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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 09-13-2012, 10:49 AM
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Default Question about offer with prejudice

The applicant made an offer to settle all issues the week before first case conference, with prejudice. This included an expiry that stated that the offer expired when the case conference took place.

She included a clause that stated if the party accepted the offer and signed the SA with the terms the applicant would assume the costs for acquiring the divorce order. (since it would save the costs of conferences/trials, and made the offer much nicer)

The respondent did not accept the offer or sign the SA, but showed up at court without counsel, without filing an answer or even a conference brief. He was reprimanded by the judge and given 20 days to sign the SA or file an answer or the matters would proceed to uncontested trial without him. The costs were reserved.

Since then he has retained new counsel and made a counter offer. The respondent's new lawyer believe that since the applicant said she would assume the divorce order costs in the expired offer, she should still agree to pay them.

The applicant disagrees, especially since she already had to pay all of the fees for the court appearance and resulting paperwork.

The applicant's lawyer is angry and believes the respondent should pay these costs if he isn't going to be held accountable for the costs of the wasteful court appearances so far.

Another option would be to ignore the counter offer and force the respondent to comply with the court's order to sign or file an answer, though the offer was good aside from the discussion of costs.

Any thoughts?

Last edited by FightingForFamily; 09-13-2012 at 10:52 AM.
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Old 09-13-2012, 11:31 AM
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Quote:
Originally Posted by FightingForFamily View Post
...The applicant's lawyer is angry...

Any thoughts?
Angry? There is no room for anger from a lawyer. I don't trust lawyers that get angry.

Sorry no comment on the rest of it!
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Old 09-13-2012, 11:43 AM
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No one can force you to agree to a contract or particular terms. (A court order is much different of course.) If I offer you a half price deal only on Tuesday and you turn it down, you don't have a "right" to the same deal on Thursday.
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Old 09-13-2012, 12:05 PM
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Quote:
The applicant made an offer to settle all issues the week before first case conference, with prejudice. This included an expiry that stated that the offer expired when the case conference took place.
As set out in rule 18(14), the offer to settle is not helpful as far as costs go. That is a strange expiry date and makes me question the fairness of the offer.

Quote:
She included a clause that stated if the party accepted the offer and signed the SA with the terms the applicant would assume the costs for acquiring the divorce order. (since it would save the costs of conferences/trials, and made the offer much nicer)
Does it deal with legal costs to date? Otherwise, submissions may be made - Rule 18(11). Further, by this point the majority of the costs for the divorce have already been incurred.

Quote:
The respondent did not accept the offer or sign the SA, but showed up at court without counsel, without filing an answer or even a conference brief. He was reprimanded by the judge and given 20 days to sign the SA or file an answer or the matters would proceed to uncontested trial without him. The costs were reserved.
Reasonable and standard.

Quote:
The respondent's new lawyer believe that since the applicant said she would assume the divorce order costs in the expired offer, she should still agree to pay them.
If the offer was not accepted then the contents thereof have no weight. That is a position that may hinder negotiations, but is likely itself a strategy.

Quote:
Another option would be to ignore the counter offer and force the respondent to comply with the court's order to sign or file an answer, though the offer was good aside from the discussion of costs.
If the only issue separating the party are the legal costs, one would question whether further legal costs would not surpass those already incurred.

In any event, the Respondent will need to either file an Answer or risk default.
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Old 09-13-2012, 12:54 PM
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Quote:
Originally Posted by FightingForFamily View Post
The applicant made an offer to settle all issues the week before first case conference, with prejudice. This included an expiry that stated that the offer expired when the case conference took place.
Firstly ->

To the best of my understanding, all offers to settle are made on a "WITHOUT PREJUDICE" in accordance with Rule 18 sub-rule 7 (18.7) of the FLR:

Quote:
Originally Posted by FLR
CONFIDENTIALITY OF 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. O. Reg. 114/99, r. 18 (8).
Second ->

The time frames given are acceptable in accordance with the Rules. You may not like the short notice but, 10 days prior to a case conference, where no substantial issues can be dealt with without consent between both court orders is not that bad actually. There are negative advocate solicitors who do it only a few days prior. The limit for the court to consider when evaluating costs is 7 days prior.

Quote:
Originally Posted by FLR
WITHDRAWING AN OFFER

(5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).
TIME-LIMITED OFFER

(6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn. O. Reg. 114/99, r. 18 (6).
OFFER EXPIRES WHEN COURT BEGINS TO GIVE DECISION

(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. O. Reg. 114/99, r. 18 (7).
Good Luck!
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Old 09-13-2012, 01:01 PM
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Quote:
Originally Posted by FightingForFamily View Post
The respondent did not accept the offer or sign the SA, but showed up at court without counsel, without filing an answer or even a conference brief. He was reprimanded by the judge and given 20 days to sign the SA or file an answer or the matters would proceed to uncontested trial without him. The costs were reserved.
The endorsement specifically states to sign the SA or file an Answer to the application? Ultimately, a judge can provide insight into what the possible outcome would be based on the partial offers to settle contained in the Case Conference Brief were. The judge may have provided insight into the opinion of the court on the offer being made but, has no jurisdiction to order or make anyone "sign the SA".

A judge can at a Case Conference put forward an order on a technical matter setting out a time line for which the Respondent has to file an Answer to the Application. 20 days is a reasonable time frame.

Furthermore, the costs were reserved which means the party that came prepared, brought solutions and not problems to the conference can seek costs at a later date against the other party.

I would recommend to the Respondent in these matters to double check their behaviour before the court, showing up with no materials and not even an answer to the Application before the court. There was good reason that the judge reprimanded this person... The Rules of the court, which are their responsibility to know as a self/unrepresented party to a lawsuit.

In a matter as described, it was great that the Conference judge reserved costs with regards to this matter. So many litigants waste the time of the court and others by coming to conferences (LOA Settlement, Settlement, Case, Trial and pre-Trial) unprepared. Maybe if costs were awarded against the unprepared party in every matter this conduct would stop.

Good Luck!
Tayken
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Old 09-14-2012, 08:37 AM
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Yes the endorsement stated he had 20 days to sign the agreement the parties negotiated in mediation, file an answer, or be held in default.

The judge stated that it was unfortunate that the applicant had to get him into a court room and "light a fire under his ass" (the judge's exact words lol) since he had already stated verbally and in writing on many occasions that he was prepared to sign it. The case conference was held because the respondent had managed to hold off on signing it until the case was NAD... (notice of approaching dismissal) because nothing had happened for 365 days as per the FLR.
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Old 09-14-2012, 08:40 AM
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Are offers made explicitly "without prejudice" allowed into the discussion of costs?

My understanding is that documents without prejudice are not to be considered by the judge as part of their decisions.

And I was aware that offers to settle may not be brought up in court.
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Old 09-14-2012, 11:36 AM
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Quote:
Are offers made explicitly "without prejudice" allowed into the discussion of costs?

My understanding is that documents without prejudice are not to be considered by the judge as part of their decisions.
Costs come after decisions.
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Old 09-14-2012, 03:48 PM
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Quote:
Originally Posted by OrleansLawyer View Post
Costs come after decisions.
They are the last thing determined after motion and/or trial. Costs should be requested and evaluated at every step in the litigated process.
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