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  • Offers to settle and costs

    Asking for an acquaintance:

    If an offer to settle is made and accepted before the trial (even say one minute before the trial) can any order of costs be made? I said no, but that I would double check. My understanding is that the offer to settle creates the basis for awarding costs, but that you have to actually "lose" in court to have costs ordered against you.

  • #2
    I think if the other party accepts the offer without asking for any costs as a condition, then they have implicitly agreed that no costs should be awarded. It's done and closed.

    Comment


    • #3
      On motion in my case, costs were awarded. No offers had been made by either side. The justice presiding commented that even though I was 100% successful, had an offer, even the same offer as in my court documents, been made the justice would have ordered 100% costs.

      The presiding justice also said, If the other party had of made any reasonable offer, I would of been awarded less, as the purpose is to try to negotiate settlement and that is what is rewarded.

      So, IMHO, it is worth it, either way.
      Last edited by OhMy; 01-24-2013, 09:30 PM.

      Comment


      • #4
        Originally posted by OhMy View Post
        On motion in my case, costs were awarded. No offers had been made by either side. The justice presiding commented that even though I was 100% successful, had an offer, even the same offer as in my court documents, been made the justice would have ordered 100% costs.

        The presiding justice also said, If the other party had of made any reasonable offer, I would of been awarded less, as the purpose is to try to negotiate settlement and that is what is rewarded.

        So, IMHO, it is worth it, either way.
        Exactly. The whole purpose and setup of a Family Law dispute from Application all the way to trial is to " is to try to negotiate settlement and that is what is rewarded".

        This is right from the Application to Case Conference having to be heard prior to the hearing of a motion (unless "urgent") to the number of orders for SCs and multiple TMCs. Motions are for "temporary" relief and in my honest opinion prior to even filing a motion the party filing the motion should make a comprehensive offer to settle that is better than what they are seeking in the notice of motion or the same at least.

        The court looks for and orders costs on who the reasonable party is in the matter. Furthermore, nothing stops a highly conflicted "motion frenzy" and "allegations hurling" litigant than a solid order of costs against them. In 99% of the cases a substantial costs order will make the majority of highly conflicted people consider their conduct. In the other 1% nothing will stop them from bringing every complaint forward and random request from being filed.

        That is when the court often has to order "no further motions and materials" generally or a justice ceases the file and requires all motions to be reviewed by them before proceeding. Even then, these possibly highly conflicted litigants will "motion to motion" and still lose, have costs ordered against them and still continue the conflict.

        Their high level of "emotional reasoning" prevents them from "rational thought" and they are often dumbfounded that "no one believes them". Not the CAS, not the judges they have been before, not the resulting trial order, not the subsequent costs orders against them. They are on a "moral crusade" against the other parent to alas, to make Janus vomit again... Prove to the court, their friends, family, blah blah blah (what Justice Mossip points out in case law) so they feel like they have "won" and are "right".

        Good Luck!
        Tayken

        Comment


        • #5
          Originally posted by Janus View Post
          Asking for an acquaintance:

          If an offer to settle is made and accepted before the trial (even say one minute before the trial) can any order of costs be made?
          Generally no. But, if the offer to settle is written properly, you can identify how costs will be dealt with but, a lot of justices don't like this "tactic" because it really takes focus off the settlement and puts "blame" on both parties. It really is perceved (possibly rightfully so) by justices when this is done that the intent was not to resolve the matter but, identify through settlement the "guilty party" rather than the "reasonable party".

          I don't generally recommend to include anything but a statement that both parties shall bear their own costs in an offer to settle and to absolve both parties from seeking costs against the other upon acceptance. Justices tend to like this better from what little case law there is on costs determinations posted to CanLII.

          Originally posted by Janus View Post
          I said no, but that I would double check. My understanding is that the offer to settle creates the basis for awarding costs, but that you have to actually "lose" in court to have costs ordered against you.
          I agree with your position on the matter. In fact, it is quite a well written perspective on the purpose of offers to settle which is to resolve a dispute and not create one. I don't think a judge would be too impressed if someone brought forward a request for relief on costs for an accepted offer to settle between both parties in the matter. It doesn't suggest that the parties truly have "settled" the matter really.

