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Offers to Settle in Ontario Divorce & Family Law
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.
[This is the key advantage of making an offer to settle, and why it makes sense to be reasonable in your offer to settle. Legal fees are very expensive, and this is one way of protecting yourself against higher legal fees, especially when your spouse is not cooperative.]
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
[You need to be careful in making your offer to settle. A family law case usually has a number of issues. If your offer is better than the final decision in some respects, but not in others, then the cost consequences of the offer to settle donít kick in (although the offer will still be helpful in showing that you acted reasonably during the case). Also, in cases of child custody and access, it can be difficult to define what beating an offer to settle means.]
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[Note that even if you donít beat your offer to settle, a court will take it into consideration in determining who pays the other partyís legal fees.]
Making an offer to settle should not be seen as a sign of weakness. Rather, it is a tactical move used to recover greater legal costs at trial. As one judge said:
I am not aware that any written offers to settle, pursuant to the Rules, were ever exchanged between the parties in an attempt to settle the matter. In this regard, both parties were unreasonable. They were well aware or should have been well aware, since both were legall represented, of the importance of such offers. In my view, the presentation of reasonable offers to settle is vital, firstly, to the dynamics and psychology of alternate dispute resolution in litigation. Does the absence of such offers not signal a partyís refusal to enter into dialogue and negotiation towards settlement? Without evidence to the contrary, I think it does.