Lawyer gave me sketchy maintenance info…

Dear Mrs Macaulay,

I’ve lived in Canada with my child for a little over 13 years. The child is now 15 years old. At the news of my pregnancy, the father was very adamant that I have an abortion because he wanted absolutely no child in his life. He was very abusive verbally, emotionally, financially and spiritually. After I migrated I was unable to contact him as he changed address and phone numbers.

Eventually I found his place of work and cell number through third-party sources. I am now going after him for a decade of back child support and sought the assistance of a Jamaican attorney. I was told that the child support laws in Jamaica are as follows:

1. I must prove to the lawyer that my child’s father actually owes me this money. My child’s father must give me a letter stating that he is aware that he never supported his child for 10 years and he owes me CAD $xxxxx, otherwise I don’t have a case.

2. Child support has nothing to do with his salary level and will be what he wants to give me.

3. If he gives me anything at all, then he has full entitlement to my son and I have no choice but to change my son’s last name to his father’s.

4. I am treading on very thin ice and must take whatever the father decides to give me.

I was told that the Jamaican court wouldn’t consider his prior actions as abuse, and a court order will force me to do as instructed.

My son began speaking to his father when I reached out to him early last year. My son decided on his own not to continue the relationship. When I asked the child why, he said he will talk to him when he is ready and will not be forced into doing so. My son does not want to have his name changed or to go to Jamaica at all. The lawyer said that in Jamaica my son is a minor and will have to do what the court orders.

Can you please assist me with some answers.

I understand from the contents of your letter that you had not obtained a maintenance order from the father of your child to provide for and/or contribute towards the child’s support to the date of your letter. In these circumstances, you are therefore contemplating making a first application against your child’s father for his contribution to the past and future maintenance of your son. Such an application being made when your son is now 15 years old is clearly long past due. You really ought to have done this long ago. However, your circumstances and the father’s erstwhile conduct make such delay understandable.

You assert that your child’s biological father abandoned his son even before his birth. You stated certain opinions you were given as to the law and practice regarding maintenance applications for a child in Jamaica.

Here goes:-

Re number one, you ‘instruct’ your lawyer about you and your child’s factual circumstances, you do not have to ‘prove’ anything to him/her. You will, however, have to ‘prove’ to the court that what you assert as the facts on which you rely in support of your application are so. For instance, the total sum you had to spend and for what and when to support your claim for the years the father who failed to meet his financial obligation to provide for his son’s expenses for the necessities of life.

However, the first claim which you must make (and I see no mention of this in your letter) is for a declaration of paternity of him as the father of your child. Neither his name nor particulars appear on your son’s birth certificate, I suppose, because of his lack of interest in fatherhood at the time of birth and thereafter. You therefore need such a declaration of paternity to enable the judge hearing your applications to make maintenance orders against him. The declaration of paternity is vital for the court to have jurisdiction to hear and make orders for maintenance payments against him as your child’s father. If at the hearing he admits to his paternity, the court can go on and deal with the maintenance application (and another which I shall mention later).

If, however, he denies paternity, the judge will make an order for a DNA test to be done so that once the result is received and it shows that he is the father, the judge can make the declaration and then proceed to deal with your other applications.

You must also apply for sole custody, care and control of your son. You have had these in fact but you need them in law and with a court order to prove that you are the sole legal custodian for your son. In my opinion, you ought not to have any trouble to defeat any attempt by anyone who may seek to suggest that you have joint custody with him. He does not qualify for this on any view or fact. So sole custody for you must be insisted on as in the best interests of your son, based on the fact of his father’s disinterest. You cannot be tied to the need for his consent to the important decisions which must be made about your son’s residence, education, health and general life.

You would, of course, have also filed for the maintenance orders which you seek, that is to say, for the past 10 years and for the future.

For such applications, you must support them by the facts on which you rely in your affidavit in support. The facts would include for the past, the sums which you are claiming for, what you had to spend for you and your son for shelter, utilities (rental or mortgage) proportionally. That is to say, they should be split between you two. There should be the cost of his general clothing and footwear; transportation; food and toiletries; his educational, dental and medical expenses; extra-curricular activities; sportswear and footwear; pocket money, barbering charges; entertainment and miscellaneous expenses. If you have any receipts and/or records of such expenditures it would be helpful to produce them to be exhibited and attached to your affidavit in support of your application for past expenses.

I do not understand nor do I know of any necessity for the father to give you any letter acknowledging his failure to provide support for 10 years and that he owes you a certain sum in Canadian dollars. If you had such a document, you could just file a claim that he owes you the acknowledged debt.

You have clear cause of action to apply for maintenance for your son.

Re number two, the quantum of whatever maintenance a court orders the defendant to pay is based on that party’s financial capability which must be proved. The court can order the production of his salary slips for the whole of the previous year and you must also prove your earnings and expenses. The court, you see, must conclude how far you and he (who are both legally obligated to maintain your child), are financially capable of providing for your child and can therefore make a just and appropriate order for maintenance.

It does not depend on what he the father “wants” to give. The provision in the Maintenance Act is quite clear.

Re number three, the fact that he meets his legal obligation to provide support for his son does not “give him full entitlement” to the child. It is not on this basis that you may have to change the name of your son or add the father’s surname to his birth certificate, but on the declaration of paternity and the judge’s decision.

If an application for access is made and an order for it is made, this would entail mere visits of the child to his father. Since they now have the means of contact, you should try to ensure that a good relationship develops between father and son. It is good for your son to have such a relationship with his father. You can only try.

Re number four, this opinion and/or statement is without any basis in law and in fact. The court and the applicable law are in control, not the father. The rights of the parent who has and is acting in the best interests of the child will always be upheld. The father of a child does not, and I repeat, does not, have any right superior to those of the mother of the child.

You are not treading on thin ice and you do not have to take whatever he gives you. You must, however, take what the court orders and he will have to pay what the court orders.

Apart from a recitation of the facts preceding your emigration, his abusive conduct is not relevant to your claim for maintenance. As to your claim for your past expenses, the court can make the necessary award that he pays whatever sum the judge determines he should for those years. In this regard, the judge will decide whether to do so and how much, based on the facts you present to him/her to support this claim and would in the exercise of his/her discretion, make the award.

You must, of course, obtain an order for maintenance for your son for the present and the future which would be up to 18 years of age. You should apply before his 18th birthday, and if he is planning to go to college for tertiary-level education, you can apply for the father to continue to make adequate provision for his son’s maintenance until he completes his studies or attains his 23rd birthday, whichever is sooner.

Your son is a minor until 18 years of age in most countries of the world, and his father’s request for anything would be nothing more than a request. Only a court of law can make an order which must be obeyed and which would oblige you or your son and his father to do or not to do something.

I am not happy with the answers which were given to you on the issue of your son and his father’s legal obligations and rights. I suggest that you seek another lawyer to advise and act for you and your son.

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.

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.