Formal Offers to Settle in Child Custody Trials

A child and new-born as part of a child custody trial

The Rules of Court allow for the service upon the opposing party of a formal offer to settle.  If the party making the formal offer to settle receives a result at trial that is equal to or more successful than the formal offer, the offering party may receive his or her costs and may even argue for double costs following the trial result.

There are cases which set out that costs may not be awarded on an issue of child custody.  However, not all judges share that view.  In the case of G (RS) v. G (S) 2010 B.C.S.C. 316, Madam Justice Wedge found that the plaintiff mother had rejected a formal offer to settle custody made by the defendant father two weeks before trial which was based on the recommendations of a Section 15 Custody and Access Report that access to the children should be shared equally on the basis of alternating weeks.  The plaintiff mother had sought an access schedule with more frequent transitions and more time with the children than the father.  In the result at trial, the Court ordered that the access schedule shall be in accordance with the recommendations of the Section 15 Report which the father had set out in his formal offer to settle prior to trial.  The defendant father argued that because he was the successful party in the litigation, he was entitled to double costs pursuant to (then) Rule 37B of Rules of Court (Rule 37 B has since been replaced by the new Rules of Court effective July 1, 2010).

In the result, the Court granted the father’s motion in part.  Although the Court accepted the Section 15 Report’s recommendation of alternating weeks, the judge pointed out that the Report did not address all issues between the parties concerning custody and access.  The Court also set out that Rule 37B allowed for significant judicial discretion in the awarding of double costs.  The Court found that the father was entitled to 50% of his ordinary costs at Scale B which the mother had to pay.

This case provides one example in which the Courts will take into consideration a formal offer to settle with respect to the issue of child custody in awarding costs following a trial.  A party who disregards a reasonable formal offer regarding child custody could be found liable for increased costs.