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  • #1

    counter offers

    Hi we offered my stbx (a few settlement offers withregards to retro cs and ss because he has never paid he owes thousands) to which he refused and then an offer he couldn't refuse,
    He did
    Now I have had enough and requested a court date however should he counter with the exact same offer does that make me the unreasonable one in front of a judge if I refuse it?

    Also with regards to parenting, he says I have alienated him until lawyers got involved which is not a true statement however he has little to do with them he doesn't call or see them very often yet in his affidavit he says he recalls EOW and once a week this is not true, everything is costing me and I have had to get a court order (reg w/MEP)for ss and cs even tho his lawyer signed a consent he is already in arrears.
    My question is am I better off to go before a judge or try through lawyers.
    Tags: None
  • #2
    Originally posted by ringettteplayer View Post
    Hi we offered my stbx (a few settlement offers withregards to retro cs and ss because he has never paid he owes thousands) to which he refused and then an offer he couldn't refuse,
    He did
    Now I have had enough and requested a court date however should he counter with the exact same offer does that make me the unreasonable one in front of a judge if I refuse it?

    Also with regards to parenting, he says I have alienated him until lawyers got involved which is not a true statement however he has little to do with them he doesn't call or see them very often yet in his affidavit he says he recalls EOW and once a week this is not true, everything is costing me and I have had to get a court order (reg w/MEP)for ss and cs even tho his lawyer signed a consent he is already in arrears.
    My question is am I better off to go before a judge or try through lawyers.
    No such things as an offer he can't refuse. Nice line from a movie, not in real life though.

    But as to your suggestion - why would you refuse an offer you made? I can't predict what a judge would say, but it could make you appear to be combative. If it was a fair offer made in good faith, it looks nasty to refuse the same offer from your ex. And you will be incurring court costs. If the judge ends up giving you both what was in the offer, you'e spent money for nothing, and may end up having to pay his costs.

    As to alientation, thats a very serious charge. Do you have an access schedule? Do you keep it? Have you ever denied access, changed the schedule aribtrarily? Have you said anything to the child negative about his father? I would document every access he has been given. Anything you have done to give him more access than the interim agreement should be documented. You should also document any times when he failed to exercise his access rights.

    You should already have an idea from your lawyer what a day in court will cost you. Compare that with the cost of settling out of court.

    Comment

    • #3
      Hi and thank you DTRDad

      I probably wouldn't refuse I'm just getting disgusted at how he does business

      Alienation.,
      -he just abandoned his family one day left moved thousands of kms away and moved on never ever attempted to see his kids for months
      I have never denied access ever I have bent over backwards to ensure our kids could have a relationship with him
      Yes I document it
      No order, regarding custody at all
      No schedule no plan zilch
      I've asked, my lawyer has asked for months nothing no response from him.

      I don't know what that means.

      Comment

      • #4
        Originally posted by ringettteplayer View Post
        Hi and thank you DTRDad

        I probably wouldn't refuse I'm just getting disgusted at how he does business

        Alienation.,
        -he just abandoned his family one day left moved thousands of kms away and moved on never ever attempted to see his kids for months
        I have never denied access ever I have bent over backwards to ensure our kids could have a relationship with him
        Yes I document it
        No order, regarding custody at all
        No schedule no plan zilch
        I've asked, my lawyer has asked for months nothing no response from him.

        I don't know what that means.
        For what its worth, I'm not a lawyer. But with regards to alienation, unless he can prove that you actively did things to discourage the relationship, you are on safe ground.

        Regarding access, it would be about any attempts to refuse access. If he can say he asked but you didn't grant access, he might have a case. If he never asked, how could that be an issue. Does he call? Are the children old enough to call him? That would help blunt any accusations of alientation, especially if you intiated it.

        But I don't understand, if you have no order, how does he owe you thousands on SS and CS? Wouldn't that have to be in an agreement or a court order? Wouldn't you have access in the same order?

