Court Cases & Orders

Judges Can’t Innovate Terms, Nor Interpret Orders “In a Vacuum”

Written by Russell Alexander / (905) 655-6335

In a recent case from Saskatchewan called Giesbrecht v. Stettner, the Court of Appeal slapped down a lower court judge’s over-broad interpretation of a prior court Order. That judge had essentially innovated a meaning and interpretation that was simply not borne out by the Order’s clear wording. 

The court Order in question was actually made with the consent of two separated parents; they had reached an agreement covering parenting arrangements, spousal support and child support.  The Order incorporated that agreement and even included a negotiated Review Clause, indicating that they could revisit their agreement at a specific time:  Namely just before their child began attending kindergarten.  Their Clause clarified that no “material change” was necessary to trigger that pre-kindergarten review. 

As a bit of legal background:  Not all Family-type agreements and Orders will have this kind of built-in review provision.  But this does not mean they cannot be reviewed by a court and amended if necessary.  The law gives a court the ability to tinker with an agreement if there has been a “material change” (which is a legally-defined concept) since it was made. 

In this case, despite the terms of the Review Clause, they never did sit down at the pre-kindergarten stage to consider whether to make any parenting changes.  Instead, the father waited until the child was in Grade 2 to ask a judge for a review.  He admitted that this was much later than what the Order called for; still, he argued the Review Clause could be invoked at any time, and that no “material change” need be proven since he and the mother had been open to a review without it. The judge agreed.

The mother appealed, claiming this was a misinterpretation of the Order’s clear wording.  She argued that the Review Clause was already “spent” the moment the child started kindergarten; there was no authority for a review now.

The Court of Appeal ruled the prior judge had indeed been mistaken.  Under the Review Clause’s clear wording, its purpose was to allow the parents to assess their parenting arrangements at a pre-set time – specifically before the child started kindergarten.  This was deliberately tied to a milestone in the child’s life when parenting arrangements needed to be optimally addressed.  It was never meant to allow for a later review, regardless of whether or not there was a “material change”. 

The Appeal Court explained where the judge had gone wrong:

The interpretation of a court order is not governed by the subjective views of the parties. An issue on appeal as to whether a court decision or order has been properly interpreted by a judge gives rise to a question of law … In summary, a judge who is interpreting a court order must not do so in a vacuum but instead must consider the language of the order in the context of the pleadings, the proceedings in the action that led to the order, the circumstances surrounding the making of the order, and the reasons given for making the order, if any.

The consent Order had to be taken to reflect the agreement between the parents. It was an error for the judge to declare the review window to be “in or around” the time the child was attending kindergarten, when the Clause clearly said before.  Nothing in the surrounding circumstances suggested any other interpretation.  Also, at this stage the judge also did not have the authority to relieve either parent of the standard “material change” requirement for reviewing orders. 

Full text of the decision: Giesbrecht v. Stettner, 2023 SKCA 52 (CanLII)

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About the author

Russell Alexander

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