Maintenance of Children Act 2023, 11 of 2023

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11 of 2023

2023 MAINTENANCE ACT 11 OF CHILDREN

COMMONWEALTH OF DOMINICA

ARRANGEMENT OF SECTIONS

SECTION

PRELIMINARY

1. Short title and commencement. 2. Interpretation. 3. Purpose.

PART I MAINTENANCE ORDERS

4. Obligation to maintain a child. 5. Maintenance Order. 6. Payments of maintenance orders. 7. Matters for consideration by the Court. 8. Duration of maintenance order. 9. Interim maintenance order.

10. Variation or discharge of maintenance order. 11. Method of payment. 12. Attachment order in relation to pension or income. 13. Financial disclosure. 14. Costs. 15. Depletion of property.

PART II MEDIATORS AND FAMILY EXPERTS

16. List of approved mediators. 17. Qualifications of certified mediators. 18. Confidentiality. 19. Protection from liability. 20. Services of persons other than social workers. 21. Mediation.

2023 MAINTENANCE ACT 11 OF CHILDREN

PART III ENFORCEMENT

22. Designation of Collections Officer. 23. Arrears in payment. 24. Intermittent custody. 25. Leaving State to evade order. 26. Misapplying monies. 27. Change of address or employment of liable person. 28. False statements.

PART IV MISCELLANEOUS

29. Appeal. 30. Payments under maintenance order to be kept separate. 31. Unclaimed amounts. 32. Electronic documents. 33. Regulations. 34. Right of access.

SCHEDULE

2023 MAINTENANCE ACT 11 OF CHILDREN

COMMONWEALTH OF DOMINICA

ACT NO. 11 OF 2023.

I Assent

CHARLES A. SAVARIN President

9th May, 2023

AN ACT TO PROVIDE FOR THE LAW RELATING TO THE MAINTENANCE OF CHILDREN; TO BRING THE LAW OF DOMINICA INTO CONFORMITY WITH THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND TO PROVIDE FOR CONNECTED AND INCIDENTAL MATTERS.

BE IT ENACTED by the Parliament of the Commonwealth of Dominica as follows:

(Gazetted 11th May, 2023.)

PRELIMINARY

1. (1) This Act may be cited as the –

MAINTENANCE OF CHILDREN ACT 2023.

Short title and commencement.

2023 MAINTENANCE ACT 11 OF CHILDREN

(2) This Act shall come into operation on a day appointed by the Minister by Order published in the Gazette.

2. In this Act -

“attachment order” means an order made under section 12;

“biological father” includes a man who -

(a) is biologically the father of a child;

(b) has been adjudged to be the father of a child; or

(c) is presumed to be the father of the child under section 8 of the Status of Children Act 2023;

“biological mother” includes a woman who -

(a) gave birth to a child; or

(b) is a mother as a result of artificial conception procedures under the Status of Children Act 2023;

“biological parent” means a biological mother or a biological father;

“approved mediator” means a person whose name has been entered on the list of approved mediators kept under section 16;

“child” means –

(a) a person under the age of 18 years;

(b) a person 18 years or older who is unable to reasonably provide for his or her daily requirements because the person has -

Interpretation.

No. 4 of 2023.

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(i) a serious illness; or

(ii) a physical or mental disability;

(c) a person 18 years or older but under the age of 25 years who is receiving instruction at an educational establishment or under-going training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment;

“child of the family” in relation to parties to a marriage, or to two people who are parties to a conjugal relationship, means -

(a) a child of both of them, or

(b) any other child, other than a child placed with them as

foster parents by an authority or voluntary organisation, who has been treated by both of them as a child of their family;

“Collections Officer” means the Collections Officer designated under section 22;

“Commissioner of Police” means the Chief of Police appointed under section 92 the Constitution;

“conjugal relationship” means a relationship where two persons are living and cohabiting in a marriage-like relationship;

“Court” means the Magistrate’s Court;

“custodian” means a person granted custody under law;

“custody” means the physical or legal control and responsibility for a child whether joint or individual, including providing for the normal daily requirements relating to the care and

2023 MAINTENANCE ACT 11 OF CHILDREN

development of a child;

“family law expert” means a person qualified or experienced in family law matters;

