This article is a summary discussion on the topic of Offers To Settle in family law. If you believe you need to serve an offer to settle, it is highly recommended that you retain the services of a family lawyer with the appropriate experience.
As per the Section 18 of the Family Law Rules, an “offer” :
“means an offer to settle one or more claims in a case, motion, appeal or before the case is started.”[i]
Rule 18, applies to an offer made at any time, including before a case is started at court. As such parties do not need to wait to start a case at court, to present an offer to settle.[ii]
An offer to settle needs to be signed by the party making the offer and his or her lawyer, if they have one.[iii]
The terms of an offer are confidential. “The terms of an offer” cannot be “mentioned in any document filed in the” court’s “continuing record”. Also, an offer cannot “be mentioned to the Judge hearing the claim dealt with in the offer, until the Judge has dealt with all the issues in dispute except costs.”[iv]
To accept an offer, the party accepting the offer needs to serve an acceptance on the party who made the offer. This must be done “at any time before, the offer is withdrawn or before the court begins to give a decision that disposes of a claim dealt with in the offer.”[v]
The party making an offer can withdraw the offer by serving a notice of withdrawal. This withdrawal can happen at any time before the offer is accepted.[vi]
Time-Limited Offer in Family Law
When an offer includes an expiration date, if it is not accepted within the time set out in the offer, it is considered to have been withdrawn.[vii]
There are consequences for a party that having accepted an offer does not carry out the terms of that offer. In such circumstances, the other party may,
- make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or
- continue the case as if the offer had never been accepted.[viii]
Cost Consequences
In following with Family Law Rule 18 (14), “a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served. They are also entitled to full recovery of costs from that date, if the following conditions are met:
1. if the offer relates to a motion, it is made at least one day before the motion date;
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at
least seven days before the trial or hearing date;
3. the offer does not expire and is not withdrawn before the hearing starts;
4. the offer is not accepted;
5. the party who made the offer obtains an order that is as favourable as or more
favourable than the offer.”[ix]
Serving an offer to settle as early as possible in a court matter may assist the parties in narrowing down the issues at the case. This can also have other positive effects. For example, it can initiate communication between counsel and the parties. This allows both sides to work together on a resolution.
Offers to settle can assist the parties in narrowing the issues at the case. This is true whether the parties are already at court or thinking of drafting a Separation Agreement.
Determining The Issues
Parties involved in a separation or divorce need to determine the issues to be resolved between them. Unrepresented parties may not be aware of all the issues they need to resolve. In order to move forward with the divorce or separation, an experienced family lawyer can assist a party in a family law case to determine the specific issues that need to be resolved in his or her specific case.
Drafting An Offer To Settle
If you plan on presenting the other party with an offer to settle, it is important to acquire the services of an experienced family lawyer. This ensures the offer to settle is drafted appropriately, executed, and served as per the Family Law Rules.
Were You Served With An Offer ?
If you were served with an offer to settle it is important that you review the offer with an experienced family law lawyer. Since some offers have an expiration date, it is important that you consult an experienced family law lawyer as soon as possible once you have been served with an offer to settle.
[i] Rule 18(1), Family Law Rules, O Reg 114/99
[ii] Rule 18(2), Family Law Rules, O Reg 114/99
[iii] Rule 18(4), Family Law Rules, O Reg 114/99
[iv] Rule 18(8)(a)(b), Family Law Rules, O Reg 114/99
[v] Rule 18(9)(a)(b), Family Law Rules, O Reg 114/99
[vi] Rule 18(5), Family Law Rules, O Reg 114/99
[vii] Rule 18(6), Family Law Rules, O Reg 114/99
[viii] Rule 13(a)(b), Family Law Rules, O Reg 114/99
[ix] Rule 18(14), Family Law Rules, O Reg 114/99
Written by Erick McKinlay
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If you have been served with an offer to settle or are considering drafting one, it’s crucial to seek professional advice to protect your rights and navigate the process effectively. At Progressive Legal Solutions, our experienced family law lawyers are here to help you every step of the way. Contact us today to book a consultation or call us directly to get the expert guidance you need for your family law matters.