Will the court order just $3,000 per week for maintenance?

Dear Mrs Macaulay,

How is child support calculated, and what can I expect in terms of payment amounts or modifications if my financial situation or the other parent’s situation changes? I want to take my child’s father to court because I can’t manage to take care of our five-year-old on my own, but everyone has been telling me that it’s best I struggle on my own, because the court is just going to give me $3,000 per week. He is employed and earns more than I do.

I am extremely disappointed that it is only now, five years after your child’s birth, that you are thinking of taking your child’s father to court because you find that you can no longer meet the child’s maintenance expenses on your own. You have denied yourself and your child the benefit the law provides to order the other parent to meet the legal obligation that each parent must, “to the extent that the parent is capable of doing so, to maintain the parent’s unmarried child, who is a minor…” or needs to be maintained because of their physical or mental infirmity or disability. The quotation marks denote the exact words in the Act, and after the “or”, those are my words to explain what is stated in the other section of the Act. The Act is the Maintenance Act, 2005.

You’ll note that it says nothing about $3,000 per week! This is because the particular child’s circumstances and necessities for life and development must be provided to the court in the applicant’s affidavit in support of the maintenance application, and these must be considered by the court. Then the facts of the circumstances, financial income, all earnings and expenses of both parents must also be provided to the court and considered by the court before the maintenance sum is fixed by the judge and the order made.  There must first of all be proof of the fact, if the respondent to your application is the father of your child or appears in the birth records and birth certificate as the child’s father or admits this fact in the proceedings in court.

I do not know who you refer to as “everyone” who has been telling you that the court only orders $3,000 per week for children’s maintenance when applications are made to it for such orders.

The Act does not provide for a “common fixed sum” to be ordered for children’s maintenance, and if there is such a practice, then it is wrong and is in conflict with the provisions in the applicable Act referred to above, and any parent who suffers such a course should state to the court that they are giving notice of appeal.
Every applicant is entitled to do so, and the appeal’s grounds (that is the reasons for the filing of the appeal), would show which rights were ignored, denied or diminished by the judge the detriment of the appellant/applicant and the child.

To further provide information on the issue of the provision of maintenance for a minor child for you, I am trying not to be too technical by citing all the various sections in the Act which make it clear that the sums ordered for the maintenance of a child who is the subject in a maintenance application, must be based on evidential facts provided to the court by the applicant and respondent in their application and affidavit in support, and their response respectively, and in their oral evidence during the hearing of the application. The sum in the maintenance order cannot be fixed by a whim, but on the evidence provided and the application of the law as the Act directs for the judge to apply to such applications.

Let me refer to the contents of some sections in the Act, which should further clarify the position for you. First, Section 14 of the Maintenance Act, provides that the court must enquire/check into the circumstances of the life of the respondent so that it can find out whether the respondent is able to maintain the child or to contribute to the maintenance costs of the child. Then the court must make the order for the respondent to pay the sum it has concluded is needed, to the other parent, or the child, or another appropriate person. This latter person could be the collecting officer of the court, or the applicant’s bank account, or some other appropriate person. This could be weekly, fortnightly or monthly or some other period which would best serve the reliability of the payments based on the respondent’s financial reality. The court could also make orders relating some period or payments made before the application was made, which the respondent ought to have paid or contributed to.

So, the fact is that the court has the legal obligation which it must abide by in order to make a proper legal and binding maintenance order for the particular child referred to in the particular maintenance application. It is not one figure that applies to every child; the figure must justly suit the particular individual child. I suggest very strongly a monthly payment order and that it be ordered to be paid to the Collecting Officer(section 19), which is the best means to ensure that proper records of the father’s payments are made and are readily available to the court, so if the father fails to make his payments and is in default of the court order, the officer can send you to the appropriate clerk so that you can make your application for his default, for the court to make orders for him to pay up and also suffer the consequences for his default.

You as the applicant on your child’s behalf must do your work by gathering all the facts which you need to claim in your application for the whole sum of your child’s maintenance (I suggest that you do so on a monthly basis), and ask for the father to pay half of the total. Then, in your affidavit in support of your application, you must give the details of the breakdown of that total sum, which must include the total sums for the child’s sole expenses for clothes, footwear, hair care, toiletries, sole transportation, educational, medical, dental and optical expenses, and then the costs which are proportional to the child’s use and enjoyment (eg, if there are four persons in your household, then your child’s proportional expense would be one-fourth, a quarter; if it’s just you two, then it would be half). These proportions apply to your rent, mortgage or expenses of running your household where you and your child reside; also for the cost of all utility bills, cable, phone, transportation costs jointly expended (eg, to church and appointments for the child’s benefit and needs). Also, costs of necessary repairs which must be done to the premises by you to ensure the child’s safety and a healthy environment. You must also include the cost of your child’s toys and other forms of amusement and favourite snacks and any other expense which must be met for your child. Make sure that you cover each and every item of the expenditures you have been and have to continue to meet for your child’s maintenance.

Finally, if after a while the maintenance sum in the order made is no longer enough to meet your child’s current expenses, then you can also apply for a variation of the existing order (remember you must provide the new facts and figures for the court), and if the father is often in default, for a variation. The Act provides that the court can make an order for the father’s employer to give a written document to the court about the father’s emoluments (income/pay) for the preceding 12 months. By such orders the employer is ordered to make periodic (monthly) maintenance sums to the applicant or the Collecting Officer as the order specifies.

I hope that I have helped you to understand that the law of maintenance is clear, and like any other Act of Parliament must be oiled by our judges in our courts and by all the relevant citizens to whom the Act’s contents apply to and refer.

I trust that you will act in the best interests of your child by moving forward to apply to the Family Court in your parish for the father to contribute to the whole maintenance costs, and you must give the court the evidence required for it to make a true, effective and realistic order for your child.

Do not continue to ignore the protection which the law provided for your child as you have for the last five years. You know the saying that it is better late than never. So please do what you must.

All the very best to you and your child.

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.