Making an offer to settle
Before your trial starts, you might want to consider making a formal offer to settle. You and the other party may have discussed settling your case at various times but that's not the same as making a formal offer to settle.
The rules about offers to settle are meant to encourage people to resolve their issues before they go to court. The rules do this by rewarding those who make a reasonable offer to settle and punishing those who refuse to accept a reasonable offer to settle.
If you make a formal offer to settle and the other party unreasonably fails to accept your offer, the judge can make a special order about costs. Generally, this means the judge will order the other party to pay you an amount of money based on the costs of going to trial. The total money awarded to you may be significant.
Important: By making an offer to settle, you aren't admitting to anything and it can’t be used against you.
If the other party accepts your offer to settle, you need to put the acceptance in writing. You can then apply for a consent order that reflects what you and the other party have agreed to. You won't have to appear in court.
If you and the other party settle, you must remember to let the registry know that you won't need the court dates set for the trial.
If the other party doesn't accept your offer to settle, your case will go to trial as scheduled. The judge won't know that you made a formal offer to settle. At the end of the trial, after the judge has made their own decision, the judge will look at your offer to settle. Generally, if your offer was as good as or better than what the other party ended up getting from the court decision, the judge can:
- award double costs to you for some or all steps taken in the case,
- award additional costs to you for some or all steps taken in the case, and
- take away costs that otherwise might have been awarded to the other party.
The judge will consider:
- whether the offer to settle was one that should reasonably have been accepted,
- how your offer compares to their own decision,
- the financial circumstances of both of parties, and
- any other relevant facts.
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 of the Supreme Court Family Rules. See also our fact sheet Costs and expenses.
You can make an offer to settle at any point before the trial starts. The details of your offer must represent a realistic end result of your case.
A formal offer to settle under Rule 11-1 must:
- be in writing,
- include specific details,
- be served on all the parties, and
- include the following sentence: “The party [insert 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 receiving the offer, the other party decides whether to accept the offer or not, or whether to make a counter-offer.
Important: You can't let the judge know you made a formal offer to settle until after the judge has made the final decision (about everything except costs). At that point, they can look at your offer and consider whether it was reasonable, and if the other party was unreasonable to refuse it.
If you receive an offer to settle, you must carefully consider if it’s reasonable and within the range of possible results of the trial. You need to weigh the risk of turning down the offer against having a significant order about costs made against you.
You can make a counter-offer but it won't cancel out the original offer made by the other party.
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