Idelia Ralph v Bertram Ralph

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE SVGHMT2020/0013 BETWEEN IDELIA RALPH PETITIONER AND BERTRAM RALPH RESPONDENT Appearances: Mr. Art Williamsfor the petitioner. The respondent unrepresented. ------------------------------------------ 2023:Oct. 23 Nov.16 ------------------------------------------- JUDGMENT INTRODUCTION [1]Henry, J.: This is an omnibus undefended application1 by Mrs. Idelia Ralph (‘the wife’) for orders granting her sole custody of the two children of the family; maintenance for the said children, periodical and lump sum payments for the benefit of the wife and children; property settlement order and financial provision or transfer of property order for the benefit of the minor children.Bertram Ralph (‘the husband’), absented himself from the hearing and made no representation in relation to the application.

[2]The wife supplied affidavit and oral testimony attesting largely to her means and expenses. She did not provide any information from which the court could arrive at any conclusion as to the husband’s ability to pay maintenance in respect of the children of the family. Significantly, she attested that the husband is unemployed due to his ill health that has confined him to his bed. Sheassumes this is attributable to serious nerve damage. Before he took ill, the husband was self-employed and did electrical wiring.No evidence was led as to whetherhe receives any disability payments from the National Insurance Services (‘NIS’) or under an insurance plan or other income.

[3]The sole matrimonial asset is a home which is mortgaged to a financial institution in Saint Vincent and the Grenadines. The mortgage is serviced by the wife. She is employed as a civil servant and for much of the marriage has shouldered the majority of the family’s financial responsibilities.

[4]The paucity of evidence regarding the husband’s circumstances makes it difficult and virtually impossible to conduct a meaningful analysis of hisaffairs or about the family as a unit. However, justice requires that a valiant attempt be made to resolve the outstanding issues to bring closure to this unhappy affair.

[5]I have found that the best interests of the children would be served by awarding joint custody to thefather and mother, care and control to the mother with liberal access to the father. No order is made for maintenance or financial provision for the children or the wife. A property settlement order is made in the wife’s favour.

ISSUES

[6]The issue is what orders should be made as to thea) custody, care, controland maintenance of and access to the minor children of the family;b) financial provision in respect of the wife;and/or c) property settlement.

Arrangementsfor the minor children of the family

[7]The Court may make an order regarding arrangements for the minor children of the family, on the breakdown of a marriage. It is trite law that in exercising such power, the court’s paramount concern is the children’s best interest.The Matrimonial Causes Act (‘the Act’)2 empowers the Court to make orders for the custody, maintenance, care and control of such a child.

[8]In considering such an application the court must have regard to the child’s physical and mental capacity, financial needs, income, earning capacity, property and other financial resources, the standard of living enjoyed by the family before the breakdown of the marriage and the manner in which the parents expect the child to be educated or trainedas well as what exists currently.3 I shall bring these principles to bear in the instant case.

[9]The couple’s union produced two sons, Adafa born on 26th December 2007 and Qianu born on 5th December 2011. They are respectively 16 and 12 years old. They are both fully dependent on their mother with whom they live. She covers their living expenses and except where subventions are awarded to them through educational scholarships or book loan schemes their mother pays for all other educational requirements inclusive of uniforms, books and transportation.

[10]The mother led no evidence as to either child’s earning capacity, income, physical or mental capacity or lack thereof, or of any property or other financial resources owned by them. I infer from the mother’s testimony that she is experiencing challenges meeting the children’s reasonable needs. In this regard, she averred that she was unable to afford to complete needed renovations while providing the necessities for daily living.

[11]In November 2022 when the mother filed her affidavit of means, the second child was attending Primary School. No mention was made of the educational institution being attended by the firstborn.

Mrs. Ralph’s submissions

[12]Mrs. Ralph submitted that the court should draw adverse inferences from Mr. Ralph’s failure to file affidavits of means and participate in the trial. She cited M v M and Others4 andTC Coombs & Co (A Firm) v IRC5.

