Elvira MacDonald v Gilbert Massell

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES CLAIM NO. 61 OF 2012 BETWEEN: ELVIRA MAC DONALD APPLICANT -AND- GILBERT MASSELL (acting herein by his lawful Attorney-on-Record Randolph Toussaint) RESPONDENT Appearances: Mr Sylvester Raymond Cadette for the Applicant, Mr Andrew Cummings O.C. with Ms Annique Cummings and Mr Jadric Cummings for the Respondent. 2014: June 2. 3. 16 Sept. 29 JUDGMENT [1) Henry, J. (Ag.): This is an application by the Applicant Elvira Mac Donald tor a declaration of possessory title in respect of a parcel of land ("the disputed land") situate at Ratho Mill in the State of Saint Vincent and the Grenadines, more particularly described and delineated on survey plan G52/35, approved and lodged on November 24, 2011 at the Lands and Survey Department by the Chief Surveyor Adolphus Ollivierre. The application is made pursuant to the provisions of the Possessory Titles Act. Cap. 238 of the Revised Laws of Saint Vincent and the Grenadines 2009 ("the Act"). I BACKGROUND [2) The Applicant, who lives at Ratho Mill, St. V1ncent and the Grenadines, filed the Application for declaration of Possessory Title on 25th September, 2012 of the disputed land admeasuring seven thousand nine hundred and twenty three (7,923) square feet. Her application is supported by affidavits sworn by her, her husband Caesar Mac Donald and her cousin Desmond Carr all filed on September 25, 2012

[3]The applicant exhibited a survey plan 1 of the disputed land - G52/35 and two consecutive Advertisements publicizing notice of her Application in the Vincentian and Searchlight Newspapers on October 5 and 12, 2012, respectively'. She f1led aff1davit evidence on November 26, 2012 providing particulars of service of the Notice on adjoining land owners 3 She also filed on November 30, 2012 a Certificate of Compliance with section ?(b) of the Act. 4 No appearance was entered by anyone within the stipulated timeframe of one month from the date of the second publication 1n the Newspaper5 . Consequently, on November 30, 2011 a certificate of Non- Appearance was executed by the learned Deputy Registrar' [4) The respondent filed an Entry of Appearance on December 13, 2012 through his lawful attorney on record Randolph Toussaint. He made no application to the court for extension of time to enter appearance nor did he apply for relief from sanctions. Randolph Toussa1nt swore to and filed a witness statement on 28 December 2012. A witness statement of Fitzgerald Morgan was f1led on December 28, 2012 and of Dave 11 In accordance with section 6 (1) of the Act 2 Pursuant to section 7(1) {a) of the Act. 3 Pursuant to section 8 {1) of the Act. 4 Evidencing publication of the Notice of application in the High Court Registry. 5 One month from October 12, 2012 (i.e. November 13, 2012) ~In accordance with section 10 (1) of the Act. Frederick, Gilbert Massell and Benson Quamina on January 4, 2013 in support. An affidavit of David Frederick was filed on February 14, 2014 and of Randolph Toussaint and Benson Quamina on February 12, 2014. Affidavits of Fitzgerald Morgan and Gilbert Massell on April 30, 2014 and May 30, 2014 in support of the respondent's case.

[5]The applicant filed a further affidavit in response on January 21, 2013 and a Certificate of Compliance by the Magistrate' on March 19, 2013.

POINTS IN LIMINE

[6]On June 2, 2014 when hearing of this matter commenced, learned counsel Mr Cadette for the Applicant indicated that he wished to make two legal points in limine. He submitted: 1. "Mr Waithe owns the property. Mr Waithe died. There is no evidence that he died. Mr Massell should produce a death certificate of his death.". We do not know if he died intestate or testate yet Mr Massell is representing his father Mr Waithe. In the absence of a birth cert~icate in proof of the relationship between Mr Waithe and Mr Massell, a paternity order is necessary. In the circumstances Mr Massell has no locus standi in this matter. There is noth1ng to show that he has authority to oppose the application Mr Massell must get Letters of Administration to act on behalf Mr Waithe's estate. 2. The respondent has to prove if Mr Waithe or Mr Me Quilkin had the paper ownership to the property. Land can only be transferred by livery in seisin, in other words by possession. Mr Waite's concerns in respect of the land was based in contract only.

[7]In response, learned Queens Counsel Mr Cummings submitted: 1. This is not an administrative action but rather one under the Possessory Titles Act. The submissions made by Mr Cadette are irrelevant to this matter. The claimant has an irresistible duty to the court to prove that she meets the 1 Pursuant to section 7(1)(b) of the Act. criteria of adverse possession under sections 3 and 4 of the Act. She cannot hope to succeed unless and until those criteria are met. The respondent has locus standi under section 15 of the Act which allows anyone (with or without an interest in the disputed land) to come to court and state that the land belongs to "X". Gilbert Massell is hereby giving the history of the land and stating that the Applicant has no claim to the land. He is disputing the applicant's claim to the land and has suppl1ed a number of witnesses who are ready to testify 2. If in fact the applicant has elected to rely on his submissions that Mr Waithe owns the land, the applicant would have conceded that she is not entitled to a declaration of possessory title to the disputed land.

Ruling on the points in Limine

[8]In relation to the submrssion by learned counsel for the applicant that the respondent has no locus standi in this matter, the court is satisfied that based on the Respondent's witness statement filed on January 4, 2014, the affidavit of Randolph Toussaint filed on December 28, 2014 and the submissions of learned Queen's Counsel Mr Cummings, the respondent is not seeking a declaration of possessory title in respect of the subject property and accordingly is not disqualified from objecting to the grant of declaration sought by the applicant. Regarding the second submission that Mr Waithe's concern in respect of the land is based in contract only, the court is of the view that this is not a point which can be addressed until all relevant matters are adduced in a trial and no ruling is made in respect of that point.