“guardianship” means the legal responsibility and authority for making decisions with respect to a child;

“in loco parentis” means assuming the duties and responsibilities of a parent;

“interim maintenance order” means an order made under section 9;

“joint” in relation to custody, means -

(a) joint physical custody where the child spends time with both parents and both contribute to the provision for the normal daily requirements related to the care and development of the child;

(b) joint legal custody where irrespective of where the child resides both parents are involved in making decisions regarding the welfare of the child;

“liable person” means a person liable to make payment under a maintenance order;

“maintenance” includes making financial provision for education and medical care;

“maintenance order” means an order made under this Act for the maintenance of a child;

“mediator” means a neutral third party who conducts mediation;

“mediation” means a process in which a mediator facilitates

2023 MAINTENANCE ACT 11 OF CHILDREN

communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute;

“mediation order” means an order made under section 21;

“mediation party” means a person who participates in mediation and whose consent is necessary to resolve the dispute;

“Minister” means the Minister with responsibility for social services;

“parent” means a biological or adoptive parent;

“respondent” means a person who has an obligation to maintain a child under section 4;

“social worker” means a person qualified or experienced in the professional activity of helping individuals, groups or communities enhance or restore their capacity for social functioning and creating societal conditions favorable to this goal;

“spouse” means a marriage partner, and includes a person who is living separate and apart from the other person.

3. (1) The purpose of this Act is to -

(a) promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their maintenance and care; and

(b) recognise certain rights of children.

(2) This Act seeks to achieve its purposes by -

Purpose.

2023 MAINTENANCE ACT 11 OF CHILDREN

(a) defining and regulating -

(i) parents’ and guardians’ duties, powers, rights, and responsibilities to maintain their children; and

(ii) the powers of the Court in relation to the maintenance and care of children;

(b) acknowledging that there must be shared family responsibilities for the care of a child and an equal duty must be placed on each parent to care for the child;

(c) providing for equal treatment of children without discrimination based on marital status of the parents or the status of the child at birth;

(d) encouraging agreed arrangements for, and provides for the resolution of disputes about, the care of children;

(e) implementing in Dominica provisions of the Convention on the Rights of the Child and The Convention on the Elimination of All Forms of Discrimination against Women relating to maintenance of children;

(f) acknowledging that it is a general duty of the Government to safeguard and promote the welfare of children; and to mediate in any situation where the rights of a child are infringed upon and especially with regard to the protection of a child, a child’s health and education.

(3) The welfare and best interests of the child, which includes the child’s right to care, support and development and

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also the right to be respected, must be the first and paramount consideration in the administration and application of this Act.

PART I MAINTENANCE ORDERS

4. (1) Each parent of a child has the obligation to provide reasonably for the child’s maintenance, whether or not the child is in that parent’s custody.

(2) A person who has the custody or guardianship of a child or a person who stands in loco parentis to a child or a person who has accepted a child as “a child of the family” has the obligation to provide reasonably for the maintenance of that child.

5. (1) The Court may, on application in the prescribed form by a parent, a child over the age of fourteen years on his own behalf or by a person on behalf of a child, make a maintenance order requiring a parent, or any other person who has an obligation under section 4(2) to maintain any and all children of the parent or any other person who has an obligation under subsection 4(2).

(2) The Court in considering an application under subsection (1) shall have regard to the matters referred to in section 7.

6. (1) The Court may make a maintenance order -

(a) that the respondent shall, for the benefit of a child, pay to a specified person periodic payments for a specified term;

(b) giving the force of law to an agreement whereby the respondent shall, for the benefit of a specified child, make to a specified person periodic payments for a specified term;

Obligation to maintain a child .

Maintenance Order.

Payments of maintenance orders.

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(c) for the payment of expenses in respect of a child’s birth and the prenatal care of the child’s mother to be made by the father;

(d) that the respondent or applicant provide non- monetary maintenance and care of the child.

(2) In addition, a maintenance order may require the respondent to pay a specified lump sum to a specified person for the benefit of a specified child including a lump sum in respect of the expenses reasonably incurred in respect of that child before the maintenance order was made.

(3) The Court may make a maintenance order that -

(a) payment be made to a specified person; or

(b) payment be made through the Court.

