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Offers to Settle in Ontario Divorce & Family Law

Rule 18 of the Ontario Family Law Rules deals with what are known as “offers to settle.”

Offers to settle have two purposes. First, an offer to settle may be directed towards negotiations leading to settlement.

Second, an offer to settle is a way of protecting yourself from the high costs of divorce litigation. At the end of each step in a legal proceeding, the court has the discretion to award costs. The most common award is that the loser pays the winner approximately half of his or her total legal fees. However, if you do as well as or better than your offer to settle, then the court normally awards you two thirds to three quarters of your legal costs.

Rule 18 of the Ontario Family Law Rules provides:

(1) In this rule, "offer" means an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer.

[This is a definition of an offer to settle. Note that you can offer to settle a motion only, rather than the entire case. You can also offer to settle just some issues of the case.]

(2) This rule applies to an offer made at any time, even before the case is started.

[This is an interesting innovation. If there have been extensive negotiations and financial disclosure prior to a case starting, if may make sense to consider this possibility.]

(3) A party may serve an offer on any other party.

(4) An offer shall be signed personally by the party making it and also by the party's lawyer, if any.

(5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted.

(6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn.

(7) An offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer.

(8) The terms of an offer,

(a) shall not be mentioned in any document filed in the continuing record; and

(b) shall not 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.

[In deciding the merits of your case, a judge does not look at how reasonably you’ve been in trying to resolve matters. The judge will only look at this when deciding the costs award.]

Continued at offers to settle.
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