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  • Consent to not be unreasonably withheld...

    Is anyone able to define this vague, yet very common term for me?

    I'm doing some CanLii reading and have noticed that this phrase "consent to not be unreasonably withheld" is a reason many people end up before the court to sort out S7 expenses and issues.

    I've come across a few cases where that very phrase in an existing agreement is the point of contention - consent given, not given, requests for consent ignored....etc. But, even so, the judge continues to make orders that contain "consent to not be unreasonably withheld" in the very cases where that has brought them to court.

    I'm struggling to define or set out some parameters on what would be "unreasonably withheld consent".

  • #2
    Whether something is reasonable will vary case to case. In cases like this, the court will follow a "reasonable person" test. Meaning the court will put itself in both the shoes of the person asking, and the person being asked, in each situation, to see if the request is reasonable.

    The court will look at (among other things):

    what is the request - is it to help pay for t-ball or to fund a European tour school trip.

    the prior history - has this issue arose before, and if so, what was the outcome.

    cost - if there is a fee, is it a) fall under the s7 regime and b) where would the cost fall in proportion to the incomes of each parent.

    timing/notice - how much notice was provided in connection with the request. More important questions require greater time to decide.

    Once the court has the facts, they will look at whether the request was reasonable and if it was, was consent unreasonably withheld. Normally if the courts find the request was reasonable, the party who doesn't agree would likely be found to be the unreasonable party, and the courts would order accordingly.

    Comment


    • #3
      Originally posted by HammerDad View Post
      Whether something is reasonable will vary case to case. In cases like this, the court will follow a "reasonable person" test. Meaning the court will put itself in both the shoes of the person asking, and the person being asked, in each situation, to see if the request is reasonable.

      The court will look at (among other things):

      what is the request - is it to help pay for t-ball or to fund a European tour school trip.

      the prior history - has this issue arose before, and if so, what was the outcome.

      cost - if there is a fee, is it a) fall under the s7 regime and b) where would the cost fall in proportion to the incomes of each parent.

      timing/notice - how much notice was provided in connection with the request. More important questions require greater time to decide.

      Once the court has the facts, they will look at whether the request was reasonable and if it was, was consent unreasonably withheld. Normally if the courts find the request was reasonable, the party who doesn't agree would likely be found to be the unreasonable party, and the courts would order accordingly.
      So, essential that phrase refers us right back to the S7 explanation of extraordinary expenses.

      Basically, if you have the funds, the expense isn't extravagent compared to income levels of the parents and that it is for the benefit of the child, then consent is a mere formality? Or does the "consent" in this context mean "consenting to the possible interruptions in access time, etc?

      Comment


      • #4
        I think this becomes confusing because there are really two issues being conflated into one: whether a request is "reasonable", and whether a refusal to consent is "reasonable". I think some people assume that if a request is reasonable (timely, cost-appropriate, in the child's best interest, part of ongoing history of involvement with the activity), then any refusal to consent to this reasonable request is wrong. For instance:

        Parent A and Parent B have a "consent not to be unreasonably withheld" clause. Parent A wants to enroll kid in hockey camp. Kid loves hockey camp, has attended the last three summers (cost-shared as S7), cost exceeds what CS would cover, Parent A gives Parent B plenty of notice. This is reasonable. One of two things happen.

        a) Parent B says no because s/h is ticked off with Parent A, or the kid, or just doesn't feel like paying.

        b) Parent B says no because his/her ailing parent is coming from abroad for a prolonged stay in the summer and Parent B needs to conserve money to support the relative while in the country.

        The first situation is one where consent is being unreasonably withheld; the second situation is one in which consent to a reasonable request is being withheld, but the refusal to consent is also reasonable (i.e. would appear to be reasonable to an onlooker).

        So having one of these clauses doesn't mean that consent is a mere formality - it means that if one party refuses consent to a reasonable request, s/he needs a better reason than silence or "I just don't feel like it".

        Comment


        • #5
          Thanks Stripes.

          I've been curious as to what would be unreasonable in the realm of consent on S7 expenses. My ex/his lawyer and I have drastically different ideas of what should be paid and what shouldn't, and how far the consent of the ex absolves him from responsibility.

          He's obviously been coached by his lawyer in some form or fashion on this topic. Every email I send either gets ignored completely or I get a response like "I do not consent to this." and nothing more.

          This phrase and the requirement of consent has given the other side this idea that because he says his child doesn't need braces, or he doesn't consent to braces, he doesn't have to pay. Braces is one example, but every Section 7 expense - whether it be medical, dental or extra-curricular based comes back the same way. My CanLii reading tells me this seems to be a reoccurring theme in contentious relationships.

