All About Estates

Appealing a Consent Order

When an Order is granted on consent in a proceeding, it is inherent that all of the parties have agreed to the Order, hence the obvious use of the word “consent”. Nevertheless, and however improbable it may seem, it is possible to appeal a Consent Order. The applicant in Behrisch v Behrisch, 2024 ABCA 101 did just that, as she contended that although she had originally consented to the Order, she sought permission to appeal it on the basis that she was self-represented and under the influence of medication which effectively impaired her cognitive function at the time, leaving her unable to understand the Order and unable to provide her consent. The Court of Appeal ultimately granted her permission to appeal the Consent Order for the reasons outlined below.

Facts

The applicant and respondent were married for 20 years and had 5 children together, who were all between the ages of 15-24 at the time of this decision. They separated in 2019, and in January 2023, the applicant filed an application seeking ongoing child support payments and child support arrears from the respondent.

Shortly after filing the application, the applicant experienced major medical issues and underwent significant treatment that resulted in complications with her health. The application underwent two Case Conferences where the parties attempted to reach a settlement, the second of which happened on December 1, 2023 (“December Case Conference”) and resulted in the granting of the Consent Order which the the appeal was subject to. The Consent Order set out the income of the parties, the child support payable by the respondent to the applicant, and other expenses.

The applicant stated that following the December Case Conference, she was not fully aware that a consent Order had been granted and she struggled to believe that she would have readily and consciously consented to the terms of the Order as there were a number of points that she “wholeheartedly” disagreed with. For example, the Order included a significant travel credit in the amount of $7,500 off-set against the respondent’s child support obligations. The applicant maintained that because she was on disability and had a low income, she would never agree to such a reduction of her means of supporting her children.

Almost immediately following the December Case Conference, the applicant was admitted to the hospital where she remained from December 6-15, 2023.

In the application for permission to appeal, the applicant did not identify any particular grounds of appeal, but raised the question of whether permission to appeal in this case should be granted on the basis that she “did not and does not” consent to the Order.

The respondent did not file a written response. At the oral hearing of the application for permission to appeal, the respondent submitted that at no point during the December Case Conference did he personally observe a lack of understanding by the applicant, other than issues with math calculations.

Legal Tests

Rule 14.5(1)(d) of the Alberta Rules of Court, Alta Reg 124/2010, states that an appeal of a consent order first requires permission to appeal. In order to be granted permission to appeal, the applicant had to demonstrate that her appeal raised an important question of law or precedent, that the appeal had a reasonable chance of success, and that any delay would not unduly hinder the progress of the application or cause undue prejudice.[1] Further, in family law contexts, as was the case here, the Court must also take into account the best interests of the child, as an overriding consideration, as well as the resources of the parents and the court.[2]

The Applicant’s Submissions

The applicant submitted that the issue of whether a litigant consents to an order is a serious and important question of law. The applicant also submitted that the only foundation of the Consent Order was the agreement of the parties, which no longer existed in her mind. She stated that “it follows that if there was no consent, there should be no Consent Order”. Further, given the applicant’s medical condition at the time that the Consent Order was agreed to, she submitted that the appeal has a reasonable chance of success and that the appeal would not cause significant prejudice to either party.

Analysis

As stated above, Justice Feth found that the circumstances of the case met the test for permission to appeal. Justice Feth relied on evidence put forward by the applicant, including:

  • Preliminary evidence, including medical reports and health records, supporting her argument that while being self-represented at the December Case Conference, she was disabled, suffering from the residual effects of treatment for a brain tumour, and heavily medicated;
  • Her evidence that she was confused, did not understand what was going on, and believed she was having multiple focal seizures during the Case Conference proceeding; and
  • Her submission that she would not have agreed to the terms of the Consent Order if fully cognizant of the proceeding and the proposals being discussed.

Notably, the parties attended an earlier Case Conference in September 2023 without settling the same issues.

Justice Feth also considered the transcript from the December Case Conference, which, among other things, showed that:

  • The applicant actively participated, however she also explicitly referenced her medical conditions, and at times stated she did not understand what was being discussed;
  • Throughout the Case Conference, the applicant provided simplistic acknowledgments of agreement that Justice Feth stated might be interpreted as “acquiescence rather than real consent”; and
  • The Case Conference judge did not recite the terms of the Consent Order to the parties at the end of the hearing when asking them to confirm their agreement on the record, inviting the risk that the applicant did not understand the terms to which she was consenting.

Justice Feth came to the conclusion that the appeal raised an important question about whether the applicant was in a compromised state when she agreed to the terms of the Order during the December Case Conference.

Importantly, the applicant asserted that immediately after the December Case Conference, she was unaware whether an agreement had been reached and called the courthouse more than once to find out what took place. Justice Feth accepted that a party’s conduct shortly after a case conference where an agreement was reached might provide some inferential evidence about their cognition and intentions during the conference itself.

In this case, the applicant’s actions immediately after the December Case Conference suggested that she was unaware of what transpired at the December Case Conference, which in turn raised concerns about whether she was capable of providing consent and whether she actually provided valid consent to the Order that was agreed to.

[1] Behrisch v Behrisch, 2024 ABCA 101, at para 11.

[2] Mckerness v. Whitson, 2017 ABCA 207, at para 7.

About Jonathon Vander Zee
Jonathon Vander Zee is an articling student with de VRIES LITIGATION LLP.

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