N. E. v W. E

• Jurisdiction: Bermuda
• Judge: Alexandra Wheatley
• Judgment Date: 08 December 2023
• Court: Supreme Court (Bermuda)
• Year: 2023
• Docket Number: DIVORCE JURISDCITION

Between:

N. E.

Mother

and

W. E.

Father

[2023] SC (Bda) 96 Div.

Before:

Hon. Alexandra Wheatley, Registrar

DIVORCE JURISDCITION

2017: No. 130

In The Supreme Court of Bermuda

Child Maintenance; Obligation to provide Full and Frank Financial Disclosure; Adverse Inferences

Appearances:

The Father, In Person

Mr David Kessaram of Cox Hallett Wilkinson Limited, for the Mother

RULING

RULING of Registrar, Alexandra Wheatley

Alexandra Wheatley

INTRODUCTORY

1 The Mother (hereinafter referred to as the Mother) made an application dated 17 June 2022 ( the Mother's Application) wherein she is seeking child maintenance from the Father (hereinafter referred to as the Father) for the two children of the family who are 17 and 15 years old respectively.

2 The parties were married for nineteen years, having obtained the Decree Absolute on 15 December 2017. The Mother was granted care and control of the children and it is an accepted fact that the agreement between them upon divorce was that the costs of raising the children would be shared equally between them which included the children's private school fees. The Mother's Application was made as she claims that the Father has not been paying his equal share of the children's expenses. She is therefore, seeking an order that he pay the sum of $2,283.75 per month for the two children which represents one half of the children's monthly, direct expenses.

3 In support of the Mother's Application, the Mother relies on two affidavits, the first one being sworn on 30 August 2022 ( the Mother's First Affidavit) and the second on 24 January 2023 ( the Mother's Second Affidavit). The Father relies on his affidavit which was sworn on 15 November ( the Father's Affidavit). Both parties also gave viva voce evidence at the hearing updating their respective financial positions since the filing of their respective affidavits and both were cross-examined.

THE FACTS

Mother's evidence

4 The Mother is a public school teacher and is 52 years old. Her current net, monthly salary from this position is $5,655.26.

5 The Mother resides in a property which is her family homestead ( the Property). Her parents transferred the property to her and her brother and retained life interests for themselves. The Property consists of the main house where the Mother resides with the two children and there are two rental units. There is a mortgage secured against the Property and the monthly payments are approximately $3,000 per month. The agreement between the Mother and her parents was that she could reside in the main house rent free as well as receive the rental income from apartments; however, this is subject to the Mother being responsible for all remaining mortgage payments as well as all of the outgoings for the Property such as, land tax, insurance, repairs, grounds maintenance, etc. The balance of the mortgage loan at the time of the wife's first affidavit was $97,824.78. In addition, the wife has an outstanding loan which was taken to cover her legal expenses for this application the outstanding balance at the time of the hearing of this loan was $27,710.06.

6 The total monthly rental income received by the Mother is $3,900 which the father noted gives her an extra $1,000 every month after payment of the mortgage. Therefore, her total monthly income is $9,555.26.

7 At paragraph 11 of the Mother's Second Affidavit set out her household and personal monthly expenses are approximately $6,853 per month. This sum is broken down as follows:

Expense	Amount ($) per month
Telephone	99
Mobile phone	160
Internet	275
Link Bermuda	20
Belco	350
Car (licensing, insurance and maintenance – prorated annual expense)	297
Groceries	650
Clothing	200
Personal care (haircuts)	150
Uninsured medical costs	130
House insurance	450
Land tax	75
Watlington Water Works	400
Grounds maintenance	150
Pet food and care	50
Personal loan for legal costs	441 1
Renovation loan/mortgage	2,956
Total	$6,853

8 The monthly expenses for the children are as follows:

Expense	Amount ($) per month
School tuition	2,137.50 2
School uniforms	110.00
School supplies	70.00
Clothing	170.00
Shoes	70.00
Grooming	130.00
Uninsured medical costs	180.00
Groceries/Food	1,200.00
Heritage Education Savings Plan	250.00
Educational Savings Fund	150.00
Pathfinders Club Membership	100.00
Total	$4,567.50

9 For the most part the Father did not dispute the children's expenses. His main objection was that some of the expenses listed such as school uniforms, school supplies, shoes, and clothing were not expenses that the Mother pays each month. It was however, clarified during the hearing that the Mother does not in fact pay these expenses monthly and confirmed the sums represent a prorated amount for the entire year. The Father accepted this.