          Good Luck!
          Tayken

          Comment


          • #6
            If someone offered to settle would it not be incumbent on opposing counsel to ensure that the offer satisfied legal costs?

            Interesting question, however, I would personally not entertain settlement 1 minute before proceedings. In my personal situation I would view it as a very lame stalling tactic. I don't believe I would be penalized for not considering an offer made in this manner.

            Comment


            • #7
              Originally posted by arabian View Post
              Interesting question, however, I would personally not entertain settlement 1 minute before proceedings. In my personal situation I would view it as a very lame stalling tactic. I don't believe I would be penalized for not considering an offer made in this manner.
              I think the OP meant the Offer to Settle was made well before the date of the proceedings but remained open for acceptance right up 'til they began.

              Comment


              • #8
                Originally posted by arabian View Post
                Interesting question, however, I would personally not entertain settlement 1 minute before proceedings.
                My understanding is that for an offer to settle to be considered as a basis for awarding costs, that offer to settle must remain available pretty much up until
                the trial starts.

                I don't think you can make an offer 5 weeks before trial, withdraw it 3 weeks before the trial starts, and then use that offer as a basis for obtaining costs from the opposing party. Costs are awarded because the losing party could have obtained the same outcome without going to trial. If the offer was not available right before trial, then that cannot be said to be true.

                Comment


                • #9
                  Originally posted by Janus View Post
                  My understanding is that for an offer to settle to be considered as a basis for awarding costs, that offer to settle must remain available pretty much up until the trial starts.
                  You are correct. This is why you will see the general statement often in offers to settle stating exactly that from senior solicitors. Something to the effect that the offer stands until 1 minute into the proceeding of the hearing. Very common language you will see from a "good" lawyer in an offer to settle. Generally, it is the first paragraph.

                  Originally posted by Janus View Post
                  I don't think you can make an offer 5 weeks before trial, withdraw it 3 weeks before the trial starts, and then use that offer as a basis for obtaining costs from the opposing party.
                  No, they can't really. It won't win them any bonus points from a justice at all. But, nothing stops either party before the court from liberally applying Rule 18 and making a number of offers to settle on the matter. Both parties are expected to do this and if you don't, it can come back to haunt a litigant if they don't.

                  Originally posted by Janus View Post
                  Costs are awarded because the losing party could have obtained the same outcome without going to trial. If the offer was not available right before trial, then that cannot be said to be true.
                  Correct. Often, costs awards are reflective of who the "reasonable party" was in the negotiations. Not who "won" or "lost" per-say.

                  Good Luck!
                  Tayken

                  Comment


                  • #10
                    My offer(s) to settle all had the statement below
                    "This offer to settle remains open for acceptance until one minute after the commencement of an interim motion, unless withdrawn in advance in writing"
                    So my question is; will costs be looked at after motions or only at the end of a trial?

                    My offer was made Nov 2nd, 2012. Our case conference was at the end of November and we have a Long Motion scheduled for May to deal with Custody/Access/Support/Matrimonial Home since we are still living together her lawyer said they all need to be dealt with at once.

                    My offers to settle addressed all these issues including me keeping the house / her keeping the house / house being sold along with "without prejudice" NFP's to support each option.

                    Following the motion will costs be looked at or are they only looked at after a trial?

                    STBX never responded to or sent her own offer to settle. We asked for an offer during the DRO meeting and they said their response to the court application was their offer.

                    Since then stbx told me my offer was unreasonable and she couldn't afford to pay her lawyer to send one.

                    Her last letter also stated the following regarding a suggestion that was made by the DRO which they backed out of not 1 hour after the meeting.
                    "Mrs. xxxxxx takes this matter very seriously and is quite distressed due to the very real concern she has with financing at this point, of which your client is well aware and worse still perhaps attempting to capitalize upon."
                    Letter went on to say they would go see a mediator if I paid the FULL cost "...given that he apparently has ample financial resources..."

