by Lisa Thomson
Is your ex a deadbeat refusing to pay you child support? Are you entitled to Spousal Support (or Alimony), yet your ex refuses to acknowledge it? Can’t afford a lawyer due to lack of support? It’s a vicious circle. If he doesn’t pay you, how do you meet your basic expenses never mind legal ones? Welcome to Deadbeat 911.
To retain a lawyer and get into court for attaining support, you could be looking at up to $10,000. You’ll start with paying a $3,000 retainer and by the time your lawyer spends time on your file and gets to a courtroom believe me it adds up quickly. If you do not have the financial resources do not rule out the possibility of attaining child support and spousal support as a self represented litigant. It requires a little time, preparation and some research. It sounds daunting at first, but when I take you through a step by step process you will be surprised at how simple it can be.
Use the following steps as a guideline only and follow your Province, State or Country’s specific rules for applications.
In a nutshell this is how it works, firstly, access court forms for your city, Province or State by going on line and google “child support” or “spousal support”, “city” or “Province”. There will be links to self help guides, even family lawyers who provide free family assistance. There are also samples of completed forms to show you how to fill them out properly. If you prefer help in person, there are family law help centers located right inside the courthouse. In here you can have your questions answered, assistance with filling out forms and documents checked before filing.
You will choose a date to have your matter heard before a judge, giving at least 7 days from the date of the filing. After everything is completed, for a minor filing fee, your application gets filed in the court house registry and a few weeks after gets heard in the court room. A judge will likely make an order for support right at the hearing. Then you go directly back to the help center where they will assist you with writing up the order.
Once you’ve written the order, you take it to the Registry where they will “vet” the order and send it up to the Judge for signing (or you can return it to the judge personally, for their signature).
Take the signed order to registry for them to file it. They will make one copy for you to keep. Within a few weeks from filing the order, you should begin receiving support.
As a step by step process getting your legal request done looks like this:
1 collect evidence
2 access and fill out all necessary forms
3 write an affidavit as a supportive document
4 have all forms and the affidavit checked for completion and then notarized at the courthouse registry
5 make 4 copies of all sworn forms and affidavit including any exhibits
6 file the forms and affidavit at the city courthouse registry
7 serve your ex or his lawyer with the notice
8 attend the hearing, write up consequent court order, order vetted, signed by the judge and filed at the Registry
9 send Court order to the Maintenance Enforcement office in your city, court order is enforced and payments are received
There are some variations to this ‘nutshell’. Your ex could challenge your request for child support. I call these Double Deadbeats because not only are they not paying, they are earning an income and trying to hide it. Another example of a Double Deadbeat is the dad who quits his job to avoid paying support. If you are dealing with this situation, don’t give up. Let’s look at the detailed process you will need to consider to get your support into a legally binding agreement.
Everyone is entitled to child support, so this is a simple request and likely granted to any woman raising her children even if she is in a 50/50 custody arrangement. If you are earning more money than your ex though, realize that you will have to pay him if he is caring for the children half of the time. Any amount of income you are earning will be deducted from his child support payment.
1. Gather evidence. Attain a copy of his tax return for the last 3 years. This will be the most important evidence in attaining the correct amount of support. Child support is very straight forward in that it is based on his income. The more he makes, the more he pays in support. If you do not have access to this you will have to give details of his job, including his position title, place of work how long he’s worked there. You may even have to research salary information on similar positions from companies of similar nature. The more information you can provide in lieu of an actual income tax return, the better. If the children reside with you primarily, the child support table will reflect a higher support payment. If you share child custody 50/50, then the table will reflect a lower support amount in the table. Find the child support guidelines online and find the amount he should be paying. The table is a federal law in Canada and therefore amounts are the same from Province to Province. View Canada Federal Child Support Tables.
Also, if your children are playing sports, going to special schools or taking music lessons and you want him to help you pay for these, you need to request it specifically. You’ll need to provide receipts for their expenses. These are referred to as Section 7 expenses in Canada. They are not part of child support, they are extra. Typically, both parents pay proportionate to their incomes. If Dad earns 3x more than Mom, then he will pay 2/3 of section 7 costs.
2. Now that you have your evidence, get all of your necessary forms together. These will include a statement of what you are asking the court for, referred to as a Petition form or a Notice of Motion (sample). Also, on the form, you will choose a date for the hearing. You must pick a date at least one week from the date of filing. This one week period will allow for your ex to be served.
3. Write an Affidavit. This is a document which tells your story to support your Petition. Why do you want this? Who do you want it from? How long do you want it for? Your Affidavit may include your financial statement (a budget), the history of your marriage, names and birth dates of your children. It is typically organized in numbered paragraphs while the exhibits are alphabetically organized at the back of the affidavit. Exhibits are the evidence to back up your statements. For example, you state his earnings in your affidavit, then Exhibit A will be his income tax return for the previous year(s). View sample affidavit. As well, here is a specific child support affidavit sample.
4. File your application. Take your completed forms, affidavit and exhibits to the Courthouse filing center called the Registry. I find it best to keep all documents organized in a binder with tabs for the exhibits if there’s several. The attendants will review your forms to ensure they are complete. They are not lawyers however, and cannot check for legal validity. If they are satisfied everything is completed correctly, they will notarize your documents. This is where you swear the contents to be the truth and sign on the correct pages. After you have your forms and affidavit notarized, you then make necessary (4) copies for filing . Return to the court Registry with the original and all copies. Present them to the clerk and they will “file” the original at which time you pay a filing fee. You will keep 3 copies; one for your files, one to serve your ex and one to take to the courtroom for the judge. You will then ensure your ex or his lawyer is served. Your filing and administrative work is done.
