NOVEL MAINTENANCE CLAIM

Dominion, Volume 11, Issue 42, 13 November 1917, Page 8

NOVEL MAINTENANCE CLAIM

INTERESTING LAW POINT. An interesting law point wna involved in the reserved judgment delivered yesterday in the Magistrate's Court by Mr. S. E. M'Carthy, S.M., in the ci.so in whioh Dorothv Pearson proceeled against John Henry Pearson for failing to provide adequate maintenance for their two children, Elizabeth Mary Pearson and Flora Vinetta Pearson. On the suit of tile defendant a decree nisi of dissolution of marriage had been made, and that docrce had been made absolute. Throughout the divorce proceedings and up to the present the children had remained in the custody of the wife. No application had been made for the custody of the children, nor had the husband made any provision for the support of the children beyond an allotment of military pay. The wife had been, and was now. supporting the children, who were destitute within the meaning of the Destitute Persons Act, 1910. It had been argued 'or the defendant that the Court had by rensonof the divorco proor-eilins-s no jn>'isdich'on to make an order for maintenance against tho defendant. Had ;.rovisim been made by the Court fnr the maintenance of the children tho Court (Magistrate's) could not have exercised its powers wider the PesMnte Persons A"t. As matters p'ond the Masistrate's Court liacl jurisdiction, If it had not, the parents, by not availing themselves of their rights nnder the Divorce Act, might evade performance of their parental obligations once the children pnßsed beyond th"ir control. The higher Court had not bee" called noon to exercise its nnwers. and it therefore could not be said tha' the lower Court was trenchNn? on the jurisdiction of the higher Court. The meiter of the children had not b»*n litigated, though either party could at anv time raise the nueslion V petition. The Destitute Persons Act-laid oil the father th« primary duty of supporti'iiT his children, whether legitimate*or illegitimate, and of that <Mv be could not direst himself by divorce nroceedin>rs against his wife. The Magistrate held that ,'n <lie interest of the complainant, the children, and the State en order of maintenance should bo made. An order was accordingly made for the pavm"i'l: of 6s. per we°k"in resnecfc of »»eh child. At the hearing Mr. T,. Edwards nnpenred for the complainant, and Mr. P. W. .Tac.fcfion for the defendant.