Dear Mrs Macaulay,
I am a single parent of eight-month-old twin girls. I maintained the pregnancy on my own, and since their birth have been maintaining the kids on my own. I filed for maintenance at the Family Court, but it's definitely not working out. He was ordered by one judge in May to give me $12,000 per month for both kids, until the next court appearance which was in July. He gave the amount twice and stopped. In July another judge ruled that he should start giving $16,000 as of August 3, and I am still yet to receive anything at all. He's now thousands of dollars in arrears. What can I do?
I can feel your frustration and desperation about your situation.
You did not tell me whether your babies' father was in court in July when the new order was made. You see, if he was not in court, then a certified copy of the order must be served on him personally. Upon such service, he is in law obliged to obey it or be found to be in contempt of a court order.
Anyway, I assume that he was in court in July and you say he has paid nothing. You now have to go back to the court and report his being in default of the court order, and tell them for what period of time and the total sum in arrears.
By the way, did you apply for custody, care and control of your twin girls at the time you made the maintenance application? If you did not, you must do so when you make your application for the arrears due.
I also suggest, if it was not part of your order, that you ask for the order to be varied and for him to make his payments to the court. You then have to go in each month on the date they arrange with you to collect the money. I suggest this because he has shown his reluctance to obey the order and that way, it will be easier to keep track of his payments and to prove exactly what they are during any hearing following his breach/default of the court order.
When you apply, it is likely that you may be told that it is too soon to apply for a default proceedings to issue. Do not accept this. There is no rule for a particular length of time to pass when there is breach of any order. What is required is that the particular circumstance of each applicant is what ought to be considered in determining whether the defendant has been given a reasonable length of time to obey the order and when he has not made any effort to do so, that he has clearly demonstrated that his default is intentional and clearly contemptuous.
I really urge you to go back to the Family Court and do your application for the arrears due, and also please do the application for custody, care and control. You do not want to be in the situation at any time in the future of defending such an application after he has filed for this. Secure your children by holding on to the right to make all the important decisions relating to their development and welfare by yourself. Their father has not shown himself to be too reliable or responsible in his relationship with them and he may be a stumbling block if and when you have to make urgent and important decisions for their health or other matter.
I am afraid that when the other parent keeps building up arrears in the payment of maintenance contributions which were ordered by the court, the only legal recourse you have is to keep going back to the court and pursuing your default proceedings for each period of time there are arrears. I know that this can be very frustrating, but you must do so, unless you do not need the money and wish to let him be free of this responsibility as a father.
It is also necessary for him to learn that if and when he fails to pay and develops arrears, that the heavy arm of the law will fall on him. He will be sent to jail by the judge if he fails or refuses to pay, and that this will not mean that he does not have to pay the monies due. If he pays all that is due, he will be released immediately, otherwise he will have to convince the judge why he should not be sent to jail initially, or, if he has been, why he should be released quickly.
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 firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give personal advice.
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.