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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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  #1  
Old 05-25-2021, 10:22 PM
Hopefundad Hopefundad is offline
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Default Offer to Settle

I received an offer to settle from my ex's lawyer after she brought an emergency motion last year to restrict my access after aligations of her painting a bad picture of me.
After the judge ordered the OCL to get involved it proved otherwise and in fact 100% favored me.
Her lawyer did not sign the offer they sent that was based on the OCL's recommendations with some changes made to her favor. Is this offer valid since it's not signed and will I be responsible for her lawyer's fees?
I want to make a counter offer (mainly based on the OCL's report) and if they accept, can I file a motion later to recover my costs? I called the court clerk, and they explained to me that if I accept an offer or we settle that I cannot go after my costs. Based on the family law rules, section 18 (11) I am still entitled to file for costs if costs are not mentioned in the offer. If we are not able to bring a cost motion, how should we mention costs in our counter offer? If we can file for costs later, will the judge look at the case from the start (when she filed an emergency motion) or just from when we file an offer to settle?
Any input would be greatly appreciated.
Thank you
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  #2  
Old 05-25-2021, 10:56 PM
rockscan rockscan is offline
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The offer is to protect you from a costs award should it go to trial. If either of you accept an offer costs are waived. Most offers actually outline no costs.

If you dont accept her offer, you can counter it. If she refuses and you refuse, you go to trial.

You need to ask yourself if you are willing to take the gamble. Just because the ocl says something, doesnt mean the judge will accept it.
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Old 05-26-2021, 08:28 AM
Stillbreathing Stillbreathing is offline
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Let me tell you a thing about costs. Generally speaking...they’re bullshit. I have been litigating for ten years so I do have an onset or two of experience. During that time my ex has breached orders left right and centre as well as committed various acts of bad faith. In one particular case he removed a piece of equipment from the farm in a blatant breach of the judge’s order which stipulated he must not remove that equipment. So did the judge award me costs? No... at the next CC she made a new order allowing his theft of this equipment and reserving costs until trial! Since we have started the med/ arb process I have won all 4 motions but received costs only once and although I won the other 3 motions, costs gave been reserved until arbitration. The costs I did receive were not 100% of my costs but a portion of my costs. Then you have to address collecting costs if the other party refuses to pay those costs. That’s another whole can of worms. So if you have the misguided
Idea that you are entitled to costs and somehow they will be fairly awarded and collected, get that out of your head right now. How costs are supposed to work in theory and their application in reality are so far apart, it’s actually bullshit!
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Old 05-26-2021, 08:44 AM
Kinso Kinso is offline
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Quote:
called the court clerk, and they explained to me that if I accept an offer or we settle that I cannot go after my costs.
Do not take legal advice from the court staff. Run this by a lawyer.
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Old 05-26-2021, 10:27 AM
Hopefundad Hopefundad is offline
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Yes, this is what I'm generally hearing. And that what OCL recommends, and what we agree on the judge can change it as they want.
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Old 05-26-2021, 11:53 AM
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Originally Posted by Kinso View Post
Do not take legal advice from the court staff. Run this by a lawyer.
Agreed!!!!!!!!!

I can pepper this site with case law where costs of a "settlement" have been argued before the court.
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Old 05-26-2021, 11:58 AM
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Originally Posted by Hopefundad View Post
Yes, this is what I'm generally hearing. And that what OCL recommends, and what we agree on the judge can change it as they want.
Yes. They are recommendations. I am finding more-and-more that judges are digging deeper when OCL is involved. OCL and Section 30 assessments are no longer a slam dunk done deal.

See: https://www.canlii.org/en/on/onsc/do...1onsc6451.html

That case law was the tidal wave of change in how judges view the OCL and the critical analysis of their "work" needs to be done.
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Old 05-26-2021, 12:41 PM
Donald Duck Donald Duck is online now
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That is my favourite case and so much so resembles my current situation ( not with costs, but the actual case).

I have been debating getting OCL involved but my lawyer thought better not to for various reasons.

Are you or someone able to expound on your last comment please?
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Old 05-26-2021, 01:44 PM
Brampton33 Brampton33 is offline
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Quote:
Originally Posted by Tayken View Post
See: https://www.canlii.org/en/on/onsc/do...1onsc6451.html

That case law was the tidal wave of change in how judges view the OCL and the critical analysis of their "work" needs to be done.
Part of the tidal wave of change is that it is no longer a world where mother automatically gets sole custody and father gets EOW + Wednesdays. That is 1980s talk. In the cited case, the OCL worker saw the level of conflict between parents and wrongfully defaulted to EOW + Wednesdays.

When one digs deeper into the case, as the judge did, it was uncovered that the high level of conflict was mainly orchestrated by the mother enacting revenge on the father, whereby the father merely wanted to be equally involved in raising their child. Good on the father for not giving up.

This case is a good example of what may happen when one parent uses the child(ren) to enact revenge or be vindictive towards the other parent.
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Old 05-26-2021, 02:20 PM
Donald Duck Donald Duck is online now
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Thank you very much!!!!!!!!!!!!

Wow!

Love how you wrote that!
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