Getting a Consent Order in Ontario Family Court Without a Trial

When separated spouses have agreed on parenting, support or property, the next question is how to make the agreement a court order so it can be enforced. Many people hope to skip a trial entirely, and often that is possible.

This article covers the general routes, the forms that are commonly involved and the points to confirm before you file. Court practice varies by region and by court, so treat it as a starting point.

What a consent order is

A consent order is a court order made on terms both sides have agreed to. How the court reviews your agreed terms, and whether you need to attend, depends on your court and the kind of request, so it is worth confirming with the court office. Judges and court staff cannot give legal advice.

Agreement can come through negotiation, mediation or collaborative family law. In mediation, a neutral mediator helps the parties reach agreement but does not take sides, make decisions or give legal advice. In collaborative family law each party has their own lawyer and everyone agrees not to go to court; if there is no agreement, each party needs a new lawyer to go to court.

Changing an existing order by consent

If you already have a final order and both of you want to change it, the parties can use a consent motion to change. There is a separate consent process for changing child support only.

The motion-to-change rule applies to changing a final order, a support agreement filed under s. 35 of the Family Law Act, or a family arbitration award. The ordinary starting point is Form 15 (Motion to Change), sworn before a commissioner, with Form 35.1 added if parenting is being changed and Forms 13 and 13A if support is being changed.

The Divorce Act sets out what the court must be satisfied of before it varies an order. For a child support order, the court must be satisfied that a change of circumstances under the applicable guidelines has occurred, and for a parenting order it must find a change in the circumstances of the child. For a spousal support order, it must find a change in a former spouse's condition, means, needs or other circumstances. How these tests apply to an agreed change depends on your situation, so it is worth confirming with a lawyer. For parents who never married, a provincial parenting or contact order may be varied only if there has been a material change in circumstances affecting the child's best interests.

Settling a case that is already underway

If a case has started, agreement can come through a formal offer to settle. An offer must be signed personally by the party making it and by their licensed representative. The only valid way to accept an offer is to serve an acceptance on the party who made it.

• The person who made an offer may withdraw it by serving a notice of withdrawal at any time before it is accepted.
• An offer may not be accepted after the court begins to give a decision.
• Making, withdrawing, accepting and rejecting offers carry the costs consequences set out in rule 24.

Parenting terms bring added paperwork. A party whose application, answer or motion to change includes a parenting claim must file a Form 35.1 affidavit with it. Ask a lawyer how this applies if you are settling early.

Do you have to attend court?

This varies by court, region and the type of request, and it is worth confirming with the court office before you file. Court staff cannot give legal advice, so a lawyer can help you confirm what your agreement needs in order to become an order.

If one party does not respond at all, the process is different. A respondent has 30 days after being served to serve and file an Answer (Form 10), or 60 days if the application was served outside Canada or the United States. If no answer is filed, the respondent is generally not entitled to further notice of steps or to take part in the case, and it may go to a judge on affidavit evidence or proceed to an uncontested trial.

What to do next

• Put every agreed term in writing, including dates, amounts and parenting schedules.
• Check whether your case is in the Ontario Court of Justice or the Superior Court of Justice, because procedure can differ by court and region, and the fast and standard tracks apply only in the Family Court of the Superior Court of Justice.
• Ask the court office which forms and steps apply to your consent order.
• Have each person get independent legal advice before signing.
• Keep copies of everything you sign, serve and file.

Free on-site mediation is available at family courts on the day a matter is scheduled for court. Family Law Information Centres can explain court processes but do not give legal advice. Legal Aid Ontario family duty counsel at courthouses can review your forms and explain the law, but cannot represent you in your court case.

Frequently asked questions