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How is the authenticity of an Offer to Settle verified?

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  • How is the authenticity of an Offer to Settle verified?

    Hi community, so I've read

    http://www.ontariocourts.ca/ocj/self...-trials/guide/

    and

    https://familycourt.cleo.on.ca/en/ap...t-offer-settle

    and I have read rule 18 of the rules.

    None of them detail how the veracity of an offer to settle is confirmed ? Is a copy placed into the continuing record ? into the trial record ? Unless the courts have a copy of the OTS the parties can dispute its receipt and its contents.

    as usual thanks

    PND

  • #2
    1) is it their offer or yours? From what I remember, you do not have counsel currently?

    The rules require that offers be presented by counsel to their client. If you're making the offer, make sure you have some way to establishing that it was sent- e.g. registered mail, personal service, etc.

    I don't think it's automatically placed into the trial record, but I believe if you're going into mediation or trial -you'll need to include a copy of the offer in the materials, along with confirmation that it was put before the other party (at least civilly- this would be done by swearing an affidavit) .

    Comment


    • #3
      Originally posted by iona6656 View Post
      1) is it their offer or yours? From what I remember, you do not have counsel currently?

      The rules require that offers be presented by counsel to their client. If you're making the offer, make sure you have some way to establishing that it was sent- e.g. registered mail, personal service, etc.

      I don't think it's automatically placed into the trial record, but I believe if you're going into mediation or trial -you'll need to include a copy of the offer in the materials, along with confirmation that it was put before the other party (at least civilly- this would be done by swearing an affidavit) .
      Thanks for the response. the best registered mail/personal service can do is confirm that "something" was sent.

      It would seem to me that the veracity of an offer could only be protected by leaving a copy with the courts, no ? otherwise you could have contested versions of the same OTS. So does it go in the trial record ?

      Comment


      • #4
        Technically when you serve an item on the opposing party you do a certificate of service or affidavit of service? The courts see that as proof the other party was served which means its their against yours and if you have sworn service the court views that as being served. By denying it the other party is calling you a liar in the face of a sworn document.

        Your ex has made a lot of false claims and has proven herself a liar and vexatious litigant. I wouldn’t worry so much that she will say she didn’t receive the offer because you can demonstrate it was served on her or her counsel so then the question is why didn’t her counsel present it to her.

        Comment


        • #5
          I think his worry is that they will lie about the contents of the offer, not that they will lie about the existence of the offer itself.

          Generally, the assumption is that lawyers don't lie for clients because it can cost them their very high paying job. However, if you have reason to believe the opposing lawyer is shady, send the offer, then email the same offer, and carbon copy somebody on that email. Maybe for fun take a picture of you holding the offer, or perhaps a video of you sending the email message.

          But yeah, general assumption is that a lawyer has too much to lose, and they don't really care that much about OTS, because they aren't the ones paying the costs

          Comment


          • #6
            Also- in this instance- if you're worried about the content. Pay for a courier service and for personal delivery. Then there will be an independent 3rd party who can attest as to the contents.

            Comment


            • #7
              Originally posted by Janus View Post
              I think his worry is that they will lie about the contents of the offer, not that they will lie about the existence of the offer itself...

              ...then email the same offer, and carbon copy somebody on that email...

              As Janus said, I would also probably just followup with emailing the same settlement offer, saying that you're also emailing it, in addition to the other method you formally sent it. Maybe scan it, with your signature, and attach it as an email attachment, so that a "signed" copy is sent.

              Comment


              • #8
                Don't count on double costs

                "Men don't get costs."
                - A lawyer that I've consulted (a woman)

                This is a good question. You should make an offer that you can live with should it get accepted. You should do what you can to be able to prove your offer was made. But don't worry too much offer-based costs because you are unlikely to get them.

                Comment


                • #9
                  Your offer will be an attachment in your Settlement Conference Brief if it hasn't been accepted by the other party. It shouldn't go into the continuing record if you have conferences scheduled because the judges at Case or Settlement Conferences are not allowed to see the continuing record, just the brief and any attachments provided with it. In our case, the Settlement Conference brief includes Attachment 1, Separation Agreement.... Attachment 2, amended Agreement....Attachment 3, Offer to Settle. My husbands offer was sent to his ex by his lawyer through email as she decided not to have a lawyer. I don't know if any type of read receipt was sent. She emailed his lawyer with a few questions, then sent her own Offer via email to the lawyer, so we do know she received it.
                  If you aren't sure if they received it or if they will say it is different than what it is, schedule your conference, serving her with form 14C Confirmation and make sure it is listed in your Brief.

                  Comment

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