Offers to Settle under Ontario Family Law

A major objective of the Ontario family law system is out of court settlement. Rule 18 of the Family Law Rules provides a code for offers to settle and Ontario family lawyers obviously must be familiar with those technical requirements.

The recent decision of Hoadley v. Hoadley, 2016 ONSC 3083 teaches Ontario family lawyers how to handle offers to settle that are non-compliant with Rule 18. In these circumstances, offers to settle are still valid and capable of acceptance under the rules of contract law (Smith v. Smith, [2007] O.J. No. 1947). Settlements are binding at contract law if there is agreement on all essential terms; in other words, if there is consensus ad idem (Chan v. Lam, 2002 CanLII 44912 (ON CA)). The court must make three inquiries (Swift v. Swift, 2010 ONSC 6049):

  1. Is there a consensus ad idem that is manifest to a reasonable observer?
  1. Is there consensus on all essential terms?
  1. Is the agreement conditional upon and subject to the execution of a formal offer?

Ontario family lawyers must be familiar with cases like Hoadley in order to understand not only how to effectuate settlement but also when a settlement occurs.

Jeffrey L. Hartman

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