P.T. v S.G.

• Jurisdiction: Bermuda
• Judge: Alexandra Wheatley
• Judgment Date: 19 November 2020
• Court: Supreme Court (Bermuda)
• Date: 19 November 2020
• Docket Number: DIVORCE JURISDICTION

In The Supreme Court of Bermuda

DIVORCE JURISDICTION

2019 No: 133

Between:

P.T.

Petitioner

and

S.G.

Respondent

Jackie MacLellan of MacLellan & Associates for the Respondent

Adam Richards of Marshall Diel & Myers Limited for the Petitioner

Maintenance Pending Suit; Interim Spousal Maintenance

RULING

RULING of Registrar, Alexandra Wheatley

Alexandra Wheatley

INTRODUCTORY

1 The Petitioner and the Respondent were married on 29 April 2010 and as such have had a long marriage of over 10 years. There are no children of the family.

2 The divorce petition was filed on 16 October 2010 and the Respondent filed an Answer on 12 December 2019. However, it was subsequently agreed between the parties for the divorce to proceed undefended as per the terms of the Consent Order dated 28 February 2020. The Decree Nisi was granted on 22 May 2020. At the time of the hearing the parties agreed the Petitioner will not file his application to make the Decree Nisi absolute.

3 The Respondent filed her Notice of Application for Ancillary Relief on 3 June 2020 along with a Summons (“the Application”). The Application sets out the relief being sought for the purposes of this hearing as follows:

• “1. That the Petitioner be ordered to pay interim periodical payments to the Respondent for herself including her legal fees on an ongoing basis.

• 2. Such further and other reasonable relief as this Honourable Court may deem just.

• 3. Costs to the Respondent.”

4 The Application was listed for directions on 28 July 2020. It should be noted the delay in listing the application was due to the extensive backlog of matters which were required to be listed due to the Courts' reduced services between the period 23 March 2020 to 1 August 2020 as a result of the COVID-19 global pandemic. Counsel reached an agreement regarding directions and filed a Consent Order dated 24 July 2020 which listed this matter before me today.

5 I reserved Judgment at the close of submissions, but provided the parties with further directions in the Order dated 19 August 2019 as follows:

• “(1) The Decision in relation to the interim maintenance application is hereby reserved.

• (2) The Petitioner shall have 14 days to respond and supply the information requested in the letter from MacLellan & Associates dated 18 ^th August 2020 and attached herewith.”

THE FACTS

Respondent's position

6 The Respondent relies on her first affidavit and corresponding exhibit sworn on 2 June 2020 (“the Respondent's Affidavit”), as her evidence in this application. Pay stubs from her employment at Strands were submitted at the hearing along with evidence of the Government COVID-19 unemployment payments she received in April and May 2020. Subsequent to the hearing, evidence of the Respondent receiving the Government COVID-19 unemployment benefit was submitted by Ms MacLellan via email at 1:24 p.m. on 19 August 2020. The said correspondence set out the entirety of the payments received by the Respondent from the Government during her referenced period of unemployment.

Income

7 The Respondent was unemployed for the period August 2018 to December 2019. At this time her contract ended with Gillian's and she purports it was agreed with the Petitioner she would cease working due to his numerous work travels. The Petitioner states it was agreed that the Respondent make attempts to open her own spa rather than seek alternative employment but that she took no steps to do so. The Petitioner disputes he agreed for the Respondent to be unemployed for this period. His position is that during the marriage whilst the Respondent was working for Gillian's she was earning between $5,000 and $8,000 per month. The Petitioner is therefore of the view the Respondent has the capacity to receive this level of income from which she would be able to meet all of her needs.

8 As a result of the COVID-19 global pandemic, the Respondent was “laid off” from her employment. During this period, she received the following payments from the Government in the form of the COVID-19 Unemployment Benefit which was a benefit offered to employees who were made redundant due to the effects of COVID-19:

(a) 2 April 2020	$438.94
(b) 15 April 2020	$438.94
(c) 28 April 2020	$731.58
(d) 28 May 2020	$365.77
(e) 12 June 2020	$438.94
(f) 29 June 2020	$219.47

9 The week ending 24 June 2020 the Respondent recommenced her employment with Strands. As the Respondent's Affidavit was sworn on 2 June 2020 the evidence of her starting her employment again at Strands from this date was not included in her affidavit. Her pay stubs for the period presented at the hearing evidenced a total net salary of $4,636.59 which is the equivalent of an average of $579.57 net, per week or approximately $2,500 net, per month. However, Mr Richards noted that once the Respondent completes her repayments towards her health insurance her monthly net salary will increase to approximately $3,000 per month.

