Court battle over 10 years of child support to go to the Court of Appeal – The Royal Gazette | Bermuda News, Business, Sports, Events, & Community

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Court battle over ten years of child support to go to Court of Appeal

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A father accused of “disgraceful” and “selfish” conduct by a judge has won the right to appeal her ruling that he must pay his ex-wife more than a decade’s worth of child support expenses.

The businessman asked for the court to rule he did not have to reimburse the mother of his two children any money he owed her for their educational, medical and other expenses which had gone unpaid for more than 12 months.

His lawyer, Cameron Hill, said the Matrimonial Causes Act 1974 discouraged attempts to enforce historical arrears with a time limit of no more than a year before a claim for enforcement was submitted to the court.

But Puisne Judge Nicole Stoneham ruled in July that the man had to pay his ex-wife almost 11 years worth of expenses after he “strategically embarked upon a course of action not to reimburse” her for his share of the costs.

The mother claimed the judgment was precedent-setting and a victory for single parents who carried the burden of raising children alone.

She told The Royal Gazette: “It is an important ruling because previously there was a 12-month rule.

“The facts of the case are clear and the judge's ruling was very harsh. In her response she agrees with me that the law is bad and needs to change.”

The judge wrote that the father “had and continues to have the financial means to meet his obligations” but took a “strategic and selfish position” not to pay in the belief that the law discouraged the enforcement of historical arrears.

Mrs Justice Stoneham wrote: “Unfortunately for the husband, I find his position, on the facts of this case, utterly unsubstantiated and disgraceful, particularly because for many years he recognised his legal obligation and made payment to satisfy such obligation … albeit often late and, at all material times, had income to do so.”

The judge said she agreed with Jacqueline MacLellan, counsel for the mother, that section 36 of the Matrimonial Causes Act was “an archaic provision”.

She added: “The section unfairly puts the onus on the parent, who is caring solely for the children, and receiving child maintenance, to bring enforcement proceedings.

“Unfortunately, to engage an attorney, when one is already financially strapped, is a costly circumstance not easily surmountable.”

Mrs Justice Stoneham said she found it entirely reasonable that the mother, while busy raising the children single-handedly and trying to earn a living, thought the father would do the right thing and provide for them.

She added she found it difficult to believe the husband’s evidence and rejected his claim that he, the sole beneficiary of the company he owned, was “poor for many years”.

Mr Justice Stoneham said section 36 gave the court discretion to enforce arrears beyond the 12-month period.

She added: “In a case such as this, where a father, with income, deliberately chooses not to pay such amounts ordered by the court, it is in and of itself a sufficient special circumstance for the purposes of section 36.

“The reality is that the majority of fathers comply with orders of court. It is indeed a special circumstance when a parent chooses not to do so.

“I entirely agree with counsel for the wife that it is only right that this husband contribute to the expenses of his children …”

She added: “I have no doubt that the husband deeply loves his children and genuinely desires nothing but the best for them.

“The wife is to be commended for single-handedly raising the two children and having the courage to bring these proceedings.”

But the Court of Appeal granted permission to the husband to appeal the judgment earlier this month.

Mr Hill told the hearing that “if the case is that special circumstances exist, and you can collect money from more than 12 months ago … the judge should have identified where the special circumstances arise with respect to each claim, and in terms of time”.

Justice of Appeal Geoffrey Bell said: “The judge does not appear to have indicated what the special circumstances might be.”

He added any deliberate non-payment by the father was not “in and of itself” a special circumstance.

The case is listed for the appeal court’s session next month. (November)

The couple, whom The Royal Gazette has chosen not to name to protect the identities of their children, married in 2000 and divorced in 2008.

Justice of Appeal Geoffrey Bell

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