Careful with those E-mails! Amending Offers to Settle Matrimonial Disputes
An early 2011 Ontario Court decision tackles the question of whether an offer to settle a matrimonial dispute could be validly amended by e-mail.
In Manson v. Manson, the husband had been ordered in 2005 to pay over $1,000 per month in spousal support. In 2010, he brought a motion to the court to vary that amount to $500 per month, and the court allowed the reduction pending a full trial of the remaining issues between the spouses.
However, in the months leading up to that motion the wife had made some formal offers to settle, including an amendment in late 2010 by way of e-mail. These were not accepted by the husband so the parties had to proceed with the court motion. However, the wife’s last e-mail offer ended up being more favourable than what the husband was eventually awarded on that motion.
In light of that final e-mailed offer, the wife proceeded to claim certain of her court costs, relying on Family Law Rule 18(14) . This Rule allows a party to receive some of their costs in cases where they made a settlement offer which was at least as favourable as the order ultimately granted by the court.
The husband resisted this, claiming that the wife’s e-mail amendment did not meet the requirements of the Rule, which requires that an offer “shall be signed personally by the party making it an also by the party’s lawyer, if any”. Since the e-mail was not signed by either the wife or her lawyer, the husband insisted that it could not trigger the Rule which would make him liable for the wife’s costs.
The court considered the husband’s position but, in the absence of any case authority to the contrary, could not agree with it. The court found that Rule 18 did not say that an amendment to an offer to settle – one that otherwise complies with the Rule – invalidates the offer in its amended form. Indeed, to require that every amendment to an otherwise valid offer must be in writing and signed by both client and lawyer would create an “unduly formulaic” process, and one which was inconsistent with the stated main objective of the Family Law Rules, which is to deal with a case “justly”. As long as the wife’s amending e-mail adequately identified her original offer to settle, it could be valid for the purposes of the cost consequences set out in Rule 18.
For the full-text of the decision, see: Manson v. Manson, 2011 ONSC 707 (CanLII), http://bit.ly/fJR8Zv