What is a Consent Order?
A consent order is an order of the court made with the agreement of the parties to the proceeding. In cases where there are contested issues, it can be agreed upon by way of a settlement or approval at the end of a trial. Once entered by the court, a consent order has the same legal effect as a court decision after a contested hearing. An agreement that is not made in the proposed form of a consent order and signed by the parties’ lawyers cannot be converted into an order of the court. A consent order can also be used to resolve a consent motion; such a motion is brought by one party asking the court to accept the consent of both parties to change an order without requiring a motion on notice. With respect to family law matters, a consent motion can be brought to change child support terms between the parties, set or change enforcement orders, or address other issues when both parties agree to the change. Consent orders can be made addressing court related issues in all types of proceedings; family, criminal, administrative, commercial, regulatory , or quasi-criminal matters under provincial legislation. The consent of two or more parties can be to an order of the court, or an order of a tribunal that has been given statutory, regulatory, or delegated authority by an act of legislation to adjudicate disputes. In family court proceedings, it is common for parties to consent to orders that will deal with all terms of financial disclosure, access and parenting time, and sharing information between parents. Depending on the issues, this type of order can set out the income earning ability of the parties, the circumstances under which a parent will not exercise their scheduled parenting time with a child, the school the child will attend, and best practices for sharing information between parents and between the parties and any third parties. In the Family Responsibility and Support Arrears Enforcement Act, certain sections refer to the "consent of the parties" as the required mechanism to enforce child or spousal support, in which circumstances an employee of the Support Enforcement program engaged by the Family Responsibility Office may go forward with enforcement without the necessity of court proceedings.
Consent Orders vs. All Orders
Consent orders differ from other family court orders, including preliminary, interim and final orders based on one distinct characteristic: consent orders can only be arrived at when there is a mutual agreement between the spouses. All other orders can be made by judges without consent. For example: Preliminary orders are entered at the start of the case, pending final resolution. Interim orders take effect between preliminary and final orders. Final orders take effect when the court has determined the result of litigation. They are definitive in nature and can only be varied by appeal to a higher court or order of consent.
Obtaining a Consent Order
The process starts with the negotiation phase. Typically, both parties will have or obtain independent legal advice regarding the issues to be agreed upon and the proposed terms of the consent. Sometimes this phase will also involve mediation, where party’s lawyers will attend a court-based or private mediation to work through some or all of the issues. Once the parties have negotiated and "settled" and if they require the assistance of the court, one or both of them will draft the consent order in accordance with the rules of court. There should always be a clause that the agreement requiring that the consent order be read and interpreted as a whole and no provision standing on its own. Once the consent order is drafted, it is usually signed and dated by both parties. The signed consent is then filed with the court along with the requisite processing fee. The signed consent can be filed with the court in accordance with the rules of court. In Urban v Urban, 2015 ABQB 413, Justice CRowley reviews some of the cases regarding filing a consent order. However, filing a consent order may be done via email in some circumstances or electronically submitted on the Alberta Courts website under the Electronic Filing Service ("EFS"). Some courts, relatively speaking, are not offering these services daily. The submission of the consent order via EFS is likely to be the future of submitting consent orders to the court. Once the consent order has been filed, the court registries will not review the agreement or make sure that the agreement is complete. The court registrar will review the consent order to ensure that the proper form has been used and that any required information is included (such as addresses, Child Health Numbers and the like). The signed consent order should include an Affidavit of Service which provides proof it has been served upon the respondent party. When a consent order is filed via EFS, that document may be deemed as having been filed at the time of submission to the EFS portal. Some consideration should be given to whether filing through EFS is appropriate in a particular situation. Sometimes it is just easier to have one person go to court with the signed consent order along with all of the parties’ respective documents to obtain the court’s approval. When the consent order is dealing with children, there is a waiting period required prior to it being issued by the courts for reconsideration of the order. There is also a caveat that provides for 30 days that the consent order is to be filed with the court until the order is approved. If the court has any problems about the wording or proposed terms of the consent order, then the court may schedule a date to review it. Usually, if counsel are in agreement as to the wording or the terms, the consent order is usually accepted by the courts. There are some exceptions where consent orders are being filed with the courts in cases where the parties are very close to the Baker v Baker, 2010 ABCA 249 limit (6 months) for reconciliation of marriage. In those cases, the consent orders are being scrutinized by the court, particularly if the consent order is reflecting that the parties have been separated for a longer period of time than the Baker limit.
