Myron Kevon Cruickshank v Registrar of High Court Office
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Byer, J. |
| Judgment Date | 11 February 2021 |
| Neutral Citation | VC 2021 HC 6 |
| Date | 11 February 2021 |
| Docket Number | SVGHCV2020/0063 |
| Court | High Court (Saint Vincent) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SVGHCV2020/0063
In the Matter of an Application Under Section 8 of the Status of Children Act No. 21 of 2011
and
In the Matter of the Registration of Births and Deaths Act Cap 242 of the Revised Edition of the Laws of Saint Vincent and the Grenadines 2009
and
In the Matter of a Posthumous Application for a Declaration of Paternity by Myron Kevon Cruickshank to have the Name Daniel Hall Inserted on his Birth Certificate
and
Court Appointed Personal Representative of the Estate of Daniel Hall, deceased, by Order of Court dated 16 July 2020)
Mr. Ronald Marks and Mrs. Patricia Marks-Minors for the Claimant
Ms. Maffica Lewis for the First Defendant
Mr. Sten Sergeant for the Second Defendant
Ms. Charlene Douglas, Deputy Registrar, representative for the First Defendant
Second Defendant present
The death of a parent is never easy, and that passing is further complicated where there are properties or assets existing and there is no clear disposition of the same. It is then that family members close rank and those whose names are not the same as theirs see and feel the block of the wall keeping them outside. It is that very circumstance that was to be dealt with by the passing into law of the Status of Children's Act 2011 (hereinafter referred to as “the Act”) and for the abolishment of the common law rule of construction against children born out of wedlock for succession purposes 1.
So it therefore was, with the case at bar.
This is an application brought under the Act by Fixed Date Claim Form 2 for an order declaring that Daniel Ezekiel Hall, deceased (hereinafter referred to as “the deceased”) was the natural father of the claimant. The application was supported on filing by evidence on affidavit by the claimant, his mother Debrah Cruickshank-Duke, the claimant's purported half-brother Dain Walters, and retired Inspector of Police Bernard Haynes who was a colleague of the deceased.
The Registrar in her capacity as the Registrar of Births and Deaths (hereinafter referred to as “the Registrar”) is named as the first defendant in the event that the Court directed that the name “Daniel Ezekiel Hall” be inserted on the claimant's birth certificate. By affidavit of Andrea Young dated and filed on 9 th July 2020, the Registrar deposed that she was not admitting nor denying the evidence of the claimant but in the interest of fairness to both sides, she preferred to be a neutral party to the proceedings ready to assist on matters of the law.
The second defendant is the natural child of the deceased. The claimant prayed for an order that she be appointed Representative of the deceased. The second defendant in her acknowledgement of service admitted the claim, but only generally. At the first case management conference on 16 th July 2020, the second defendant willingly consented to be court appointed representative. The Court granted an extension of time for the claimant to put in an affidavit to speak to certain matters set out in the claimant's first affidavit of 4 th June 2020.
The Court made a further case management order for the parties to file affidavits in reply by 16 th October 2020. The claimant and his mother filed further affidavits in response, as well as one more from the claimant's cousin Thamar Cruickshank. The second defendant l also filed further affidavits. Her defence was supported by affidavits from three of the deceased siblings namely,
Upon consideration of the evidence at trial and the legal submissions presented, it became clear to the court that the sole issue for determination must be “whether the claimant has established that the relationship of father and child existed between himself and the deceased”.
In looking at this matter it was clear to the court that the starting point had to be an assessment of the provisions of the Act upon which the claimant sought to rely in support of this application.
Section 8(1) of the Act states as follows:
“(1) A person who:
(a) alleges that any named person is a parent of a child.
(b) alleges that the relationship of father and child exists between him and another named person
(c) alleges that the relationship of mother and child exists between her and another named person or
(d) having a proper interest in the result, wishes to have determined the question whether the relationship of parent and child exists between two named persons.
may apply to the Court for a declaration of parentage and the Court may, if it is satisfied that the relationship exists, make such declaration whether or not the mother, father or child is, or all of them are, living or dead.” (My emphasis added)
In considering whether such a relationship exists, the court is mandated to consider the evidence that is relied upon by the applicant and to consider whether any of the presumptions that the Act provides for, exist. Those presumptions are contained in section 5 of the Act. Section 5 states as follows:
“5. (1) Unless there is proof to the contrary, on a balance of probabilities, there is a presumption that a person is, and shall be recognised in law to be, the natural father of a child in any one of the following circumstances:
(a) the person was married to the mother of the child at the birth of the child;
(b) the person was married to the mother of the child and that marriage was terminated by:
a. death;
b. judgment of nullity; or
c. divorce where the decree nisi was granted,
within ten months before the birth of the child;
(c) the person marries the mother of the child after the birth of the child and acknowledges by word or conduct that he is the natural father of the child;
(d) the person was a cohabitant with the mother of the child at the time of the birth of the child, or the child was born within ten months after they ceased to be cohabitants;
(e) the person has been adjudged or recognised in his lifetime or after his death by a court of competent jurisdiction to be the father of the child;
(f) the person has signed an instrument with the mother of the child acknowledging that he is the father and that instrument was executed as a deed or by each of them in the presence of an attorney-at-law or a Justice of the Peace or a registered medical practitioner or a minister of religion or a marriage officer or a midwife, but such an instrument shall be of no effect unless it has been recorded in the Registry;
(g) the mother of the child or the person acknowledging that he is the natural father of the child, or both have signed and executed an instrument to this effect in the presence of an attorney-at-law, but that instrument shall be of no effect unless it is notarized and recorded in the Registry during the lifetime of the person acknowledging himself to be the father;
(h) the person has acknowledged in the process of the registration of the child, in accordance with the law relating to the registration of births, that he is the father of the child;
(i) the person who is alleged to be the father of the child has given written consent to that child adopting his name in accordance with the law relating to change of name; or
(j) the person who is alleged to be the father of the child has by his conduct implicitly and consistently acknowledged that he is the father of the child.” (my emphasis added)
In perusing the same, it is clear to the court that the only presumption that the claimant may rely on in the present circumstances would be section 5(1) (j). The claimant's case was clearly that the deceased having consistently and implicitly acknowledged him as his son, he is entitled to the declaration of paternity, the relationship of father and son having been established.
The questions however must be, how does the claimant establish this relationship? How does he prove this to the court?
In answer to these two questions, it is clear that the courts have considered that even though the court has to be satisfied on a balance of probabilities 3, the definition of what that actually means has been minutely considered. In the case of Re “J.S” (a minor) 4 the oft quoted definition of what this means in the context of family matters is as follows:
“ The concept of “probability” in the legal sense is certainly different from the mathematical concept; indeed, it is rare to find a situation in which these usages co-exist although, when they do, the mathematical probability has to be taken into the assessment of probability in the legal sense and given its appropriate weight. Nor is the word “balance” much clearer. Cases like Hornal v. Neuberger Products Ltd. (1957) 1 Queen's Bench...
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