By Neta, founder of SortMyDivorce · Updated
Two words appear at the top of a letter and nobody explains them. They matter more than most people assume, and less in the way most people assume. This guide is for Canada. The phrase means something materially different in the United States, and a US reader relying on this page would be misled. See the companion guide on whether settlement talks are confidential in a US divorce.
| What it signals | That the letter is part of an attempt to settle, rather than a statement of a formal position. |
|---|---|
| What protects it | Settlement privilege — a rule of law, not the label. Checked 19 Aug 2026. |
| Is it a class privilege in Canada? | Yes. Canadian courts treat settlement communications as a class or blanket privilege. |
| Does the label create the protection? | No. Protection turns on the substance of the communication. Canadian privilege extends to settlement communications "including those not explicitly marked 'without prejudice'." |
| Does it cover the final agreement? | In Canada the privilege has been held to extend to completed settlement agreements, including the amounts. This is broader than US law. |
| Leading authority | Sable Offshore Energy Inc. v Ameron International Corp., 2013 SCC 37. |
| Does it mean secret from your lawyer? | No. Your own lawyer sees everything, and should. |
| Does it mean you can ignore it? | No. A without-prejudice letter can contain real deadlines, real offers and real consequences. |
| Are there exceptions? | Yes. Privilege is not absolute and can be displaced in defined circumstances. This is a question for your lawyer on your facts. |
Keeping track of dates like these across a stack of letters is exactly what SortMyDivorce does — start a free trial, no card needed.
Family lawyers write two broad kinds of letter.
Open letters state a position, record a fact, or make a demand that is intended to be seen by a court if it comes to that. A letter confirming that documents were requested on a date is an open letter. So is one setting out a formal position on the record.
Without prejudice letters are attempts to resolve things. They contain proposals, concessions, and the kind of movement that only makes sense if the person making it knows it will not be held against them later. The whole point is that someone can say "we would accept X to end this" without that being treated as an admission that X is all they are entitled to.
The policy behind it is straightforward and old: if every concession made in an attempt to settle could be produced later as evidence, nobody would ever make one. Litigation would be longer, more expensive, and more damaging. Protecting settlement communications is how the system encourages people to talk.
The words do not create the protection.
People assume the label is a switch — write it and the letter becomes protected; omit it and it does not. That is not how it works in Canada. Settlement privilege attaches on the basis of what the communication is, not what it is headed. The Supreme Court of Canada's approach in Sable Offshore treats settlement communications as a class privilege, extending to communications "including those not explicitly marked 'without prejudice'."
Two practical consequences follow.
A letter that is genuinely an attempt to settle is likely protected whether or not it carries the label. And a letter carrying the label is not automatically protected if it is not actually about settlement — you cannot make a threat privileged by writing two words above it.
Lawyers use the label anyway, and should, because it removes ambiguity about intention. But treat it as a signal of what a letter is for, not as a legal force field.
If you have read anything on this subject written for a US or English audience, recalibrate.
Canadian settlement privilege is a class privilege — it applies to the category of settlement communications generally, rather than being weighed case by case. It has been held to extend to completed settlement agreements, including the amounts, which is notably broader than the position in the United States, where "completed agreements and settlement amounts are fair game for discovery and admission in evidence."
The underlying difference is worth stating plainly, because it explains a lot: Canada limits access to settlement evidence. The United States mostly limits only its admissibility. In Canada the protection reaches into discovery. In the US, settlement communications can often be discovered even where they could not be admitted at trial.
This is why an article about "without prejudice" written for one country is actively misleading in the other.
It does not mean the letter is unimportant. This is the mistake that costs people money. A without-prejudice letter can contain a deadline, an offer with an expiry, a request for disclosure, or a warning about next steps. The privilege concerns what a court may later see. It says nothing about whether the letter requires you to do something by Friday.
It does not mean you should hide it from your lawyer. Everything goes to your lawyer, without exception and without editing.
It does not mean nobody will ever see it. Privilege is not absolute. There are recognised circumstances in which settlement communications can be put before a court — and whether any of them apply to a particular letter in your matter is a question for your lawyer on your facts, not something to work out from a web page.
It does not make the contents true or binding. A proposal is a proposal until it is accepted and, usually, documented.
It is not the same as a formal offer to settle. In several provinces there is a specific, rule-based mechanism for making a formal offer that carries costs consequences if it is beaten. That is a different instrument with different effects, and it is covered separately.
You may see this longer version. It signals something specific: the writer intends the letter to stay out of the substantive dispute, but wants to be able to show it to the court after the outcome is known, when costs are being decided.
The reasoning is that if you refuse a reasonable proposal and then do no better after a hearing, the court should be allowed to know you turned it down. Exactly how much weight that carries in family proceedings depends on the province and the rules that apply.
If you receive one of these, treat it as significant and get advice on the response. It is often a signal that the other side is building a costs position.
Practical, and none of it requires legal knowledge.
Read it twice, on separate occasions. Once when it arrives, once the following day. Settlement correspondence is written to be persuasive and the first read is usually an emotional one.
Extract the actual content. What is being proposed, on which issues, and how does it differ from the last proposal? Strip out the framing.
Find every date. Deadlines in settlement correspondence are real deadlines even though the letter is protected.
Record the exact wording. "We are prepared to agree" and "our client would consider" are different things, and six weeks later nobody remembers which was written.
Do not reply directly if you are represented. Send it to your lawyer. Replying yourself to a without-prejudice letter is a good way to say something you did not intend to be a position.
Keep it. Privileged does not mean disposable. It is part of the record of how the negotiation moved.
Verification notes. Two things we want to be transparent about. 1. The text of Sable Offshore was not read directly for this guide — CanLII blocks automated access. The propositions above are drawn from the Torys analysis, which cites the case directly and is a major firm's published comparative note. Before relying on any of this in your own matter, ask your lawyer. 2. The exceptions to settlement privilege are deliberately not enumerated here. They are fact-specific, they have been litigated extensively, and a list on a web page would do more harm than good. Where it states what the law is, it is describing general principles, not advising on your matter.
Not in the everyday sense. It means the communication is protected from being used against the writer in the litigation, as a matter of settlement privilege. It does not mean the letter is secret from your lawyer, and it does not mean there are no circumstances in which a court could see it.
Ask your lawyer before showing settlement correspondence to anyone outside the professional relationship. Sharing privileged material can affect its status, and the analysis depends on your circumstances.
Not necessarily. In Canada, protection depends on whether the communication was genuinely part of an attempt to settle, not on whether it was labelled. An unlabelled settlement proposal may well be protected. Equally, a labelled letter that is not really about settlement may not be.
There is no automatic legal obligation to respond to correspondence. But ignoring a settlement proposal can have practical consequences — including on costs, if it later emerges that a reasonable proposal was never engaged with. Respond through your lawyer.
Settlement privilege is a common law rule and applies across Canada, but the rules that surround it — particularly the formal offer-to-settle mechanisms and their costs consequences — are set by each province's family rules and differ. Quebec's civil law system differs more substantially again.
Last reviewed August 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
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