Tue | Aug 22, 2017

Laws of Eve | The Maintenance Act needs to be amended

Published:Monday | November 21, 2016 | 11:00 AM

The Maintenance Act states that parents are obligated to maintain their minor, unmarried children (minors are persons under the age of 18 years).

Before 2005, that obligation ended at age 21, but it was amended to increase that age limit to 23, provided that the child is engaged in a course of education or training.

The amendment was welcome by many children who studied until they reached the age of 23, and are in need of financial support. Unfortunately, this change is not as effective as it ought to be because there is one major flaw in the act, which has been highlighted in two decisions from the Court of Appeal.

The case of Rosevelt Rowe v Beverley Brown [2014] JMCA 30, involved an appeal against an order made by a resident magistrate pursuant to Section 16 (3) of the act to extend a maintenance order that had been made some years prior. The application to extend the maintenance order was made after the child had already reached the age of 18. The Court of Appeal held that the magistrate did not have the power to extend the order, because " ... for an order for maintenance to be extended pursuant to the provisions of Section 16(3), it was necessary for the application for an extension of the order to be made within the lifetime of that order. Accordingly, once the order expires upon the relevant child or children attaining the age of 18 years, the court is no longer competent to make an order 'extending' the previous order."

 

RECENT DECISION

 

In the more recent decision in the case of Karin Daniels v Wayne Daniels[2016] JMCA App 29, Rowe v Brown was cited in saying that it " ... provides clear confirmation that an application to extend a maintenance order beyond the age of 18, must be made in the sense of having at least been filed, before the child reaches the age of 18. Otherwise the order will expire, and the court has no power to revive it."

The Daniels case was similar to the Rowe case in that a judge who was considering an application to extend a maintenance order, granted the application after the children had passed age 18. Once again, the Court of Appeal concluded that the judge had no power to make that order.

The following extract from the judgement is a clear message to the legislators:

" ... this court has absolutely no enthusiasm for the result it has felt constrained to announce. We say this because it is the policy of the law, as the court understands it, that children are entitled to support in order to enable them to maximise their potential as persons. Section 16(3) of the Act demonstrates a particular concern in relation to the question of education. It therefore seems to us to be a matter for regret that, on an issue such as this, it continues to be necessary for that question to be dragged through the courts in respect of offspring who, albeit over the age of 18, remain innocent victims in the contest between their parents."

I do hope that someone reads this message and takes the necessary steps to correct the injustice that Section 16 of the act will cause if it is not amended. Until then, however, it is very important to ensure that an application to extend a maintenance order is at least filed before a child who is still undergoing a course of study reaches the age of 18.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com