                    Comment


                    • #11
                      Originally posted by FB_ View Post
                      My offer(s) to settle all had the statement below


                      So my question is; will costs be looked at after motions or only at the end of a trial?
                      It all depends if you requested for a costs determination in your notice of motion. At every stage of the litigated process, you should always ask for costs. Even at a "conference". You can request that the determination of costs for a "conference" to be determined by the presiding motions judge or a the conclusion of trial.

                      Originally posted by FB_ View Post
                      My offer was made Nov 2nd, 2012. Our case conference was at the end of November and we have a Long Motion scheduled for May to deal with Custody/Access/Support/Matrimonial Home since we are still living together her lawyer said they all need to be dealt with at once.
                      Note to Oink: You really should read that paragraph above a few times.

                      Why? (FB_ correct me if I am wrong)

                      1. FB_ and the other parent are jointly residing in the matrimonial home.
                      2. Case Conference was heard at the "end of November".
                      3. Long motion hearing is schedule for May.

                      From CC to a motion is roughly 6-7 months in the jurisdiction FB_ is in. Reality check for anyone who thinks that the courts are "fast" at resolving custody and access disputes.

                      Your offer to settle still stands unless you have done what the above provided paragraph states and withrdawn in writing. You can be sure that there will be a costs consideration made for a long motion hearing or at minimum to request a costs determination by either party FB_. Long motion hearings are NOT cheap to attend, prepare for, etc... Really, they should just make Long Motion Hearings all viva voce mini-trials.

                      Originally posted by FB_ View Post
                      My offers to settle addressed all these issues including me keeping the house / her keeping the house / house being sold along with "without prejudice" NFP's to support each option.
                      Well, if you offer to settle is close to what is awarded after the long motion hearing than they become relevant for costs determinations.

                      Originally posted by FB_ View Post
                      Following the motion will costs be looked at or are they only looked at after a trial?
                      Again, if your lawyer requested costs on the Notice Of Motion or Cross Motion then the justice can order costs or for costs to be determined.

                      If you didn't request it in the NoM or Cross Motion then, the judge won't consider it. WorkingDad should chime in shortly to always remember to put in your NoM / Cross Motion to "always remember to ask for costs".

                      Originally posted by FB_ View Post
                      STBX never responded to or sent her own offer to settle.
                      The Rules don't require anyone to make an Offer to Settle and/or be reasonable or even acknowledge that they recieved the Offer to Settle. So if you are possibly lamenting that the other party hasn't responded they are not required to. Keep sending reasonable offers to settle.

                      Originally posted by FB_ View Post
                      We asked for an offer during the DRO meeting and they said their response to the court application was their offer.
                      So, you have the answer you are seeking. They are not going to make an offer to settle. They want to "fight it out in court" but, continue to stack offers to settle in their court to consider. It will creep up them fast and hard after the long motion hearing if you are successful on your request.

                      Also, if your matter is truly high conflict then maybe a costs award against the other party will start making them think about compromises and being reasonable?

                      Originally posted by FB_ View Post
                      Since then stbx told me my offer was unreasonable and she couldn't afford to pay her lawyer to send one.
                      No excuse to go down a litigated solution. She can sit down, read up and research a compromise, compose an offer to settle and instruct her lawyer to serve it.

                      Also, when did a long motion and case conferences become cheaper than resolution through negotiated settlement. The logic applied by the other party is stunningly awful.

                      Originally posted by FB_ View Post
                      Her last letter also stated the following regarding a suggestion that was made by the DRO which they backed out of not 1 hour after the meeting.
                      Again, you walk out of DRO without a signed Minutes of Settlement and your counsel you should make it clear that they should have walked out of it with a signed agreement.

                      Originally posted by FB_ View Post
                      Letter went on to say they would go see a mediator if I paid the FULL cost "...given that he apparently has ample financial resources..."
                      Boo hoo. Want to respond with something just as stupid back? I would just ignore it as negative advocate solicitor cannon fodder statements to get an emotional reaction from you.

