the removal of any child of the family under 18 out of Bermuda without the leave of the court except on such terms as may be specified in the order. To address this requirement, as Mrs Marshall, counsel for the Petitioner, explained to me at the hearing on 23 rd November 2015, paragraph 8 of the Order provided:

Should the Respondent decide to relocate to Montreal she shall have permission to remove [the two youngest children] from Bermuda and subject to the wishes of [the middle child] may remove [the middle child] from Bermuda if he wishes to move to Canada with his mother as opposed to remaining in Bermuda with his father.’

9

The Petitioner was formerly a partner in a consultancy business and had been bought out by his partners. The Order provided that the parties should share equally in the funds due to the Petitioner under the buyout agreement, which were payable in the quarterly sum of approximately $57,300.

10

The Order also provided for the payment of child maintenance and periodical payments. The relevant provisions were to be found at paragraphs 12 and 15:

12. With effect from the 1 st April 2015 and on the first day of each month thereafter, the Petitioner shall pay to the Respondent by way of maintenance for the children, the sum of BD$1,250 per month for each of [the two youngest children], and the sum of BD$500 per month for the [middle child]. The Respondent will not be required to pay any maintenance to the Petitioner in relation to the [two oldest children].

… . 15. With effect from the 1 st April 2015 and on the first day of each month thereafter for a period of 2 years, the Petitioner shall pay to the Respondent by way of periodical payments for herself the sum of BD$1,000 per month. There will be a review of the Respondent's maintenance with the decision to take effect thereafter, with a view to determining when the Respondent's maintenance will come to an end. Either party may apply by letter for a review date.’

11

The periodical payments were substantially less than the monthly sum of $15,616 which in her affidavit dated 19 th September 2014 the Respondent had originally sought. Admittedly, that figure included maintenance for all five children and $5,000 for rent. In an affidavit dated 20 th November 2014 the Respondent calculated her reasonable expenses for the next three months at the more modest rate of $12,740, or $4,246.66 per month. This figure did not include any provision for licensing or insuring her car, maintenance of the former matrimonial home, land tax, entertainment or travel. As the Respondent was living at the former matrimonial home the figure did not include any provision for rent.

12

On Friday 13 th February 2015 the Respondent emailed the Petitioner to say that on Sunday (ie 15 th February 2015) she would be heading to Montreal on vacation with the three youngest children ‘ to collect our thoughts and heal’. She added:

While there we will decide where it is best for us to reside. You can do renovations as soon as we leave. If we choose to reside in Bermuda we will find other accommodations.’

13

The Respondent decided to remain in Montreal. Indeed she had travelled there with the children on one-way tickets. In an affidavit sworn on 11 th June 2015 she explained that the decisive factor was the discovery on 4 th February 2015 that health care would cost her a minimum of $1,500 per month. Previously she had been covered by the group health care plan which the Petitioner had at work, which provided cover for the parties and their children for $500 per month, but she was no longer eligible for this once decree absolute was pronounced. The cost of private health care in Canada was considerably cheaper and public health care there was free. Nonetheless, she stated in that affidavit that if, after some time, Montreal had not been right for the children and her they would have returned to Bermuda and perhaps have made an application to the court for upward variation of maintenance.

14

Mrs Marshall invites me to treat the Respondent's evidence on health care with scepticism. It is, she submits, surprising that if the cost of health care was of such importance but had not been factored into the Consent Order the Respondent did not, when the issue came to light, raise it immediately with her attorneys, before the Order was finalised. Neither was there any mention of the cost of health care in the 13 th February 2015 email. Indeed it was mentioned for the first time in the Respondent's 11 th June 2015 affidavit. Mrs Marshall submits that the Respondent's decision to relocate to Canada was made not as a result of something that was not discovered until after the Order had been agreed in principle but was made before any such agreement and irrespective of the health care position.

15

The implementation of the Order did not run smoothly. On 23 rd April 2015 the Respondent issued a judgment summons alleging that the Petitioner had failed to make any of the payments due under the Order, including the payments required by paragraphs 12 and 15.

16

On 27 th May 2015 the Respondent countered with a summons seeking an order that paragraphs 12 and 15 of the Consent Order be varied downwards to reflect the Respondent's allegedly changed circumstances since the date of the Order. The circumstances relied upon were the Respondent's relocation to Canada. Although the Petitioner has not sought to amend his summons, he has filed affidavit evidence alleging that during settlement negotiations the Respondent deliberately failed to disclose her alleged intention to move to Canada. The Petitioner alleges that this failure was in order to get him to agree to higher child maintenance and periodical payments than he would have been likely to agree to had he known of her true intentions, as the cost of living is substantially higher in Bermuda than it is in Montreal.

17

The Respondent filed evidence in reply. As to her living expenses in Canada, she stated in an affidavit dated 20 th August 2015 that from 15 th February 2015 through 31 st May 2015 the monthly average had been CI$7,324.33 (= c $5,250). Going forward, she stated in that affidavit that her estimated monthly expenses would be CI$6,911.63 (= c $4,955). The Petitioner submits that these figures are exaggerated.

18

As the...

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1 cases
  • Carolyn Patricia Wilkinson v Norris Victor Wilkinson
    • Bermuda
    • Supreme Court (Bermuda)
    • 27 Abril 2016
    ...Respondent to vary the periodical maintenance element of the Consent Order) by reference to the recent decision of Hellman J in A-v-A [2016] SC (Bda) 2 Div (7 January 2016). That case entailed an application by a husband to reduce his periodical payment obligations embodied in a consent ord......

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