[9]Finally, the court noted that learned Queen's Counsel submitted that the applicant having chosen to include as part of her first submission that Mr Waite is the owner of the land, will forfeit her claim (thus effectively disposing of this matter) if she does not succeed on that point The court is of the view that the applicant by relying on both submissions was seeking to raise alternative bases of objection against the respondent proceeding as a party before the court and was not necessarily conceding that another individual had a superior title to the one she is claiming. The justice of this case requires that the trial proceeds. EVIDENCE Case for the Applicant [10) The applicant alleges that she went into possession of the disputed land around 1990. She asserts that the land was occupied previously by James Me Quilkin who vacated it and went to North America where he died about 2008 8 She alleges that she immediately went into possession after the property was vacated by Mr Me Quilkin and she cultivates annual crops such as ground provisions, peas, corn, vegetables on it and maintain it up to the present. In her second affidavit filed on January 1, 2013, she states that she possessed the disputed property "for over 20 years, no one has ever trimmed it nor there is no need for trimming it since it was not in "continuous" use and is mainly covered in shrubs;"9 "I plant periodical crops on one section"; 10 I will enter the land cut down trees clean up certain areas and planted certain vegetables while Mr Morgan tied his animals further up;"11 "the stock on the land is owned by Mr Morgan with my authority;" Mr Massell has never cleared any bush from the land;"12 "I am retired and would not enter into fulltime agriculture;"13 "I claim possessory title .. by paying taxes for the said parcel on the name of James McQuilkin since the early 1990s." Exhibited to her affidavit are several receipts for payment of property taxes in the name of James Me Quilkin for 1990, 1991-1999 and 2000-2012. 8 See paragraph 2 of her aff1davit filed on September 25, 2012. 9 Paragraph 4 10 Paragraph 6 ,. · Paragraph 6 ., · Paragraph 10 13 Paragraph 14 [11) Under cross-examination, the applicant repeated much of her claims as set out in her affidavits and maintained that she had cultivated part of the disputed property for many years. She also stated that the public has access to the property and that no one has to ask permission to go on it and carry their goats and pigs there without permission She insisted that the disputed land has never been trimmed down. She also repeated her assertion that Mr Fitzgerald Morgan raised animals on the disputed land but not close to her end, that they would be tied about 5 feet away from the peas she planted [12) The applicant said that she knows the former Commissioner of Police Mr Randolph Toussaint who lives in the area right near to where she lives and has for over 10 years. She claimed that she is not sure if he has lived there for over 16 years. She indicated that if Mr Tousaaint was living there at the time that she cultivated cucumbers and other vegetables on the disputed land, she would have given some to him but he was not living there at that time. She admitted that paragraph 8 of her affidavit filed on January 21, 2013 confirms that Mr Toussaint came to live at Ratho Mill in 1997 some 17 years ago and that he got no vegetables from her because she planted none on the disputed land during that time.". [13) The applicant appeared to the court to be a witness who was bent on nothing more than establishing her claim to a declaration of possessory title to the property by adverse possession and if necessary being economical with the truth. In many instances, she appeared evasive and could not recall specifics about matters which a person of her background, intellect, education and training would be expected to recollect by reference to other related events and particulars_ She did not impress the court as a witness of truth. For this reason, where her evidence conflicts with that of other witnesses, their version is preferred and accepted. [14) Caesar Mac Donald's affidavit did not add much to that of the applicant and vaguely referred to occupation by the applicant of the land for over 20 years after James Me Quilkin left the State and went to North America to live. On cross-examination he stated that Randolph Toussaint lives across the road from his house at Ratho Mill. He recounted that he and the applicant have cultivated the disputed land but as they got older they stopped cultivating it and 1t might have been within the last 10 years they have stopped. When pressed for a year, he said he could not recall but answered that they planted crops there for some twenty years start~ng in 1986." He also said that recently Fitzgerald Morgan has been tying his goats on the parcel during the night, sleeping there in his car sometimes. He stated that they15 allowed them to keep their goats there to keep the grass low.

[15]The second and final witness for the applicant was Desmond Carr whose affidavit mirrored almost exactly that of Caesar Mac Donald. He testified that he is the applicant's cousin. Referred to paragraph 1 of his affidavit the witness admitted that although he attested that he lived in the area of Ratho Mill all his life, he in fact resides at Level Gardens for the past 48 years and that Level Gardens is about 5 to 6 miles from Ratho Mill. He concluded that that statement needs an amendment. He stated that the applicant planted corn and peas on the disputed property between 1990 and 2000 on the entire parcel, in his words "the whole place.". He also stated that the land was never cut down by anyone. Listening to this witness, the court got the distinct impression that he was a witness of convenience whose sole interest was in supporting his cousin, the applicant's claim He even contradicted the applicant when he said that she planted crops on the land between 1990 and 2000 when the applicant stated that she planted no crops from 1997 when Mr Toussaint came to live at Ratho Mill. His testimony is discredited in this and other particulars and is disregarded as not being credible. 14 20 years from 1986 would have ended in 2006.

15 Presumably he and the applicant

Case for the respondent

[16]Gilbert Massell's witness statement traced his knowledge about the disputed land from the1970s when his father Granville Waithe purchased it from Mr James Me Quilkin. He averred that although the purchase price was paid to one Mr Hudson Tannis on behalf of Me Quilkin, a conveyance was never executed. He denied that the applicant has ever planted any crops on the property or exercised any rights of ownership over it. He testified under cross-examination that he did not pay taxes in respect of the land and he did not know who did. He also testified that he gave Mr Randolph Toussaint a Power of Attorney No. 298 of 2012 in respect of the lot shown on survey plan G52/35 as the parcel comprising 7923 sq ft. In answers to Learned Queens Counsel Mr Cummings on re-examination he said that he treated the land as his own and cleared it on more than one occasion. His evidence was not discredited under cross-examination and he was forthright and credible.

[17]Mr David Frederick testified on behalf of the respondent. He is a licensed land surveyor who has lived at Ratho Mill since 1976, about 30 yards away from the applicant. He testified that if he is outside his house, he can see the disputed land from there and that the house does not totally obstruct his view. He stated under cross- examination that he has never seen the applicant on the land and has never seen anything planted there. Mr Randolph Toussaint also gave testimony on behalf of the respondent. In his affidavit he states that he has lives at Ratho Mill for 16 years, a few feet from the disputed land, on one side of a public road across the road from the applicant. He stated that he has never seen the applicant on the disputed land.

[18]Mr Fitzgerald Morgan gave testimony on behalf of the respondent although he testified that he does not know the respondent but he knows Mr Randolph Toussaint. His testimony was delivered in a terse, direct and matter of fact manner. He said that he lives about halt a mile from the applicant and the disputed land. Under cross~ examination he answered that he visits the disputed land every day because he has about 18 goats which he ties there and has been doing so for a number of years from before the applicant moved there. He responded that he returns to that land at night. He said he has never had a discussion with the applicant about getting permission to tie his goats there. He insisted that he has never seen the applicant on the disputed land and has never seen her or her husband plant crops, "not even a small garden, nothing at all" on the disputed land. Mr Benson Quam ina did not attend court for cross-examination.

[19]In general, the testimony of the Witnesses for the respondent is to be preferred over that of the witnesses for the applicant. Their delivery in court was straightforward and matter of tact. They impressed the court as witnesses of truth by their demeanour and posture throughout their testimonies. Mr Morgan in particular struck a chord as a no nonsense individual who was concerned with testifying based on his recollection. While the witnesses for the applicant were related other and might have personal reasons for supporting her claim, the witnesses for the respondent except for Mr Toussaint who is a family friend appear to have had professional relationships with the respondent and in the case of Mr Morgan no connection at all. Their testimony was credible and is accepted over that of the witnesses for the applicant.

