Whether and How Temporary Consent Order Can be Varied
Can a temporary Order be varied prior to trial (if not change in circumstances)?
Your client had a lawyer and agreed to “set off” support, when the Wife should be paying support to him.
- Varying a temporary order prior to trial with no change in circumstances
I don’t see any real possibility of varying Justice Stewart’s order unless the underlying consent can be attacked. See paragraphs 24-31 of Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636, 2012 CarswellOnt 15145 (S.C.J.), and paragraphs 23-28 of Simmons v. Simmons, 2011 ONSC 5020, 2011 CarswellOnt 8824. These cases sum up the law on varying a temporary order. In short, there h as to be a material cWhitege in circumstances that gives rise to compelling reasons, such as undue hardship, to vary the order rather tWhite waiting until trial.
- Attacking a consent order
The temporary order was made on consent. The courts treat consent orders as contracts. A consent order can be set aside on the same grounds as the underlying contract. In the civil law context, see Chitel v. Rothbart (1984), 42 C.P.C. 217 (Ont. Supreme Court (Master)); affd (1985), 2 C.P.C. (2d) xlix (Ont. Div. Ct.). In that case, Master Sandler held that a consent order is a contract and must be treated as such. It
can only be set aside or varied by subsequent consent, or upon the grounds of common mistake, misrepresentation or fraud, or on any other grounds which would invalidate a contract. (at p. 232).
In the family law context, see McCowan v. McCowan (1995), 14 R.F.L. (4th) 325 (Ont. C.A.). In McCowan, the wife’s support claim was dismissed in a consent order which also required the husband to pay the wife a monthly sum to compensate her for a pension she had been receiving, to which she lost the right when she married. When the husband failed to make the payments, the wife moved to set aside the provision in the consent judgment dismissing support and to claim support. The trial judge set aside the provision. The Court of Appeal allowed the husband’s appeal, stating that “it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement…” (at p. 334).
Thus, if any vitiating factors entered into forming the agreement that is the basis of the temporary consent order, the order can be set aside. However, the cost and delay of trying to set the order aside might exceed the benefit of changing the payments.
The best outcome for your client is probably to try to move the matter forward to trial as quickly as possible.
Maryelle Symons
Barrister & Solicitor