You’ve Been Served? Not So Fast

The Family Law Rules set out the manner in which certain documents must be delivered to (served on) parties involved in family law disputes. Failure to comply with the rules pertaining to service can lead to undesired and potentially devastating outcomes.

In the case of Pasqualino v Pasqualino, Mrs. Pasqualino (the offeree) purported to accept the Mr. Pasqualino’s (the offeror) offer to settle by facsimile. Rule 18(9) of theRules stipulates that an offer to settle may only be accepted by serving an acceptance on the party prior to either, the offer being withdrawn or the court disposing of the claim dealt with in the offer.

Mrs. Pasqualino’s lawyer had faxed an acceptance of the offer to settle to the Mr. Pasqualino’s lawyer on August 22^nd at 4:57 p.m. The Rules provide that faxes sent after 4 p.m. on a day when the court offices are open is not effective until the next day when the courts are open. Since the Mrs. Pasqualino had not received consent from Mr. Pasqualino, and there was no court order stating otherwise, the fax of August 22^nd was not deemed to have been served until August 23^rd, one day after the fax was originally transmitted.

Unfortunately for Mrs. Pasqualino, Rule 18(5) of the Rules permits an offer to be withdrawn at any time before it is accepted by serving notice. Accordingly, Mr. Pasqualino’s counsel’s fax withdrawing the offer to settle, which was sent on August 22 at 5:05 p.m., eight minutes after receiving a fax from Mrs. Pasqualino’s lawyer purporting to accept the terms of the offer to settle, was effective immediately. This meant that when the court offices opened on August 23^rd, there was no offer available for Mrs. Pasqualino to accept. Mrs. Pasqualino’s motion to enforce the settlement failed.

There are many lessons to be learned from this case. Strategically, the wife would have bee better served (pun intended) by withholding the acceptance until a time when the court offices were open, thereby not tipping her hand at a time when the husband still had the ability to back out of the proposed settlement.