Consent Orders Defined
Consent orders are an agreement between two or more parties in a dispute. Consent orders are used to provide clear terms of understanding between parties to avoid future disagreements. It also provides a framework to be enforced as a court order once it is signed by a judge. A great value of consent orders is that both parties had the opportunity to discuss the differences between each of their interests and determine what was the best outcome for both parties. Since both parties came to an agreement, there is more satisfaction with the outcome and less effort needed to enforce terms of the agreement.
In Canada, an example where consent orders can commonly be found are in family law cases that deal with divorce that lead to a Separation Agreement. The agreement will then be filed with the court and once both parties have signed the separation agreement , it can be signed by a judge and become an order of the court. Reaching consent orders also allow for court processes to be avoided that would be otherwise be costly and time consuming.
By avoiding court processes, consent orders also allow for private information to remain confidential as opposed to if a full court process took place. Since the court process is public, information can be made available on the public record that the parties may not want public.
For example, sometimes parties may only want certain terms of the order to be enforceable and not the entire agreement. Having the agreement signed by a judge also gives assurance that the framework for the agreement will be enforced. Without consent orders, a party only has assurance of a verbal agreement or agreement in writing between themselves, the terms of which may be difficult to enforce after a dispute in understanding of the terms occurs.
Court Orders Defined
Court orders are slightly different than consent orders and are usually granted after an adversarial lawsuit has been filed. A Judge issues a Court Order following a hearing or after a motion for contempt has been filed and heard by the Court. Court Orders are granted to parties of the litigation and they clarify (or may modify) agreements made, or not made, by the parties. The Court Order is binding on the parties and any violation of the Court Order will be subject to the rules of contempt and the Court has the authority to hold the violator in contempt of Court.
Think of a Court Order as a more formal way to enforce the terms of a separation agreement, whether reached by the parties by full mutual agreement or by litigants after a trial and a decision has been made by the Judge.
Distinguishing Between Consent and Court Orders
A consent order is a voluntary agreement of the parties that has been approved by the court. In Ontario, a consent order can be obtained at any time during a family law proceeding; either before commencing court proceedings or during the course of a proceeding. A consent order may cover issues relating to the custody of children, child support, spousal support, division of property, and any other family law related issue.
Unlike a consent order, which requires a mutual agreement of the parties, a court order is an order made by a judge of the court after a divorce proceeding has been commenced and the parties fail to agree on an issue (or issues). A court orders a result, and orders the parties to comply with the order according to the law.
An important point to keep in mind is that a consent order has the same effect as a court order. Upon approval by the court, the consent order becomes a legally binding contract between the parties. This means that a breach of a consent order is enforceable through the court and could lead to a finding of contempt (which may be punishable by imprisonment if the event of a repeated breach). In addition, an order may also be filed with the Family Responsibility Office (if an aspect of the order relates to child support and/or spousal support), who will take steps to enforce the order against the payor.
Once a court order is made, there are limited ways to vary or terminate it, a court order will only be varied by the court upon a material change of circumstances. A consent order recognizes that the circumstances surrounding the parties are fluid. Accordingly, a consent order establishes clear procedures that the parties must follow in order to vary the agreement reached. For example, if the parties consent to a spousal support increase when the payor receives a promotion, the parties may agree that they will not proceed with a motion to vary the spousal support order until the promotion takes effect for at least one year. A consent order allows the parties to agree upon the process to vary the order upon an occurrence of a series of anticipated events.
How To Apply For a Consent Order
The process of obtaining consent orders typically involves the following steps:
The completion of the attached consent orders checklist
The preparation of a draft consent orders that sets out the terms of settlement
The filing of the application with the court
Obtaining the judicial approval of the application by a registrar of the court
The entry of the court orders
A copy of this checklist has been attached to this blog.
The checklist will identify all the agreed matters that form part of a consent orders application, and will set out various matters that must occur as part of the process.
The process is similar, whether it is a Consent Orders Application in the Family Court or the Local Court, or some other Court. It will vary slightly, depending on the court in which it is filed.
The Court will usually list the matter to be heard on a registrar’s list.
Once the father lodges the required documents, the registrar will usually ask the court staff to serve the wife with the Application for consent orders. Mrs Mother will then have 28 days to file a Response.