          I've figured out how to reword my own agreement moving forward so that I don't have to address this in the future, but the other side is determined to go to trial over past expenses.

          Comment


          • #6
            Originally posted by HammerDad View Post
            Whether something is reasonable will vary case to case. In cases like this, the court will follow a "reasonable person" test. Meaning the court will put itself in both the shoes of the person asking, and the person being asked, in each situation, to see if the request is reasonable.

            The court will look at (among other things):

            what is the request - is it to help pay for t-ball or to fund a European tour school trip.

            the prior history - has this issue arose before, and if so, what was the outcome.

            cost - if there is a fee, is it a) fall under the s7 regime and b) where would the cost fall in proportion to the incomes of each parent.

            timing/notice - how much notice was provided in connection with the request. More important questions require greater time to decide.

            Once the court has the facts, they will look at whether the request was reasonable and if it was, was consent unreasonably withheld. Normally if the courts find the request was reasonable, the party who doesn't agree would likely be found to be the unreasonable party, and the courts would order accordingly.
            That is one of the best explanations of the "reasonability tests" I have read BTW.

            Comment


            • #7
              Originally posted by MS Mom View Post
              Basically, if you have the funds, the expense isn't extravagent compared to income levels of the parents and that it is for the benefit of the child, then consent is a mere formality? Or does the "consent" in this context mean "consenting to the possible interruptions in access time, etc?
              Whether the request is reasonable would depend on both factors. The cost and impact to the other parents parenting time. If it cost is nominal, but would have a serious impact on the other parents parenting time, it would likely not be unreasonable for them to say no.

              Hypothetical - One 10y/o boy and Summer Hockey camp. Each parent has 2, 2 week blocks of vacation time in the summer. Parent A blocks are July the first half of July and August. Parent B's blocks are the 2nd half of July and August. Parent A wants to register Child in hockey camp from July 21-28, being during Parent B's vacation time. Parent B has planned on renting a cabin (or visiting parents etc) 2 hours away during that time. Even if the child had done it every year prior, it likely wouldn't be unreasonable for Parent B to say no, we have plans during that time.

              There are so many factors to take into consideration about what is reasonable/unreasonable. Each parent likely has different opinions on what is more important in their own lives and the child's life.

              Generally, I look at it like this - if you ask and the other parent says no, be it for financial reasons and especially if it impacts their parenting time, unless you have VERY good reason to challenge that answer, take their answer for what it is worth. Challenging it will only cause more grief down the road with hard feelings between the parties.

              Comment


              • #8
                I agree with HammerDad "There are so many factors to take into consideration" and thats the problem.

                Sect 7's are usually a small part of a bigger issue, that is put into Motions or Applications by parties to enhance the bigger issue, to support the bigger issue, to make another party roll it's eyes on paying 100 bucks for a swim class or pay 500 bucks to a lawyer to defend against it.

                "consent to not be unreasonably withheld" is a general statement for the little issue thats going to be swept away before/during/after to deal with the big issue.

                Sect 7 addons are not taken seriously by Judges (and it shows), Sect 7's are only used for Court positioning by self rep's and lawyers basically there a waste of time and money to deal with (except post secondary).

                The only hope is Clear Language in any Agreement or Court Order on Sect 7's at the front end but sadly most people themselves don't spend alot of time on Sect 7's at the front end. (good faith stuff)

                Like some of the statements above if your going to go against Sect 7's claims .....it's going to be a onerous journey with no idea which way the dice will roll at the end.

                It's not really Law when a Judge sits over a case where party "A" makes a solid case for not paying 100 bucks towards a swim membership but awards the 100 bucks anyways to party "B" only because the winning party has a ample income. (Judge's are pro's at twisting around the meaning of Order language up to and including blaming "a paragraph" in the Order/Agreement as too vague or unclear to award whatever they think is appropriate) Judges call it working between the rules

                Comment


                • #9
                  To me it is "unreasonable" to withhold consent simply because you don't want to do something or don't "feel" it is appropriate.

                  Feelings are irrelevant. Not wanting to do something is lazy.

                  If there is any other excuse that could be reasonable, I'd likely take it at face value. You don't know the other families financial situation, or travel plans, or other household issues. Each of these could be a reasonable explanation to say no.

                  Comment


                  • #10
                    Originally posted by MS Mom View Post
                    Thanks Stripes.

                    I've been curious as to what would be unreasonable in the realm of consent on S7 expenses. My ex/his lawyer and I have drastically different ideas of what should be paid and what shouldn't, and how far the consent of the ex absolves him from responsibility.

