When Parents are Unable to Cooperate, Should an Order be Varied or Enforced?

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Parents can be faced with a multitude of decisions to make on behalf of their children every day. Of course, some decisions are more important than others. Health and education matters can greatly impact a child’s development and well-being, and it is important for divorced or separated parents who experience patterns of conflict to have either agreements or court orders in place to set out which parents is responsible for making certain decisions. 

For parents of a child who is beginning their educational journey or needs to be enrolled in a new school, agreeing on an institution can become difficult when differing opinions conflict. In the event of a conflict, parents with an existing order in place should review the terms before asking the court to intervene. 

Parents have existing order addressing decisions regarding child’s education

In the case of Begum v. Klippenstei, the parents separated after approximately three years of marriage in December 2019. While married, they had one child who, at the time of the dispute, was preparing to begin school in September 2022. After the parties separated, there was a temporary order dated October 25, 2021, which addressed how the parties were to decide where the child would attend school, specifically stating that the father was entitled to decide as to whether the child attended school, after consultation with the mother. The order also stipulated that the chosen school should be of equal distance between both households. 

In January 2022, the father emailed the mother a list of schools he considered enrolling the child in. The father believed that one of the schools (“EBPS”) made the most sense, and provided his reasoning to the mother. Shortly after that, the mother’s lawyer wrote to the father and confirmed that she agreed with the father’s choice of school.

The father registered the child for school at EBPS but was advised that the child’s registration would not be accepted due to his residence being outside of the applicable school zone. 

 

Disagreement over second choice for school

After learning that the agreed-upon first-choice school would not work out, the parents found themselves in the unenviable position of not agreeing on a second choice. The mother had planned to move closer to the father and wanted to enrol the child in a school (“NMPS”) that was an equal distance between her new home and the father’s home. The father neither opposed or agreed with the mother’s choice of school, which led the mother to apply to have the existing parenting order varied. The mother later amended her claim and asked the Court to enforce the existing order, stating that she wanted the father to confirm his agreement with her school choice.

The court found that the mother’s amendment was appropriate, noting that varying a temporary order such as theirs required certain conditions to be met. The first avenue would be for the applicant parent to demonstrate that there had been a material change in their circumstances, therefore, amending the temporary order to address such changes would be in the best interests of the child. The second avenue would require the applicant parent to demonstrate “a strong onus to produce cogent and compelling evidence to show that the physical, mental, and moral welfare of a child would be in danger in maintaining the status quo.”

 

Court Required to Interpret Order

Given the fact that the child’s physical, mental, and moral welfare were not in jeopardy, there likely would not have been a reason for the Court to vary the order under the mother’s original request. However, when asking the Court to enforce an order, an analysis regarding a material change in circumstances is unnecessary. 

The Court stated that it was required to interpret the interim order before enforcing it, therefore the Court found that NMPS, as suggested by the mother, was a school that best represented compliance with the order. In addition, the Court found that the father was not in opposition of that choice of school. Therefore, the Court ordered that the child be enrolled at NMPS for the start of the 2022/23 school year. 

 

The Difference Between Interim and Final Orders

In family law matters, the best interests of the child are constantly changing, therefore it is not uncommon for a parent to seek a variation of an existing order following a material change in circumstances. Because interim orders are intended for short-term use, courts are often reluctant to vary them, unless there is compelling evidence, particularly with respect to the child’s well-being, to convince the court otherwise. 

The Divorce Act gives courts flexibility with respect to varying and rescinding final orders when certain legislative requirements have been met and there is convincing evidence for the court to determine that there has been a material change in the circumstances of the child. Occasionally, courts may choose to issue an additional interim order, instead of varying a final order.  

 

Contact Howie Johnson Barristers & Solicitors for Advice on Post-Separation Agreement Compliance

At Howie Johnson Barristers & Solicitors, our family law lawyers understand that the circumstances of the parties and the children are a fluid concept. Therefore our team is committed to providing tailored, practical legal advice to clients experiencing changes regarding a variety of matters, including parenting agreements and child support obligations. If there has been a change in circumstances, or you are experiencing difficulties with order compliance, please do not hesitate to contact us online or call us at 519-973-1500.

 

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When Parents are Unable to Cooperate, Should an Order be Varied or Enforced?

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