Facing jail? Single moms owed thousands of dollars in child support face jail because of unpaid bills. MP Wayne Furbert says the law needs to change. *iStock photo
Facing jail? Single moms owed thousands of dollars in child support face jail because of unpaid bills. MP Wayne Furbert says the law needs to change. *iStock photo

A woman ended up in court last month because she didn’t have any money.

Her financial situation was, by any objective measure, a dismal mess: she owed about $11,000 in back rent; she says the father of her adolescent son owes her tens of thousands in unpaid child support. Bottom line: she was in police custody over unpaid debt — and she would stay there unless she produced $2,000 by the end of the day. 

She remained in custody for the day but her family bailed her out with the money.

“It’s not easy for a single parent,” said the woman’s mother, who spoke on the condition of anonymity because of prospective public embarrassment.

“You can’t pay what you don’t have and you can’t pay if you’re not working and you can’t work if you’re in jail. There needs to be a better solution.”

Facing prison time for debts is a story that has become familiar to dozens of Bermudians in recent years.

Opposition MP Wayne Furbert is trying to change that. He is pushing a proposal that would do away with the practice in Bermuda.

$219 per day in jail

Mr Furbert estimates 115 people have been locked up for debt since 2011.

“I don’t think Bermuda realizes the problem is that big,” he said.

Mr Furbert said it costs on average $219 per day to house someone in jail and asked if a better use could not be found for such taxpayer money.

“This stuff doesn’t make any sense,” he said.

Mr Furbert said many lawyers would argue the affected folks are being imprisoned for contempt of court, not technically debt, before adding, “but an apple is an apple. Let’s not play with words. This stuff doesn’t make sense”.

Mr Furbert said other alternatives, such as garnishing wages, placing liens on an individual’s assets or revoking someone’s passport, should be considered as more humane ways to deal with Bermudian residents who are in debt.

“I’m saying there are other tools that the courts can use,” he said.

He said jailing someone does not make it easier to repay the debt.

“It becomes a vicious cycle,” he said.

But the local judiciary points out that Bermudian law already includes a general prohibition on the imprisonment for debt.

While a court can commit a debtor to prison for failing to pay a judgment debt, such a move can’t be exercised in instances where the debtor doesn’t have the ability to pay.

Chief Justice Ian Kawaley said through a statement released yesterday, Bermudian civil judges are “fully conversant with the longstanding legislative policy that no debtor should be imprisoned solely because of genuine inability to pay.”

The judiciary, he said, are sympathetic to those who find it difficult to pay their debts because of economic conditions beyond their control.

Imprisonment in civil cases, he said, is an exceptional occurrence reserved for debtors who are “deliberately flouting orders of the court.

“Civil judges must balance the need for justice for both creditors and debtors, mindful of the fact that the availability of credit in Bermuda requires those extending it to have confidence in the debt collecting efficacy of the courts,” said the judge through a statement.

Mr Furbert, however, suggested the judge’s comments amounted to semantics. “We don’t want people being locked up for debt,” he said. “They go to court and are threatened right up front with jail. Now grandma has to go look for the money and she’s suffering as well. It has a ripple effect. There should be no contempt of court. They should go after the assets. The prison shouldn’t be a part of the equation.”

Sheelagh Cooper, the chairwoman for the Coalition for Protection of Children, said her organization has been lobbying for a change in the approach to debt on the island for 14 years. The practice of effectively imprisoning poor people who can’t pay their bills is a “barbaric practice”. Technically, she said, Bermuda law prohibits incarceration for debt if the court is satisfied that the individual “does not have the means to pay”.

“Unfortunately, in the past and even today, the courts have not in many cases been persuaded that the individual lacks the means and of course the burden of proof is on the individual, who is always unrepresented in theses cases,” she said.

The court, she said, too often acts as an arm of the creditors or collection agencies.

Imprisonment, she said, “has had a profoundly destabilizing impact on families and in particular the women that we serve at the coalition for the protection of children, who are routinely threatened with imprisonment for debt”.

She says Bermuda should consider the Canadian model, where owed debt is considered a civil proceeding; fines can be levied and wages can be garnished but no one can be sent to prison. In the U.K., individuals cannot be sent to jail over unpaid debts. However, they could face court action, and in some cases, this could lead to a jail term.

Ms Cooper says she receives several calls every week from women who have imprisonment hovering over their head because of debt. Many are owed far more in child support than their own incurred debt they owe creditors.

“We see that situation quite a lot,” she said.

The woman who was threatened with imprisonment last month concurs; she said the father of one of her sons owes her between $38,000 and $40,000 in back child support. 

“I’m trying to make ends meet,” she said.

Said her mother, “Rent is not easy in Bermuda. And the father is getting away scot-free. She told them where he lives, where he works and they can’t find him. What is that? I just don’t understand how the system does that.”