10 Mrs MacLellan confirmed the Respondent's salary would ordinarily be higher, but as a result of COVID-19 the services offered were reduced and consequently each employee's salary was reduced.

11 Mr Richards noted the Respondent's pay stubs showed her requirement to repay health insurance deductions which shows she was employed prior to her being laid off due to COVID-19. He stated his concern of the Respondent's lack of disclosure of her employment at Strands being set out in her evidence and questioned the fullness of the Respondent's income disclosed to the Court. There was no reference in the Respondent's evidence to her employment at Strands save for a at paragraph 24 of her Affidavit which did not set out the complete scope of her employment, so it is unclear as to when she started this employment.

12 It was also confirmed the Respondent was employed at Just Shirts and North Shore medical; however, there are no details of her earnings from these positions or clarification as to the period she was (or is) employed with these companies. Mr Richards criticized the Respondent for lack of full disclosure particularly when she is attempting to chastise the Petitioner for his alleged failure to do the same.

Expenses

13 Paragraph 28 of the Respondent's Affidavit set out her expenses for the “for the purpose of interim maintenance” as follows:

Internet/telephone	$41.06
Car License	$57.79
Car maintenance	$41.66
Car Insurance	$69.40
Clothing	$200.00
Credit cards	$0.00
Dry cleaning	$60.00
Cablevision	$120.00
Electricity	$133.00
Entertainment	$300.00
Food/Groceries	$1,000.00
Gas (Car & Bike)	$225.00
Gas (Cooking)	$75.00
Hair dressing	$300.00
Insurance (Health)	NIL 1
Lunches	$300.00
Medication	$50.00
Pocket money	$300.00
Rent	$1,000.00
Telephone	$200.00
Legal fees	$500.00
Total:	$4,852.91 2

14 The Respondent's expenses were challenged by the Petitioner as generally being excessive and unreasonable. Mr Richards specifically raised concern with the following expenses which he asserted should be removed altogether given the parties' reduced incomes: $300 for entertainment; $300 for pocket money; and $300 for hairdressing. It was further submitted the expenses for groceries was high given the inclusion of $300 for lunches and the $425 for health insurance which should be removed as this is a deduction from the Respondent's gross weekly income. With the removal of these expenses save for the $1,000 for groceries, the Respondent's monthly expenses would be reduced to $3,952.91 ($4,852.91 which already takes into account the removal of the health insurance expense, less $900.00, equals $3,952.91) which Mr Richards noted puts the Respondent in a much more favourable position than the Petitioner.

15 Mrs MacLellan submitted the Respondent is seeking the following relief considering both the Respondent's and the Petitioner's income and expenses:

• (a) $2,500 per month for interim spousal maintenance to be back dated to 1 June 2020;

• (b) $1,500 per month for legal fees; and

• (c) reserved her right to pursue any further back-dating of maintenance pending suit prior to 1 June 2020 until such time as the Respondent is satisfied she has obtained full financial disclosure from the Petitioner; and

• (d) Costs of the application.

16 Mrs MacLellan reiterated the content of the Petitioner's Affidavit of Means was not conducive for the determination of this application given the lack of content surrounding his financial circumstances. She drew particular reliance on the large sums of money spent by the Petitioner between January and July 2020. The submission being it was evident based on the Petitioner's disclosure of earning just $5,000 per month, he must have an alternative source of income which has not been disclosed.

Petitioner's position

17 The Petitioner relied on his affidavit sworn on 13 August 2020 with attached exhibits (“the Petitioner's Affidavit of Means”). In addition, Mr Richards provided the Petitioner's current employment contract, albeit unsigned, at the date of the hearing as well as an unsigned lease for his current accommodations. Mrs MacLellan reiterated throughout the proceedings the Petitioner's lack of full and frank financial disclosure particularly since the first request for financial disclosure was made by the Respondent in October 2019 by letter sent from her offices to the Petitioner's attorneys. Mr Richards maintained financial disclosure has in fact been provided and relied on various correspondence between Counsel.

Income

18 The Petitioner exhibited at pages 100 to 101 a letter dated 27 May 2019 from The Shore Club located in the Turks & Caicos setting out the terms and conditions of his current employment as the General Manager (“the Letter of Employment”). This evidences a net monthly...