Dear Mrs Macaulay,

I just read your response to Am I Entitled to Maintenance Arrears in All Woman published Monday, December 28 and I am rather shocked to know that there is really a provision for maintenance arrears. In 2006 my daughter’s father got the reading to his request for a paternity test which proved that the child is his. She was then five years old. Before she was born he told me that he would not support her unless a paternity test was conducted. I took him to court before she was a year old, but we never see was

two because the warrant was not served. When we finally got to court he requested the paternity test and it took almost three years before it was done as each time when it was scheduled he kept putting it off.

When it was finally done, I asked the judge if he should not have paid back child support since the matter was before the court for almost four years and she said no, as there was no provision in the law for that and furthermore he did not “own” the chi ld until the paternity test was read. Please clarify further as I am sure that there are more mother s who are unaware of this provision. By the way , he has not paid a cent since the ruling and the distress warrant has not been executed as he has left that address and I am unable to get a forwarding address for him. However, the crusade for support for our chi ld will continue until I am reposed.

Thank you for your letter, seeking further clarification about the law relating to the payment of arrears of maintenance on the making of maintenance orders. Your letter was quite detailed, and I thank you for that, because I clearly see from it how certain people may be under a misconception about the legal provisions and their effect.

As I stated in my December 28 column, the Maintenance Act 2005 is the relevant law for the payment of arrears of maintenance. This Act came into effect on the 7th of December 2005. This is the date on which it became law and the date on which the judges were enabled to make the orders for which it provided. It could not go backwards in time. It was effective on that day and for all time succeeding that date, until it is amended or repealed. In other words, it is not retroactive in its effect.

It therefore follows from the facts in your letter, that since your application was made when your child was a year old, which would have been in 2001, the Maintenance Act 2005 was not then in existence. Though the order was made when she was five, it related to a child whose application for maintenance had been made before the Act was passed. The judge was perfectly correct in refusing your application for a refund or payment of arrears of all or part of your child’s maintenance for the years leading up to the date of the making of the order, because there was not at the time of your application any legal provision in existence which empowered any judge to make such an order.

Section 15(1)(e) of the Maintenance Act 2005 reads as follows:

15. -(1) “In relation to an application for a maintenance order, the court may make an interim or final order requiring -(e) that payment be made in respect of any period before the date of the order.

You can see that it relates to an application for maintenance and your application was made before the Act came into force, in fact, even before it was drafted. Its provisions therefore could not apply to your application on behalf of your child. This is unfortunate but this happens often as the law evolves. Persons who lived in earlier times did not and could not enjoy the protection which can now be sought under various pieces of social legislation which were enacted from the mid-1970s to the present time. I am certain that your daughter will most assuredly also enjoy more advanced protective legislation in her adulthood than those which you have presently for your protection if you need them.

I hope that what I have stated clarifies the position for you in relation to the payment of sums for maintenance, which a parent failed to provide before the order of the court on an application for this is made. The application must relate to and be made during the period from the 7th December 2005 to now and into the future. I trust it is clear that the court can only order payment of back monies if the application is made on or after the 7th December 2005 for maintenance of a child, wife, or common-law spouse (or parent, or grandparent if this is necessary).

On the issue of him having absconded from his address and his obligation to his child, I can only sympathise with you and applaud your determination to keep making efforts to force him to live up to his obligations by making him obey the order of the court. In this regard let me advise that as soon as you get a hint of his whereabouts, let the Clerk of Courts know so that the process for him to be brought before the court can be issued and acted upon as quickly as possible. You must also apply for a variation of the order because I am sure some appreciable time might have passed and the sum in the order would be woefully inadequate for a reasonable contribution by him for your daughter’s maintenance. So you see you must apply for an increase of the sum.

Good luck and God bless and I hope you find him before your daughter becomes much older.

Margarette May Macaulay is an attorney-at-law and a women’s and children’s rights advocate. Send questions and comments via e-mail to allwoman@jamaicaobserver.com. We regret we cannot provide personal responses.

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