Issues

[20]The issues which arise for consideration are twofold: 1. Whether the Respondent claims to have an interest in the said land and if so whether he has established adverse possession of the subject land for a continuous period in excess of 12 years coupled with a concurrent intention to possess the land as the true owner? 2. Whether the Applicant by her evidence and that of her witnesses has established that she has enjoyed adverse possession of the subject land for a continuous period in excess of 12 years coupled with a concurrent intention to possess the land as the true owner?

Applicant's Submissions

[21]Learned Counsel, Mr Raymond Cadette on behalf of the applicant submits that the respondent seems to have an ·Interest in possession of the disputed parcel as he stated that he cleaned it up and commissioned Mr Benson Quamina to carry out a cadastral survey for the purpose of establishing boundaries. Based this he submits that the respondent is making claim for adverse possession in this suit although he was not in possession for the statutory period. He submits further that the respondent has failed to prove his case and that accordingly it should be dismissed.

[22]Regarding the applicant's claim for a declaration of possessory title, learned counsel Mr Cadette submits that the applicant provided sufficient proof that the disputed land was under her undisturbed control from her arrival in Saint Vincent in 1986 to the present day. She showed that the land was abandoned by Mr Me Quilkin on h1s departure from Saint Vincent and as the land was adjoining hers, she acquired possession in 1990 and remained there undisturbed up to the present day. I must interject here that I reject that submission in its entirety as a basis for establishing adverse possession under the Act. He submits further that the main burden on the land is taxes, that Mr Waithe, Mr Toussaint and Mr Morgan not having shown any interest in payment of taxes for over 30 years, the applicant having done so now claims adverse possession Respondent's Submissions

[23]On behalf of the Defendants, learned counsel Mr Jadric Cummings in his written submissions relied on the decision of Slade J in Powell v McFarlane and Another (1979) 38 P. & C.R. 452 in the Chancery Division of the English High Court for guidance on the definition of "possession" and "animus possidendi" respectively, he cited with approval Slade J.'s pronouncements at pages 470-472 of that report that: "(2) If the law is to attribute possession of land to a person who can establish no paper possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi)" "(3) Factual possession signifies an appropriate degree of physical control. It must be single and exclusive possession ..... but broadly I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question, as an occupying owner might have been expected to deal with it, that no one else has done so''. On the matter of what constitutes "Intention to Possess" (animus possidendi) Slade J opined: "intention in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title, if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow". [24) Mr Cummings submitted further that "in cross examination, the Applicant admitted to not having any crops on the disputed land during the time Mr. Randolph Toussaint lived in the area, which was from 1997 to the present. Therefore, by her own admission, the Applicant could only have planted crops from about 1992 to 1996, a period of four years, if at all. Accordingly, 12 years adverse possession in accordance with the Act did not pass." And also that "By the Applicant's own admission in cross examination, anyone was allowed to go onto the disputed land without her permission as it was not enclosed and in fact, Fitzgerald Morgan tied animals on the disputed land some 5ft away from where she allegedly planted peas. "Mr. Fitzgerald Morgan, who was called as a witness by the Respondent, gave evidence in support of the fact the he tied animals on the disputed land for several years with the permission of Mr. Randolph Toussaint (lawful Attorney-on-Record for the Respondent), not the Applicant herein as alleged by her.".

[25]Mr Cummings also submitted that "Mr Dave Frederick, a licensed land surveyor, who has lived at Rathe Mill since 1976 in close proximity to the disputed land and to the Applicant herein, gave evidence that at no time has he ever seen crops planted on the disputed land or seen the Applicant herself present on the disputed land." Accordingly, this illustrates the lack of factual possession accompanied with the requisite intention to possess for 12 years that is necessary for there to be a finding of adverse possession pursuant to Section 2 of the Act.

[26]Mr Cummings also contends that "Slade J indicated that the 'intention to possess' meant "intention in one's own name and on one's own behalf, to exclude the world at large ... " it is clear from the Applicant's own admission, she did not seek to exclude the world at large in that anyone could come on to the disputed land without her permission. Fitzgerald Morgan's presence on the land, tying animals for years without her permission or interference clearly supports this." The payment of taxes does not evince any possession whatsoever. Section 2 of the Act provides that there must be a coincidence of factual possession and intention to possess for 12 years as owner. The Applicant Elvira McDonald, has failed to prove to the court that she planted crops on any part of the disputed land as alleged or at all, or to show factual possession in any way whatsoever. The Applicant has admitted that the disputed land is not enclosed and that anyone was free to go on the land. Accordingly, the Applicant has failed to meet any of the criteria necessary for obtaining a declaration of Possessory title in that she has failed to prove that she has been in 'actual possession of an exclusive and undisturbed nature of a piece or parcel of land 1n Saint Vincent and the Grenadines for a continuous period of twelve years or more accompanied by the requisite intention to possess the said land as owner. Therefore, the Application for declaration of Possessory Title must fail." Law and Analysis [27) The Applicable law is contained in the Possessory Titles Act Cap. 328 of the Revised Laws of Saint Vincent and the Grenadines 2009 ("the Act") which creates the legislative framework governing the grant of a declaration of possessory title. Sections 3 and 4 provide respectively: " 3. Application for declaration of possessory title (1) A person who claims to be in adverse possession of a piece or land in Saint Vincent and the Grenadines shall be entitled to make an application to the Court for a declaration of possessory title to the said land. (2) .. (3) .. (4) ... 4. Content of application An application shall be made in accordance with Form 1 of the First Schedule and shall state- ( a) the description of the land. giving its extent. its boundaries and its estimated value; (b) the facts upon which the applicant relies to establish adverse possession; (c) whether to the applicant's knowledge, any other person claims or is capable of cla1ming to be the owner of the land for which the declaration is being sought; and (d) the name. if any. of any person recorded in the Registry and entitled to ownership of the land immediately before the period of adverse possession began to run. (bold mine) "adverse possession" is defined in section 2 of the Act to mean "factual possession of an exclusive and undisturbed nature of a piece or parcel of land in Saint Vincent and the Grenadines for a continuous period of twelve years or more accompanied by the requisite intention to possess the said land as owner thereof.