[13]She submitted further that the court should make an order directing Mr. Ralph to pay maintenance for the children of the family, a property adjustment order to transfer his share and interest in the matrimonial home for the benefit of the children. She argued that this would be in the children’s best interest.

DISCUSSION

[14]I deduce from the mother’s account that the family is barely managing to hold its head above water economically. She and the sons every expense is met from her income derived from her job in the public service. It is supplemented by the modest profit she realizes from selling hair products and detoxes.

[15]It is doubtful that the husband has the means to contribute financially to the children’s maintenance and no evidence was led either way. I therefore make no order for him to do so. However, I would encourage him to assist as much as is practicable to ensure that his sons benefit from his influence in their lives. This can only redound to their mutual advantage.

[16]His failure to participate in the court’s proceedings suggests that he is not inclined to be subjected to the court’s jurisdiction. He said as much in correspondencethat he penned and forwarded by email for the court’s attention, before the trial.

[17]Other than stating that he departed the matrimonial home in 2017, the wife did not say where the husband lives and under what terms. Similarly, she did not describe the matrimonial home. However, the court takes note that ithoused the family during happier times and it is the residence now occupied by the wife and children.

[18]The wife made no accusations that the husband is an unfit father and no evidence was presented to suggest that his presence or influence in the children’s lives would be detrimental to them. I am of the view that they are entitled to have a relationship with their father. In keeping withpractice in family law the children should be required to spend quality time with him as much as their circumstances allow.I have formed the opinion therefore that the children’s best interest is served by awarding joint custody to Mr. and Mrs. Ralph, primary care and control to the wife with weekly access to the fatherat times to be agreed mutually between the parties. I turn next to the matter of property settlement.

Property settlement

[19]The principles applicable to the determination of an application for ancillary relief for settlement of matrimonial assets have been articulated in numerous cases. Notably, within the jurisdiction of the Eastern Caribbean Supreme Court, the decision inStonich v Stonich6isoneof the leading authorities. Further afield,Miller v Miller, McFarlane v McFarlane7and White v White8have rehearsed the applicable principles. It is now settled law that the court’s primary concern is seeking to achieve fairness between the parties. In this regard, the court must take into accounttheir means, their expressed or implied intentions regarding the property and their conduct throughout the marriage.

[20]The Court is required by law to have regard to all of the circumstances such as the parties’ respective incomes, obligations, responsibilities, financial needs, earning capacities, property, other financial resourcesand their ages. Further, the Court will consider any physical or mental incapacity of either or both of them. Additionally, their respective contributions to the family’s welfare, the duration of the marriage and the standard of living enjoyed by the family before the marriage broke down are all relevant considerations.

[21]Mrs. Ralph mentioned only one matrimonial asset - the matrimonial homelocated at Orange Grove, St. George. It is registered by Deed of Conveyance 3035 of 2010. It reflects that Mr. and Mrs. Ralph purchased it in 2010 for $66,372.00 and isdescribed in the Schedule as comprising 12,062 square feet.

[22]The couple jointly secured the mortgage in 2010 to build their home. They refinanced it in 2012 to construct the upstairs section. Five years later, the husband vacated the property. Mrs. Ralph did not say how much her husband contributed to the family’s upkeep before he left the matrimonial home. She has been making the monthly mortgage paymentof $1851.00, however due to the numerous other demands on her finances, she is currently able to pay only $950.00each month.

[23]Her net monthly income from her public service job is $2246.55 and from her entrepreneurial endeavoursshe makes roughly $300.00 each month. Her total outgoings is approximately $2359.00 monthly, leaving a meager surplus of $187.55.

[24]Mrs. Ralph produced a loan print out from the mortgagee. Itreflects a sum of $245,000.00 as the amount borrowedon 28th September 2012. As at 30th August 2021,the outstanding balance on the mortgage was $179,053.00. No valuation was exhibited and no information supplied as to the equity owned by the Ralphs. I am cognizant the outstanding balance is not reflective of the value of the house on the open market.

