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What is an offer to settle in a family law court case?

You or your partner can make an offer to settle at any time during the family court process. And you can make more than one offer to settle.

An offer to settle is an offer made by one party to the other party to settle some or all the issues in your case. For example, you can make an offer to settle about how you are willing to resolve issues of child support and spousal support, and leave issues about dividing property to the court.

There are Family Law Rules that tell you what is needed at every step in a court case. Rule 18: Offers to settle tells you how to make and accept an offer.

You can accept an offer, reject an offer, or make a counter-offer. You can make an offer at any time, even before starting a family law case.

The rules about offers to settle are meant to encourage people to resolve their issues without going to a motion or trial. For example, the rule about costs consequences rewards those who make a reasonable offer to settle. The rule says that the person who didn't accept the offer may have to pay a part of the other person's legal fees.

You can talk to a lawyer about making an offer to settle. If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

Cost consequences

Time limits and the issue of costs only apply to offers to settle made during a motion or trial. It does not apply to offers made during case conferences or settlement conferences. At those conferences, offers are discussed openly with the judge and your partner to try and agree on your issues.

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1. Make an offer to settle

Think about your family law issues and how you want to resolve them in a way that works best for your family.

You can make an offer to settle that says how you would like to settle some or all the issues in your case. You can make an offer at any time, even before starting a family law case.

You must serve your offer to settle on your partner, and their lawyer if they have one. Rule 6: Service of documents tells you how to serve your documents. There is also a guide on how to serve documents.

In your offer, you can specify a deadline for your partner to accept the offer. For example, you may give your partner up to a certain date, or time, or both, to respond to your offer.

If your partner does not accept by the deadline, then the offer is considered to have been withdrawn. This means you take back your offer.

If you do not specify a deadline, the offer remains open for your partner to accept until you formally withdraw it or the judge decides the issues in your offer.

You can also withdraw your offer by serving Form 12: Notice of Withdrawal, at any time before the offer is accepted.

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2. Get your partner's response

Your partner can accept your offer, reject your offer, or make a counter-offer.

If your partner makes a counter-offer, check to see if it has a deadline by which you have to respond.

For example, your partner may give you up to a certain date, or time, or both, to respond to their offer to settle. If their offer doesn't include a time limit, it remains open until your partner withdraws it or the judge decides the issues in the offer.

If you receive an offer from your partner, it is very important to be aware of Rule 18(14). It says that if the judge makes an order that is similar to, or better than, an offer one party made that the other didn't accept, there may be cost consequences.

This means, if you reject an offer, and it turns out you would have been better off taking it, you may have to pay some of your partner’s legal costs.

3. Accept the offer

If you or your partner are going to accept an offer made by the other, you must do this before the judge makes a decision about the issues in the offer.

If you or your partner accept an offer, you put the terms of the offer into a written document and you both sign it. This document is called a consent agreement or minutes of settlement. They can be handwritten and signed or typed and signed.

In your agreement, list the orders you agree on.

Next, you or your partner ask the court to put your agreement into a court order called a consent order. You do this by bringing a motion on consent.

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4. Cost consequences for offers that are not accepted

If you or your partner reject all offers, the judge hearing the motion or trial must not be told about any offers to settle until they have dealt with all the issues you are trying to resolve.

The judge looks at any offers that were not accepted when deciding if there should be an order for costs.

Rule 18: Offers to settle says that if the judge makes an order that is similar to, or better than, an offer one party made that the other party didn't accept, there may be cost consequences.

This means, if you reject an offer, and it turns out you would have been better off taking it, you may have to pay some of your partner's legal costs.

For there to be cost consequences, an offer to settle must:

  • be signed by the party making the offer,
  • be made at least 7 days before the trial,
  • still be valid, meaning it has not expired or been withdrawn before the trial begins, and
  • not be accepted by the other party.

The judge may ask you for reasons why your partner should pay for some of your costs, or why you should not have to pay for some of your partner's costs.

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Reviewed: 
September, 2015