Costs and Settlement

[Headwaters1]

I found this link below incredibly helpful. I am putting together a offer to settle but I want to know how to manage costs in the offer. I want to settle but my ex has been found to have participated in some extremely bad behavior (bad faith).

http://www.goldhartlaw.com/uploads/5...sofRoguery.pdf

Some examples of behaviour that have been held by the courts to be in bad faith are as follows:

Not obeying court orders; waging a campaign alienating children from a parent; over- holding the children after an access visit; removing the children from the local municipality and starting a custody proceeding in the new location; actively and intentionally hiding or misrepresenting the value or existence of an asset; mean-spirited attacks against a vulnerable spouse designed to operate as a debilitating tactic; failure to provide timely disclosure or abide by disclosure orders coupled with an unreasonable and unilateral refusal to make support payments pending the hearing; filing an ex-parte motion when the party knew that both sides were represented by counsel who might have negotiated a reasonable temporary arrangement without escalating an already volatile situation.

I know this applies to LovingFather32's case perfectly and to mine strike the "not following court orders" and "holding the child-over".

So since we haven't even touched on financial yet I wanted to put an offer forward but still keep her accountable for the more than $17,000 in costs built up to date. It will come in handy against any back dated support due or asset distribution disagreements we get into.

Does anyone have any advice on how to word that in the offer?

It's an offer "with costs"?

[twokids]

I thought that costs could only be awarded at the end of a motion or a trial and that there is a limit of $2000 or $2500 per day for legal fees. I also thought that costs to prepare documents, disbursents etc are not included if somepne is awarded costs.

I'm terribly confused about this because I have heard of people getting a larger amount than this for costs.

[standing on the sidelines]

I thought that costs could only be awarded at the end of a motion or a trial and that there is a limit of $2000 or $2500 per day for legal fees. I also thought that costs to prepare documents, disbursents etc are not included if somepne is awarded costs.

I'm terribly confused about this because I have heard of people getting a larger amount than this for costs.

that is what I thought also. I am not sure about the limits you can claim etc though.

[arabian]

twokids - you might find it interesting/helpful to look up information in your Province's Rules of Court. There should be a section outlining costs.

Of course you can go on to CanLii, select your province, Superior Court (or Court of Queens' Bench), and in search heading type in costs endorsement. You can then refine your search and you can see how judges award costs in many cases.

[FightingForFamily]

Offers to settle can include any and all terms as long as the parties can agree.

At least one of the offers I've helped draft included terms regarding costs. Most often the term is simply "each party agrees to bear their own costs". However in one case we did include a term for a small amount of legal costs for unnecessary court appearances (like $1k). In the end it was accepted and paid.

If you want the offer to be seriously considered I would tend to leave out costs. The other party is unlikely to agree with your assessment of their behaviour especially when you assigned a dollar amount to it. It might not be fair, but it might also end the litigation sooner and reduce future costs.

[Beachnana]

The frustration of having to enage legal counsel because the other party is being unreasonble makes one want to ask for costs. The fact that in most cases costs are brushed aside to facilitate a out of court settlement only encourages this behaviour.

Recently we entered a motion to have section 7 expenses paid and we attempted to self rep, but in came the big guns who were quite good at twisting things around and therefore we needed to engage our legal counsel. So for under $6k owed we are now paying a lawyer to deal witht the issue. The consolation is that the money will be paid and the other party will also have to pay their lawyer. At least the money we receive will cover the legal fees and we can tax deduct the legal fees so all is not lost.

[rockscan]

We may be going through this at some point and even after doing my own research and speaking with the lawyer the issue is still confusing. My partners lawyer (thankfully) agreed to hourly rates since he just gives us advice and helps with correspondence drafting. The ex seems to be getting (bad) advice from her local FLIC. The problem is that it just becomes a constant back and forth with no resolution. The lawyer has told us we could ask for costs based on all the attempts at working reasonably but because the ex cries broke, the judge may have sympathy. Costs should definitely be considered in cases of unnecessary litigation. Especially with difficult people and where contempt for bad behaviour isnt an option!

[twokids]

I checked canlaw. There are lits of cases where costs were awarded but no details surronding the rationale for why that amount is awarded (other than a few cases speaking to difficult parties).

I am happy to see that no one is having to pay the other parties six figure legal bill.

[OrleansLawyer]

how to word that in the offer?

It's an offer "with costs"?

As a preamble, most people find it unpalatable to pay the other side's legal costs. Including cost provisions therefore makes it unlikely for the offer to be accepted. It would be prudent to consider this before making any offers that set out a cost penalty.

If your offer to settle is silent on costs then, upon acceptance, you could then seeking a hearing only on the issue of costs.

I thought that costs could only be awarded at the end of a motion or a trial and that there is a limit of $2000 or $2500 per day for legal fees.

No limit (although cost awards are guided by what is reasonable). Costs can be awarded at a conference but this is only rarely done.

costs to prepare documents, disbursents etc are not included if somepne is awarded costs.

These costs can be included.

Offers to settle can include any and all terms as long as the parties can agree.

This is correct.

[Headwaters1]

Thanks NewOrleans that was helpful. I also agree with Beachnana...

In my case this was rushed to court (emergency motion) without a single word in discussion on a possible agreement in custody. It's raged (one sided) with crazy allegations, laid to rest by a lengthy OCL investiagtion, and is now stuck with lack of disclosure from the applicant because I "discovered" monies wired out of the country. So now she is stalling because she is afraid the division of assets would go my way.

But it's frustrating to let all this bad behaviour just go without a penalty...I know in many cases both sides have been unreasonable...in this case I've just been sideswiped without much of an opportunity to do anything but defend, then when the tables turn...I just let it go?

Now it is close to being dismissed due to inactivity...now I'm pondering if I let this be dismissed or if I try to keep it alive. It's been a real puzzle for me...

Letting it go to dismissal just seems like loose ends...

Thanks for the advice...