Laws of Eve | Costly mistakes made in court
Consider the following facts:
• The parties to a claim are now in their mid-70s. They separated in 1982, but did not complete divorce proceedings until 1992.
• A property division claim was filed in the Supreme Court in September 2010, and judgement entered in May 2012.
• An appeal that was filed on May 29, 2012, was heard in October 2015, and the Court of Appeal delivered its ruling on May 13, 2016.
• Based on that ruling, the parties must proceed to a pre trial review and a fresh trial in the Supreme Court on a date to be fixed by the Registrar of the Supreme Court. (That trial date could easily be in 2018.)
These time lines are relevant to the case of DeMercado v DeMercado JMCA Civ 27; and despite the strength of either party's case, the appetite to have a court hearing must have waned some time ago. In fact, the state of at least one party's health prevented full participation in the trial in the first round, so one wonders how that party will fare this time around.
The following legal issues, errors and omissions, resulted in the order for retrial of the matter:
• Information elicited from both parties through informal questioning by a judge, is not evidence and cannot, therefore, be a basis on which any court determines the outcome of a case.
• Witnesses were not cross examined in this case. For as many times as it has been said, it appears that it must continue to be repeated that cross examination must be strongly encouraged in cases in which there are disputed facts in affidavits. Otherwise, the court will be unable to decide critical issues or test the credibility of the witnesses.
• The failure on the part of the appellant to reply to many of the specific contentions by the respondent, was viewed by the court as being 'unfortunate'. Fortunately, such a failure did not automatically mean that the contentions were admitted by the appellant.
• An assertion by a party that constitutes an allegation of fraud must be supported by particulars and evidence. It is not enough to make a bold assertion. In this case, the appellant stated that the respondent obtained a mortgage over jointly owned property although the application was never brought to her attention. No details were provided in support of the allegation.
• If one co-owner is to obtain an order that he has ousted the title of another by adverse possession, there must be evidence to prove that he was in physical custody of the property and intended to exercise control for his own benefit. the evidence was lacking in this case.
I have two main concerns:
(1) Was adequate and proper use made of mediation in this case? A successful mediation would have save both parties time, stress and legal expense.
(2) Has it become easier for one co-owner of property to become the sole owner? When one co-owner tries to avoid conflict and strife after separation by staying away from jointly owned property, he is likely to be penalised in matrimonial property cases.
Two pearls of wisdom:
(1) Attempt mediation in good faith
(2) If you are an absentee co-owner of a property, pay some attention to that property by at least paying the property taxes, contributing to the mortgage payments or major repairs. What might seem onerous and unpalatable today, could avoid years of litigation in the future.