Mcgregor

Question: I have two teenaged daughters ages 14 and 17. In August 2003, the Resident Magistrate made a maintenance order requiring their father to pay child support. He has not complied with the order since 2004. How can I enforce the maintenance order and recover all the money that he owes?

- CB

Answer: The maintenance order with respect to CB's older daughter should have ceased in 2004 when she reached age 18. However, if that child continued a course of education, she should have applied to the court for a direction that the order continues until she completes her studies or attains age 23, whichever comes sooner.

Assuming the older child is entitled to maintenance up to age 23, then CB could apply to the court for an order of attachment to enforce the payment of maintenance with respect to both children. Such an application must be supported by an affidavit which states that the father has failed to comply with the maintenance order without reasonable cause. It must also state that the father is employed and earning an income or, if retired, is receiving a pension which is capable of being attached.

Employer

CB will be required to serve the father with the application and affidavit so that he is given a chance to be heard. At the hearing of that application, if the court is satisfied that the father has failed to comply with the order without reasonable cause, they may authorise his employer or the entity which pays his pension, to pay the entire amount due under the maintenance order or a part of it to CB, a collecting officer or such person as is specified in the order.

If the maintenance order had directed the father to make payments directly to a collecting officer, on proof that such payment has been in arrears for 14 days, the officer may make an application to the Resident Magistrate (RM), directing that a warrant be issued to recover the arrears from the father by seizing and selling assets belonging to him.

If the father refuses to pay the amount due as well as the costs in relation to the warrant, the RM may commit the father to imprisonment at an adult correctional institution for a period not exceeding three months. This will only be done, however, if the court is satisfied that the father has wilfully refused or culpably neglected to comply with the order.

The period of imprisonment will not extinguish the father's obligation under the maintenance order. However, the arrears will not continue to accrue during the period of the incarceration. If the father is found to have the means to make payment, the court will enforce payment through an attachment order, even while he is incarcerated.

There is no limitation with respect to CB's ability to apply to the court to enforce payment of any sums due under any order made pursuant to a maintenance application. She should be happy to note that although more than two years have passed, she may enforce payment of arrears as well as future payments.

This response deals only with the enforcement of maintenance orders made in the Resident Magistrate's and Family Courts as set out in the Maintenance Act 2005.