Dad still can see child, even without paying support

Confused about child maintenance rates and how it is calculated in Bermuda? You are not alone. The fact is that many parents fall prey to the myths surrounding this topic as they do not have a clear and accurate understanding of how child maintenance is determined by the Courts. 

MYTH #15: There is a set rate for child maintenance in Bermuda.

Many parents who meet with me advise that they are willing to pay the “going rate” for child maintenance, normally an amount which they have heard about from a friend. Alternatively, parents will refer to child support tables from other jurisdictions, which arrive at a figure based on the number of children and the income of the paying parent and assume Bermuda has a similar system. The reality, however, is that there is no set rate or strict formula in Bermuda for assessing child maintenance.

Instead, the assessment of child maintenance in Bermuda is discretionary and will depend on the circumstances of the family in each particular case. So what circumstances will the Court consider? 

The starting point is always that both parents have an obligation to provide financial support based on the needs of their child subject to their ability to do so. While this obligation is a joint obligation, it is not necessarily an equal obligation. The first step is to consider the child’s reasonable expenses and how these costs are being met by the parents. In the normal course, maintenance will be paid to the parent with whom the child resides and who incurs the bulk of the child’s expenses. However, in recent years, families have started to move away from the traditional model of children residing with one parent and having weekend access to the other parent when the parents are no longer living together.  For example, shared parenting is becoming ever more common with children spending equal time in both households. It is therefore necessary to consider the new living arrangements and apply the general principles with these changing family structures in mind.

There are various pieces of legislation dealing with child maintenance, and the exact approach to be taken by the Court will depend on the legislation involved. However, whatever legislation is being considered, the primary task is to seek a balance between the needs of the child and the means of the parents while attempting to ensure that the child’s best interests are met. 

In reaching its decision, the Court has wide discretionary powers and will have regard to the following factors: 

(a) the parents’ joint financial responsibility to maintain the child; 

(b) the parents’ respective current and future income from all sources; 

(c) the care arrangements for the child; 

(d) the financial needs of the child; 

(e) the measures available for the parents to become able to provide for the support of the child;

(f) the income, earning capacity, property and other financial resources of the child; 

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

(h) the standard of living enjoyed by the family before the breakdown of the marriage; and

(i) the manner in which the child was being educated during the relationship and the parties’ education expectations. 

Generally speaking, the above principles boil down to an analysis of how the reasonable expenses of a child should be met. 

In conducting this analysis, the parent seeking the maintenance payment will have to provide proof of the expenses being claimed and each parent will then be required to make full and frank disclosure of their financial means. 

If the parties cannot agree an amount for maintenance, the Court will use this information to calculate the reasonable amount of maintenance that is required to meet the child’s reasonable needs and to what extent each parent will be required to contribute. There are no formulas and each case will be decided on its own specific facts.  

MYTH #16: If a parent fails to provide for their child financially, they are not entitled to access.

Another common misconception is that exercising access to a child and the payment of maintenance are somehow inter-related. 

Every parent has an obligation to provide financial support for their child in accordance with their ability to do so and that obligation remains regardless of whether the parent enjoys access. 

Even if a parent is not paying maintenance, this is unlikely to impact upon his or her access to their child. This is primarily because it is usually in the child’s best interests to have access to both parents, even where one parent is not meeting his or her financial obligations. 

Conversely, if a parent does not have a relationship with their child, either by choice or because it would not be in the child’s best interests, this does not absolve him or her of their responsibility to provide for the child financially. 

The payment of maintenance and the enforcement of any order for maintenance will be considered separately from the care and access arrangements.  

An effective child maintenance arrangement will make a significant difference to a child’s well-being by ensuring that their needs are met and by creating a more stable environment for them. 

Although somewhat daunting, an experienced attorney can assist parents by providing guidance as to a fair sharing of the child’s reasonable expenses in order to ensure that the child’s welfare is met appropriately and so as to ensure that there is as little acrimony and hostility between the parents. 

Adam Richards is director, Matrimonial and Family Team. He may be contacted via [email protected] or via phone at 295-7105. A copy of this article can be found at the firm’s website at www.law.bm. This column is for general guidance only and does not constitute legal advice.