Agreement or Court Order?
Parties can decide to resolve issues by agreement or by asking the court to make orders. The process for coming to an agreement and the process for going to court are very different. The end result can also be very different because when agreements are used the parties make the decisions themselves and have control over the outcome. When court orders are requested on disputed matters the court makes the decisions based on the information provided to the court and the relevant law. The outcome is less predictable than when the parties themselves decide the matters.
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.
On the other hand, not all parties will be able to reach an agreement, even with the assistance of trained professionals. Further, 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 be sure both parties have equal bargaining power.
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. Even if both parties agree to the change a new court order is still required. It can, however, be easier to change a court order when both parties agree on the change.
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 well being is involved, courts are reluctant to change a legally binding agreement.
There are also differences in how agreements and court orders are enforced. How enforcement of agreements and enforcement of court orders are different depends on what the court order or agreement deals with:
- A custody/access agreement made in Saskatchewan cannot be directly enforced by Saskatchewan courts. A party would need to get a court order before they could ask the court for help with enforcement. For more information see Enforcing Custody/Access.
- 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. For more information see Enforcing Support Orders.
- Property agreements and orders can both be enforced by the courts. For more information see Property Agreements.