“I begin with the observation that s. 133(a) of the Courts of Justice Act does not specify grounds for granting leave to appeal a consent order.
A review of the limited jurisprudence respecting leave to appeal consent orders, in Ontario and elsewhere in Canada, reveals that no clear test has emerged for granting leave in consent matters. However, what is clear is the resistance to allowing a review of issues that the parties have represented to the court as having been resolved. The expression of this resistance dates back to 1876, in the English case of Holt v. Jesse, 3 Ch.D. 177, at p. 184:
That is tantamount to giving a ‘general license to parties to come to this Court and deliberately to give their consent, and afterwards at their will and pleasure come and undo what they did inside the court, because on a future day they find they do not like it.’
See also Nguyen v. Nguyen, 1999 CarswellOnt 2668 (S.C.); Fott v. Fott, 2001 ABQB 327 (CanLII), at paras. 4, 22, and 33.
Some assistance in determining when leave to appeal a consent order should be granted can be found in Donald Brown’s Civil Appeals, looseleaf (Toronto: Canvasback Publishing, 2009) at p. 4-60:
In all jurisdictions, leave to appeal is required from an order made on consent, in some instances to be given by the judge or court making the consent judgment. The underlying rationale for requiring leave would appear to be that a consent order is a contract of the most formal nature, made in the context of adversarial judicial proceedings. Accordingly, apart from orders dealing with the custody of child (such as a consent adoption order), the same principles applicable to contracts are applied, and leave to appeal is unlikely to be granted unless the consent judgment was obtained by fraud, duress, mistake, or some other vitiating circumstance. [Citations omitted.]
In this passage, the author makes two points that are relevant to this case.
First, he observes that consent orders have their foundation in contract. It follows that they may be appealed on the basis that the circumstances surrounding the consent were such that there was no enforceable agreement. This engages standard contract principles: see Rick v. Brandsema, 2009 SCC 10 (CanLII), 1 S.C.R. 295, at para. 64; McCowan v. McCowan (1995), 24 O.R. No. 2245, at p. 712.
It follows that in cases where the issue relates to the validity of consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that, at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent. Such evidence may relate to factors that may undermine the enforceability of contracts, such as fraud, duress, or undue influence.
The second point Brown makes is that matters involving children fall into a special category.
The distinction is clearly based on the court’s obligation to give priority to the best interests of the child: see Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 19 and 24; Family Law Act, R.S.O. 1990, c. F.3, s. 56; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(8); see also M.A. v. C.P., 2010 ONSC 5481 (CanLII), 98 R.F.L. (6th) 434.
This priority is reflected in the general statutory provisions listed above. In addition, s. 21(2) of the Children’s Law Reform Act requires a judge, before granting a consent order involving custody or access, to receive a parenting affidavit that includes the party’s proposed plan for the child’s care and upbringing, information respecting the person’s involvement in other family proceedings or any criminal proceedings, and “any other information known to the person that is relevant to the factors to be considered by the court under subsection 24 (2), (3) and (4) in determining the best interests of the child”. Further, s. 67.(1) of the Children’s Law Reform Act requires the court to bear in mind the best interests of the child in making an order on consent. And both s. 37 of the Family Law Act and s. 15.1(7) of the Divorce Act provide that in the face of the parties’ consent, a court may only award an amount for child support that departs from the child support guidelines if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. A judge who is satisfied of the applicable requirements is entitled to endorse the parties’ consent through formal court order.
Before articulating the test that applies for granting leave to appeal that, in my view, applies to consent orders involving children, I make the following three observations.
First, while consent orders are not ordinarily accompanied by reasons, in cases involving children, the statutory requirements I have referred to above demonstrate that the judge’s determination should attract deference.
Second, finality itself has been recognized as being in the best interests of the child, as was emphasized by the Supreme Court in Van de Perre v. Edwards, 2001 SCC 60 (CanLII), 2 S.C.R. 1014, at para. 13:
[F]inality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision.
Third, family law practice and procedure encourages parties to come to an agreement on as many issues as possible. As a consequence, consent orders are regularly granted. Routinely allowing such orders to be appealed simply because they deal with issues pertaining to children would have the wholly undesirable effect of providing yet another route to prolonged litigation in family law matters.
Accordingly, while cases in which leave to appeal consent orders involving children must be treated differently, the threshold for obtaining leave is still high.
In my view, leave to appeal consent orders in family law cases involving children should not be granted unless, bearing in mind the deference I have identified, the record demonstrates an arguable case that the order, at the time it was made, was not in the child(ren)’s best interests.”