Advantages of Consent Orders in Family Court
Consent orders can be a very useful tool for resolving disputes without the necessity of proceeding to trial. The court will make the same order if you go to trial, but it is undoubtedly more efficient for the Court to make orders by consent of the parties. The following are the main benefits of the use of consent orders in family court:
Costs Saved – If an agreement can be reached and orders made by consent, the costs of legal action will be lower than if the matter proceeds to Trial.
Judicial Efficiency – Consent Orders remove the need for a hearing. This means the Court Registrar’s time is not wasted with procedural applications and the time of the Judge is not taken up in hearing unnecessary matters.
Most Consent Orders are made with the consent of the parties , and if the parties do not attend or do not participate, the orders will be made on the papers without the need for a hearing (unless the Court considers that a hearing is necessary).
Finality – If consent orders are made, the parties have signed the orders in the knowledge that they cannot be set aside unless there has been some fraud or misleading conduct by one of the parties, or one party can show that the agreement was not entered into freely and voluntarily.
Enforceability – Once consent orders are made, they become enforceable by the Court as if they had been made at a trial. There are various enforcement mechanisms open to the parties to ensure compliance. In this way consent orders have the same utility as Orders made after a hearing.
Limitations/Drawbacks of Consent Orders
While consent orders often streamline the family law process, they are not devoid of limitations and drawbacks. Parties agreeing to a consent order should carefully consider their choices and future impact prior to proceeding. For example, a common consideration is whether to incorporate the financial agreements set out in the consent orders into the decree. If the consent order is incorporated into a decree then the orders are binding as of the date the consent order is entered. If the consent order is not incorporated into a decree it is only binding when it is signed by the court. An additional consideration is that a consent order is subject to enforcement by the court just as a decree is. This generally means that consent orders can be modified by the court in much the same manner as a decree. There is some limited discretion for consent orders that are incorporated into a decree. The consent order restrictions on modification, if any, will generally be honored unless the parties can agree that a substantial change in circumstances has occurred such that a modification is warranted.
Consent Orders in Real Life
Consent orders are commonly used in the family law system. Their success is evidenced in the variety of circumstance and applications in which they appear.
Case Study 1: Custody and Parenting Orders
Jason and Caitlin had been through a bitter separation, and both sought custody of their two children, ages 5 and 8. Neither wished to work together on a shared parenting plan because of the contentious nature of their relationship. After consulting with their lawyers, they discovered that mediation might be a more suitable alternative for them than an expensive court fight. As an alternative to court, they were granted mediation and over the course of several sessions, put together a rough parenting agreement without the involvement of the court staff. This meant that they would share the care of their children at weekends and for six weeks in summer. Instead, they were able to make a formal court application, which was put forth as consent orders and legally binding for both parents.
Case Study 2: Property Settlements
Michael and Francine Shultz had been married for four years when they began to discuss divorce. Unfortunately, their debts and assets were still entwined and they were prepared to fight. Their lawyer convinced Michael and Francine to consider consent orders as a route to resolution. The majority of their wealth was in the form of real estate. As half of their real estate portfolio had been purchased using a low-interest loan , it was agreed between the two of them that they would split the real estate at that point. After a three month period during which no further purchases were made, the property would be divided, with half going to each party. Neither party waded into an expensive court battle. Instead, they were able to initiate a consent order.
Case Study 3: Spousal Support
Stacy and Mark Bailey were having a family law dispute due to divorce. Mark’s income had fallen dramatically over the previous several months, since his business had not done as well as he had anticipated. This meant that he was unable to pay his 2-year-old son’s monthly child support, of which 50% was for Mark’s eldest son and 50% was for his youngest. In addition, he had always contributed to the mortgage, but the bank had raised the monthly payments adjusted for the cost of living and wealth. In addition to paying Mark, Stacey wanted to collect spousal support for herself in the wake of their divorce. They each had the assistance of a lawyer to draft the consent orders. Only 2 months after they began divorce proceedings, Mark and Stacey completed their agreements.