Offers to Settle in Ontario Family Court: Rule 18 Guide

Most family cases end in an agreement, not a judgment. A formal offer to settle is one of the main tools for getting there, because it puts a clear proposal on the table in writing and gives the other side a reason to take it seriously.

This article explains how an offer under Rule 18 of the Ontario Family Law Rules works, how it is accepted or withdrawn, and how it connects to the rules about costs. It is general information, not advice on your own case.

What a formal offer to settle is

An offer to settle is a written proposal to resolve some or all of the issues in your case on stated terms. Casual messages and phone calls may help negotiations, but a formal offer follows the Family Law Rules so that it can carry costs consequences later.

Under Family Law Rules r. 18(4), an offer must be signed personally by the party making it and by their licensed representative. The making, withdrawal, acceptance and rejection of offers carry the costs consequences set out in r. 24.

Older guides may place the costs consequences of offers in a different part of the rules. The current provisions on this point are in r. 24(12) and (13).

Accepting, withdrawing and running out of time

The rules are specific about how an offer ends. The person who made it 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. A friendly reply or a verbal "we agree" is not the safe way to do it.

There is also a cut-off. An offer may not be accepted after the court begins to give a decision.

• Read the offer carefully and decide which issues it covers before you respond.
• If you want to accept, serve a written acceptance on the other party and keep proof of service.
• If you want to change your own offer, a notice of withdrawal must be served before the other side accepts.
• If you reject an offer, remember that rejection is one of the steps that carries costs consequences.

How an offer can affect costs

Costs are the money one side may be ordered to pay toward the other side's expenses of the case. There is a presumption that a successful party is entitled to the costs of a step in a case, and the court decides costs promptly after each step or reserves them for later.

An offer can strengthen a costs claim. Under r. 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:

The party claiming this benefit has the burden of proving that the order is as good as or better than the offer. Even an offer that does not meet every requirement of r. 24(12) can still be considered by the court when it sets the amount of costs.

Except at a binding judicial dispute resolution (JDR) hearing, the judge sees the parties' offers only after deciding the issues. This means you can make a realistic offer without worrying that it will colour the decision on the merits.

Other rules that shape costs

An offer is only one part of the costs picture. The rules also include several situations that change the usual result:

• Divided success: if success in a step is divided, the court may apportion costs as appropriate.
• Unreasonable winner: a successful party who behaved unreasonably during a step may be deprived of all or part of their costs.
• Bad faith: if a party acted in bad faith, the court must decide costs on a full recovery basis, and those costs are payable immediately.
• Absent or unprepared party: if a party does not appear at a step or is not prepared, the court must award costs against that party unless it orders otherwise in the interests of justice.
• Child protection cases: the presumption that the successful party gets costs does not apply.

When the court sets an amount, it may look at the reasonableness and proportionality of each party's behaviour, the time spent, written offers, 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 confer about costs, or make real efforts to do so. This does not apply where a court order prohibits it or there is a risk of domestic violence.

What to do next

Offers are easy to get wrong, because small details such as signatures, dates and service decide whether they count. Getting advice before you sign or serve one is usually worthwhile. Judges and court staff cannot give legal advice. Legal Aid Ontario duty counsel and advice counsel at family courthouses may give 20 minutes of advice, whether or not you are eligible for legal aid, though availability varies by courthouse.

• Write down exactly which issues the offer covers and on what terms.
• Make sure it is signed personally by you and by your licensed representative.
• Check the dates against your motion or hearing date.
• Serve it properly and keep proof of service.
• Keep a copy of every offer, withdrawal and acceptance.
• Compare any final order with your offer so you can show it was as good or better.

Frequently asked questions