Maintenance concerns

Q: Dear Mrs Macaulay,

I see my children for seven weeks during the summer and alternate Christmases. We don’t live in the same country, so this is the only residential access I have. My ex-wife says I’m supposed to continue paying maintenance during the time I have the children. I do not agree. I don’t understand why I would have to pay when she doesn’t have the children for almost two months. Who is right? Our maintenance order says nothing about stopping maintenance for these periods, but I would think that common sense indicates that I shouldn’t have to pay when I have the kids.

A: Thank you for your letter to me about your problem with your ex-wife. I understand your concern to be about the fact that your ex-wife is demanding that you continue to pay your maintenance contributions during the periods of your residential access, when the children are with you and you therefore are then responsible for their care and control and she is obviously not. You point out that the maintenance order is silent on this point.

I must first of all just explain a bit about ‘care and control’ and ‘maintenance’. ‘Care and control’ is given to the parent or person who is to have the burden (and joy) of the day-to-day care of the children. Then as the Maintenance Act places joint responsibility on both parents, as far as they are capable, to provide maintenance for their children, both you and your ex-wife bear this responsibility. Upon a court considering the apportionment of this responsibility, it must have the cost of the actual care of each of the children and the respective financial capabilities of the parents. All of this ought to be produced by them evidentially to the court.

Maintenance is ordered to be provided by each parent in the proportions determined by the judge to cover the cost of all necessities of life of each of the children. It is generally ordered that the parent with only access pays their share as ordered over to the one with care and control because the children are usually minors and that parent has either solely or jointly, custodial rights and obligations over the children and responsibilities for the children’s affairs.

The maintenance sums paid to them must only be spent on the respective child or children’s needs. If the parent with care and control spends any part of the children’s maintenance monies on themselves, then they commit the offence of fraudulent conversion and could be charged with this offence. In addition, they run the danger of being removed as the custodial parent and having the order for care and control being revoked upon an application to the court.

Let me now directly answer your question. Generally, when the access period is short, say for a weekend or part of a week, the question of cessation of payment of maintenance funds would not arise. If, however, the order is for weekly sums and access is granted for a whole week or more, then payment is generally suspended until the children return when it will resume from the time of their return. When the order does not specify any suspension, this is generally agreed by the parties because of ‘common sense’ as you say, or just as a matter of integrity and fairness.

If your ex-wife persists in her demands for monies for the care of the children during appreciable long periods when they are in your care, then I must strongly suggest that you apply to the court which made the maintenance order, for a variation in order to add that directive that when they children are with you for the number of weeks every summer holiday and those over ‘your’ Christmas period, the payment of your maintenance contributions shall cease and shall be resumed when the children return to their mother. When there are such difficulties in getting the other party to be honest, fair and considerate, then you should exercise your right under ‘liberty to apply’ which exists for every order made relating to a child’s welfare, for a variation to clarify and mandate the position. This will leave no one in any doubt about what your respective specific obligations are.

I trust that you succeed in getting this matter sorted out as soon as possible with your ex-wife. You can also mention to her that in fact you could ask for her to contribute to the children’s expenses when they are with you, but this is not your intent. It is just that you do not feel that you ought to be asked to pay twice for their expenses, and for periods when she does not have to meet any for the children. Her insistent request for this is therefore very questionable.

Failing any agreement with her, do not hesitate to go back to the court for a variation of the existing order to add a paragraph or two to remove any doubt about the periods of your obligation to pay over your contribution towards the children’s maintenance.

Good luck.

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.