What is Child Support?
Child support is the right a child holds once the parents have separated, it is the duty of both parents to provide support as the child resides with either parent. Child support is paid by one parent to the other, with the recipient being the parent who is the primary caregiver of the child. The process of acquiring child support is fairly simple and will be explained in detail in the following paragraphs.
Who is the primary caregiver of the child?
The parent who has the child in their care for more than 60% of the time is the primary caregiver of the child. Sometimes, parents may care for the child on a shared parenting basis; meaning that both parents care for the child almost equally. If both parents care for the child for more than 40% of the time (i.e., 40 / 60 or 50 / 50) the parties (the parents) are parenting on a shared parenting basis. If the parents are parenting on a shared parenting basis, the parent who earns a higher income typically pays child support to the other parent, based on a set-off (balancing out the monies owed). To find out how much child support you ought to receive, or ought to pay, head on over to our child support calculator.
Initiating Child Support Proceedings
In order to receive child support, you must directly ask the other parent for child support. Texting them or emailing them asking for child support is justifiable, this method is called an “effective notice” of child support. Once you have advised the other parent that you should be receiving child support, they have a duty to pay child support to you. Alternatively, if the other parent has asked you to pay child support, you have a duty to pay child support to them for the care of the child.
In the event that the other parent has refused to pay you child support, you will have to issue a petition in the Court of Queen’s Bench requesting child support. You can download a draft petition on the Law Society of Saskatchewan’s website, (https://www.lawsociety.sk.ca/for-lawyers-and-students/practice-resources/resources-from-the-courts/queens-bench-forms/) the petition will be Form 15-16. Complete the form and fill in all the details, and claim child support. You are also required to complete a financial statement (Form 15-47) which will aid in your claim for child support, it will be used to determine if you are eligible to be the recipient. Once you have completed the petition and the financial statement, send them to the Court of Queen’s Bench and have them issued. You must have three (3) copies of both the petition and financial statement to send to the Court, this is because one of the copies will remain in the Court file while two of them will be returned to you. You will also be charged a filing fee for the Court of Queen’s Bench so be aware of that.
Procedural Steps
Once your petition and financial statement have been issued by the court and returned to you, you will have to personally serve one of the two copies to the other parent of the child. Personal Service means that somebody (not yourself) must give the documents to the other parent directly. The documents must be directly handed to the parent, not to their spouse or to anyone else. Once the other side has been personally served, you will also need to complete an Affidavit of Personal Service (legal document swearing that you are telling the truth), (Form 15-8), fill out all the details, and have it sworn in front of a Commissioner of Oaths.
After the petition has been personally served, you can get started on preparing a Notice of Application (Form 15-32) requesting child support. A Notice of Application is an application to the Court requesting a certain relief, i.e., child support. You must complete the form, the top half needs to be the exact same as what was written on the petition, the Court File Number, the Jurisdiction, the name of the Petitioner (yourself) and the Respondent (other parent), and you will just have to fill in the blanks accordingly. The “where” is the address of the Court of Queen’s Bench in the jurisdiction that you will be going to Court in, for example, Regina, Saskatoon, Yorkton, etc., the date is when the matter will be heard in Court and the time is what time exactly the matter is scheduled to be heard. Check the Saskatchewan Law Courts website (sasklawcourts.ca) to find out what days and times Court is held for family chambers. The date for an application for child support must be 37 days after the date of personal service, this is based on the Rules of Court.
To complete the Notice of Application, you have to state what relief you are asking for, in this case it is just child support, you have to state the “grounds” for asking for child support, which is where you will set out a brief summary of the facts, i.e. you and the respondent have a child together, the child resides with you for “X” amount of time, your income is “X”, the respondent’s income is “X”, and that the respondent is not paying you child support. You must state the “material evidence” that you are relying on, this is where you list the Affidavits that you will be focusing on. List the name of the person who swore the affidavit and the date it was sworn, for example: Affidavit of John Doe sworn January 1st, 2020. Do this for all the affidavits that you are relying on. You would set out the applicable rules and the applicable acts and regulations. For Child Support, you just must list the Family Maintenance Act, 1997 and the Divorce Act under the acts and regulations. These acts can be found on the (publications.saskatchewan.ca) website, you do not need to list the rules.
It is recommended that you draft an order setting out what exactly you want, but this is not required, and you can delete the last paragraph of the Notice of Application if you do not want to draft an order. The order – general form (Form 10-3) can be used for the draft order but change the title from order – general form to “Draft Order” and fill in the blanks and state what you are requesting.
Lastly, you need to draft an affidavit (Form 13-31). An affidavit is a sworn document, the person swearing the affidavit writes out statements, in paragraph form, setting out relevant facts and details about the situation. The person writing the affidavit can only have information that they know to be true, personally. They cannot include statements they were told by someone else; they need to have personal knowledge of what they are stating. For a child support application, you should include details of your relationship with the other parent. The name and date of birth of the child, and the details about the financial circumstances of yourself and the other parent. Also detail the current parenting arrangements and include when you first asked for child support, or when you gave them “effective notice”.
Once you have drafted the Affidavit, have it sworn in front of a Commissioner of Oaths or a Notary public. Once the affidavit is sworn, and the Notice of Application is completed, you must serve them on the other parent. This does not need to be personally served, but you do need to be able to satisfy the Court that the other party has received the documents. Once you have served the other party with the documents, complete an Affidavit of Service (Form 12-15) and include proof that the document has been sent and/or proof that the document has been received by the other party. After the Affidavit of Service is completed, file all the documents with the Court of Queen’s Bench.
The other parent will then have an opportunity to reply to your affidavit with their own. Review their affidavit, if they brought up details that you did not mention in your affidavit, you can reply to those details. You cannot reply to paragraphs of theirs which are replying to paragraphs that you mentioned. For example, if you say, “the child is 4 years old” and they say “no, the child is 5 years old”, you cannot reply to their paragraph stating the age of the child. However, if they mention something which you did not talk about at all in your affidavit, then you can reply to that. The rule is that you can only reply to new matters, new matters being something that was not dealt with in your initial affidavit. Review their affidavit, draft a reply affidavit replying only to new matters, and then serve the affidavit on them, complete another affidavit of service, and file it with the Court.
The last step
After filing with the Court of Queen’s Bench, is appearing in Court, in person is preferred generally, but based on the circumstances (COVID-19) the Court may be operating over the phone, call the local registrar for the Court of Queen’s Bench (their phone numbers can be found on the Saskatchewan Law Courts website) and ask them how they are proceeding with Court. On the date that Court is scheduled, based on the date you wrote in your Notice of Application, you must appear in Court and argue that you should be receiving child support.
This is a step-by-step guide to receive child support, thanks for reading until the end and good luck making sure your child’s needs are met!