[25]It appears from Mrs. Ralph’s account that the husband has not contributed to the family’s expenses for a considerable period of time.I accept her testimony and find that from 2017 she became the main and ultimately the sole breadwinner. I have no doubt that inflation and the natural upward progression of the family’s needs as the children got olderhave caused a drain on her resources. Her testimony about the maintenance costs at the property are credible and not unexpected in view of normal wear and tear as time progresses.

[26]It is obvious from the evidence that Mrs. Ralph is hanging on economically to a very basic existence and that she and the familyare atthe lower end of the working class. She is essentially shouldering the financial responsibilities of both parents.

[27]The parties were wed on January 7th 2009 when they were in their prime. He was 26 years of age and she 24 years.They are now 38 and 40 years old respectively. In the normal scheme of things they each would have at least another 25 years of productive life before retirement. Without a diagnosis or prognosis regarding the husband’s health challenges, it is impossible to forecast his potential to resume working and by extension contribution to the family’s upkeep. Quite likely, this may not materialize.For the foreseeable future the wife will have to continue to shoulder those responsibilities on her own.

[28]The decree nisi was pronounced on 7th June 2021. However, for all intents and purposes the marriage broke down in 2017 when Mr. Ralph left the home. The union was therefore relatively short, subsisting as it did for 8 years. It is commendable that the wife has been able to keep a roof over her head and partially meet the mortgage obligations. Even without empirical evidence as to each party’s contributions to the overall expenses during the course of the marriage, it is clear that Mrs. Ralph hasborne the lion’s share of those obligations for the better part of 6 years. That is roughly two-thirds of the length of the marriage. Any equity in the matrimonial home that might have accrued to the husband by virtue of being part owner would have been outweighed by the wife’s past and ongoing expenditure.

[29]Takinginto consideration all of the circumstances it seems to me that fairness in this case requires that Mr. Ralph’s legal and beneficial right to,interest and title in the matrimonial home be settled on Mrs. Ralph. I am not satisfied that Mr. Ralph has the means from which the court may make any other financial provision order. I therefore make none.

Costs

[30]In matrimonial proceedings it is usual for each party tobears his or her own costs.There is no reason to deviate from that practice in this case.

DISPOSITION

[31]It is accordingly declared and ordered: 1. Idelia Ralph and Bertram Ralph shall sharejoint custody of the children of the familyuntil they each attain the age of majority, with care and control to Idelia Ralph. 2. Bertram Ralph shall have access to the children of the family for at least one hour each weekto be agreed between the parties. 3.Idelia Ralph’s application for a property settlement order is granted in the following terms: a) All of Bertram Ralph’s legal and beneficial right to, interest and title in the property registered in the joint names of Idelia Ralph and Bertram Ralph by Deed of Conveyance 3035 of 2010 be andis hereby settled absolutely on Idelia Ralph. b)Idelia Ralph shallon or before June 30th 2024 negotiate and finalize with the mortgagee institution of the referenced property, all necessary agreements and pre-conditions to the registration of the said property in her sole name; and shall arrange for the necessary instruments to be drawn up and presented to the Registrar to effect the change. c) On presentationof the necessary instruments by Mrs. Idelia Ralph, the Registrar is directed to execute any conveyances or other necessary deeds to give effect to the property settlement order made in this order. 4. No order is made regarding a) maintenance of the children of the family; b) the payment of periodical or lump sum payments for the benefit of the wife and/or the children of the family; or c) financial provisionfor the benefit of the wife and/or the children of the family. 5. Liberty to apply. 6. No order is made as to costs.

[32]I wish to express thanks to counsel for his written submissions.

