Dear Mrs Macaulay,
My wife and I have been separated for two years and we have a child together who is almost two and a half. Since the month we separated I have consistently contributed approximately $28,000 per month to the maintenance of the child and in some instances even more. This is to assist with covering day care, meals, etc, while my wife covers the rest.
We are proceeding to divorce and she is seeking $52,000 per month minimum in addition to 50 per cent of educational and health care expenses. This could easily see my contributions going up to $68,000 minimum per month (to include monthly maintenance and my 50 per cent of education and health care). I have not been provided with a breakdown or basis for this amount and have been questioning the legitimacy, especially since my calculations to take care of a two year old tops out at about $40,000 per month in addition daycare being about $32,000 per month. This would see me, if we share costs 50/50, making total payments of approximately $36,000 monthly and not the potential $68,000, based on her $52,000 base and 50 per cent of everything else.
My question is, can she succeed with such an exorbitant claim, especially since she has a good job and makes a net salary of over $250,000 per month — the same salary as me? Currently the child does live with her and I am trying to get access to her at least three times weekly.
The short answer to your question is yes, your wife can succeed in her claim if you do not properly contest it.
The Maintenance Act places an obligation on each parent of a minor child to maintain the child to the extent that each of them is capable of providing. It further provides that a maintenance order for the support of a child must apportion the obligation to provide according to the capacities of the parents to provide such support. In the course of the hearing, the court must enquire into the circumstances of the capacities and then if satisfied on the evidence that you are able to maintain your child or contribute to your child's maintenance, it must make a maintenance order that you pay periodic sums as the court thinks fit, having considered all the relevant circumstances specified in the Act. These include the assets and means of both parents, their capacities, legal liability to provide for another person or necessary payments being made, what you need for your own survival, and any other circumstance which in the court's opinion must be taken into account as the justice of the case requires. The fact that your wife earns exactly what you do would fall into this latter circumstance, and should be brought to the attention of the court.
In order to ensure that the court has all the necessary information, you or your lawyer can and should ask for further and better particulars of the sum your wife is claiming. In fact, one does not normally just ask for a particular sum, but also provides a list of the particulars of what sums are being claimed for each of the stated necessities and then total them. The respondent — you — are entitled to have those particulars, otherwise you cannot properly answer whether you agree or disagree with the sum claimed, as is your right to be able to do.
If your wife disputes your assertion that she earns the same as you do, you can apply to the court to make an order directed to her employer to provide a written response to the court of your wife's emoluments during the last 12 months from the date of the order, or the application can be that she produces her payslips for the last 12 months within a stated period.
The judges of both the Family Court and the Supreme Court do not just order an applicant to receive any sum claimed. They have to be satisfied that the sum is reasonable and is necessary for the proper maintenance of the child. You should bear in mind that in quantifying maintenance the costs of the following must be taken into account — the cost of shelter (be it rent or mortgage) which is divided between the parent with care and control and the child; the costs of utilities, cable, helper's pay, and gardener if any; then the cost for the child's transportation, food, toiletries, hair care needs, clothing (general and uniforms), footwear, lunch monies, snacks; and for entertainment. Then there is one half of educational, medical, dental and optical. All these should be listed in the affidavit in support of the application.
In the circumstances you have related, your wife has merely stated a total sum, and you must act as the law provides to ensure that the court is provided with all the necessary information to enable it to make a just order. If you do or say nothing, then the court may conclude that you agree with the sum claimed and make the order.
Note, you must bear in mind that the person who has care and control of a child generally has unmentioned and unexpected expenditures that they often or sometimes have to meet. But it is up to you to assist yourself, the court, and I hope your child, to ensure that the court has all the facts necessary for the judge to, after considering all the relevant matters, fix and order the respective liability of each parent in a reasonable and just proportion for the maintenance of the child.
On your question regarding access, you must also bear in mind that your access cannot unsettle the stability which your child must have in her day to day life. Additionally, your access must be such that, in this period of the COVID-19 pandemic, it is safe for your child to spend time with you, and that you take the precautions necessary for her safety. The court will consider if, when, where and how you can exercise your access based on the principle that the child's best interests are the paramount consideration. This issue has to be carefully arranged because you are entitled to have access to your child and the child is entitled to such access and to have a relationship with you.
I hope that you continue to be the committed father that you have been for your child as she gets older. I assume that you are seeking joint custody and that your wife will continue to have care and control of your child. It is important that you both ensure that despite the breakdown of your marriage, that you act as a team throughout the development of your child and always in her best interests.
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 email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
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.