Mcgregor

Question:

W and H are divorced. At the time of the divorce, a maintenance order was granted, which required H to pay a specific sum for maintenance and half of education expenses for the children. H has hinted that he intends to discontinue support for one child, who will be 18 years old in October.

What can W do?

Answer:

The Maintenance Act defines a child to be an unmarried minor (person under the age of 18), or a child who is in need of maintenance by reason of physical or mental infirmity. Such a child is entitled to receive maintenance from each parent to the extent that the parent is capable.

Unless an order for the maintenance of a child specifically sets the date on which such payments should cease, Section 16 of the act states that the maintenance order should remain in force until the child is 18. However, orders for the maintenance of children are subject to review by the court, and may be varied, if an application is made to do so.

Applications

Applications are often made to maintenance orders to increase the amount to be paid in keeping with changes in tuition and related expenses. However, applications may also be made to extend the period over which maintenance payments are to be made.

Depending on the circumstances which necessitate the continued payment of maintenance, the reader's solution may be to apply to the court to vary the maintenance order by extending the period for payment of maintenance. The court is likely to grant such an order, where the child is or will be engaged in a course of education or training after reaching the specified age, and the payments are required to cover the expenses related to such education or training.

If that is the basis on which the application is being made, the court may extend the maintenance, but only until the child is 23 years old.

Permanent maintenance

In cases where the child is ill or infirm, and the condition is likely to be permanent, the court could order the parents to continue maintenance for the rest of the child's natural life.

The reader should ensure that any application for variation of the maintenance is supported by proof that the child, who is over 18 years of age, is enrolled in an educational or training institution. Documents to show the cost of training should also be submitted to support the application.

The information set out in this article should not be substituted for advice from an attorney-at-law.