(4) Where the Court that orders that payment of all or part of a lump sum be deferred or paid by installments, the Court may order the amount deferred, or the installments, be at a rate specified by the maintenance order, from a specified date, not being a date earlier than the date of the maintenance order, until the date when payment is effected.

(5) Where the Court orders the payment of a weekly sum the sum shall not be less than seventy-five dollars weekly.

7. (1) The Court, in deciding whether to exercise its powers under this Part and, if so, in what manner, shall have regard to all the circumstances of the case.

(2) Notwithstanding the generality of subsection (1), the Court shall have regard to the following matters in making a maintenance order -

Matters for consideration by the Court.

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(a) the income, earning capacity, property and other financial resources which each parent or any other person having an obligation under section 4(2) of the child has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each parent or any other person having an obligation under section 4(2) of the child has or is likely to have in the foreseeable future;

(c) the financial needs of the child and the standard of living of the child;

(d) the income, earning capacity, if any, property and other financial resources of the child;

(e) any physical or mental disability of the child;

(f) the manner in which the child was educated or trained and the manner in which the parents expected him or her to be educated or trained;

(g) the standard of living enjoyed by the family while the parents and the child resided together, if applicable;

(h) any non-monetary contributions made to the care of the child.

8. A maintenance order in respect of a child shall not, except for the purpose of recovering money previously due under the maintenance order, be of any force or validity after the child has ceased being a child, has married or has died.

9. (1) Where the hearing of an application for a maintenance order or for the discharge, variation, extension or suspension of a

Duration of a maintenance order.

Interim maintenance order.

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maintenance order is adjourned for any period exceeding one week, the Court may, if it thinks fit, having regard to all the circumstances of the case, make an interim maintenance order.

(2) An interim maintenance order shall direct the respondent, or, as the case may be, the applicant to pay such periodical sum as the Court thinks reasonable for the maintenance of the child until the final determination of the case, but the interim maintenance order directing the payment shall not remain in operation for more than six months from the date on which it was made.

(3) An interim maintenance order may be enforced, varied, extended or discharged in the same manner as if it were a final maintenance order of the Court and proceedings for the enforcement of an Interim maintenance order may be taken immediately after default has been made in payment of any periodical sum.

(4) An interim maintenance order shall be treated as if it were a maintenance order made under section 5.

10. (1) The Court may vary a maintenance order in such a manner as the Court thinks fit, suspend a maintenance order, revive a suspended maintenance order or discharge a maintenance order if circumstances so warrant on notice of application to -

(a) any of the parties to the proceedings in which such maintenance order was made; or

(b) any person having actual custody of a child.

(2) The power of the Court under this section to vary a maintenance order for the making of periodic payments includes the power to suspend any of its provisions temporarily and to revive any suspended provision.

Variation or discharge of maintenance orders.

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(3) Where on an application under this section for the variation or discharge of a maintenance order for the making of periodical payments, the Court varies the payments required to be made under that maintenance order, the Court may provide that the payments as varied shall be made from such date as the Court may specify, not being earlier than the date of the making of the application.

(4) The power of the Court to vary or discharge a maintenance order for the making of periodic payments includes the power to make a maintenance order for the payment of a lump sum.

(5) Where a maintenance order is made for the payment of a lump sum by instalments the Court may, on application on notice made either by the liable person to pay or the person entitled to receive the sum, vary that maintenance order by varying the number and date on which an instalment is payable.

(6) Where under the Children Care and Adoption Act 2023, the Court makes an order with respect to the maintenance or custody of a child, any maintenance order in respect of the same child made by the Court under this Act or the corresponding provisions of any written law repealed by this Act, shall cease to have effect.

11. Payments for maintenance shall be made by the respondent by the method specified by the Court, including payment to the specified person -

(a) by an arrangement whereby one person gives his authority for payments to be made from an account of his, or on his behalf, to another person or to an account of that other person;

Method of payment.

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(b) by cheque; or

(c) in cash.

12. (1) The Court may make an attachment order in respect of any pension or income that is capable of being attached, directing the person paying the pension or income to periodically deduct a sum for maintenance and to pay that sum to the Collections Officer.

