Dear Mrs Macaulay,
Can my child's father resign from his job, claim unemployment and lack of monetary inflow and not pay the maintenance that the court ordered? Will the court vary the order even though he is employable, and was earning an income more than twice mine?
Thank you for your letter. I have noted its contents. Your ex's excuse of not working and not having any money is a very common one heard by the courts everyday from fathers, especially these days.
His situation is a bit different from the general trends, where the men claim that they lost their jobs and have not been able to find another or that they have no skills and were hustling but as times are bad, their hustling business failed and they have no money. The judges have repeatedly made clear that these fathers must maintain their children. They mention the fact that these men are living and eating and ask how they except their children to continue to eat and live. They tell them to find something to do and they will make at least interim orders for maintenance from such fathers.
In your case, you ask whether the court will vary its order of maintenance for the child, by decreasing it on the basis that the father is jobless.
I know for a fact that the judges of the Supreme Court and of the Family Court, when dealing with applications for maintenance of children and those for variations to decrease the provision of maintenance already ordered by the court, do not just accept pleas of fathers that they are unemployed and have no money and therefore cannot afford to provide maintenance for the child or in the sum ordered.
The judges of the courts have to ensure that children who are in need of maintenance are adequately provided for by their parents. And this does not mean that the burden should be borne by only one parent. Both are in law obligated to provide for the child as far as they are able.
This brings me to the point that he actually resigned from his job and intentionally placed himself among the unemployed even though he is not unemployable.
Remember that a court must make orders relating to a child which are in the best interests of the child and parents are obligated to uphold this principle in all their conduct and dealings relating to their children.
It is therefore my view that no court will permit the father of your child to get away with his intentional act of making himself unemployed, nor enable him to benefit from it to the detriment of your child.
You did not say whether he has applied for a variation or whether you have taken him back to court for his disobedience of the maintenance order. I hope that you have taken him back to court for his disobedience and that you get the court to order him to pay every cent of what he owes from the time he stopped paying. If you have not done this, you must do so now.
Then, if he applies for the existing order to be varied, you must defend your child's position. You must make sure that the judge understands exactly what your child's father did -- that he voluntarily resigned from his job. You must tell the judge how much he used to earn. You must also tell the judge about any conversation you had with him before he resigned that his intent in so doing was to avoid meeting his responsibility to provide for his child. If you have anyone who was present and heard his statements or to whom he spoke, tell the judge that you have such a witness who is willing to attend to give evidence.
Mother, you cannot, I repeat, cannot, allow your child's father to get away with this kind of action and conduct. I am saying this on the basis that he is, as you say, employable, and is therefore in good health.
Please make the application based on his disobedience of the maintenance order and for all arrears to be paid up and for the order as made to continue for the time being, because in fact, due to inflation, your child is really in need of an increase in the maintenance sum.
Good luck to you both.
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. Mrs Macaulay cannot give personal advice outside of this column.
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.