Even Court Orders Aren’t Cast
Gary Direnfeld, MSW, RSW
There is a belief amongst some parents that Court orders regarding parenting
matters are cast in stone and unalterable. This is not the case.
Court Orders should be regarded as definitive at the point in time and for
the foreseeable future to which they are made. However, children grow and circumstances
change. Hence some Orders become no longer relevant or fail to meet the needs
of the children in view of developmental change or change in circumstance. In
other words, what makes sense today may not make sense tomorrow.
Court Orders make a good “fall-back position”. If parents are in
conflict and remain so, the Court Order provides the terms of reference, setting
the rules for parents to manage. However, if the parents are not in conflict,
they may by mutual agreement, seek to vary the Court Order to reflect new agreements.
In such situations, the Court may want to be assured that parents are truly
entering into new agreements voluntarily as one or other parent may have been
subject to coercion in the process of reaching the new agreement.
Some lawyers, seeking to protect their client’s rights or position may
seek to hold the Court Order over the head of the other party so as to fend
off change. Hence the Court Order may be presented as a final statement and
even as a source of intimidation. However, parties need not fall prey to such
What must be understood though, is that until the Order is actually changed,
it remains in effect and must be respected. To not respect a Court Order places
the party at risk of being found in contempt of court. In other words, the party
breaching the Court Order may be subject to a fine. At the very least, not respecting
a Court Order can seriously undermine that party’s position and view that
a Court Order should be varied.
Thus Court Orders carry significant weight, must be respected, but can be subject
to change under certain conditions.
Conditions can be as variable as life itself, but generally would not be expected
in the foreseeable future from the date of the Order. Persons who seek to alter
an Order prematurely, in the absence of a passage of time, and in the absence
of clear and significant change in circumstance run the risk of having their
credibility questioned or worse, may be considered abusing Court process to
harass the other parent.
If you believe reasonable time has elapsed and there is a significant change
n circumstance, you may try to revisit the Court Order with the other parent
and see if you can reach a new agreement that could be incorporated into a new
Order and failing that, you can consult a lawyer to determine if you have reasonable
grounds to review and vary the Order.
If you consult a lawyer, value the opinion if told you do not have reasonable
grounds to vary the Order. Further, even if told you may have reasonable grounds,
consider the fallout from the situation if met with opposition from the other
Often more serious that an Order slightly out of date or touch, is the harm
renewed conflict can bring to children. As the saying goes, sometimes it is
better to let sleeping dogs lay. So having grounds to vary an Order doesn’t
necessarily make that option better for the children even though Court Orders
aren’t cast in stone.