[28]Sections 5 and 6 provide respectively that affidavits and a survey plan must accompany the application; as well as copies of advertisements in two issues of newspapers circulating in Saint Vincent and the Grenadines notifying the public of the fact and contents of the application. Sections 7 (2) and 9 of the Act empowers a person with an interest in the subject property to enter an appearance within one month from the date of last publication of the advertisement in a newspaper and file a written claim "setting out the name of the person who has title to the piece or parcel of land and a statement of the facts on which the claim is founded.

[29]Sections 10 (2) & (3) and 12(3) of the Act provide: "10. Duty of Registrar in respect of proceedings (1 ) ... (2) Where a person enters an appearance pursuant to section 7, the Registrar shall, at the expiration of the time fixed tor appear- ance enter an application in his cause book as a suit in the name of the applicant and of the person who has appeared as the respondent (3) The affidavits and written claims filed in support of an application under sub- section (2) shall stand as pleadings and no further pleadings shall be tiled without the leave of the court." "12. Default judgement or ex parte proceedings (1 ) .. (2) ... (3) Where a person who has entered an appearance pursuant to section 7 fails to file a written claim within the time allowed for so doing, the applicant may proceed ex parte and the Court may make an order or give a decision as it sees fit."

[30]Sections 15 (1) and (2), 19 and 20 of the Act state "15. Person who has information may file affidavit (1) A person who has information in relation to the nature of possession of the piece or parcel of land by the applicant, may file an affidavit with the Registrar whether or not he has an interest in the said piece or parcel of land or whether or not he intends to file an opposing claim with the Registrar. (2) An affidavit tiled pursuant to subsection (1) shall- ( a) attest to the truth of the facts set out therein; (b) be filed with the Registrar; and (c) be served on all parties to the proceedings." "19. Procedure for making applications under this Act The Eastern Caribbean Supreme Court Civil Procedure Rules. 2000, except where expressly excluded, shall apply to all proceedings made under this Act. "20. Proceedings not void for want of form No petition, order, affidavit, certificate, recording or other proceedings under this Act shall be invalid by reason of any informality or technical irregularity therein, or any mistake not affecting the substantial justice of the proceedings."

[31]In addressing the first issue outlined in paragraph [20]. an examination of the pleadings in this case is necessary. It ·Is important to note that the Entry of Appearance by the respondent was filed out of time on December 13, 2012, exactly two months after the time limited for entry of appearance under the Act. 16 Section 10 (3) of the Act stipulates that no further pleadings filed outside of the strict parameters of section 7 of the Act shall be filed without leave of the court. This position is further bolstered by section 19 of the Act which prescribes that the Eastern Caribbean Supreme Court Rules 2000 ("CPR") apply to proceedings under the Act. By extension, the requirements for compliance with timelines coupled with the mandatory provisions for application for extension of time and relief from sanctions under the CPR are imported into these proceedings by that section The respondent having failed to comply with those stipulations could not without leave of the court seek to rely on his affidavits and witness statements to make a claim for a declaration of possessory title. He does not seek to do so either in his pleadings, viva voce testimony of his witnesses and himself or in written submissions by his counsel. I therefore find that the respondent has not made a claim for declaration of possessory title and make no finding in respect of his entitlement to a grant of such declaration. Indeed the respondent's case as set out in his affidavit and his supporting witness statements falls squarely within the provisions of section 15 and I find that his intervention is made pursuant to that section. [321 The applicant seeks a declaration of possessory title in respect of the disputed land. To sustain such a claim, the applicant must discharge the burden of proof on her on a balance of probabilities. I agree with the submissions by learned counsel Mr Jadric Cummings that she must establish factual possession of the land and an intention to possess the land to the exclusion of all others. As stated by Slade J Powell v McFarlane and Another "factual possession" signifies an appropriate degree 16 1bid. of physical control. This must be coupled with the requisite intention to own the land. The applicant relies on two main indicia to establish factual possession, namely the act of cultivation by her of peas, corn and annual crops on the disputed land and the payment of taxes. She has produced receipts for payment of taxes for a period of 20 years. The receipts are in the name of James Me Quilkin. Other than the testimony of the applicant, there is no independent evidence regarding who paid the taxes. In addition, the evidence of the applicant and her witnesses that she cultivated the disputed land for over 12 years is so totally discredited by her own testimony, that of her witness Desmond Carr and witnesses for the respondent that it is doubtful that she cultivated the land for the 12 year period immediately preceding the application for declaration of possessory or at all. While she might have formed an intention to own the land, she did not exercise effective or any control over the disputed land by excluding all others. The evidence throughout from both sides is that she took no steps to exclude anyone from accessing or using the disputed land. I reject that evidence of the applicant and find that the applicant did not cultivate any crops on the disputed land as she claims, nor did she exercise any acts of ownership over the disputed land at all. In all the circumstances of this case, I find that the applicant has not established to the satisfaction of the court on a balance of probabilities that she has enjoyed exclusive and undisturbed possession of the disputed land in excess of twelve years as she claims. Her application for a declaration of possessory title is dismissed. ORDERS It is accordingly ordered: 1. The applicant's application for a declaration of possessory title of property situated at Rathe Mill in the state of Saint Vincent and the Grenadines, measuring 7,923 sq.ft and delineated and described in survey plan G52/35 approved and lodged on November 241h, 2011 by Adolphus Ollivierre is dismissed. • 2. Applicant is to pay the respondent's costs of $2000.00.

Esco L. Henry

HIGH COURT JUDGE {Ag.)

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES SUIT NO. 128 OF 2009 BETWEEN: GREGORY KEITH ANTHONY BOWMAN -AND- MAR LEISE CLARE-WEN JACQUELINE BOWMAN nee LIVERPOOL PETITIONER RESPONDENT Appearances: Ms Paula David for the Petitioner, Mr Olin Dennie for the Respondent. 2014: July 23 Sept. 29 DECISION BACKGROUND [1) Henry, J. (Ag.): Thrs is an application by t11e Applicant/Respondent (“Respondent”1 ) for reimbursement of half of ("the relocation expenses in respect of the two minor children of the marriage, pursuant to a decision by Justice Monica Joseph (as she then was) dated October 4, 2011. Madam Justice Joseph’s decision was made pursuant to an application for ancillary relief by the Petitioner regarding entitlement and distribution of matrimonial property between the parties and maintenance for The children. at paragraphs [28) and [51) 3 of her decision, the learned judge ordered “[28) … I also hold that the parties are to meet relocation expenses equally. [51} 3. Relocation expenses to Canada of the children to be met equally by the parties. The Respondent to present a statement of those expenses in Chambers on 161 h November 2011 ” 1 Respondent in the substantive matter

[3]The matter was heard in Chambers on July 23, 2014 and both parties were crossexamined on their affidavit testimony. the Petitioner conceded in llis Affidavit and In his oral testimony that some of the items were reasonably incurred and that the Respondent should be reimbursed ~In respect of t11ose. He challenged other items outright contending that those were not relocation expenses. He also accepted that yet other items while being relocation expenses, were purchased or billed by the Respondent at excessive prices and should be discounted to reflect more realistic amounts. ISSUES

[5]The learned judge Madam Justice Joseph in paragraphs

[4]Three issues arise for consideration· LAW 1 What constitutes “relocation” expenses and which items on the Respondent’s list fit within that description?