4. When your ex or his lawyer is served they will respond in writing with their affidavit and exhibits etc. their response will also include a confirmation of the date of the hearing. If your ex does not have a lawyer, then they will be served personally. In order to serve your ex or his lawyer, you can either do it yourself or you can hire a service. If you do it yourself, you take the documents to the lawyer’s office and have the receptionist sign for the items and she will make sure the lawyer receives the documents. If your ex does not have a lawyer I would recommend hiring a service to avoid a personal confrontation. At this point in time they or their lawyer may make an offer for support. Ensure it is a reasonable offer (by reviewing the tables) and decide if you want to accept it. Remember this step will end the process now and you will avoid a court appearance. But the offer must be written and made into a “consent order“. An order is the only way you can enforce the support payments. The order would then be sent to the Maintenance Enforcement office in your city and this would likely be your responsibility as a self represented party. If no offer is made then go to step 5.
5. If the date is confirmed then you prepare for your oral presentation to the judge. This sounds intimidating but you have already made all of your arguments and requests in writing. All you have to do the day of the hearing is to show up in the assigned courtroom and be prepared to ask the judge for exactly what you have requested in your petition. It helps to anticipate a question or two the judge may ask. My tip; type out exactly what you want to say and read it directly to the judge. Your presentation should answer what you are asking for and why? Keep it simple. Remember, the judges are typically very accommodating to laypersons in the court room.
6. Attend the hearing. You will have a chance to address the judge and then your ex or his lawyer will have a chance to respond. The judge is supposed to read your documents prior to your attendance in the court however they often don’t have a chance to. You must be prepared to answer questions that may have already been covered in your written submissions. They will order the child support right there in the courtroom. You will then proceed to the help center to write up the consequent order and return to the filing center. They will file and send the order to the judge for their signature. If your ex has his lawyer attend the hearing, he may be willing to write up the order but ensure you are entirely satisfied with the order before signing it.
This is a little more complicated to acquire. Although the steps are the same, it will require more evidence to be successful in front of a Judge. Spousal support is based on two criteria a) your ex’s ABILITY to pay it and b) your NEED for it. Consequently, you will need evidence of their income and evidence of your need for support. You will be more successful if you have a budget of your income vs. expenses to demonstrate this need. This budget represents only your expenses not the children’s. In B.C it is a form called “Financial Statement” .
Once again, google spousal support for your Province or State to get accurate documents and information. In your affidavit you will include information on your role in the marriage. Were you a traditional stay at home mother/father? Were you working outside the home? What were your responsibilities? How did you help your spouse further their career? What are your annual earnings? These details are key to demonstrating your NEED for support. Also, consider the duration. For how long do you anticipate requiring this assistance? In attempting to get Spousal support I would recommend taking advantage of the complimentary legal advice. You may have to sign up for an appointment or wait for availability of such legal assistance, so looking into this now will get you in sooner.
Once you have your evidence in place, you follow the same steps . Access and fill out all forms. Prepare your Affidavit, the same way as above. View my SAMPLE Affidavit (1) which would be for both child and spousal support. Don’t forget to include your Exhibits to back up your statements. Your exhibits here might include, your budget or financial statement with receipts and your ex’s income tax returns for as many as 3 years. Also, keep it as simple as possible.
If your situation is unique, then include those facts but be careful not to include statements you cannot back up with evidence. If your affidavit is too lengthy you risk clouding the issues and giving his lawyer too much information to challenge. Keep it simple and absolutely honest.
Remember, after your ex is served and a date has been confirmed for the hearing, you will also receive their documents for review. You will get their affidavit and response petition. This is important as it will outline their arguments against what you’ve asked for. Prepare to respond to some of it at the hearing. However, deadbeats usually avoid legal procedures and perhaps don’t have a lawyer. If the opposing party is absent they can’t argue against your request and it is very likely a judge will automatically grant your order. On the other hand, if they are a Double Deadbeat they will have the best lawyer in town and fight your application at all costs. All you can do is prepare by addressing their arguments in court.
Finally, once your order has been granted, you will have to write it up. Just as you do for the child support order, go directly to the help center and they will make sure you have included all of the pertinent details in your order and ensure your wording is correct. (view sample court order in reference to a child custody order).
Once the order is filed you will send a copy to the Maintenance Enforcement Office in your Province or State. After it is received there, your ex will be informed of their debt to you. Arrangements will be made and you will begin receiving support payments. They will be enforced to pay you with measures against them if they do not attend to their debt. For example, their license may be revoked, their wages garnisheed, and they will pay interest and penalties on the debt.
Although it’s not ideal to represent yourself, there are times where the occasion calls for it. Lots of people do it because they are forced to. They do not have the means to retain a lawyer. If you are to follow these steps and conduct some internet and courthouse research, you should have some success at a fraction of the cost. Child support especially being as straight forward as it is, should be attainable for anyone. The complicated nature and criteria of entitlement to Alimony or Spousal Support make it less an open and shut case. Do your homework for this one and you will be more successful in the court room.
Use this as a guideline and remember to get your legal forms from your Province, State and country to ensure you are following local laws. Beat the Deadbeat, with your research skills, perseverance and a little self confidence. You should not have to subsist and raise children without the father’s assistance. It is your legal right.
Note to reader: I am not a lawyer and I am not giving “Legal advice”. I am providing legal information based on my legal experiences.
image source; Erin Smith Art- used with permission
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