Recovering child maintenance, which is in arrears, from an uncooperative former partner is often a daunting task. Our clients have often expressed that, as the Parent with care and control, they are reluctant to take, what can be perceived as, hostile action against the non custodial co parent for fear that the Respondent co parent will either 1) stop seeing the child(ren) as punishment or 2) bring the child(ren) in the middle of the dispute between their parents.However, it is imperative that the Custodial parent (“Complainant”) of a child, to which child maintenance has been ordered, should act proactively to enforce the payment of child maintenance in arrears.
Section 36 of the Matrimonial Causes Act, the Bahamian statute which addresses the dissolution of a marriage, redistribution of matrimonial assets, custody and child maintenance, states that a person shall not be entitled to enforce through the court, payment of any arrears due under any financial provision order without the leave of the court if those arrears became due more than 12 months before the commencement of proceedings to enforce payment of them. In other words, if child maintenance has not been paid for over a year, the Complainant can apply to the Supreme Court (“the Court”) to recover the arrears which arose up to 12 months before the application to recover arrears was filed. If child maintenance was due over 12 months prior to the application, the Complainant must ask the Court for permission to recover the arrears before any other steps are taken.
In the Bahamian case of J v. G – [2010] 2 BHS J No. 16 the Court had to consider the application of Section 36. The Wife was seeking leave to enforce child maintenance arrears which had become due over 13 years prior to the date of the application. Barnett CJ considered the effect of the wife’s delay on her application. He held that the underlying philosophy to section 36 must be that if a Complainant waited over a year to seek enforcement of a money order, then she must not have needed the money or rather she was able to manage well enough without it. The Complainant must demonstrate to the Court that there were good reasons, also referred to as “special circumstances” that restrained him/her from applying to the Court to recover the arrears earlier.
The Complainant must take reasonable timely steps to enforce the recovery of child maintenance. A Complainant should not allow arrears to accumulate, making do without them until more with more than a year elapsed, and allowing an oppressively large capital debt to arise. The purpose of child maintenance is to meet the current needs of the child(ren) and is an obligation which must be viewed in that context.
The Court gives a wide interpretation to “special circumstances”, however, it is not enough for the Complainant to say that she relied on the promises to pay made the Respondent, especially when there is a history of unfulfilled promises.
Although, the Court may be sympathetic to custodial parents who suffer as a result of a non custodial parent’s non compliance with orders for maintenance, the Court’s judicial discretion will be exercised in accordance with principles of fairness. The Court must consider all circumstances, including prejudice caused to the Respondent by the delay.
Delays give rise to a substantial risk that it will not be possible to have a fair trial (memories fade and documents get misplaced) and the burden of proof lies with the Complainant.
While it is often tempting to take the line of least resistance with a non complainant co-parent, as the parent with care and control, it is in the best interest of the child for the necessary steps to be taken to compel a non complainant co parent to stay current with his or her financial obligations. A delay for the sake of peace may result in the loss of the support of the Court and may encourage further non compliance.