                      Counter that stating Arbitration and that you will pay the upfront cost but, for the arbitrator to determine the costs based on the resulting order in accordance with the Family Law Rules and that your payment is to not prejudice your ability to seek costs against the other party.

                      Your lawyer, if any good, should have already done this as a counter response to that kind of nonsense.

                      Mediation in your matter FB_ is useless probably. Arbitration would be the best route to faster resolution and a final order.

                      Good LucK!
                      Tayken

                      Comment


                      • #12
                        Originally posted by Tayken View Post
                        It all depends if you requested for a costs determination in your notice of motion. At every stage of the litigated process, you should always ask for costs. Even at a "conference". You can request that the determination of costs for a "conference" to be determined by the presiding motions judge or a the conclusion of trial.
                        Originally posted by Tayken View Post
                        Note to Oink: You really should read that paragraph above a few times.

                        Why? (FB_ correct me if I am wrong)

                        1. FB_ and the other parent are jointly residing in the matrimonial home.
                        2. Case Conference was heard at the "end of November".
                        3. Long motion hearing is schedule for May.
                        1. Yes
                        2. Yes
                        3. Yes

                        Originally posted by Tayken View Post
                        From CC to a motion is roughly 6-7 months in the jurisdiction FB_ is in. Reality check for anyone who thinks that the courts are "fast" at resolving custody and access disputes.
                        Jurisdiction is Brampton.

                        When I heard that date I was extremely disappointed. Not much I can do except continue to try and settle and suck it up.

                        Originally posted by Tayken View Post
                        Your offer to settle still stands unless you have done what the above provided paragraph states and withrdawn in writing. You can be sure that there will be a costs consideration made for a long motion hearing or at minimum to request a costs determination by either party FB_. Long motion hearings are NOT cheap to attend, prepare for, etc... Really, they should just make Long Motion Hearings all viva voce mini-trials.
                        I have not withdrawn my offer(s).

                        My lawyer quoted $5000 - $10000 for the long motion as an Estimate only.

                        Originally posted by Tayken View Post
                        Well, if you offer to settle is close to what is awarded after the long motion hearing than they become relevant for costs determinations.
                        I believe it will be very close the only thing that might be off is Spousal as I'm basically taking the stance that she is not entitled.

                        The basics of my offer were.

                        Joint Custody
                        Shared access 2-2-3
                        Set-off Child Support
                        $0 Spousal Support
                        Three (all) options to settle the house Me/Her/Sold as well as the equalization payment for each option based on the NFP
                        61/39 special and extraordinary expenses
                        Annual Disclosure
                        Equal share of household assets
                        No Costs
                        Uncontested Divorce
                        All other claims dismissed.


                        Originally posted by Tayken View Post
                        Again, if your lawyer requested costs on the Notice Of Motion or Cross Motion then the justice can order costs or for costs to be determined.

                        If you didn't request it in the NoM or Cross Motion then, the judge won't consider it. WorkingDad should chime in shortly to always remember to put in your NoM / Cross Motion to "always remember to ask for costs".
                        No paperwork has been started for the May motion yet. We just have a date and time scheduled. All paperwork so far has asked for costs so I don't imagine this will be different.

                        Originally posted by Tayken View Post
                        The Rules don't require anyone to make an Offer to Settle and/or be reasonable or even acknowledge that they recieved the Offer to Settle. So if you are possibly lamenting that the other party hasn't responded they are not required to. Keep sending reasonable offers to settle.
                        I was not lamenting just stating a fact.

                        Originally posted by Tayken View Post
                        So, you have the answer you are seeking. They are not going to make an offer to settle. They want to "fight it out in court" but, continue to stack offers to settle in their court to consider. It will creep up them fast and hard after the long motion hearing if you are successful on your request.

                        Also, if your matter is truly high conflict then maybe a costs award against the other party will start making them think about compromises and being reasonable?
                        I believe it is, and I sure hope so

                        Originally posted by Tayken View Post
                        No excuse to go down a litigated solution. She can sit down, read up and research a compromise, compose an offer to settle and instruct her lawyer to serve it.