[6]Section 31(1) (e) & (f) empowers the court to make “(e) an order that a party to a marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the Court, such periodical payments, for such term, as may be so specified, (f) an order that a party to a marriage shall pay such person as may be so specified for the benefit of such child, or to such a child, such lump sum as may be so specified,” Sectrons 34(1 )(a) and (b) and (2) of the Act requrres the court In making a determination inter alia under section 31(1) (e) and (f) “to have regard to all the circumstances of the case including the following matters, that is to say- “(1) (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have, in the foreseeable future; (b) the financial needs, obligations and responsibilities which each of the parties to The marriage has or is likely to have, in the foreseeable future: (2) (a) the financial needs of each child; (b) the income, earning capacity if any), property and other financial resources of the child; (c) any physical or mental disability of t11e child; (d) the standard of living enjoyed by the family before the breakdown of the marriage; (e) the manner in which he was being and the manner in which the parties to the marriage expected him to be educated or trained. and so to exercise those powers to place the child, so far as it is practicable and, having regard to their 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

[7]“Relocation” is defined in the online Merriam-Webster dictionary as to establish in a new place”. Applying the Golden Rule of interpretation the expression “relocation expenses” will be given its ordinary dictionary meaning, I.e. “expenses associated with and reasonably incidental to establishing oneself in a new place.” ANALYSIS AND FINDINGS What constitutes relocation expenses

[8]Taking into account the factors listed in section 34 of the Act, I have examined the respondent’s claims and the petitioner’s submissions and conclude as outlined below. based on the description of “relocation” expenses contained in paragraph [7], it is necessary to review and analyze the list of items in exhibit “ML 1” to determine which of those qualify for consideration as relocation expenses. While the respondent did indicate in response to a question by learned counsel Ms David under crossexamination that she was “relying on her affidavit” and not on exhibit ML 1 “, ML 1 is a comprehensive record of the several items originally claimed by the Respondent as relocation expenses. I am of the view that an assessment of the list would provide an excellent overview of the opposing positions of the parties throughout this part of the proceedings. I have re-arranged the items in the list and set them out in tabular format for ease of reference and analysis. I have also inserted an item which was claimed separately by the Respondent during her testimony but which were not included in ML 13 . It was also necessary to adjust some of the unit prices and total costs to achieve mathematical accuracy which in some instances is lacking in the quantification and calculations in ML 1.4 3 that is “accommodation” for the period January 1, 2011 through July 1, 2014. 4 For example, item No. 2 (North Face winter jackets) on ML 1 reflects a unit price of US$250 which computes to US$1500 and EC$4,075.35. The amount entered as the US dollar total is US$1350 with an EC dollar total of $3645.00. ! ~o -I ~t~i;:~~::~of ~ten1 ~~~ ~~~e I ~~;I ~ij~t · 1— ·t__· . –.~1, l2 • 2Jetblue airline tickets (Barbados io ,-US$506 -, EC$274-9 !)()I I NY, USA)’ ‘I ‘ 3 2 LIAT/Cheapo airline -ticketS(Si CD$737 37 –EC$2057.26 1- -~’ Vincent to Barbados)* , r ~-·-· ~~~arturetax (stvince_n_tto Barbados)rus$ 40 _EC$21735 T 5 Greyhound Bus tickets (NY, USA to US$158 , EC$858.54 Canada) x 2′ 6—(a) Shipment of 2 packages(NY to-~ US$100 r Canada) on Amerijet* i 1-. “‘ “”””””””‘” , “”‘”‘”T”‘”‘”‘ · 7 6 winter jackets• US$225 EC$3667.81 8 1 6 sweaters• US$80 EC$1304. 11 —– – ———- ———- ‘ – – 9 2 female winter shoes• , US$180 EC$978.08 EC$540 I I I f-‘-~+’-‘ ·— — -· ·–·- . . , ___ ·– ,~! ~ ~:~;::e~:~~i::. ~m~~ ~~!~~0~;;661_+_ , -~ 13 Immigration fees’ CDN$2500 EC$6975 . 14 2 beds’ · CDN$500 EC$2790 15 1 dining room furniture set• CDN$899 EC$2508.21 1 living room furniture set• CDN$799 EC$2229.21 1 set kitchen utensils+ CDN200 EC$558 18 School registration fees• • CDN$90 EC$502.20 ,–, 1″9,—-tc;cT:ccra-c:nsportat;on to-school+ · CDN$2400 E($6-69_6 __ 20 1 Basketball uniloim+-~- CDN$75 __ E_C$209,25 j_—+- 21 ; Food for overnight gam_es+_ __ I CDN$300 ‘ EC$837 , 22 Mikaila’s basketball flractjce+ CDN$480 EC$13_3920 23 MacGregor’s Phys1o and weight ! CDN$48 EC$133.92 training+ –1—CDN$ Groceries+ EC$6138 I [-;2″”5~”‘: o-La-Lcclncdry+ CDN$105 EC$292.95 26 Accommodation -Jan.1, 2011-Jul+. CDN$1055 EC$63,164 1, 2014′ Medical tests* EC$185.00 EC$370.00 _!_j

[9]The Respondent abandoned l1er claim for reimbursement in respect of a number of the items in the above list In that regard, at paragraph 24 of her affidavit she stated I that “the cost of laundry services and groceries has been inadvertently stated as a relocation expense”. They appear at lines 21 and 25 in the table. There IS no need for the court to consider them further. They are accordingly disallowed. Likewise, in h”1s written submissions, learned Counsel Mr Dennie on behalf of the Respondent restricted the claim to accommodation, clothing (including footwear), travel and shipping expenses (including the cost of suitcases), medical reports, educational expenses, furniture and immigration fees s He omitted any reference to reimbursement for kitchen utensils, transportation of the children to school, basketball uniform, food for overnight athletic games, basketball practice and physic and weight training for MacGregor coupled with the Respondent’s pronouncement that she was not relying on ML 1, is 111terpreted as an abandonment of that part of the original claim, unless indicated otherwise. [1 0] If however I am wrong, suffice it to say that except for the kitchen utensils the other items would in no circumstances be captured by the descriptive term “relocation expenses”. When making the order for the Petitroner to pay the Respondent $1500.00 for maintenance of the children, Justice Joseph took into consideration the Respondent’s account of the sums she expended for food and transportation of the children. It is obvious that the maintenance award was intended to cover transportation, food, clothing and other related expenses of the children which were not associated with and reasonably incidental to them establishing themselves in a new place. For this reason, the Respondent’s claim for reimbursement of a part of those amounts is disallowed. Regarding the kitchen utensils, although the Respondent did not produce any receipts in proof of purchase or to guide t11e court in assessing what amount was in fact paid for such items, the court is minded to allow a nominal amount for those as the Respondent would have needed to purchase a set of kitchen utensilsG for the family’s use. In all the circumstances, having regard to the cost of those items in Saint Vincent and the Grenadines, it is reasonable to infer that the figure entered in ML 1 is a fair representation of what the Respondent would have spent for those wares. The Petitioner is required to contribute ‘h of EC$558, being EC$279 00. Rental Accommodation -Relocation Expense

