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VANCOUVER FAMILY LAW SETTLEMENT LAWYERS know most people want a prompt and efficient settlement of their family law case so they can move forward and spend their hard earned money on their children and other key family expenses. Our Vancouver family law settlement lawyers bring one of Canada’s largest family law teams to bear on obtaining prompt and fair settlements. Our firm has offices across Western Canada in Vancouver, Calgary, Surrey, Kelowna, Fort St John and Richmond, BC.

Click here to meet with one of our highly rated* Vancouver family law settlement lawyers or call us toll free at 1-877-602-9900 to set up an immediate appointment.

*(Top Choice Award (2014, 2016, 2017), top rated reviews on Google, Yelp, threebestrated, lawerratingz.com).
VANCOUVER FAMILY LAW SETTLEMENT LAWYERS
TAL WOLF, VANCOUVER FAMILY LAW SETTLEMENT LAWYERS 1-877-602-9900

VANCOUVER FAMILY LAW SETTLEMENT LAWYERS AT MACLEAN FAMILY LAW, INCLUDING OUR MAIN OFFICES IN DOWNTOWN VANCOUVER WE KNOW THE VALUE OF BRINGING YOUR SPOUSE TO THE TABLE TO SETTLE YOUR CASE AND NOT “LEAVING THE GAME IN THE HANDS OF THE REFEREE.”  We regularly use all the tools available in our tool-chest, including the Supreme Court “Offer to Settle” rules to accomplish this all-important goal:

Vancouver family law settlement lawyers know An Offer to Settle can do two things. First, it can influence the Court when the question of “costs” is dealt with after everything else has been determined – and only then. If you have made an Offer to Settle that is as good as or better than what the Court orders then the Court will likely (though never guaranteed) order the other side to pay some or possibly most of your legal costs. Second, the Offer to Settle may settle the matter if the other side agrees and accepts your Offer.

VANCOUVER FAMILY LAW SETTLEMENT LAWYERS 1-877-602-9900

An Offer to Settle is your proposal to settle the litigation. It is usually better to settle on terms acceptable to you as opposed to having the matter decided by a judge. The outcome of litigation is always uncertain. There are no guarantees in litigation, and controlling your “risk” by offering to settle is usually the best and most rational way to proceed. Offers to Settle also help you to focus on what is important to you and what minimums you are prepared to accept. This is important as often people lose sight of their goals and what it will take to settle the matters in issue. Offers to Settle may be made at any time prior to the Judge making a determination, but the most common occasions are: – after the exchange of any necessary disclosure because the respective lawyers will have had an opportunity to review the opposite party’s case; before a settlement conference, in preparation for such a conference;  after a settlement conference if the judge renders his or her view of the case; and – just before trial when the weaknesses of a party’s case and the reality of losing control over the outcome hits home.

VANCOUVER FAMILY LAW SETTLEMENT LAWYERS EXPLAIN COSTS

There are technical timeframes which should be met in order to obtain the maximum impact from an Offer to Settle and the VANCOUVER FAMILY LAW SETTLEMENT EXPERTS AT MACLEAN LAW would be happy to discuss these with you. Offers may be accepted until they expire or are withdrawn. Offers may be withdrawn at any time prior to acceptance. An accepted offer may be enforced as a judgment.

At the end of a legal proceeding (or a step in a legal proceeding, e.g., a motion) the Court has a discretion to award costs. The most common award to a successful party is an Order of costs on a percentage of the total costs you have incurred or, alternatively, a partial indemnity basis (formerly “party and party basis”), which requires an unsuccessful party to pay the successful party his or her costs in accordance with the tariff scale set out in the British Columbia Family Court Rules. This Order for “partial indemnity” often results in the successful party receiving 25%- 50% of his or her total legal bill for fees and disbursements. In order to encourage settlement of disputes, the BC rules reward those who make reasonable Offers to Settle and penalize those who fail to accept such Offers.

VANCOUVER FAMILY LAW SETTLEMENT LAWYERS KNOW MOST FAMILY CASES SETTLE

Virtually all family law litigations settle before trial (i.e. roughly 90% to 95%). Therefore, making an Offer to Settle should not be seen as a sign of weakness or admission that your position in the litigation is not a worthy one. Offers are strategic tools for negotiation, and indeed, they are often used tactically to obtain a greater recovery of legal costs at trial. If you go to trial, you want to show that it is only because the other party was being unreasonable. Vancouver family law settlement lawyers know the earlier an offer to settle is made, the greater the cost recovery can be and the earlier the incentive for the family case to settle.

VANCOUVER FAMILY LAW SETTLEMENT LAWYERS
VANCOUVER FAMILY LAW SETTLEMENT LAWYERS

A few weeks ago in R.A.V. and J.M.M., 2017 BCSC 609, following a two-day chambers application M. Justice Arnold-Bailey ruled on an application for a review of child support payable by the Claimant’s former husband, with oral reasons indexed at 2016 BCSC 1377. The Court dismissed the application, altered a term of the separation agreement and ordered that the Respondent pay child support to the Claimant in the amount of $900 per month. The parties had reached an agreement regarding their sharing of s. 7 and extraordinary expenses.

