Making an offer to settle

Supreme Court

If you're having a trial, think about making a formal offer to settle before it starts.

An offer to settle is a written document where one person in a family law case (the law calls them a party) tells the other person what they're willing to agree on to try to sort out their issues before they go to court.

You and the other person might already have talked about settling your case. But that's not the same as making a formal offer to settle.

When you make an offer to settle:

  • you aren't admitting to anything, and
  • your offer can't be used against you.

The rules about offers to settle are meant to encourage you to sort things out before you go to court. They:

  • reward people who make a reasonable offer to settle, and
  • punish those who won't accept a reasonable offer to settle.

The judge can make a special order about costs if:

  • you make a formal offer to settle, and
  • the other person unreasonably doesn't accept your offer.

This usually means the judge will order the other person to pay you an amount of money based on the costs of going to trial. The amount could be quite high.

How do you make a formal offer to settle?

You can make an offer to settle at any time before your trial starts.

The details in your offer have to be realistic. For example, don't suggest that you get to keep the house, the car, and all your savings and your spouse gets nothing. Think about what you and your spouse could live with, even if your ideas aren't perfect for you both.

A formal offer to settle under Rule 11-1 of the Supreme Court Family Rules must:

  • be in writing,
  • include specific details,
  • be served on all the people involved, and
  • include the following sentence: "The party [write your name here] reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."

After the other person's got the offer, they have to decide whether they'll:

  • accept the offer,
  • reject the offer, or
  • make a counter-offer.

What happens if your offer is accepted?

If the other person accepts your offer to settle, they need to put their acceptance in writing.

You can then apply for a consent order (also called a desk order) that shows what you and the other person agreed to. You won't have to go to court.

Remember to let the registry know that you won't need the court dates they set for your trial.

What happens if your offer isn't accepted?

If the other person doesn't accept your offer to settle, your case will go to trial as planned. But the judge won't know that you made a formal offer to settle until after the trial.

At the end of the trial, after the judge has made their decision about the issues in the case, they'll look at your offer to settle. Then they’ll make a decision about costs.

The judge will look at:

  • whether the offer to settle was one that should reasonably have been accepted,
  • how your offer compares to their own decision,
  • the financial situation of you and the other person, and
  • any other relevant facts.

Usually, if your offer was as good as, or better than, what the other person ended up getting from the court decision, the judge can do one or more of these things:

  • award double costs to you for some or all steps taken in the case
  • award extra costs to you for some or all steps taken in the case
  • take away costs that otherwise might have been awarded to the other person

For more details about how costs are handled, see Supreme Court Family Rule 11-1(5) and Appendix B. All the rules about making an offer to settle are set out in Rule 11-1.

What happens if you get an offer to settle?

If you get an offer to settle, think carefully about it. Ask yourself:

  • Is this reasonable?
  • Is the judge likely to decide something similar if we go to trial?
  • Am I likely to get less if we go to trial?

You need to weigh the risk of turning down the offer against what the judge might say in court.

You can make a counter-offer, but it won't cancel out the original offer made by the other person.

If you make a counter-offer as a formal offer to settle, the judge will look at both offers when they make a decision about costs.