        Comment

        • #5
          He called occasionally

          But never asked to see kids however he lies and says he did.
          He did ask on occasion I scheduled something then he cancelled

          The retro is in the neg stage so nothing has been settled yet nothing

          It's obvious he is just trying to starve me out first

          Comment

          • #6
            You may want to consider a more agressive lawyer who will move immediately for interim custody and support. From what I've read, interim would be at table amount or higher, so would give him some incentive to settle.

            Document every visit, and every cancellation. Better if these are by email.

            Comment

            • #7
              My understanding is that once you withdraw an offer a judge can never see it.

              A judge can only see offers that were open at the time you heard the motion/trial for which the offer was based. This also happens after all matters have been ruled on.

              If you don't want the offer to stand you have to withdraw it unless it was written with an expiry.

              If it expired before the motion it it not admissible for costs anyway.

              So you could make him two offers. One waive half of all arrears of CS and SS and had it expire in 5 days, say before you had your lawyer do the paperwork for a motion regarding the matter. You then made a second offer to settle at a 25% reduction if accepted up until 1 minute after the start of the motion. It is my understanding that the judge will never know about the first offer because the offer didn't conform to the "offers to settle" rules which state it must remain open until 1 minute after a motion begins.

              Now if he countered with an offer that was a 50% reduction and had it expire 1 minute after then he can present it to the judge when costs are heard.

              The judge CANNOT know about offers to settle until after a decision on the matter has been made. This is a violation of the rules.

              Rule 18:

              Courts of Justice Act - O. Reg. 114/99

              I have highlighted some important points

              RULE 18: OFFERS TO SETTLE

              DEFINITION

              18. (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. O. Reg. 114/99, r. 18 (1).

              APPLICATION

              (2) This rule applies to an offer made at any time, even before the case is started. O. Reg. 114/99, r. 18 (2).

              MAKING AN OFFER

              (3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).

              OFFER TO BE SIGNED BY PARTY AND LAWYER

              (4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).

              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).

              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).

              ACCEPTING AN OFFER

              (9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,
              (a) the offer is withdrawn; or
              (b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).

              OFFER REMAINS OPEN DESPITE REJECTION OR COUNTER-OFFER

              (10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer. O. Reg. 114/99, r. 18 (10).

              COSTS NOT DEALT WITH IN OFFER

              (11) If an accepted offer does not deal with costs, either party is entitled to ask the court for costs. O. Reg. 114/99, r. 18 (11).
              COURT APPROVAL, OFFER INVOLVING SPECIAL PARTY

              (12) A special party may make, withdraw and accept an offer, but another party’s acceptance of a special party’s offer and a special party’s acceptance of another party’s offer are not binding on the special party until the court approves. O. Reg. 114/99, r. 18 (12).

              FAILURE TO CARRY OUT TERMS OF ACCEPTED OFFER

              (13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,
              (a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or
              (b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).

              COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

              (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
              1. If the offer relates to a motion, it is made at least one day before the motion date.
              2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
              3. The offer does not expire and is not withdrawn before the hearing starts.
              4. The offer is not accepted.
              5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).

              COSTS CONSEQUENCES — BURDEN OF PROOF

              (15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).

              COSTS — DISCRETION OF COURT

              (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
              Someone please correct me if I'm wrong

              Comment

              • #8
                If you make an offer and ex declines, just to benefit from the delay as long as possible...and then ex gives you the same offer months later just before court, then you can accept but request for the order effective from when you first made the offer.

                Alienation is a big claim, so your ex would have some serious burden of proof to prove it.

                If the lawyer is prepared to settle with you and you are happy with the offer then you should go with it. Court is always a last resort.

                Comment

                • #9
                  Awesome thanks!

                  With regards to the alienation excellent!! Thanks I'm all good there I have multiple examples for evidence to prove otherwise. Thanks

                  Comment

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