[15]Learned counsel Ms David submits on behalf of The Petitioner that the Petitioner agrees that winter jackets, winter boots and sweaters reasonably constitute relocation expenses as the children were relocating from a tropical to a temperate 0 The equivalent of CDN$1 055.00 9 Items numbered 2, 3, 4, 5, 6 and 27 1n the table 13 A conversion rate of $US1 = EC$2 7169 and CON$1 = EC$2.79 is used throughout. climate at the beginning of winter. the Petitioner, however, disputes the sums which the Respondent says she paid for those items and in the case of the winter coats and winter shoes, if the Respondent bought the numbers of those items which she says she did, she purchased with reckless disregard to the financial means of both the Petitioner and herself.” She added” .. If even "the Respondent bought only one North Face winter Jacket for each child and paid US$250 00 for it, she would have purchased recklessly” She submitted further that each child needed only 1 jacket and a reasonable price for 1 jacket would have been in the vicinity of US$100.00. the Petitioner submitted further that 6 sweaters as a reasonable number to acquire for the children but rejects the claim that each sweater cost US$80.00 as stated on the table or between US$80.00 and US$150.00 as the Respondent claimed in viva voce evidence. The Petitioner contends that if the Respondent did spend that amount of money she did so recklessly. Instead, through His attorney he asserts that a reasonable price for each sweater would be in the vicinity of US$25.00.

[16]While the Petitioner accepts that a pair of winter boots for each child was a reasonable relocation expense, it was submitted on his behalf that ·’if the Respondent did purchase high end Timberland boots for the children, given the financial resources both of herself and the Petitioner, she spent recklessly.” It was also submitted that “based on his exhibit GB13. an allowance of US$100.00 for winter boots for each child would be a generous allowance which would afford each child high quality winter boots. In addition, Ms David submitted that “a family in the position of the Petitioner’s and Respondent’s would have had no business purchasing high end, designer coats, sweaters and boots for their children. The winter clothing which the Respondent claims to have purchased for the children exceed what is reasonable given the income, earning capacity, property and other financial resources of the parties to the marriage and though the children may have wanted designer clothing, they did not need them.” [17J The evidence of the parties is t11at the Respondent at the time had an income of $4000 plus from the government of Saint Vincent and the Grenadines while the Petitioner earned over $5000.00 per month from his employment. The Respondent In response to a question in cross~examination indicated that when she emigrated to Canada in 2011 the only income she was receiving was JUst over $4000.00 from the government. She also exhibited to her affidavit as exhibit ML 16, a Jetter from t11e Chief Personnel Offrcer dated July 8, 2011 approving no pay leave for her from July 1, 2011 to June 30, 2012. it would appear therefore that unless the Respondent was on no pay leave from January 1, 2011 to June 30, 2011, she was receiving her salary from the Ministry of Education.

[11]the respondent. claims payment by the Petitioner of EC$31,582.007 for rent for the children for the period January 1, 2011 through July 1, 2014. This she claims to be one of the relocation expenses incurred 111 respect of immigration to and settlement In -·–··– 5 These appear as items 1- 16 18 and 26 in the table_ c Including pots and pans, dinnerware, flatware, linen etc_ 7 The Respondent’s submissions contain a f1gure of $63,164 00 being half of the global sum of $126,328.41. the Respondent attributes this half to the children w1thoul seeking to apportion the amount between the Respondent and tlw Petitioner respectively. Canada. It is worth noting that Justice Monica Joseph at paragraph

[18]Justice Joseph in rendering her decision on the Petitioner’s application for ancillary relief remarked at paragraph

[19]During her testimony the respondent gave the impression by her words and her body language that there was not much limit to what reasonably is required to satisfy the requests and desires of the children of the marriage with respect to their clothing requirements_ She said as much in response to a question in cross-examination when she responded “I do not say that $80 is too much to pay for a sweater for a teenager. She looked at it. She liked it. I am going to get it. .. Nothing is too much for my children.” It does not appear from what the Respondent said that any other consideration affected her in purchasing the sweaters. Th’1s is unfortunate as the parties resources are not limitless. with respect to the winter jackets she stated that she was going to purchase one for US$175.00 but her uncle advised her that the quality was not good and she chose instead to get the more costly one because it was better quality. This in my opinion is reasonable. In light of the respective resources available to the parties at the relevant time, I am of the considered opinion that two winter jackets would have been adequate for the children’s needs as this would allow for cleaning while ensuring that they had adequate protection during any period of cleaning. Similarly, it seems reasonable that the Respondent purchased 3 sweaters each for the children, a pair of winter boots and two pairs of winter shoes.

[13]Notwithstanding, the court notes that in her Certificate of Exhrbit “ML 1” the Respondent lists as item number 8 an amount for “deposit, first and last month’s rent”. The court takes into account that the Respondent will get the benefit of the last month’s rent and the deposit at the end of the tenancy, provided that no damage rs done to the property. Havrng regard to the principles of equality and fairness referenced in the Act, it is reasonable that the Petitioner be required to assist with those additional expenses which could be burdensome for a family to absorb along with the main expenditure and other miscellaneous incidentals which arise necessarily as a pa1t of settling into a new country. Accordingly, the Petitioner is required to pay the sum of EC$2943.458 to the Respondent to assist with the initial outlay of the security deposit and last month’s rent. Reasonable Relocation Expenses Travel and shipping

