Mon | Apr 22, 2019

Laws of Eve | Children are obligated to maintain their parents, too

Published:Monday | February 18, 2019 | 2:18 AM

When we speak about maintenance orders, it is reasonable for persons to immediately assume that the reference is to child or spousal support. However, there is also provision under section 10 of the Jamaican Maintenance Act, for parents to sue their children for financial support.

 

Whether this aspect of the law is just not known to the persons who could rely on it or (similar to men seeking maintenance from their spouses) there are cultural reasons for not doing so, there is not much reliance on section 10 of the act. In fact, I have never had a client request that we pursue a claim under that section, and I have only been present in court once when such an application was being considered.

 

It is important to know who is entitled to make a claim under section 10 and what conditions must be satisfied. The full text of section 10 is set out below:

 

(1) Every person who is not a minor has an obligation, to the extent that the person is capable of doing so, to maintain the person's parents and grandparents who are in need of such maintenance by reason of age, physical or mental infirmity or disability.

(2) In considering the circumstances of a dependant who is a parent or grandparent, the Court shall have regard to whether, by reason of age or infirmity, that dependant is unable to provide for himself or herself.

(3) The obligation of a person under subsection (1) in respect of that person's grandparent only arises in the event of the failure of the grandparent's children to do so owing to death, physical or mental infirmity or disability.

 

Here are the points to note:

 

1. Both parents and grandparents are entitled to make claims. The applicant will need to prove the existence of the relationship, e.g. birth certificate.

2. The applicant must prove that he or she is in need of maintenance because of old age or mental or physical challenges. If there are physical or mental health challenges, the court may request a medical report.

3. The court will consider whether that parent or grandparent is unable to provide for himself or herself. The applicant must prove his or her income from all sources and the expenses that must be covered in order to satisfy the court that the application is justified.

4. Where a grandparent is making a claim against a grandchild, there must be proof that the grandparent's own children have failed to provide for him or her because of death or physical or mental challenges.

5. The children (or grandchildren) against whom the orders are sought cannot be minors.

6. The children (or grandchildren) will only be ordered to provide financial support for their parents or grandparents to the extent that they can afford to do so.

 

For adult children and grandchildren who are being asked to support their parents, it is important to note that even after the requirements of section 10 have been met, there are factors listed in section 14 (4) of the act that the court may consider before determining the amount and duration of a maintenance order. These factors include:

 

- The assets, means and obligations of the parents and the children;

- The quality of the relationship between the parents and the children;

- Any contribution made by the parent or grandparent to the realization of the child or grandchild's career potential;

- Any other factor the court considers it necessary to take into account.

 

In next week's article, I will explore actual cases and how the courts have determined the applications.

 

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