                        Also, when did a long motion and case conferences become cheaper than resolution through negotiated settlement. The logic applied by the other party is stunningly awful.
                        She has verbally told me she can't afford the motion. I'm thinking she is just dragging this out as long as she can possibly hoping I will improve my offer. She said I would not accept any offer she makes. That's her choice.

                        Originally posted by Tayken View Post
                        Again, you walk out of DRO without a signed Minutes of Settlement and your counsel you should make it clear that they should have walked out of it with a signed agreement.
                        We agreed to look into a specific parenting coordinator/mediator (Stephen Cross) and agreed that if we did go ahead with it that the costs would be split. We basically agreed to this path instead of OCL. As soon as I got home she said she wouldn't pay for any of it.

                        Originally posted by Tayken View Post
                        Boo hoo. Want to respond with something just as stupid back? I would just ignore it as negative advocate solicitor cannon fodder statements to get an emotional reaction from you.
                        A response was not warranted and we did not respond.

                        Originally posted by Tayken View Post
                        Counter that stating Arbitration and that you will pay the upfront cost but, for the arbitrator to determine the costs based on the resulting order in accordance with the Family Law Rules and that your payment is to not prejudice your ability to seek costs against the other party.

                        Your lawyer, if any good, should have already done this as a counter response to that kind of nonsense.

                        Mediation in your matter FB_ is useless probably. Arbitration would be the best route to faster resolution and a final order.

                        Good LucK!
                        Tayken
                        In an email I suggested we pay for the cost of mediation up front. His response was as follows.

                        I like your idea of paying for the mediation and getting a credit later in theory, however, since she ultimately owes you I am not sure it is viable or practical here. We can try. You could agree to cover the cost without prejudice to your right seek a contribution to her share later, or that it be credited to you at trial. The mediation will certainly be quicker than the OCL. Also the mediation gives you more control over the outcome. If the OCL gets involved they will investigate and make recommendations. On the flip-side, the mediation still requires her to cooperate and compromise. At the end of the day though, a successful mediation means you arrive at something you can both live with, as opposed to having a random OCL investigator essentially decide.
                        Arbitration is not something that has even been discussed.

                        I'm a little nervous about Arbitration. I'm not sure why, I guess I don't know enough about it. I guess I have more faith in a judge than I do an arbitrator. If I am way off base here I would gladly listen to why. Does your lawyer attend arbitration with you?

                        Comment


                        • #13
                          If an offer to settle is made and accepted before the trial (even say one minute before the trial) can any order of costs be made?
                          The offer should deal with the matter of costs. Therefore costs follow what the offer says.

                          In the event that the offer does not deal with costs,
                          (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).
                          as per Courts of Justice Act - O. Reg. 114/99

                          if the offer to settle is written properly, you can identify how costs will be dealt with but, a lot of justices don't like this "tactic" because it really takes focus off the settlement and puts "blame" on both parties.
                          It provides an identifiable deadline then it can facilitate settlement. It further discourages parties from dragging things out as it draws attention to the cost consequences of same.

                          I don't think a judge would be too impressed if someone brought forward a request for relief on costs for an accepted offer to settle between both parties in the matter.
                          Please see rule above. Costs are a part of litigation and should be dealt with in any settlement.

                          I would personally not entertain settlement 1 minute before proceedings.
                          For offers to have cost consequences they must extend to the start of proceedings to decide the matter to which the offer pertains. It is for this reason that after a certain date offers often have cost consequences; that date is the "deadline", after which the party seeks to recoup further legal costs spent preparing for the motion/trial/etc.

                          It won't win them any bonus points from a justice at all.
                          It may be considered but often has no cost impact.

                          will costs be looked at after motions or only at the end of a trial?
                          Costs may be awarded after any step in proceedings. A party may be awarded costs for a successful motion, for example. Costs may also be reserved.

                          Comment


                          • #14
                            Originally posted by FB_ View Post
                            Arbitration is not something that has even been discussed.

