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Difference Between Offers to Settle in Conference Briefs and on their Own

by Daniel Gloade on December 11, 2015

This is the case of Owen-Lytle v Lytle, 2015 ONSC 7673 (CanLII).  You can read it here.

There are two ways to Offer to Settle a family law matter.  It can be done either using a Formal Offer to Settle (Formal Method) or put the offer in a Settlement Conference Brief (Conference Brief Method).

Parties must submit a Settlement Conference Brief before attending a Settlement Conference.  A Settlement Conference Brief is a form that asks questions or gives instructions.  One of the sections of the Settlement Conference Brief requires the party to make an Offer to Settle on some or all of the issues.  This is the Conference Brief Method.

The second method is a Formal Offer to Settle.  It is a separate document that can be sent at any time.  I call it the Formal Method.

In this decision, the Honourable Justice S.J. Woodley held that a party may withdraw an Offer to Settle, by making a subsequent offer, in writing, that is less generous than the original offer.  The parties do not need to serve a court form called a Notice of Withdrawal.  This is true for both the Conference Brief and Formal methods.

Second, Offers to Settle from either the Conference Brief or Formal methods are not to be revealed in open court.  This is to allow the parties to have “backroom negotiations” to settle a matter.  The parties can speak candidly as to what is important to him or her and offer solutions.  If the parties don’t agree, however, they can still take a hardline position in court.  This system won’t work unless the backroom discussions are kept secret.

Woodley J. held however, that no matter the method used a party can reveal its contents in open court if he or she brings a motion to enforce an agreement arising from that Offer to Settle.

What is interesting in this decision, however, is Woodly J’s comment that the Conference Brief Method is governed by Rule 17 of the Family Law Rules.  Offers to Settle using the Formal Method sent independently is governed by Rule 18 of the same Rules.

Rule 18 states that a party that wastes the court’s time by failing to accept an Offer to Settle that was more generous that the final court Order, then the offending party should be more liable to pay some of the legal fees of the other party.  Rule 17 does not have this provision.

Can a party argue that these cost consequences should not attach to a party failing to accept an Offer to Settle made by the Conference Brief Method?    Woodley J. does not comment because she was not asked to.

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