District Judge Sowaran Singh:
Background
The parties married in August 1997 in British Columbia, Canada and are Canadian citizens as are their two children. The Plaintiff (husband/father) was described as being a 42 year old xxx and the Defendant (wife/mother) as a 37 year old xxx. Their two children from the union are a boy who is 12+ years old and a girl who is 15+ years of age. The husband filed for a divorce on the 6 December 2012 and Interim Judgment (IJ) was granted on the 25 September 2012 based on their having lived separately for 3 years with consent from the wife. There was a Deed of Separation (the Deed) dated 26 November 2009. The parties had lived apart since May 2009. They had consented to the division of their assets as per the Deed and these orders were made part of the IJ. The Deed had an Annex A which was the Canadian Federal Child Support Tables, (province of British Columbia (the Canadian Child Support Tables (CCST). However, the other issues namely custody, care/control, access, maintenance for the children as well as for the wife were adjourned to Chambers.
Two years later there was another consent order granted on the 27 November 2014 in SUM 16075/2014 (the CO) under which parties had joint custody of the children with care/control of the daughter to the father and care/control of the son to the mother. The daughter was to reside with the father and allowed to leave for Canada on the 23 December 2014 with the arrangements/costs to be made/borne by the father. Whilst waiting for the ancillaries to be heard, the wife filed an application on the 12 June 2015 in SUM 1921/2015 for leave to file a fourth affidavit to reply to certain parts of the husband’s fourth affidavit. On the 27 July 2015 the wife filed another application in SUM 2475/2015 for certain parts of the IJ granted on the 25 September 2012 to be varied. These two applications were heard together with the ancillaries on the 17 September 2015 and concluded on the 23 September 2015.
The Appeal
On the 6 October 2015 the wife filed an appeal against some of the court’s orders namely: - no further maintenance be payable to the wife by the husband. - the husband shall maintain their daughter solely. -the husband shall pay the wife monthly maintenance of $2,800 with effect from 1 October 2105 for their son. -any expenses relating to physical access that the court might order later on, including cost of travel, food and lodging for access of the respective child not under his/her care, shall be borne by the party exercising such access.
The Parties Positions in Brief
The wife’s written submissions were marked as exhibits D1 to D4. The husband’s written submissions were marked as exhibits P1 to P7.The husband urged the court that the terms of the Deed represented a global financial settlement between the parties. It was negotiated over several months and in contemplation of a divorce with both parties being legally represented. The parties had performed their obligations under the Deed and the wife had received her share of the financial settlement of some $808,338 (45% of their total matrimonial assets) even though her share towards their acquisition was only 10%. Its terms ought to be upheld as regards to the issues of maintenance both for the wife and the children in particular their son who was residing with the wife in Singapore. The husband was now residing in Canada with their daughter. The wife submitted that the terms of the Deed ought not to apply as the situation that they were now in was not contemplated when the Deed was signed and there was thus a gap in its terms. In view of this she wanted the court to award her and their son maintenance (including backdating it) having regard to the various provisions of the Women’s Charter (Cap 353) in view of the change of circumstances. In any case she submitted that the terms of the Deed were, but one of the numerous factors for the court to take into account and not the sole consideration. There were also issues over access to the parties.
There was no real dispute over some key dates which were as follows: - in May 2009 the parties started living separately. -in November 2009 they signed the Deed. -in August 2010 the wife started working. -in August 2011 the husband wanted the whole family to move with him to Canada. The wife sent him a text message in which she declined to do so and she asserted that she was prepared to reduce her lifestyle and even move into an HDB apartment if necessary. -in February 2012 the husband returned to Canada. -in March 2012 the husband ceased to pay maintenance for the wife. -in June 2012 the husband filed for the divorce. -in September 2012 IJ was granted. -in December 2014 their daughter moved to Canada.