Where she files a Response, the matter will then be listed for hearing in a case management list.
At the hearing, the Court will order the mother to file and serve her Response. The Court may also provide Case Management Directions, particularly as to the preparation of an Issues Paper and the Identification of Documents. The Father and Mother may also be required to attend upon a Registrar for Making Arrangements Direction, where they will be asked to participate in a mediation, Parenting Conference or Lawyer Assisted Family Dispute Resolution.
After the Court in the Registrar’s List has given Directions, the father will then need to comply with the Directions, so that he has complied with the requirements of the Court before he can finally obtain his consent orders.
The Process for bringing a consent orders application also applies to an application for Consent Orders by Reply in response to an Application for Consent Orders Reply.
The Role of a Court Order in Enforcement Proceedings
Unlike a consent order, a court order is a binding decision made by a judge that must be followed. In Family Law matters, a Judge or Master is given the power to make final determinations regarding children, parenting arrangements, child support and spousal support. If a party chooses to ignore a court order, they may face serious legal consequences.
If a party is found to be in non-compliance with a court order following a finding of contempt, the court can order penalties including (but not limited to) a fine, and have the inability to pay the fine considered when making its decision.
If the fine does not secure compliance with the court order , the court may consider a term of imprisonment. The Criminal Court of Canada has held that imprisonment for contempt of court, may be an appropriate means of enforcing an order in circumstances where other means have been exhausted or are likely to fail to enforce the order in a meaningful way.
When the judge has left no room for interpretation between the parties and has given an order to follow, there is literally no room for discussion. The only outcome that may resolve the situation is that the order be followed exactly, and/or the offending party be penalized for failing to comply with a clear order that may lead to their imprisonment.
Consent or Court Order: Which Path To Take
In deciding whether to enter into a consent order or attempt to obtain a court order, a person’s legal representative may discuss some of the following considerations with them: The primary concern in deciding whether to proceed with an application for a court order is generally the time and cost involved. Obtaining a court order will usually involve filing documents with the Court, the drafting of affidavits and attending at Court on the hearing date. The amount of costs involved may, to a degree, be proportionate to the amount in dispute. Settling an issue between parties even in circumstances where a court order may be obtained and granted quite quickly may save much time and expense in the event of an appeal from that decision. The second consideration is of course whether the terms of a consent order are, from the person’s point of view, accepted as being fair in all the circumstances. If there is something in the terms of a proposed consent order which is unacceptable to the person, it may be preferable to apply for a court order and have the issue determined by a Judge. In the event of an appeal from the consent order, it will be for the person to show that the consent order was unfair or unjust rather than the other party showing that the court order was wrong. That being said, consent orders will generally be given more respect by the Court of Appeal than court orders made by a trial judge. In that sense, consent orders are sometimes harder to overturn than court orders. Given the relative ease, speed and cost-effectiveness of proceeding with consent orders, parties may not wish to force an issue simply because they can. They may have a good reason for not entering into a consent order but sometimes parties simply won’t be so unreasonable. In those cases, a good practical course of action may be to proceed with a consent order on mostly acceptable terms subject to the terms being less than ideal or fair for one of the parties. An appeal from a consent order of a judge then may be the best way of obtaining justice if an appealing party is satisfied that a particular error has been made and that it is an appeal that is likely to succeed. If both parties to the proceedings consent to the orders being made, then an application must be made under s 79(9) by one of the parties that sections 73, 74 or 79, to the extent that they have not been excluded by that court’s power to make orders, still operate to allow the Court to make any order it would have power to make under those subsections (in other words any order under Part 8).
Seeking Legal Advice On Consent and Court Orders
It can be very beneficial to obtain professional legal advice when dealing with any type of consent or court order. Since each situation is unique, you will need specific guidance from someone knowledgeable in the area of law to make sure you are complying with the terms of your order.
There are two main types of professionals who can provide this type of guidance, which are: Lawyers Family law professionals who have experience working with consent and court orders , especially those solicitors who have experience in alternative dispute resolution pathways involving mediation or collaborative practice may also be able to help with this.
Professional legal advice can also be useful in understanding the consequences of not complying with consent and court orders and whether such consequences may result in needing a variation to the orders, an appeal against the orders, or an enforcement of the orders, through the family courts.
A person reading this article should always seek independent professional legal advice for their own situation.