Property Division & Equalization
Can a Third-Party Creditor Have Priority Over a Former Spouse to Jointly Held Property?
September 15, 2023
A considerable amount of work goes into resolving the various issues that arise post-separation. From child and spousal support to parenting time and schedules, each issue is carefully reviewed and negotiated before an agreement is finally reached. If the couple litigated certain issues, those matters will often be the subject of a binding court order. What happens, then, if one or both parties wish to make changes to the agreement after they’ve been established?
If both parties agree to the proposed changes, existing arrangements can be varied by consent. Whether applying to a court or creating a new agreement, the process is simpler if both people concur on the change. However, this is not often the case.
If one party wishes to change the terms of the agreement and the other party is opposed, a court order will be required. These matters tend to be urgent, especially if one or both people are facing financial hardship, or there is a concern around family violence driving the need to change parental access. In order to manage a variation request quickly and effectively, seek the advice of an experienced family lawyer as soon as possible.
At Shariff & Associates, our lawyers regularly work with clients post-divorce or separation to request or defend against a variation in support or parenting arrangements. We’ll provide a clear assessment of your position and develop an advocacy plan designed to give you the best chance for success.
To demonstrate the need for a change to an existing arrangement, the applicant must demonstrate that there has been a material change in circumstances. The applicant is often the payor of support, however, in some cases, the recipient may be the one seeking the change. A material change is something that significantly impacts either the payor or recipient’s financial status, such as:
The amount and duration of a child support order is made in consideration of the Federal Child Support Guidelines (the “Guidelines”). The Guidelines take the payor’s income, as well as the number of children into consideration when setting the support amount. To vary child support, the most recent income of the payor is considered and Guidelines are applied. This can be done on consent or if necessary, through negotiations or court order.
The relationship between a parent and child is strongly protected by federal and provincial family legislation. All parenting matters are decided based on the best interests of the child, making it challenging to successfully petition for a change to existing orders. However, in certain circumstances, it may be possible to demonstrate that the existing plan should be altered.
Reasons a parent may request a change to the existing order or agreement include:
It will be necessary for the applicant parent to demonstrate that the change in circumstance meets the following considerations:
A court is generally unwilling to reduce the time a child can spend with one of their parents, and so an applicant may find it a challenge to meet the onus to demonstrate the need for change. For clients seeking a variation to a parenting order, our lawyers will vigorously advocate on their behalf in court. If you are challenging a variation request, we will work to ensure your relationship with your child does not suffer unnecessarily.
The skilled lawyers at Shariff & Associates work with clients on a variety of variation applications, for applicants as well as respondents. We will review your situation and provide a realistic assessment of the likelihood of success with respect to the application. Whether requesting a variation or defending against one, we will advocate for the best possible outcome on your behalf. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.
September 15, 2023
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