(2) An attachment order must contain a penal notice notifying the person ordered to make the deduction and subsequent payment that he will be personally liable for the payment if he fails to make the deduction in compliance with the attachment order.

13. A party whose financial information is necessary to determine an amount of maintenance, shall, on the request of the Court, present to the Court any financial information required and any person needed to give evidence of financial information may be summoned before the Court.

14. The Court making a maintenance order may also order that a party pay costs in such amount as the Court may determine.

15. The High Court may, on application, make an interim or final order restraining the depletion of a person’s property that would impair or defeat the making of a maintenance order.

PART II MEDIATORS AND FAMILY EXPERTS

16. (1) Subject to section 17, the Minister shall maintain a list

of approved mediators.

(2) The list shall show the first and last name, date of birth, the identification of the other profession of the mediator, his professional address and his academic title.

Attachment Order.

Financial disclosure.

Costs.

Depletion of property.

List of approved mediators.

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(3) The list of approved mediators shall be published in the Official Gazette or published electronically, in an appropriate way.

17. A person may be listed as an approved mediator under section 16 if the person -

(a) is recognized by the High Court as being qualified in mediation; or

(b) has three years practical experience in mediation and holds a qualification in mediation approved by the Minister; and

(c) has practical experience in family matters, a degree or extensive experience and training in social work, mental health matters, behavioural or social sciences or any other equivalent qualification.

18. (1) Subject to applicable law or the parties’ agreement, a mediator is obliged to secrecy about the facts which he has become aware of in the course of the mediation or which have otherwise become known to him.

(2) A mediator shall deal with documents provided to him in the course of the mediation in a confidential manner.

(3) Subsections (1) and (2) applies to the supporting staff of a mediator as well as to persons who act for the mediator, under his direction in the course of a mediation.

(4) A person who breaches this section is guilty of an offence and is liable on summary conviction to a fine of one thousand dollars.

Qualifications of mediators.

Confidentiality.

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19. A mediator, the supporting staff of a mediator as well as persons who act for a mediator shall not be liable to any party for any act or omission in connection with any mediation conducted under this Act, except that they may be liable for the consequences of conscious and deliberate wrongdoing.

20. (1) Where in any proceedings under this Act the Court requires the services of a social worker or family law expert, the Court may nonetheless utilise the services of any person whose qualifications are at least equivalent to those in the case of a probation officer, or who in the opinion of the Court is qualified as a family law expert.

(2) A person, not being a public officer, whose services are utilized by the Court under subsection (1) shall enjoy the same protection as a probation officer.

21. (1) The Court may refer any proceedings commenced under this Act to mediation.

(2) Parties to the proceedings may notify the Court that they wish to have their matter referred to mediation and upon receipt of this notification the Court may make a mediation order referring the matter to mediation.

(3) A report shall be made by a mediator to the Court as to whether or not the mediation resulted in an agreement.

(4) Where a mediation order is made and the mediation parties referred to mediation reach a Mediation Agreement, the mediator shall reduce the Mediation Agreement into writing in the prescribed form and the mediation parties shall sign the Mediation Agreement.

(5) Where a Mediation Agreement has been concluded under subsection (4), the mediator shall file the Mediation Agreement with the Court and within fourteen days of the date of

Protection from liability.

Services of persons other than social workers may be used.

Mediation.

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filing the Mediation Agreement, the Court shall fix a date for further hearing of the matter and make an order.

(6) Where a mediation order is made and the mediation parties referred to mediation does not reach a Mediation Agreement, the Mediator shall refer the matter back to the Court.

PART III ENFORCEMENT

22. (1) The Court shall designate a person who may be a Clerk or Assistant Clerk of the Court to be the Collections Officer for each District for the purposes of this Act.

(2) The Collections Officer shall receive and make a record of all payments directed to be made to or through the Court under this Act.

(3) The person named in the maintenance order shall attend at the office of the Collections Officer during regular office hours to receive payment and must sign a receipt in the presence of the Collections Officer, who shall then pay out the amount.

23. (1) Where an amount ordered under a maintenance order to be paid, is fourteen clear days in arrears, the Court may on the application on oath of -

(a) the person to whom payment is ordered to be made, on oath; or

(b) the Collections Officer;

issue a warrant in the form set out in the Schedule ordering the liable person to be brought before the Court to explain the reason for the arrears.

