Correctional officer dad refuses to support autistic son

All Woman

Dear Mrs Macaulay,

I am the mother of a 13-year-old autistic child and I am having challenges receiving maintenance from my son's father and I am frustrated with the court system. The father and I are both correctional officers and he also drives a taxi and makes furniture as his second income. He does not take part in our son's life at all, and all the responsibilities are left on me. I took him to court and a court order was made some years ago for him to pay $10,000 monthly and half of the bills. He pays the maintenance at the court office, but he only pays it when he feels like it, and does not pay the bills at all. The last time I had to take out a warrant it took me a year to get the warrant served and collect what was outstanding, and the process was very rigorous and time consuming. I applied to the court to have the money withdrawn from his salary and I was told that he had to agree, and of course he is not going to agree! I am reaching out as I really need financial help but I do not know what to do and I do not have the money to pay a lawyer. I would appreciate any advice or help that I can get.

I cannot understand why and how users of the family courts are so often misinformed about the process to ensure that defaulting parents are brought to account for failure to obey orders of the court, and it is a serious failure of the court system when personnel fail in their duty to know the law and to properly assist mothers like you, who are relying on the law and the system to protect their children's interests and entitlements.

The person who told you that the father of your child had to consent for an Order of Attachment of his salary for the total sum due from him in obedience to the maintenance the court ordered him to pay, was completely wrong. This is absolute nonsense! In your case, you have a collecting officer's order in place, whereby your child's father has to pay his total maintenance to the collecting officer for the parish at the court's office. It is this officer's responsibility to ensure that the father meets his payment obligations, and when he is 14 clear days in arrears, the collecting officer is to apply to the judge to issue a warrant directing therein that the total sum in arrears under the order, plus the costs for the warrant, are collected from the defaulting father. If nothing is collected from him on the service of the warrant, then a warrant for him to be brought before the court could be issued on the failure being reported to the judge, wherein if it is shown that he had no reasonable cause for his failure to obey the order, or that he was just neglecting to do so, the judge may commit him to an adult prison/correctional institution for any period of up to three months, unless he pays the total sum due and the costs for the warrants and the costs of the commitment order.

Arrears built up by a defaulting parent can always be applied for to the court, even if outstanding for years. The limitation of actions provisions do not apply to maintenance orders made under the Maintenance Act.

So you say he has not been paying his half of the total of your son's bills. I assume that you have been providing him with copies of the bills and pointing what his half liability is for each week, month or term. I understand how hard and draining this all must be for you, especially as he makes no effort to be part of his son's life. As your son is autistic, he is high maintenance physically and emotionally and his father should be assisting with his son and building a relationship with him.

I am also aware that court processes can be very time consuming and frustrating, but you must not despair as this is the only way that you can make the proper provisions for your son. His father is clearly very hard-working and also has sufficient income to provide properly for his son. You must make sure that he does so.

The order for $10,000 monthly must have been some years ago, and is quite insufficient now. Your son is 13 years old and the intermittent payment of what amounts to $2,500 per week is woefully out of date and unrealistic, especially as the father is not obeying the other part of the maintenance order at all.

Now, this is what I suggest that you do, though it means being patient with the court process. You should first work out exactly every cent that the father owes for the half of the bills that he has failed to pay over the years. Keep the bills as you will need them for the court when you do the applications I am going to suggest to you.

Work out exactly what expenses you have to meet for your son's provision, and this must include his portion of the cost of your housing, utilities, cleaning products, food, toiletries, transport, clothing, footwear, barbering costs and all costs for amusement, be it cable and/or DVDs or movie costs or purchasing other items for his occupation. I assume that the order also included half of educational, medical, dental and optical costs.

You have not indicated the level of your son's autism. If his doctor is of the view that he would not be able to look after himself in his adulthood, then you must get a medical report to this effect, as you will have to ensure that any maintenance order made is for his lifetime. Once you have all the figures worked out, then you must go to the court office and apply for the following, which I shall lay out.

You must apply for a variation of the existing order and ask for one-half of the total of the costs of all the things I listed in the above paragraph. If only you and your son live together and you pay rent or mortgage, you should split the rent or mortgage in two and one part will represent your son's share. If more people reside with you, you divide the rent or mortgage by the total number of people. The same goes for the utilities and common household expenditures like food, cleaning, gardening and cable costs. Whatever you spend solely on or for him you can easily list and add up.

I suggest that you have all this written down, so that you can easily refer to it in order to give the total of the sum you are applying for, for the order of maintenance to be varied. This application should also include the “for the rest of your son's life order” if the doctor's opinion is that he would not be able to care for himself later in life and when you are not around.

Then you must apply for the payment of the arrears of the half of the bills he did not pay. You are entitled to have this paid because due to his failure, you had to do all you could to find the necessities to pay such bills and provide the total instead of half.

In all truth, the collecting officer ought to make this application also, as well as for the fixed sums which are in arrears for 14 days. However, this officer could only act for the half bills if you gave him/her copies of such bills. If you had not been doing this, that does not mean that you cannot apply to the court at the same time as your application to vary the monthly payment. You can apply even after they are many years overdue as no limitation period applies to such orders of maintenance made under the Maintenance Act.

Then you must also apply for his employer to make a written report to the court of his earnings during the last year preceding your application (and remember, you must state the fact of his earnings as a taxi driver and a furniture maker). Also apply for the sums to be deducted from his salary, or in other words, for an Order of Attachment to be made which will direct that the maintenance sums should be paid from his salary directly to you or to the collecting officer.

Do not let your frustration prevent you from doing the right thing for you son, and to ensure that his father, who is so unfeeling and selfish, be made to meet his obligations under the law. In fact, he ought to be ordered to attend counselling so that the counsellor can work with him to get him to understand his role and why he must be responsible and present in his son's life.

The family court officers are stretched to the limit as far as the volume of the work which they do. Just make sure that you insist that all the applications which I have suggested appear in your summons. If there are any attempts to dissuade you, just tell them that you have been informed that the Maintenance Act says that you can make such applications. You must, however, make sure that you have all the facts, lists of items and their sums, and the calculations and supporting documents at hand.

Please make a copy of any document you are going to hand over in case some mishap occurs with the originals. The officer can sign that they have seen the originals.

I hope I have fully explained the situation. If you have any further problem, please do not be afraid to contact me again. All the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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