Esco L. Henry

HIGH COURT JUDGE

By the Court

Registrar

THE EASTERN CARIBBEAN SUPREME COURT SAINT VINCENT AND THE GRENADINES IN THE HIGH COURT OF JUSTICE SVGHMT2020/0013 BETWEEN IDELIA RALPH PETITIONER AND BERTRAM RALPH RESPONDENT Appearances: Mr. Art Williamsfor the petitioner. The respondent unrepresented. —————————————— 2023:Oct. 23 Nov.16 ——————————————- JUDGMENT INTRODUCTION

[2]The wife supplied affidavit and oral testimony attesting largely to her means and expenses. She did not provide any information from which the court could arrive at any conclusion as to the husband’s ability to pay maintenance in respect of the children of the family. Significantly, she attested that the husband is unemployed due to his ill health that has confined him to his bed. Sheassumes this is attributable to serious nerve damage. Before he took ill, the husband was self-employed and did electrical wiring.No evidence was led as to whetherhe receives any disability payments from the National Insurance Services (‘NIS’) or under an insurance plan or other income.

[3]The sole matrimonial asset is a home which is mortgaged to a financial institution in Saint Vincent and the Grenadines. The mortgage is serviced by the wife. She is employed as a civil servant and for much of the marriage has shouldered the majority of the family’s financial responsibilities.

[4]The paucity of evidence regarding the husband’s circumstances makes it difficult and virtually impossible to conduct a meaningful analysis of hisaffairs or about the family as a unit. However, justice requires that a valiant attempt be made to resolve the outstanding issues to bring closure to this unhappy affair.

[5]I have found that the best interests of the children would be served by awarding joint custody to thefather and mother, care and control to the mother with liberal access to the father. No order is made for maintenance or financial provision for the children or the wife. A property settlement order is made in the wife’s favour. ISSUES

[6]The issue is what orders should be made as to thea) custody, care, controland maintenance of and access to the minor children of the family;b) financial provision in respect of the wife;and/or c) property settlement. Arrangementsfor the minor children of the family

[7]the Court may make an order regarding arrangements for the minor children of the family on the breakdown of a marriage. It is trite law that in exercising such power, the court’s paramount concern is the children’s best interest.The Matrimonial Causes Act (‘the Act’) empowers the Court to make orders for the custody, maintenance, care and control of such a child.

[8]In considering such an application the court must have regard to the child’s physical and mental capacity, financial needs, income, earning capacity, property and other financial resources, the standard of living enjoyed by the family before the breakdown of the marriage and the manner in which the parents expect the child to be educated or trainedas well as what exists currently. I shall bring these principles to bear in the instant case.

[9]The couple’s union produced two sons, Adafa born on 26th December 2007 and Qianu born on 5th December 2011. They are respectively 16 and 12 years old. They are both fully dependent on their mother with whom they live. She covers their living expenses and except where subventions are awarded to them through educational scholarships or book loan schemes their mother pays for all other educational requirements inclusive of uniforms, books and transportation.

[10]The mother led no evidence as to either child’s earning capacity, income, physical or mental capacity or lack thereof, or of any property or other financial resources owned by them. I infer from the mother’s testimony that she is experiencing challenges meeting the children’s reasonable needs. In this regard, she averred that she was unable to afford to complete needed renovations while providing the necessities for daily living.

[11]In November 2022 when the mother filed her affidavit of means, the second child was attending Primary School. No mention was made of the educational institution being attended by the firstborn. Mrs. Ralph’s submissions

[13]She submitted further that the court should make an order directing Mr. Ralph to pay maintenance for the children of the family, a property adjustment order to transfer his share and interest in the matrimonial home for the benefit of the children. She argued that this would be in the children’s best interest. DISCUSSION

[12]Mrs. Ralph submitted that the court should draw adverse inferences from Mr. Ralph’s failure to file affidavits of means and participate in the trial. She cited M v M and Others andTC Coombs & Co (A Firm) v IRC .