(2) If the liable person neglects or refuses to give a

Designation of Collections Officer.

Arrears in payment.

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reasonable explanation for the arrears and to pay the sum due under the maintenance order and the costs in relation to the warrant, the Court may -

(a) order the immediate payment of the sums due if the Court is not satisfied with the explanation, or

(b) vary the maintenance order accordingly if the Court is satisfied with the explanation.

(3) If the liable person neglects or refuses without reasonable cause to pay the sum due under the maintenance order and the costs in relation to the warrant, the Court may, after considering all the evidence, commit the liable person, including the option of intermittent custody to prison for any period not exceeding two months unless the sum due under the order and costs of commitment, are paid.

(4) Where a respondent is committed to prison subsection (9) applies.

(5) Any provision in any enactment limiting to six months the time within which summary proceedings are to be taken shall not apply to proceedings for enforcing the payment of sums under an order made under this Act but no proceedings may be taken after 6 years from the date of the order.

(6) On an application for the enforcement, variation, revocation, discharge or revival of a maintenance order under the Act the Court may waive the obligation to pay all or any part of any amount due under the order.

(7) Where on application for the enforcement of the payment of an amount payable under a maintenance order and no warrant of commitment to prison is issued, the application may be

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renewed on the ground that the circumstances of the person to whom the application relates have changed, except where it relates to the amount waived.

(8) Where an amount under a maintenance order is payable to a person other than the Collections Officer, a warrant shall not be issued unless the person has sworn or affirmed to the fact of non-payment.

(9) Where a person is committed to prison for default -

(a) unless the Court otherwise directs, no arrears shall accrue under the maintenance order during the time that the person is in prison; and

(b) the committal shall not operate to discharge the liability of the person to pay the sum in respect of which he or she is so committed, but at any subsequent hearing relating to the enforcement, revocation, revival, variation or discharge of the order, the Court may, if in its opinion the circumstances so warrant, waive the obligation to pay all or any part of any amount due under the order.

24. (1) The Court may, when passing a sentence of imprisonment under this Act -

(a) specify the number of days that the offender must serve in prison under the sentence before being released on licence for the remainder of the term; and

(b) by order specify periods during which the offender is to be released temporarily on licence before he has served the number of days in prison.

Intermittent custody.

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(2) A person who has been temporarily released under an intermittent custody order, if, without reasonable excuse, remains unlawfully at large at any time after becoming so at large by virtue of the expiry of the period for which he was temporarily released, is guilty of an offence and is liable on summary conviction to a fine of one thousand dollars and to imprisonment for one month.

25. (1) The Court may issue a summons requiring a person against whom a maintenance order has been made or who is a party to proceedings under this Act to appear at a specified time, to show cause why an order should not be made against him prohibiting him from leaving Dominica where the Court is satisfied upon oath that there is reasonable ground for believing that the person is about to leave Dominica without making adequate provision during his absence for the payment of the maintenance order or for maintenance of the child named in the proceedings.

(2) For the purposes of subsection (3) the Court may, either in the first instance or subsequent to the issue of a summons, issue a warrant addressed to the Commissioner of Police and to all police officers, to apprehend a person and cause him to be brought before the Court within 24 hours of the apprehension.

(3) The Court may order a person against whom a maintenance order has been made or who is a party to proceedings under this Act not to leave Dominica where on the appearance of the person, the Court is satisfied that the person is about to leave Dominica without having made adequate provision for the payment of the maintenance order during his absence or for maintenance of the child named in the proceedings.

(4) A person is guilty of an offence and is liable on summary conviction to a fine of two thousand dollars and to imprisonment for six months, if an order has been made against him under subsection (3) and he leaves or attempts to leave Dominica while the order is in force.

Leaving State to evade order.

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26. (1) A person who receives an amount of money for the maintenance of a child under this Act shall apply that amount for that purpose.

(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of one thousand dollars and to imprisonment for three months.

27. (1) A person who is under an obligation to make periodic payments under a maintenance order shall give notice of any change of address to the Court and the person specified in the order.

(2) Where an attachment order is made the person ordered to make the deduction and subsequent payment shall inform the Court within one month if the liable person leaves, is no longer in his employ or cannot be found.

