EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
COMMONWEALTH OF DOMINICA
DOMHMT2009/0011
BETWEEN:
ROSY-PIERRE CASIMIR Petitioner
and
ZACHARY OSBORN CASIMIR Respondent
Before: The Hon. Justice Brian Cottle
Appearances:
Ms. Joanne Commodore for Petitioner
Mr. David Bruney for the Respondent
JUDGMENT
[2010: October 15
th
]
[2011: January 24
th
]
[1] COTTLE J: The parties were married on 1
st
August 2000. The petitioner filed
for divorce in January 2009 and a decree nisi was granted on 5
th
September
2009. The decree was made absolute on 12
th
August 2009. The petitioner
now seeks ancillary relief. There are two minor children both, girls, aged 14
and 10 respectively.[2] When a marriage comes to an end the assets of that marriage stand to be
divided between the parties. Those assets are the capital assets such as the
matrimonial home and other real property. The earning power of the parties
also stands to be allocated. The aim of the court is making the allocation of
assets, both capital and income, is to place the parties, as far as this is
possible, in the financial position they would have been if the marriage had
subsisted and each party had carried out his or her financial obligations and
responsibilities to the other.
[3] The Legislation, the Matrimonial Act 1973 (UK) sets out some of the factors to
which the court must have regard in coming to its decision but it is all of the
circumstances which must be kept in mind at all times. In the present case
the assets are
1. The matrimonial home. This is located in Glanvillia on a portion
of land registered in the name of the respondent. The home
was built in 1995 while the parties were cohabitating but before
they were married. There is a second building on the parcel. It
houses a grocery shop and bar. This is being rented and the
respondent husband collects and keeps all of the rent. The land
and buildings have a total value of $170,000 approximately
2. 3.862 acres of land at Forest Estate near Glanvillia. This parcel
as largely agricultural in use but has a potential to be
subdivided into smaller lots. This parcel has a value of
$154,000. It was purchased during the subsistence of the
marriage. The parcel is registered in the sole name of the
respondent.
3. Money in a joint account at the Portsmouth Credit union. The
petitioner says the account stood at $12,000.00 during the
marriage but the respondent kept the passbook and she is
unaware of the amount in this account now.
Revenue assets
1. The petitioner is a waitress and now earns $380.00 per
fortnight.
2. The respondent is a farmer. He has not disclosed his earnings
from farming. He has rented out the shop located on the parcel with the matrimonial home. He has not disclosed the amount he
collects in rental.
[4] The duty of parties to make full and frank disclosure to the court is two well
known to be questioned suffice it to quote Olhretti-Joseph J in Wheatley v
Wheatley BVI HMT 2006/0014 “It is well established that both parties are
under a duty to make full and frank disclosure of all material facts to the court
and that such disclosure is a crucial part of the investigative process in
applications for ancillary relief.”
[5] Parties who fail in the duty to disclose are apt to have adverse inferences
drawn. Byron J.A did so in Hughes v Hughes 45 WIR 149 where a husband
failed to make full and frank disclosure. In the present case the respondent
was able to construct the matrimonial home and other building. He was able
to service a loan to acquire the Forest Park lands. He now have capital assets
worth over $320,000.00. I conclude that his income from rental and farming
must be substantially greater than the petitioner. There is no indication that
the respondent’s property is in any way encumbered.
[6] I consider this a fit case to order the respondent to pay a lump sum to the
petitioner in lieu of periodical payments. In the absence of better information
from the respondent I fix the amount of the lump sum as $75,000. The real
property will remain the sole property of the respondent. Should the
respondent fail to pay, the petitioner is at liberty to apply for an order of sale
of either property. $75,000 of the proceeds of sale would go to the petitioner
with the balance going to the respondent. The cost of such sale will be for the
respondent.
[7] The minor children reside with the respondent. They will remain in his primary
care but I award joint custody to both parents. The respondent will remain
responsible for the maintenance of the children
Personal items
[8] The respondent has retained some personal items of the petitioner. I order
that he forthwith return these.
High Court Judge
Justice Brian Cottle