At the conclusion of the oral reasons for judgment, the Court stated (at para. 113) that “… unless there are matters of which the Court is unaware, as success has been mixed, each party is to bear their own costs.” Counsel for the Respondent then referred to an offer to settle (”the Offer”), and made brief submissions as to costs.

VANCOUVER FAMILY LAW SETTLEMENT LAWYERS EXPLAIN COURT COSTS RULES 1-877-602-9900

The governing provisions concerning costs and offers to settle are found in the Supreme Court Family Rules, B.C. Reg. 168/2009.

Rule 16-1(7) provides that costs must be awarded to the successful party, unless the Court orders otherwise.

Success has been interpreted as “substantial success”: Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.).

In Fotheringham v. Fotheringham, 2001 BCSC 1321, leave to appeal ref’d 2002 BCCA 454, Mr. Justice Bouck stated that “substantial success” should be “decided by the trial judge looking at the various matters in dispute and weighing their relative importance”. Bouck J. stated in Fotheringham at para. 45 that substantial success occurs when the prevailing party succeeds on 75 percent of the matters in dispute, considered globally.

Bouck J. suggested a four-step inquiry to determine substantial success in cases involving multiple individual issues:

1. First, by focusing on the “matters in dispute” at the trial. These may or may not include “issues” explicitly mentioned in the pleadings.

2. Second, by assessing the weight or importance of those “matters” to the parties.

3. Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.

4. Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs.

A judge’s determination as to the degree of success enjoyed by a party in a contested application or a trial is independent of offers to settle that may come to light after the hearing of the matter is completed and reasons for judgment are given.

In Paul v. Pumple, 2013 BCSC 1844, at para. 16, Mr. Justice Goepel ruled that an offer to settle should not be considered in determining substantial success.  Rather, substantial success is determined by comparing the positions taken at trial against the end result, and therefore an offer to settle falls outside this comparison. Therefore, costs orders with regard to offers to settle are only considered after the court has first determined costs pursuant to Rule 16-1(7) of the Supreme Court Family Rules.

Rule 11-1 of the Supreme Court Family Rules deals with the issue of costs when an offer to settle has been made:

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

(5) In a family law case in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the offer was made by a respondent and the judgment awarded to the claimant was no greater than the amount of the offer to settle, award to the respondent the respondent’s costs in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle.

     The decision to award costs under Rule 11-1(5) is a discretionary one. Rule 11-1(6) outlines considerations for the court in making an order for costs:

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

REFUSAL TO ACCEPT A REASONABLE OFFER HAS CONSEQUENCES EXPLAIN VANCOUVER FAMILY LAW SETTLEMENT LAWYERS

In Hartshorne v. Hartshorne, 2011 BCCA 29, the Court of Appeal stated in reference to the first factor:

[27] Whether the offer to settle was one that ought reasonably to have been accepted – is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that the offer was open for acceptance, it would have been reasonable for it to have been accepted: Bailey v. Jang, 2008 BCSC 1372 (CanLII),90 B.C.L.R. (4th) 125 at para. 24; A.E. v. D.W.J. at para. 55. As was said in A.E. v. D.W.J., “The reasonableness of the plaintiff’s decision not to accept the offer to settle must be assessed without reference to the court’s decision” (para. 55). Instead, the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided. We do not intend this to be a comprehensive list, nor do we suggest that each of these factors will necessarily be relevant in a given case.

In discussing the second factor, the Court of Appeal noted in Hartshorne that it allows an analysis of whether the party declining the offer would have been financially better off, on a global basis, if they had accepted the offer as compared to the court’s final determination.  The relationship between the terms of the offer and the final judgment requires a consideration of whether the overall result of the trial is better than the offer in its entirety.

The third factor, the relative financial circumstances of each party, is self-explanatory.

The fourth factor provides for the Court to use its discretion. Examples include to sanction blameworthy conduct or to account for complexities in the nature of the proceeding or the content of an offer.

VANCOUVER FAMILY LAW SETTLEMENT LAWYERS EXPLAIN LATEST OFFER TO SETTLE CASE

Now back to our most recent case R.A.V. and J.M.M.: 

The Court found that success in this matter was mixed, and absent matters of which the Court was unaware, each party was to bear their own costs. But….

65      With regard to Rule 11-1(6)(a), “whether the offer to settle was one that ought reasonably to have been accepted” either on the date it was delivered or on any later date, the Offer was made on October 26, 2015, the day before the hearing before Bracken J. on October 27, 2015. I accept that given what was at issue this did not provide the Claimant enough time to meaningfully evaluate the Offer and choose whether or not to accept it before the hearing with Bracken J.

66      The Offer remained on the table up until the time the present application came before the Court on February 25, 2016. This provided the Claimant just under four months to evaluate and either accept or reject it. I find that the timing of the Offer with regard to the present application was reasonable. It was not a “nuisance offer”. It was, however, hard to evaluate without an adjudication on the issues of notice and the standards of living for the Child as between his parents’ residences.