(3) A person who contravenes subsections (1) or (2) commits an offence and is liable on summary conviction to a fine not exceeding one thousand dollars.

28. (1) A person shall not submit false information in support of any application made under this Act.

(2) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of one thousand dollars.

(3) Where on hearing an application made under this Act, the Court determines that any information submitted in support of an application, or in pursuance of any order made under this Act is false the Court may -

(a) dismiss the application; or

Misapplying monies .

Change of address or employment of liable person.

False statements.

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(b) order a person to resubmit the information with supporting documentation.

PART IV MISCELLANEOUS

29. (1) An appeal shall lie in respect of an order under this Act to the Court of Appeal.

(2) The Court of Appeal upon hearing an appeal may -

(a) uphold, reverse or modify the decision of the Court;

(b) remit the matter to the Court for rehearing generally; or

(c) make such order as the Court of Appeal thinks just.

30. The Court shall ensure that the amounts received under maintenance orders are kept separate from any other amounts in the Court’s control.

31. (1) The Collections Officer shall remit any amounts received under the Act which remain unclaimed after six months of their receipt together with a copy of the relevant accounting records and deposit voucher to the Accountant-General.

(2) A person who is entitled to receive an amount under a maintenance order that has been remitted under subsection (1) may claim that amount by making a request to the Collections Officer.

(3) On receipt of a request under subsection (2), the Collections Officer shall issue a voucher headed “Unclaimed

Appeal.

Payments under maintenance orders to be kept separate.

Unclaimed amounts.

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Amount”, setting out the particulars of the unclaimed amount to the Accountant General.

(4) Every year the Court shall publish a list of any unclaimed amounts that have remained unclaimed for one year.

32. (1) Where a document, record or information required or permitted under this Act is to be in writing, that requirement, permission or description may be met by information in the form of an electronic record.

(2) A legal requirement under this Act that a person provides information in a prescribed form or other non-electronic form to another person is satisfied by providing the information in an electronic form that -

(a) contains the same or substantially the same information as the prescribed paper or other non- electronic form;

(b) is accessible to the other person so as to be usable or retrievable for subsequent reference; and

(c) is capable of being retained.

33. The Minister may make Regulations and prescribe forms for carrying into effect the provisions of this Act.

34. Where an Order for maintenance has been made against a parent under section 4 or a man has been adjudged to be the putative father of a child under section 9, the Magistrate may –

(a) at the time of making the order; or

(b) upon application by the parent at any time thereafter,

make an order granting the parent the right of access to the child on such terms and conditions as the magistrate thinks fit on such

Electronic documents.

Regulations.

Right of access.

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terms and conditions as the Magistrate thinks fit

To delete figures and brackets 22(i) immediately after the word “section” on the shoulder of the schedule and substitute the figure and brackets 23(i).

SCHEDULE

FORM

COMMONWEALTH OF DOMINICA

MAINTENANCE OF CHILDREN ACT 2023

Warrant of Apprehension For Disobedience of Order

To all Constables,

Whereas it has been made to appear to me ........................................................................... Magistrate for the District of ........................... on the oath of ............................................................................................. (hereinafter called the complainant) that by an order duly made on ..............................................................................................., 20 .......................... .................................................................................................................................... (hereinafter called the respondent)* was ordered to pay to………………………………............................................................................. .................................................................................... having the care of a child or children ............................................................................................ which sum(s) is/are the weekly/monthly) payment(s) which became payable on the .......................... day of ....................................20 .......... and that the payment (s) so directed to be made by the order have not been made according thereto by the respondent

Section 22(1)

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and that there is now in arrears the sum of ............................. being the amount due for ......................................................

This is therefore to command you to apprehend ...................... .............................................................................................................................and bring him/her before the Magistrate unless the sum(s) and the costs and charges of executing this warrant amounting to the further sum of .......................................................... shall be sooner paid.

And for your so doing this shall be your sufficient warrant.

Dated this .................. day of .................... , 20 .............

Passed in the House of Assembly this 25th day of April, 2023.

DANIEL JAMES Clerk of the House of Assembly

DOMINICA Printed by the Government Printer at the Government Printery, Roseau

(Price $5.00 cents )