The Main­te­nance Act needs to be amended

Jamaica Gleaner - - LAWS OF EVE - 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

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 judg­ment 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.

MCGRE­GOR

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