The Parties Submissions in Brief
The Wife’s Submissions in Brief
In her written submissions the wife urged the court to allow her to file a 4th affidavit. As the husband had also filed an affidavit in reply the court allowed both their affidavits in so that it would have all the relevant facts before it. There was no serious objection to this from the parties. On her other application to vary the IJ here again there was no real objection from both parties and the court accordingly added a couple of new clauses which required the husband to provide the wife with updated information on the maturity of the other investments which were to be divided in accordance with the terms of the Deed and had not yet been divided.
The wife’s other submissions can be briefly summarised as follows: the court had a discretion to give higher maintenance for her than that stated in the Deed ($2,500 for 5 years = $150,000) for several reasons including a material change of circumstances. she was working and earned monthly the following sums: $3,587 in 2010; $5,170 in 2011; $5,525 in 2012; $5,473 in 2013 and $5,533 in 2014. her assets as at September 2014 had been used up and reduced to $146,073 as the husband had not paid her maintenance. He had also reduced the sums payable for the children. the husband had failed to make a full and frank disclosure of his assets and an adverse inference ought to be drawn against him. She maintained that he had assets worth in excess of $5 million. the husband’s income was: $2.243 million in 2010; $1.275 in 2011; $397,008(C$348,506) in 2012 for the first 8 months as he had voluntarily resigned from his employment without any cogent reason; $240,641(C$211,242) in 2013 (as at August 2014) and $329,651(C$312,651) in 2014 (as at August 2015). prior to their daughter going to Canada she and the children’s /household expenses came up to about $19,400 a month. Since the daughter was now in Canada, she conceded that their son’s expenses had to be adjusted and came to about $7,705 a month. The wife’s expenses came up to about $6,702 which included a sum of $956 for the domestic helper , rental of $4,000, $2,000 (groceries), $500 (eating out), $400 (clothes/shoes),$482 (for insurance premiums), $750 (gifts) and $460 (transport). in the event that the court was minded to pay heed to the Deed she submitted that the husband ought to pay her the sum of $2,500 until 30 April 2014 as per its terms. She asserted that she was not in any common-law marriage or domestic partnership as the husband claimed and hence the clause in the Deed awarding her the sum of $2,500 for a 5 year period ought to apply. Her submissions went:
“In any event, whilst the wife has a boyfriend, he pays for his own expenses and is not responsible for paying the wife’s expense, nor those of the children”.
the husband had deliberately created a situation whereby his earnings fell below $500,000 and he ceased paying her maintenance in February 2012. In 2012 he earned $402,128.
the husband ceased paying the children’s school fees in October 2011 although in 2011 and 2012 he earned more than $400,000. Hence he ought to pay her the arrears sum of $157, 959 in school fees which she had paid and a sum of $15,200 in maintenance for the children.
She wanted the following orders made: -the husband pays her monthly maintenance of $3,500 for their son until 31 December 2016. From January 2017 he ought to pay until the boy reached majority age a sum based on the Canadian Federal Child Support (CFCS) Tables. -he pays her $15,000 being arrears of maintenance for the children and $157,959 being the arrears of school fees. -the husband ought to be responsible for the maintenance of their daughter. -the husband to contribute 50% of all school fees incurred for their son until the child reached majority age. -the husband pay for her maintenance a sum of $2,500 backdated to February 2012.
Husband’s Submissions in Brief
In his written submissions the husband contended that the wife was in fact co-habiting with her boyfriend although she alluded to him as a “friend”. This was at least from the period August 2012. He submitted that his obligation to pay the wife maintenance ceased with effect from March 2012 under the terms of the Deed when he returned to Canada in February 2012 and his income fell below $500,000. From the period May 2009 to February 2012 he had paid the wife the sum of $2,500 monthly and the total came up to $85,000. At the time the Deed was signed the wife was a full time mother. She started working as a xxx in 2010 with an income of over $60,000 per annum. In July 2011 he had informed the wife that his position in Singapore would be made redundant and he would have to return to Canada in February 2012 to resume work there. He told her that his Singapore expatriate income package and perks would cease. His Canadian income would revert to being significantly lower and subject to substantial Canadian income tax as well. He pleaded with the wife to return to Canada with the children. He informed her that she could not on her income afford the cost of...