[20]The Respondent has failed to produce any receipts for the winter clothing which poses a challenge in assessing what sums were actually expended I find it difficult to accept that the Respondent was unable to locate or obtain from the merchants she sourced the clothing receipts or duplicate receipts. The Respondent by stating she is not relying on ML 1 has failed to provide any evidence regarding the number of jackets she bought. She states in paragraph 10 of her affidavit that she paid some US$250.00 for good jackets. Exhibited to her affidavit is exhibit MB11 showing a timberland boot at a price of $175.00 (presumably Canadian dollars) Under cross-examination she stated that the children are still using those jackets purchased in 2011. for his part, the Petitioner proposes a figure of US$25 for a sweater and US$100.00 for one pair of winter boot in respect of each child. The imprecision of the claims by the Respondent in respect of the purchase prices of the winter jackets, sweaters, boots and shoes leaves no option but for the court to seek to strike a rough median between the figures proposed by the Petitioner and those advanced by the Respondent Accordingly, the amounts allowed in respect of the purchase on winter clothing are· (i) US$100.00 for one parr of winter boots for the each child- US$200; (ii) US$ 60.00 for two pairs of winter shoes for each child – US$240; (iir) US$160.00 for one winter jacket for each child – US$320, (iv) US$35.00 for 3 sweaters for eacl1 child – US$210; Total – US$2635.39/EC$7160.09 The Petitioner is to contribute and reimburse the Respondent half of that sum, being EC$3580.05. Furniture

[21]The Respondent claims contribution by the Petrtioner of EC$7,198.21 for furniture as part of the relocation expenses. She asserts that she bought beds for each child at a cost of CDN$2225.00; a dining room set at a price of CDN$550.00 and a living room set at price of CDN$869.98, an overall total of CDN$3644 98. Learned Counsel, for the Petitioner submits on this aspect of the claim that “While it is reasonable to say that furniture used exclusively by the children is a relocation expense; it is not quite so straightforward to say that the cost of communal furniture such as living room and dining room furniture should be apportioned between the pat-ties There is also the problem that the Respondent has not exhibited even a single receipt for any item of furniture.·· In addition, she submits that tile Petitioner ” … swore her affidavit scarcely over a year after she must have bought the furniture. It is passing strange that 1 year after making those major purchases the Respondent is unable to supply a single receipt for even 1 item of furniture.” I agree with that observation. While one might excuse the Respondent for not retaining the receipts for clothmg items, it would be expected that she would have kept receipts for the higher priced items like furniture. This is particularly so having regard to the fact that the respondent was put on notice by the decision of Justice Joseph that a further hearing would subsequently consider relocation expenses. J do not accept that the respondent was unable to locate those receipts It would appear that the Respondent deliberately withheld those receipts. Jt is reasonable to conclude that is she did do, it could only be to enable her to artificially inflate the cost of the furniture.

[22]It cannot be denied that the Respondent would have had to purchase furniture in the ordinary course of living. Both she and the children would use those items. I agree with the submission of learned counsel Ms David that the Respondent would benefit most from the acquisition of the furniture as she would be utilising them for a much longer period than the children, who would be expected to leave home on attaining adulthood. Be that as it may I am satisfied that the acquisition of those pieces of furniture were part of the relocation expenses for the family. She is allowed as reasonable expenditure in this regard: (i) (ii) (iii) CDN$550 for the cost of one bed for each child CDN$400 for the cost of a dining room set CDN$650.00 for the cost of a living room set Total – EC$3069.00 – EC$1116.00 – EC$1813.50 – EC$5998.50 the Petitioner should contribute half of the cost of the beds and Y. the cost of the living and dining room furniture. He is accordingly required to reimburse the Respondent the sum of EC$2266.88. Educational Related Expenses

[23]the Respondent claims the sum of CDN$90.00 each in respect of registration of the children at school on their first entry into the Canadian school system. She produces no receipts for this but exhibits the package she says was given to her in connection with Makaila’s registration. It appears that: the fee is an administrative fee referable to processing of the children. Learned counsel Ms David challenges this amount and submits that the Petitioner “disputes the Respondent’s claim that she paid any money towards the “Reception and Assessment Centre” tests or in respect of registration fees for school as claimed at paragraphs 21 and 22. Exhibit “MB14″ is not a receipt for CAD$90.00 or any other sum. the Respondent did not supply any receipt for either sum of CAD$90.00 which she claims at paragraphs 21 and 22.” She submitted that the claims should be disallowed. It is understandable that the Respondent might have misplaced the receipts for these sums. the amount is not great comparatively speaking and is incurred with respect to processing of the children’s entry into school. the court takes judicial notice that even in Saint Vincent And the Grenadines such fees are payable for admission across the school system. it fits within the description of relocation expenses. the sum is accordingly allowed and the Petitioner is required to contribute Y, of the fee being CDN$90/EC$251.1 0. Immigration Fees

[25]The Petitioner testified that he never migrated to Canada as the Respondent withheld his landing forms and has never released them to him. Additionally, he claims that he paid $980.00 towards those fees and is entitled to be rermbursed. the Respondent admits that the Petitioner paid that portion of the immigration fees. It is difficult to understand why the Respondent would seek to have the Petitioner reimburse her for immigration fees referable to his migration into Canada when by her deliberate actions the Respondent prevented the Petitioner from emigrating to Canada. In the premises, the Petitioner is entitled to be reimbursed for any sums he paid In excess of contributions for the half of the children’s fees. The Petitioner would have been responsible for CDN$150.00 being half of the fees applrcable to the children. He paid CDN$980 00, an excess of CDN$830 00/EC$2315.70. Thrs sum wrll be offset against the total amount payable by the Petitioner to the Respondent ORDER

[26]it is ordered as follows: 1 the Petitioner shall pay the Respondent the sum of EC$279.00 being of EC$558 00, paid by the Respondent to acquire kitchen utensrls.

[24]The Respondent claims CDN$700.00 from the Petitioner for immigration fees. She avers that the Petitioner contributed CDN$980.00 towards the bill of CDN$2380.00 paid for immigration fees, leaving a balance of CDN$1400.00 which she paid. In her written submissions Ms David posited that the Petitioner ” … admits that he is responsible for contributing towards immigration fees for the children as this is a relocation expense. The Respondent’s exhibit “MB12″ shows that CAD$150.00 was payable in respect of each child. At paragraph 19 of her affidavit t11e Respondent admits that the Petitioner paid CAD$980.00 towards those fees. Since half of immigration fees paid for the children is CAD$150.00; the Petitioner has overpaid $830.00 towards this item.” Indeed in response to questions from the court, the Respondent answered that .. the fee of $550.00 was paid in respect of me as principal applicant” and the second mount of $550 00 she paid in respect of the Petitioner. The other charges on the exhibit are a duplicated fee of $150.0011 for family members under the age of 22 and another double fee of $490.00 for permanent residence.”

