McF v Ef

• Jurisdiction: Antigua and Barbuda
• Judge: Byer, J.
• Judgment Date: 30 July 2025
• Judgment citation (vLex): [2025] ECSC J0730-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHMT2025/0088 formerly CLAIM NO. ANUHMT2017/0034

Between:

[1] MCF

Respondent

and

[1] EF

Applicant

[2025] ECSC J0730-1

CLAIM NO. ANUHMT2025/0088 formerly CLAIM NO. ANUHMT2017/0034

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms. Joanne Massiah and Mr. Warren Cassell for the Applicant

Mrs. Stacey Ann Saunders-Osbourne and Ms. Karenna Nicholson for the Respondent

Byer, J.

1 It has once again saddened this court, that it has before it another example of the way in which parties to divorce, can become so caught up in their own reality that they do not appreciate, the fall out that their actions can have on the children of the union to whom they bear ultimate responsibility.

2 The sadness is even more poignant when this court considers that this is a matter that was settled more than 6 years ago and the court is sure that the parties believed that they were able to put this chapter of their life behind them and concentrate on the future as it unfolded and as the dynamics between themselves and their child would morph change and evolve.

3 The application before the court is one that appears simple on the face of the relief being sought by the applicant, in that he seeks a variation of the order of the court made in 2019, where the respondent was given care and control of the child of the family S, with the applicant having liberal access by way of physical visits in Antigua each and every holiday period. However, it was clear to the court that at the hearing of the matter, the case was anything but simple.

4 The initial application, filed on 10 ^th January 2025 was a motion of committal filed by the respondent seeking the immediate return of the child S who had travelled to Antigua for the Christmas holidays spending the same with the applicant. On the 8 ^th January 2025, when the child was still in the care of the applicant, the applicant informed the respondent that the child S did not wish to return to Canada where he had been living with the respondent since the making of the order on the 24 ^th October 2019. In response to that application for his committal for his breach of the order of the court, the applicant filed an application supported by a certificate of urgency on the 16th January 2025, seeking to vary the order of the court of 24 ^th October 2019 by varying the terms in relation to care and control inter alia in the following terms that:

• I. S would be permitted to remain in Antigua and Barbuda with the Applicant who shall have physical care and control of him and that;

• II. S would be permitted to spend one half of the summer, spring and alternate Christmas vacations with the respondent with the respondent bearing the cost of that travel.1

5 On the 21 ^st January 2025, the committal application was heard and determined and the court found the applicant guilty of contempt and committed him to His Majesty's Prison for two weeks, suspended on certain terms, including the payment of arrears of maintenance payments and that the child S was to be made available for interview

by the court and that the respondent was to have weekly access to him by way of virtual means. The court thereafter ordered on the 27 ^th January 2025, that the committal order would stand discharged after a period of three months and the child S was to remain in the jurisdiction of the court for the remainder of the school year while the full trial on the application for variation came on for hearing. That full hearing took place on the 14 ^th July 2025. The court at the close of the matter, indicated due to the nature of the proceedings, it would issue a decision for the parties by the end of the law term. I therefore wish to indicate clearly that although this court will not make specific reference to each and every piece of evidence elicited at trial or in examination in chief, every submission made or case referred to, in the interest of having this decision produced, for the record the court has read and considered them all

6 As the nature of the application before the court is for variation of an order, it is necessary for the court to consider the operative law in relation to the variation of orders for custody, maintenance and access. However, in saying so, this court must also be cognizant that such an application for variation, must in the end result, be in the best interests of the child.

Court's considerations and analysis

7 The applicable law in relation to the court's determination of an application for variation is contained in Section 15 of the Divorce Act. At Section 15(5) it is clearly stated that “before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order as the case may be and in making the variation order, the court shall take into the consideration only the best interests of the child as determined, by reference to that change.” Additionally at section 15(9), “in making a variation order the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and for that purpose where the variation would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.”

8 It is therefore clear that the court is mandated to undertake the exercise in relation to variation by bearing in mind the following

• 1. that there has been a change in circumstances since the making of the last relevant order in relation to that child,

• 2. that the court must consider the best interests of the child in making any such variation and;

• 3. that the child should have contact with both parents and must also consider if in making the variation that the parent with whom the child resides will support that access to contact.

9 The starting point must therefore be the evidence that supports the application for variation, and whether the evidence that is led supports first and foremost, the changed circumstances that underlies any application for variation. In that regard, the provisions of the Divorce Rules 1998 should be noted.2 By Rule 24 an affidavit in support of an application to vary an order for custody or access under Section 15 of the Divorce Act, should contain the following,

• • the place or ordinary residence of the parties and the children of the marriage,

• • the current marital status of the parties,

• • particulars of the change in circumstances relied on,

• • particulars of current custody and access arrangements and of any proposed change,

• • particulars of current support arrangements and any proposed changes,

• • particulars of any arrears of support or agreement and

• • particulars of any efforts made to mediate the matters in issue or of any assessment made in relation to custody or access.

10 In the case at bar the application was supported by the affidavit of the applicant in which a myriad of allegations were made in relation to the respondent and the respondent's relationship with S, which the court can only surmise were included to give context to the changed circumstances which led to S remaining in Antigua in January. However this court wishes to go on record to say the following in as reticent a manner as I can, so as not to give either party any ammunition to use against the other by relying on any judicial pronouncement.3 I will say, that in relation to the allegations of abuse that were lobbed at the respondent in the affidavit of the applicant, this court finds were categorically not made out. In this court's view, a decision by a parent who has day-to-day control of a child, must be considered in the light of the best decision that parent makes in order to effect the parental style that that parent adopts. Thus, the deprivation of a phone from S for an extensive period, although may have been seen as excessive, was not abusive in a situation where the respondent had no ability to craft parental controls on that phone. Further, the actions of the respondent in seeking assistance for S with what was determined by an expert as to his shortcomings in relation to his executive functioning and taking advice from professionals which included the use of medication, cannot be seen as abusive. Any parent who seeks advice and is given advice is entitled to rely on that advice where it is professionally provided and reliable, even if it may appear to be counter to their own personal beliefs.

11 That being said, in the applicant's affidavit it is was quite evident that some of the details required by the Divorce Rules were missing such as his current marital status, details of the maintenance arrangements and the changes he sought to

make to those as well as any details in relation to efforts he would have made with the use of mediation to resolve the conflict, save his passing reference to a conversation he had with the respondent, asking her to consider the wishes of S not to return to Canada. 4

12 Be that as it may, even though that information may have been useful for the court in the overall consideration of the matter, and that the wording of the Divorce Rules make the inclusion of such information mandatory, there is no sanction implied or explicit for such failure. Thus, in this court's view, it must be that such failure would only impact the overall tenor of the evidence if it failed to establish any grounds at all for the court to consider on a variation application. The court is not satisfied that pertains here.

13 Thus, this court is satisfied that it only needs to be satisfied that there has been a material change in circumstances of the child since the last custody...