Offers to Settle in Ontario Family Court and Costs Consequences

Most family cases settle before a judge makes a final decision. A formal offer to settle is one of the main tools for getting there, because it puts a clear proposal on the record and can affect who pays legal costs later.

If you are heading toward a motion, hearing or trial in Ontario, it helps to know how an offer is made, when it counts, and how it can be accepted or withdrawn. The rules changed recently, so details matter.

What an offer to settle is

An offer to settle is a written proposal to resolve some or all of the issues in your case. It is different from casual negotiation by email or in the hallway. A formal offer under Rule 18 of the Family Law Rules follows set requirements, and even a written offer that does not meet rule 24(12) may still be considered when the court sets the amount of costs.

An offer must be signed personally by the party making it and also by their licensed representative. The making, withdrawal, acceptance and rejection of offers carry the costs consequences set out in rule 24. Offer consequences now sit in rule 24(12) and (13) of the Family Law Rules.

When an offer helps you on costs

The general starting point is that a successful party is presumed to be entitled to the costs of a step in a case. A good offer can strengthen that position. Under rule 24(12), a party who made an offer is entitled to costs up to the date the offer was served, and full recovery of costs from that date, if all of the following apply:

• For a motion, the offer was made at least 1 day before the motion date.
• For a trial or other hearing, the offer was made at least 7 days before the hearing date.
• The offer did not expire and was not withdrawn before the hearing started.
• The offer was not accepted.
• The party obtained an order as good as or better than the offer.

The party claiming the benefit of an offer has the burden of proving that the order is as good as or better than the offer. That is one reason to write offers clearly, so the comparison with the final order is easy to make.

Accepting, withdrawing and time limits

The person who made an offer may withdraw it by serving a notice of withdrawal at any time before it is accepted. The only valid way to accept an offer is to serve an acceptance on the party who made it. Telling the other side informally that you agree is not enough.

There is also a cut-off. An offer may not be accepted after the court begins to give a decision. If you are thinking about an offer you received, do not wait until the last moment, because it may be withdrawn or may expire first.

What the judge sees and what else affects costs

Except at a binding judicial dispute resolution hearing, the judge sees the parties' offers only after deciding the issues. How this applies to your own hearing depends on your situation, so it is worth confirming with a lawyer.

An offer is not the only factor in a costs decision. When setting the amount, the court may consider the reasonableness and proportionality of each party's behaviour, the time spent, written offers (including offers that do not meet rule 24(12)), legal fees and rates, and other properly paid expenses, all relative to the importance and complexity of the issues. Claims for fees and expenses must be backed by satisfactory documentation. Before each step, the parties must also confer about costs or make their best efforts to do so, unless a court order prohibits it or there is a risk of domestic violence.

What to do next

• Decide which issues the offer covers and put the terms in clear, specific wording.
• Make sure the offer is signed personally by you and by your licensed representative.
• Serve it early enough: at least 1 day before a motion or 7 days before a trial or other hearing.
• Keep proof that you served it, and keep a copy of any notice of withdrawal or acceptance.
• Keep a record of your offers so you can show later that the final order was as good as or better.
• Speak with a lawyer before sending or accepting an offer, since the terms may affect your rights for years.

Frequently asked questions