Sun | Jan 24, 2021

Laws of Eve | What sum will the court award for child maintenance?

Published:Monday | August 26, 2019 | 12:00 AM

Family law practitioners are often asked to estimate the amount that a court is likely to award for child maintenance. This question then leads us to explain the structure of the Maintenance Act, which prescribes that the needs of the child, the means of the parents and a myriad of factors must be looked at to determine the amount that each parent is to contribute towards the child’s maintenance.

As recently as last week, a colleague asked me what the minimum amount payable for child maintenance was and I responded to say that, based on the law, there is no minimum amount. In fact, for that same reason, there is also no maximum amount. That is why you may hear that an order was made in the Family Court for the payment of J$1,500.00 per week for maintenance, although the maintenance of a child should at least contemplate the provision of food, shelter and clothing.

On the other side, the case of Martinez-Martin v Parke [2019] JMSC Civ 22 involved a mother, who was granted care and control of the child and sought an order for the father to pay US$6,500.00 per month towards the maintenance of the couple’s 13-year-old son. In making an order for the child’s father to pay US$4,000.00 per month, inclusive of educational and other expenses, towards the maintenance of the child, the learned judge applied the following principles:

Any sum payable by the parent with care and control must be shown to be expenses reasonably necessary for the child’s welfare.

The child should be allowed to continue to live in a manner that he had become accustomed to and not be unjustly deprived as a result of the breakdown in the relationship between the parties.

The court is entitled to take into account not only the parents’ actual earnings, but also their potential earning capacity.

The court must bear in mind that there are miscellaneous expenses that are incurred by the parent who has care and control of the child.

The court must take into account the paying parent’s present circumstances, including any legal responsibility to contribute to the maintenance of others.

The reality is that, in its current state, the Jamaican law makes it difficult for child maintenance payments to be predicted with any degree of accuracy; and certainly not before the parents’ current and future incomes and expenses are ascertained. In some cases, orders for disclosure have to be made to get information concerning income and expenditure, and even then opinions and arguments often vary as to the expenses to be included in the calculation as well as how they may need to be divided if a home is occupied by persons for whom the parent who is being asked to pay maintenance is not responsible.

The fact is that other jurisdictions, such as Canada, Australia and the United Kingdom, have online maintenance or child support calculators. They are all helpful in that they allow parents to estimate the amount of maintenance each may be required to pay or to receive, depending on their incomes, the number of children involved and the children’s ages. In Canada, for example, there are actually detailed tables that show the monthly amount that will be awarded for child support, based on the province in question, the parents’ incomes and the number of children.

I am of the view that it would be helpful for careful steps to be taken to create a child maintenance calculator in Jamaica, which would provide a basis on which parties could have discussions about settling terms for child maintenance without the need to attend court. In that way, the number of maintenance claims that have to be tried in court could be minimised, thereby reducing the court’s caseload, and there would be one less contentious issue for parties to address when relationships break down.

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.