                    He's obviously been coached by his lawyer in some form or fashion on this topic. Every email I send either gets ignored completely or I get a response like "I do not consent to this." and nothing more.

                    This phrase and the requirement of consent has given the other side this idea that because he says his child doesn't need braces, or he doesn't consent to braces, he doesn't have to pay. Braces is one example, but every Section 7 expense - whether it be medical, dental or extra-curricular based comes back the same way. My CanLii reading tells me this seems to be a reoccurring theme in contentious relationships.

                    I've figured out how to reword my own agreement moving forward so that I don't have to address this in the future, but the other side is determined to go to trial over past expenses.
                    In your case, would it make sense to break down the different categories of S7 separately in the agreement? In the case of braces for instance (or child care for employment might be another), S7 seems pretty unambiguous - these things are necessities, not options or nice-to-haves. Could you have something like "Ex shall reimburse 50% [or whatever] of all uninsured costs for orthodontia within 60 days of receipt of proof of payment through registered mail"? That would also set this up to be collected through FRO, as it's a set percentage of a defined amount rather than fluctuating according to incomes.

                    For extracurricular stuff (which is more optional and nice-to-have), you may be stuck with "consent shall not be unreasonably withheld" - which does put the onus on him to show that his refusal to consent is not unreasonable, but doesn't get around the problem of him being a jerk and just not paying until he's ordered to.

                    Comment


                    • #11
                      Originally posted by stripes View Post
                      In your case, would it make sense to break down the different categories of S7 separately in the agreement? In the case of braces for instance (or child care for employment might be another), S7 seems pretty unambiguous - these things are necessities, not options or nice-to-haves. Could you have something like "Ex shall reimburse 50% [or whatever] of all uninsured costs for orthodontia within 60 days of receipt of proof of payment through registered mail"? That would also set this up to be collected through FRO, as it's a set percentage of a defined amount rather than fluctuating according to incomes.

                      For extracurricular stuff (which is more optional and nice-to-have), you may be stuck with "consent shall not be unreasonably withheld" - which does put the onus on him to show that his refusal to consent is not unreasonable, but doesn't get around the problem of him being a jerk and just not paying until he's ordered to.
                      Thanks Stripes, HD. This has really tested my thinking parameters. Strange eh? When I read "reasonable" - my head and thinking defers to behaviours (ie, saying no out of spite, ignoring requests,

                      Stripes - That is exactly what I have done, divide it up according to what it is. Daycare, Medical, Orthodontics and Extra-curricular.

                      The other side is moving forward as if they are the "gate-keepers" to whether the expense needs to be incurred, or if they need to pay their share of it.

                      In SC, the judge has told him straight-up, he has very little choice when it comes to daycare (I've always worked full time), dental and medical. She advised me that extra-curricular is not something that must be paid, but, if it is in the best interests of the child, the other side should seriously consider pitching in to support the activity.

                      When it comes to the time or infringement upon access time - it's a moot point. The ex decided several years ago to cease all access and has since left the country. He has had zero related access costs for two years.

                      Although it's in our current agreement that he maintain health/dental benefits, he doesn't have any coverage for her at all. Our existing agreement has this "consent not to be unreasonably withheld" and "proportionate to income" phrase that bewilders FRO. With his objections to the expense, they won't touch it. Hence back in court.

                      I've sent several offers to settle - reducing the amounts, and better defining future expenses.

                      1. 100% of uninsured medical/dental, no longer a requirement to keep her on benefits, unless he chooses, in order to pay for the uninsured.

                      2. his $140/m share of braces, which is total $221/m

                      3. 50% of educational, post secondary, etc. (his share should be 65-70%) and daycare

                      4. $750 per annum for S7 extra curricular - receipts to be provided.

                      While my daughter does do swimming and a few other activities, the only one I've previously asked for his share on is horseback riding. The cost there is around $2200/a without equipment (I haven't asked for anything towards equipment now or in the past).

                      Joint parental income is roughly $120000/a, child support for one child is $663/m

                      In my last offer to settle, I even reduced arrears a further $800 (total reduction from actuals is now $1800) to facilitate an access visit as he claims he can't afford to pay for a flight, even though he would like to see her. She's pretty desperate to see him. He let that offer expire, so it's been replaced with a similar one, without the access visit.

                      The arrears also includes CS arrears.

                      Does this pass a reasonable test?

                      I would really love to see this whole thing over and done with and avoid trial. His offer to settle - ZERO arrears. He's even willing to challenge custody via teleconference to avoid paying arrears.

                      Any suggestions? Have I missed something? Or do I need to just exercise a bit more patience?

                      Comment

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