Making the Choice
The process for coming to an agreement and the process for going to court are very different. When court orders are requested the court makes decisions based on the information provided to the court and the relevant law. Even so, outcomes can be unpredictable. When agreements are used the parties make the decisions themselves and have control over the outcome. However, resolving issues by agreement may not be possible in some situations and in some cases special precautions need to be taken.
When Can an Agreement be Used
All family law disputes can be resolved by agreement except divorce itself. Issues related to the divorce, such as parenting of children, spousal or child support and family property issues can all be resolved by agreement but only a court can order a divorce.
Having an agreement does not mean you and the other party must agree on everything. Agreements can deal with only some of the issues if it is not possible to agree on all of the issues.
Parties can decide to settle things by agreement even after a court case has been started. Court cases can be settled by agreement any time before the court makes orders. Even after court orders have been made parties can jointly ask the court to change orders if they both agree. The process for consent orders is simpler and less time-consuming than when the parties do not agree on the orders they want.
An agreement can still be very valuable even if the parties decide they need a court order. Parties can ask the court to incorporate the terms of their agreement into a court order. This can make the court process simpler, less time-consuming and less expensive, and add certainty to the matters they can agree on.
Benefits of Agreements
Two main factors can make agreements a good option for parties. First, the parties themselves have control over resolving the issues so an agreement may take the specific needs of the parties into account better than a court order would. Second, reaching an agreement is usually much less time-consuming and expensive than going to court. Parties also may be more willing to honour an agreement that they have participated in making, as opposed to obeying an order imposed on them by a court. Improved communication and negotiation skills may also benefit parties who must continue to deal with each other.
When there are children involved, resolving matters by agreement can protect children from the negative consequences of parental conflict.
On the other hand, not all parties will be able to reach an agreement, even with the assistance of trained professionals. The negotiation process required for agreements may not be appropriate in every situation. Where there are safety concerns, a history of family violence or an imbalance in power and control, agreements can still be reached but precautions need to be taken to ensure both parties have equal bargaining power.
Is an Agreement Right for Me?
Considering these questions can help parties decide if settling issues by agreement is a good option in their situation.
Are both parties informed about their rights and responsibilities?
There are many ways to learn about both parties’ legal rights and responsibilities before you create a family law agreement. This site has Saskatchewan-based, plain-language information about family law.
Is there a significant power imbalance between the parties?
If there is violence between the parties, or one party is in a vulnerable position, coming to an agreement that reflects both parties’ input can be difficult. A party can be in a vulnerable position for many reasons – they may be totally dependent on the other party financially or they may be socially isolated, perhaps because they are new to the country or have language or other barriers. Vulnerable parties and parties that have experienced family violence may need help from a professional to make sure that the agreement is fair.
Are both parties committed to following the agreement?
If one party has reason to believe the other party will not follow an agreement once it is signed, an agreement may not be the best option. However, if the agreement itself is enforceable a party may decide entering into an agreement is still a good idea. Whether an agreement can be enforced, and how, depends on what the agreement deals with.
Making Changes to Agreements
When and how agreements can be changed is different from when and how court orders can be changed. Court orders can only be changed by the court and there must be a material change in circumstances before one party can ask for a change. A material change is change that if it had been known at the time the order was made would have resulted in a different order.
On the other hand, the parties to an agreement can always change the agreement if they both agree. When only one party wants to change an agreement, however, that party would need to ask the court to order the change. Getting the court to change an agreement that was fairly and freely reached can be difficult. Except when a child’s wellbeing is involved, courts are reluctant to change a legally binding agreement.
Enforcement of Agreements
A parenting agreement made in Saskatchewan can be filed with the court and then enforced as a court order. The party filing the agreement must swear an Affidavit saying it is still in effect.
In Saskatchewan both agreements and court orders regarding child or spousal support can be registered with the Maintenance Enforcement Office and enforced. However, enforcing an agreement for child or spousal support can vary from province to province and it may be more difficult to enforce a support agreement in another province.
Property agreements and orders can both be enforced by the courts.