Father's evidence

10 The Father is also a teacher in the public school system. There was a great deal of contention regarding his actual monthly earnings. The Father's position is that he earns

$6,675.18 net per month (or $7,749.28 gross per month) as a substitute teacher. Prior to being a substitute teacher, he was employed as a permanent teacher from 1998 to 2014. At the time the Father resigned in 2014 he was earning at the top scale of a teacher which was $8,207.50 gross per month. The Father stated that he resigned due to “ mental and emotional stress”; however, he also stated that he has been attempting to obtain a permanent position since 2020 but has not yet been successful which will see him being unemployed at the end of the 2022/2023 school year

11 There was a great source of contention arising from the father's salary. Essentially the father said that there was a significant contradiction between the contract he received stating he would obtain $92,000 per annum and his actual payment of $80,000 per annum. He says that because of this he earns $2,000 a month less than he did before. The father says that when the parties agreed to pay equally the children's expenses that was in 2017 and was at a time when he was residing at home. The father's evidence is that he is in the worst financial position he has been in in his life since September 2022. He said he's also had to borrow money from other teachers to meet his monthly expenses.

12 An analysis was also completed on the Father's bank statements which shows that he received a total of $17,700 in the period from August 2021 until 27 September 2022 from his mother. The husband said these payments were made with his mother's full knowledge and consent as he explained that he has access to his mother's accounts. During his viva voce evidence the Father stated that he no longer had access to obtain funds in the manner he has done in the past from his mother as his sister has taken over control of his mother's finances by the way of power of attorney. No evidence was provided by the Father to support the sister's position.

13 The Father also gave evidence that he uses his mother's debit card to purchase day-to-day items such as groceries. There was no way to ascertain how much the husband was using his mother's debit card and he was unable to say on average how often it was used or an average amount of money he charges to it.

14 At previous times the father accepted that he drove a taxi to earn additional income as well as run a track and field club. The Father's evidence was that he could not afford to renew his taxi license which is about $300 and stated due to his working hours as a teacher it would be extremely difficult to drive a taxi during the most profitable hours.

15 The Father set out his monthly expenses at paragraph 12 of his Affidavit which are as follows:

Expense	Amount ($) per month
Rent	2,200.00
School tuition (for youngest child)	1,012.50
Personal loan repayment 3	516.00
Groceries	500.00
Tithe	570.00 4
Cell phone	136
Cell phone (oldest son)	136
Internet/cable	185
Electricity	139
Car maintenance, gas and oil	410
Rent #2	370
Child maintenance paid to the Mother	500
Total	6,674.50

16 The Father also listed his car insurance and license fees being $919.20 and $1,022.04 respectively per annum; however, he confirmed he was unable to pay these fees so his car is not on the road. The same is the case for his bike which he says is a total of approximately $400 per annum for license and insurance.

17 It was the Father's evidence that given his total monthly expenses and his net earnings of $6,675.18 he is only left with $70.60 per month. It is unclear how this was calculated, as my calculation of his monthly expenses totals $6,674.50 (as set out in paragraph 14 above) which only leaves a surplus of 68 cents per month.

18 The Mother disputed several of the Father expenses. For example, the Father included $500 per month which he says he pays to the Mother as well as monthly tuition of $1,012.50 which he says is paid directly to the school. However, Mr Kessaram for the Mother having analyzed the Father's bank statements over an eighteen-month period shows that the Father on average, only transferred to the Mother $258.10 per month. Additionally, there were arrears of the tuition that the Father purportedly was paying monthly.

19 The Father's car expenses were also challenged as the car has been off the road since January 2023 which means he is not incurring the expense for maintenance, gas and oil of $410 per month. In addition, the Mother contended that the Father also does not pay the oldest child's cell phone bill of $136 as the oldest child uses his earnings as a grocery packer to contribute $60 each month for this expense.

20 The Mother also contested the Father's monthly...