67      With regard to Rule 11-1(6)(b), “the relationship between the terms of settlement offered and the final judgment of the court”, the Respondent’s Offer was for an increase in child support (from $600 per month) to $1,000 per month effective November 1, 2015, and for the Respondent to pay 90 percent of agreed upon s. 7 expenses.

68      The Court ordered an increase in child support as of March 1, 2015, and dismissed retroactive child support. Specifically, the Court ordered $900 per month in child support to commence on March 1, 2015, which is eight months earlier than when the increase was to commence in the Offer, and ordered the Agreement be modified accordingly.

69      Based on an agreement reached by the parties, the full details of which were not shared with the Court in terms of amounts owing and retroactivity, the Court ordered that the Respondent pay 70 percent of the Child’s s. 7 and extraordinary expenses, and the Claimant pay 30 percent, with any amounts owed to be paid within 60 days of when they are incurred; with such expenses in the future to be defined and paid according to the parties’ Agreement in proportion to their line 150 Guidelines’ incomes.

70      It does not seem appropriate to include in a comparison of the Offer and the result obtained in the application, the issue of s. 7 and extraordinary expenses as the parties reached an agreement on that issue. In any event, actual dollar amounts cannot be precisely determined when dealing with future expenses so as to accurately assess the difference between the Offer that the Respondent pay 90 percent “of agreed upon s. 7 expenses”, and the amount of 70 percent that the parties agreed the Respondent was to pay, with the Claimant to pay the remaining 30 percent. Thus, without details, the Court cannot assess the Claimant’s success or lack thereof on that issue in terms of retroactive expenses.

71      That leaves the Respondent’s Offer for an increase in child support to be $100 per month greater ($1,000) than the amount obtained by court order ($900). However, the Court awarded the increase (from $600 per month) to $900 per month effective March 1, 2015, and the Respondent’s Offer of an increase to $1,000 per month only commenced on November 1, 2015. As of November 1, 2015, eight months later than March 1, 2015, that results in a net increase to the Claimant in the amount of child support being paid by the Respondent to be $2,400 ($900 per month for 8 months = $7,200, as opposed to $600 per month for 8 months = $4,800). Then, if one considers the $100 more per month offered by the Respondent prospectively over 48 months from November 1, 2015, the difference between the amount in the Offer and as ordered pales to insignificance. Thus, I find that as between the Offer on the issue of child support and what the Court ultimately ordered, it was essentially “an even draw” as between the parties. Therefore, I find that the difference between the Offer and the terms of the order do not warrant an award of costs to the Respondent.

72      With regard to Rule 11-1(6)(c), “the relative financial circumstances of the parties”, there is significant disparity between the incomes of the Claimant and the Respondent, with the Respondent’s income being considerably larger. As well, the Claimant has less income with which to pay the mortgage on her home in North Vancouver, which she chose to be close to the Respondent’s home for the convenience of the parties and the benefit of the Child. However, her current husband provides some indirect financial benefit to her and the Child. At the end of the day, while the Claimant is of less means overall, I do not regard this factor to be significant in this analysis.

73      Finally, with regard to Rule 11-1(6)(d), “any other factor the court considers appropriate”, as I have previously indicated the Respondent’s insistence on financial information from the Claimant’s current husband beyond that to which Bracken J. found him to be entitled, is one such factor. Another is the unclear communications between both parties as to when notice was effectively given with regard to a retroactive increase in the amount of set-off child support to be paid. As well, the Claimant’s application required a Guidelines’ s. 9 determination involving the Contino factors (Contino v. Leonelli-Contino, 2005 SCC 63), and an exercise of principled judicial discretion to assess the set-off child support amount in the context of the parties’ Agreement. These issues made it difficult for the Claimant to assess the appropriateness of the Respondent’s Offer. They do not support an award of costs to the Respondent based on the terms of the Offer.

74      For these reasons, the parties will each bear their own costs for the hearing before Bracken J. on October, 27, 2015, and also in relation to the hearing of the application before the Court. This is due to a finding of mixed success throughout, which is not altered by virtue of the Respondent’s Offer.

OUR TOP* VANCOUVER FAMILY LAW SETTLEMENT LAWYERS WILL GUIDE YOU ON OFFERS TO SETTLE SO YOU CAN MOVE FORWARD WITH CONFIDENCE 1-877-602-9900

*(Top Choice Award (2014, 2016, 2017), top rated reviews on Google, Yelp, threebestrated, lawerratingz.com).
VANCOUVER FAMILY LAW SETTLEMENT LAWYERS
TAL WOLF, SENIOR ASSOCIATE VANCOUVER FAMILY LAW SETTLEMENT LAWYERS

Any advice received regarding making an Offer to Settle should be seen as both a tactical instrument to apply pressure to the other side to settle this case or risk the cost consequences set out above as well as an assessment of the evidentiary strength of your case. Your VANCOUVER SETTLEMENT OFFER LAWYERS AT MACLEAN LAW will advise you concerning making or accepting an Offer to Settle also based on our assessment of what a Judge may do based on the available, admissible evidence that would appear at a trial, in addition to the relative costs of taking this matter to trial (and perhaps the appeal) versus settling the matter now and eliminating any further legal expenses, uncertainty and the stress of litigation.