[2]The Respondent filed a “Notice of Frling of Relocation Expenses to Canada” on November 9, 2011 and attached a Certificate of Exh1b1t marked “ML 1 “. The exhibit ”ML 1″ contained a list of 26 items ranging from airline tickets, suitcases, winter jackets and sweaters to laundry expenses. The Petitioner/Respondent, (”Petitioner”2) filed an Affidavit on November 16, 2011 responding to and expressing his agreement and concerns respectively with the items listed. By Affidavit filed on February 14, 2012 the Respondent responded to the Petitioner’s Affidavit and gave explanations in respect of the concerns highlighted by him

2.Does the expression “relocation expenses” cover rental accommodation for the period January 1, 2011 through July 1, 2014?

3.In the circumstances of this case, what are reasonable relocation expenses in respect of the children of the marriage MacGregor Anthony born on March 31, 1993 and Mikaila Leisa born on May 6, 1995 and what individual and global amounts should the Petitioner pay to the Respondent as his contribution?

[11]and

[13]of her decision identified the factors which the court must take into account in exercising its discretion regarding the distribution of matrimonial property and the parties’ contributions to the welfare of the family. She referred to section 34 (1) of the Matrimonial Causes Act (Cap. 239) of the Revised Laws of Sa1nt Vincent and the Grenadines (“the Act”) which outlines the factors which the court must take into account 1 Pet1t1oner m the substantive matter in exercising that discretion as being: “the income, earning capacity, property and other financial resources which each of the parties to the marriage has. or is likely to have, in the foreseeable future ” Very importantly she highlighted the need for the court to seek to achieve equality if equality is fair. The twin concepts of equality and fairness must therefore exercise the court’s attention and focus in resolving applications for ancillary relief including the present application for relocation expenses.

[37]of her decision addressed the issue of maintenance of the chHdren and stated: “The Petitioner is employed and the Respondent has been unemployed from the time she arrived in Canada. The Respondent claims that from December 2010 ehe paid rent for herself and the children CAN$1055.00 monthly up to July 2011 totaling some CAN$7,371.00· she also paid for groceries CAN$153.00 to $200.00 per week, in addition to transportation expenses, (no figure g1ven) for them to attend school. I hold that the Petitioner is to pay maintenance for both children at$ … per month. Although MacGregor 1s eighteen I accept that he needs special attention and the order with respect of him will be made until he is twenty at which time it should be reviewed.” (underlining mine for emphasis). I note here that although the amount awarded for maintenance is missing from this paragraph, it is captured in paragraph [51]2 as $1500.00. The entire paragraph reads: “The Petitioner is to pay $1500.00 monthly maintenance from January 2011 for the children to be reviewed when MacGregor attains twenty years of age.” It is important to note that in arriving at the figure for maintenance of the children, the learned judge considered the amounts which the Respondent claims she paid for rent and groceries. She also took into account an undisclosed sum for transportation costs. This leads to the inescapable conclusion that the maintenance award included an element for monthly accommodation.

[12]In addition, 1! would be Illogical for the court to hold that a period of 43 months from January 1, 2011 through July 1, 2014 IS a reasonable period for settlement, and accommodation over that time as part of relocation expenses. I reject that submission. To require the Petitioner to pay the Respondent an amount for accommodation of the children over and above the maintenance awarded by the court would be to award two separate and concurrent amounts to the Respondent in respect of accommodation. If the Respondent’s circumstances had changed since the initial award of maintenance she was entitled to apply to the court at any time for revision of the award. She has not done so. She is not permitted to achieve that result in this manner. Her claim for 43 months rent in respect of the children is dismissed

[14]Learned Counsel Ms David for the Petitroner submitted that a number of the expenses claimed are reasonable and are not disputed by the Petitioner. In this regard, she submits that US$229.50 each for the JetBiue tickets, US$124 25 each for the LIAT tickets to Barbados, EC$40.00 paid as departure tax for each child, EC$185.00 each paid for the medical tests for each chrld, US$42.00 each as the cost of Greyhound tickets for each child, US$134.18 for shipment of personal effects from New York to Canada and CDN$172.62 for customs duty were sums reasonably incurred for relocation expenses. Likewise in paragraph 2 of his affidavit, the Petitioner does not object to the expense of EC$200.00 related to the purchase of 2 suitcases claimed by the Respondent in ML 1. This position accords with the Respondent’s claim as outlined in her affidavit and in written submissions in support. I am of the view that those expenses were reasonably incurred as necessary incidentals to relocation of the children The Petitioner is therefore ordered to pay one half of the total cost of airline and bus tickets, departure taxes. medical tests, suitcases and one third of the amount paid for shipping personal effects and the related customs duties.9 The global award for those items payable by the Petitioner is EC$1749.59.10 I so order. Winter clothing

[39]of her decision: “Counsel for the Petitioner’s submission was that prior to the breakdown of the marriage, the parties enjoyed a comfortable middle class lifestyle … I accept counsel’s submission.” I too accept that as the correct position as between the parties which I am of the firm conviction has continued even after the breakdown of the marriage after an initial re-settlement period endured by the Respondent and the children. I am fortified in that position having read the Affidavits of both parties, heard their oral testimonies and generally observed their conduct and demeanour during the hearing and as can be inferred from their several statements.

2.The Petitioner shall pay the sum of EC$2943.45 to the Respondent being an amount equivalent to one month’s rent, to assist with the initial outlay of the security deposit and last month’s rent.

3.The Petitioner shall to the Respondent one half of the total cost of airline and bus tickets, departure taxes, medical tests, suitcases and one third of 11 PCJid in respect of the children 12 paid presumably for the two adults the amount paid for shipping personal effects from NY to Toronto and the related customs duties, being EC$1749.59.

4.The Petitioner shall pay to the Respondent 1/2 of the cost of one pair of winter boots for each child – EC$270; 1/2 of the cost of two pairs of winter shoes for each child – EC$326.03; Y, of the cost of one winter jacket for each child – EC$434. 70 and Y, of the cost of 3 sweaters for each child – EC$285.27, a total of EC$ 3580.05.

5.The Petitioner shall pay to the Respondent Y, of the cost of beds for the children- EC$1534.50; andY. the cost of living room and dining room sets i.e. EC$279.00 plus EC$453.38, a total of EC$2266.88.

6.The Petitioner shall pay to the Respondent the sum of EC$251.10 being Y, of the school registration fee for the children.

7.The Respondent is entitled to recover the total sum of EC$11 ,070.07.

8.The Respondent shall pay to the Petitioner the sum of EC$2315.70 being an excess incurred by him in respect of immigration fees for the children. This sum will be offset against the total amount payable by the Petitioner to the Respondent. Accordingly, the total amount due and owing to the Respondent after the immigration fees are offset is EC$8754.37.

9.Liberty to apply.

10.Each party to bear their own costs. Esco L. Henry HIGH COURT JUDGE (Ag.)