Court Cases & Orders

The Perils of “Homemade” Court Orders

Written by Russell Alexander / (905) 655-6335

The Perils of “Homemade” Court Orders

We wrote recently about a case called Cinapri v. Fleck, where the main issue involved a dispute between the parents as toIn that context, the case highlights the difficulties that can arise when parents try – in good faith and with the best of intentions – to negotiate agreements for themselves, which are later endorsed by the court and incorporated into a formal document known as a Consent Order.

While this intent on parents’ behalf may be motivated by numerous factors – including the desire to minimize conflict, to advance the best interests of their children, and to save lawyers’ and court costs – the court in Cinapri v. Fleck summarized the problems inherent in this approach:

Every day, judges across the province make temporary or final orders in family law cases that are based on language engineered by the parties themselves. The parties or their counsel often wordsmith the terms of the consent, minutes of settlement or draft order with little or no input from the court upon reaching a resolution of the dispute between them. Even though the language used in a consent, minutes of settlement or a draft order are subject to the approval of the presiding judge, I think it would be fair to say that those consent documents often do not contain language that is as precise as the terms a judge would normally craft when making an order after a contested hearing. This is one of the reasons why language in a Consent Order is often contentious, particularly where the parenting of a child is involved.

In that case, the particular quibble between the parents that required their return to court was whether their use of the mandatory “shall” in the Consent Order was to be strictly observed. The father insisted it was; the mother claimed that she performed her obligations in good faith and that the father was holding her to a standard not required by either the spirit or the letter of the Consent Order.

After scrutinizing the wording of seven specific paragraphs of the Consent Order, and after reviewing whether the mother had complied to a legally-sufficient extent, the court made further detailed orders to clarify what she still needed to do.

In this case the parents may have thought they were speeding their litigation along, negotiating their own solutions, and saving themselves legal fees in the process. All of which is admirable – but in the end they still had to hire lawyers to represent them before the court to sort out a relatively minor technical dispute, focused on the meaning and intent of the words they used in the Consent Order.

For the full text of the decision, see:

Cinapri v Fleck, 2016 ONSC 1297 (CanLII)

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.