Dad not sending enough money for maintenance

Dad not sending enough money for maintenance

Margarette MACAULAY

Monday, December 28, 2020

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Dear Mrs Macaulay,

My two-year-old's father lives in Canada so I'm the primary caregiver. For the last three months he came to the conclusion that he'd only be sending J$17,000 monthly for our child. He came to this conclusion without having a discussion with me.

I've lost my job due to COVID and he's still employed, and I'm also living in a rented place. He also refused to give his Canadian address.

Can you advise me what to do?

You failed to state whether your child's father is Canadian by birth or not. All you said is that he lives in Canada without stating his status there, which would have been very helpful to my consideration of your problem. I am therefore forced to respond to your questions through the use of assumptions. One unfortunate fact which you gave is that he refused to give his Canadian address.

I assume that the father of your child is not Canadian by birth, but that he is residing there as an immigrant of some kind. I also assume that he is a Jamaican citizen by birth and was residing in Jamaica when you conceived and had your child. I also assume that before he left Jamaica you both agreed on the sum he would provide for his child's maintenance. I also assume that your agreement was not put into writing which was signed by you both, with the signatures witnessed and certified as required by the Maintenance Act by an attorney-at-law or a Justice of the Peace. Such an agreement would follow the provisions of the section in the Act, one of which is that each of you had independent legal advice about the contents. The witnesses would have made sure that you each understood exactly what you were agreeing to, and the consequences in law of signing it before they could certify your respective signing as required. This would have ensured that all the facts and the particulars of you both were contained in the agreement and such an agreement would be legally binding.

I also assume that even when you knew the father would be leaving for Canada, you did not apply for your agreement to be formalised by the Family Court, where his imminent departure would have been disclosed, and the necessary information would have been obtained from him. You were very remiss in not obtaining his address in Canada, even if his first one was a temporary one. This would have made his being traced less onerous.

Well, you ought to go to the Family Court, explain your child's situation and his action and what sum you had agreed which he unilaterally lowered to $17,000 per month, and that as you lost your job due to the COVID -19 virus, your child is in a very precarious situation.

I must point out and emphasise that you cannot use money being sent for your child's maintenance on yourself. If you had qualified in law for a common-law status, you could have applied to the court for such a declaration and for him to contribute towards your maintenance. Without such a declaration, you are not entitled to any maintenance from him for yourself.

Having explained to the clerk of the court, you should ask them for their advice and assistance about how you ought to proceed in order to file an application for the maintenance of your child. You would obviously need the assistance of the Canadian High Commission in order to trace him in Canada, or assistance directly from the Canadian immigration services in Canada.

You must try to obtain information about his residential address in Canada, and only the immigration services there can assist in this regard.

I am certain the clerk of the Family Court can advise and assist you in this regard because they have the experience in dealing with mothers who place themselves in the same or similar situation that you have done. The fact that the father of your child is in Canada does not bar you from filing for a maintenance order to be made here, but you need his address for service to be effected on him there. If you at least know the province in which he resides, that would be a good start, and this may be used to obtain an order for service to be effected by some means other than personal service, which you can convince the court that this would bring your application to his notice. You must remember, if you decide to and can proceed with a maintenance application, to include your child's share of your rental (if it's the two of you in your residence, the child's share is one-half of the rental) and half of all utility charges, cost of the share of food, transport and any other necessary expenses of the child, such as clothing, footwear, toiletries, snacks and cost of entertainment/ amusement and education, medical and dental and optical (the latter if needed) expenses. This specifies as far as possible the nearest figure of the total of the child's expenses and a half of which is prima facie the obligation of the father and yourself, or at some other proportion as the court deems necessary to order because of the relative financial situations of the parents.

So you ought to go to the Family Court in your parish and get an appointment to speak with the clerk of the court about your child's situation and ask for assistance to deal with the situation of legally binding your child's father to provide for his child by a court order which can be varied in the future as necessary and be enforced if this becomes necessary in the future.

Jamaica and Canada are both members of the Commonwealth with similar legal systems. You must either do what I suggested above, or decide to continue with what he has decided to send to you for his share. This is not a secure position for you to leave your child's welfare and future in. You must make every effort to ensure that your child's interests are protected and the best way is by use of the law.

I would also suggest that if you succeed in being able to pursue a legal application, that you also apply for legal custody and care and control of your child. You only have this in fact (de facto), but not in law, and an order for the father to have access ought also to be included as it is in the best interests of your child to know and have a relationship with the father. A father's relationship with his child cannot only be the provision of money, and every mother should ensure or make every effort so that the fathers have a relationship with the children, otherwise the mothers would be acting against the children's best interests.

I hope you will try your very best to obtain any information you can on the address of your child's father in Canada either through his family members or with the assistance of Canadian immigration, and with the assistance of the clerk of the Family Court of your parish.

I hope that you and your child had a blessed Christmas day and an enjoyable Boxing Day.

I also wish my editor, all the staff at the Observer, and particularly the All Woman staff, and all readers of my columns, my family and friends and everyone in Jamaica, a peaceful, healthy, truly blessed and virus-free 2021.

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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