                            I'm a little nervous about Arbitration. I'm not sure why, I guess I don't know enough about it. I guess I have more faith in a judge than I do an arbitrator. If I am way off base here I would gladly listen to why. Does your lawyer attend arbitration with you?
                            1. Your lawyer's response is great observations and you clearly have a positive advocate lawyer. (Again, just a quick comment from what little I read.)

                            2. Talk to your lawyer about arbitration. You could do med-arb (mediated arbitration). I am not totally for med-arb because, the mediator turned arbitrator knows the details of what has been offered which usurps Rule 18 of the FLR.

                            3. Arbitration, depending on the arbitrator can be just like a "private court" or a different setup. The major difference is if one or both of the parties can't compromise then and order is made by the arbitrator.

                            4. Also, your court file won't be part of the "public court system". The resulting order is generally just the order and not a decision and won't ever make it to CanLII for your kids to find when they are older. It truly is a "private" dispute resolution process unless... Someone appeals the decision of the arbitrator than all bets are off as it has to be determined in the Superior Court.

                            Arbitration is much faster than court. You are already going to a long motion hearing which is no different than the result of arbitration. The major difference you should be concerned with in the public court system... You won't get the time invested that a private arbitrator would invest.

                            If you are in Brampton I truly hope you get the very Honourable Mr. Justice Lemon and if you are very lucky the very Honourable Justice Madame Justice Mossip presiding over your matter. They often hear long motions in the BSC.

                            Just to warn you.... There is not a single justice in Brampton that takes hearsay, false allegations and "tactics" of a negative advocate solicitor lightly. They are punishing to the party that has bad legal representation in a matter and puts forward "irrelevant" and "paranoid" statements.

                            Good Luck!
                            Tayken

                            Comment


                            • #15
                              Originally posted by Tayken View Post
                              1. Your lawyer's response is great observations and you clearly have a positive advocate lawyer. (Again, just a quick comment from what little I read.)

                              2. Talk to your lawyer about arbitration. You could do med-arb (mediated arbitration). I am not totally for med-arb because, the mediator turned arbitrator knows the details of what has been offered which usurps Rule 18 of the FLR.

                              3. Arbitration, depending on the arbitrator can be just like a "private court" or a different setup. The major difference is if one or both of the parties can't compromise then and order is made by the arbitrator.

                              4. Also, your court file won't be part of the "public court system". The resulting order is generally just the order and not a decision and won't ever make it to CanLII for your kids to find when they are older. It truly is a "private" dispute resolution process unless... Someone appeals the decision of the arbitrator than all bets are off as it has to be determined in the Superior Court.

                              Arbitration is much faster than court. You are already going to a long motion hearing which is no different than the result of arbitration. The major difference you should be concerned with in the public court system... You won't get the time invested that a private arbitrator would invest.

                              If you are in Brampton I truly hope you get the very Honourable Mr. Justice Lemon and if you are very lucky the very Honourable Justice Madame Justice Mossip presiding over your matter. They often hear long motions in the BSC.

                              Just to warn you.... There is not a single justice in Brampton that takes hearsay, false allegations and "tactics" of a negative advocate solicitor lightly. They are punishing to the party that has bad legal representation in a matter and puts forward "irrelevant" and "paranoid" statements.

                              Good Luck!
                              Tayken
                              Thanks Tayken,

                              For the moment I have instructed my lawyer to do nothing until the May motion. I believe I have made a fair offer (he agrees). I can't negotiate with someone who is unwilling to participate in the process and if they do decide to participate we can take that road if/when presented.

                              She continues to do things expecting me to get all excited and react. This forum has helped me realize that I am in control of me not her. She will do what she does, but how I handle myself is all I can control. I am spending my 50/50 time with my kids the best that I can and I know they appreciate it. I continue to complete my daily log of what has happened in a factual manner only. (I did, she did, kids went) I don't put any emotion into it just facts.

                              Not much else I can do, however being that this is now 18 months of living together separated the waiting SUCKS.

                              Comment

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