[16]His failure to participate in the court’s proceedings suggests that he is not inclined to be subjected to the court’s jurisdiction. He said as much in correspondencethat he penned and forwarded by email for the court’s attention, before the trial.

[14]I deduce from the mother’s account that the family is barely managing to hold its head above water economically. She and the sons every expense is met from her income derived from her job in the public service. It is supplemented by the modest profit she realizes from selling hair products and detoxes.

[15]It is doubtful that the husband has the means to contribute financially to the children’s maintenance and no evidence was led either way. I therefore make no order for him to do so. However, I would encourage him to assist as much as is practicable to ensure that his sons benefit from his influence in their lives. This can only redound to their mutual advantage.

[17]Other than stating that he departed the matrimonial home in 2017, the wife did not say where the husband lives and under what terms. Similarly, she did not describe the matrimonial home. However, the court takes note that ithoused the family during happier times and it is the residence now occupied by the wife and children.

[18]The wife made no accusations that the husband is an unfit father and no evidence was presented to suggest that his presence or influence in the children’s lives would be detrimental to them. I am of the view that they are entitled to have a relationship with their father. In keeping withpractice in family law the children should be required to spend quality time with him as much as their circumstances allow.I have formed the opinion therefore that the children’s best interest is served by awarding joint custody to Mr. and Mrs. Ralph, primary care and control to the wife with weekly access to the fatherat times to be agreed mutually between the parties. I turn next to the matter of property settlement. Property settlement

[22]The couple jointly secured the mortgage in 2010 to build their home. They refinanced it in 2012 to construct the upstairs section. Five years later, the husband vacated the Property Mrs. Ralph did not say how much her husband contributed to the family’s upkeep before he left the matrimonial home. She has been making the monthly mortgage paymentof $1851.00, however due to the numerous other demands on her finances, she is currently able to pay only $950.00each month.

[19]The principles applicable to the determination of an application for ancillary relief for settlement of matrimonial assets have been articulated in numerous cases. Notably, within the jurisdiction of the Eastern Caribbean Supreme Court, the decision inStonich v Stonich isoneof the leading authorities. Further afield,Miller v Miller, McFarlane v McFarlane and White v White have rehearsed the applicable principles. It is now settled law that the court’s primary concern is seeking to achieve fairness between the parties. In this regard, the court must take into accounttheir means, their expressed or implied intentions regarding the property and their conduct throughout the marriage.

[20]The Court is required by law to have regard to all of the circumstances such as the parties’ respective incomes, obligations, responsibilities, financial needs, earning capacities, property, other financial resourcesand their ages. Further, the Court will consider any physical or mental incapacity of either or both of them. Additionally, their respective contributions to the family’s welfare, the duration of the marriage and the standard of living enjoyed by the family before the marriage broke down are all relevant considerations.

[21]Mrs. Ralph mentioned only one matrimonial asset – the matrimonial homelocated at Orange Grove, St. George. It is registered by Deed of Conveyance 3035 of 2010. It reflects that Mr. and Mrs. Ralph purchased it in 2010 for $66,372.00 and isdescribed in the Schedule as comprising 12,062 square feet.

[23]Her net monthly income from her public service job is $2246.55 and from her entrepreneurial endeavoursshe makes roughly $300.00 each month. Her total outgoings is approximately $2359.00 monthly, leaving a meager surplus of $187.55.

[24]Mrs. Ralph produced a loan print out from the mortgagee. Itreflects a sum of $245,000.00 as the amount borrowedon 28th September 2012. As at 30th August 2021,the outstanding balance on the mortgage was $179,053.00. No valuation was exhibited and no information supplied as to the equity owned by the Ralphs. I am cognizant the outstanding balance is not reflective of the value of the house on the open market.

[25]It appears from Mrs. Ralph’s account that the husband has not contributed to the family’s expenses for a considerable period of time.I accept her testimony and find that from 2017 she became the main and ultimately the sole breadwinner. I have no doubt that inflation and the natural upward progression of the family’s needs as the children got olderhave caused a drain on her resources. Her testimony about the maintenance costs at the property are credible and not unexpected in view of normal wear and tear as time progresses.

[26]It is obvious from the evidence that Mrs. Ralph is hanging on economically to a very basic existence and that she and the familyare atthe lower end of the working class. She is essentially shouldering the financial responsibilities of both parents.

[27]The parties were wed on January 7th 2009 when they were in their prime. He was 26 years of age and she 24 years.They are now 38 and 40 years old respectively. In the normal scheme of things they each would have at least another 25 years of productive life before retirement. Without a diagnosis or prognosis regarding the husband’s health challenges, it is impossible to forecast his potential to resume working and by extension contribution to the family’s upkeep. Quite likely, this may not materialize.For the foreseeable future the wife will have to continue to shoulder those responsibilities on her own.

[28]The decree nisi was pronounced on 7th June 2021. However, for all intents and purposes the marriage broke down in 2017 when Mr. Ralph left the home. The union was therefore relatively short, subsisting as it did for 8 years. It is commendable that the wife has been able to keep a roof over her head and partially meet the mortgage obligations. Even without empirical evidence as to each party’s contributions to the overall expenses during the course of the marriage, it is clear that Mrs. Ralph hasborne the lion’s share of those obligations for the better part of 6 years. That is roughly two-thirds of the length of the marriage. Any equity in the matrimonial home that might have accrued to the husband by virtue of being part owner would have been outweighed by the wife’s past and ongoing expenditure.

[29]Takinginto consideration all of the circumstances it seems to me that fairness in this case requires that Mr. Ralph’s legal and beneficial right to,interest and title in the matrimonial home be settled on Mrs. Ralph. I am not satisfied that Mr. Ralph has the means from which the court may make any other financial provision order. I therefore make none. Costs

3.Idelia Ralph’s application for a property settlement order is granted in the following terms: a) All of Bertram Ralph’s legal and beneficial right to, interest and title in the property registered in the joint names of Idelia Ralph and Bertram Ralph by Deed of Conveyance 3035 of 2010 be andis hereby settled absolutely on Idelia Ralph. b)Idelia Ralph shallon or before June 30th 2024 negotiate and finalize with the mortgagee institution of the referenced property, all necessary agreements and pre-conditions to the registration of the said property in her sole name; and shall arrange for the necessary instruments to be drawn up and presented to the Registrar to effect the change. c) On presentationof the necessary instruments by Mrs. Idelia Ralph, the Registrar is directed to execute any conveyances or other necessary deeds to give effect to the property settlement order made in this order.

[30]In matrimonial proceedings it is usual for each party tobears his or her own costs.There is no reason to deviate from that practice in this case. DISPOSITION

5.Liberty to apply.

[31]It is accordingly declared and ordered:

[32]I wish to express thanks to counsel for his written submissions. Esco L. Henry HIGH COURT JUDGE By the Court < p style=”text-align: right;”>Registrar

[1]Henry, J.: This is an omnibus undefended application by Mrs. Idelia Ralph (‘the wife’) for orders granting her sole custody of the two children of the family; maintenance for the said children, periodical and lump sum payments for the benefit of the wife and children; property settlement order and financial provision or transfer of property order for the benefit of the minor children.Bertram Ralph (‘the husband’), absented himself from the hearing and made no representation in relation to the application.

1.Idelia Ralph and Bertram Ralph shall sharejoint custody of the children of the familyuntil they each attain the age of majority, with care and control to Idelia Ralph.

2.Bertram Ralph shall have access to the children of the family for at least one hour each weekto be agreed between the parties.

4.No order is made regarding a) maintenance of the children of the family; b) the payment of periodical or lump sum payments for the benefit of the wife and/or the children of the family; or c) financial provisionfor the benefit of the wife and/or the children of the family.

6.No order is made as to costs.