Family Law
#2 - Client Competence
Standard
A lawyer must take reasonable steps to ensure that a client is competent throughout a matter to give instructions.1
Consideration of the client’s competence involves consideration of all factors known to the lawyer which may impair a client's judgment. These include factors such as age, emotional state, the presence of threatened or actual physical or emotional abuse or coercion and other of the client’s personal circumstances and the impact that these circumstances may have on a client, his or her ability to instruct, negotiate freely and to communicate or make decisions.2
Reference Materials
Notes
- Nova Scotia (Minister of Health) v. J.(J.), 2003 NSSF 42 (CanLII), 217 N.S.R. (2d) 264. - The test of capacity must be related specifically to the task being performed; McClenahan v. Clarke, 2004 CanLII 25843 (Ont. Sup. Ct.). - Competency may be impeded by emotional state, situational or environmental considerations, medication, psychological factors, addictions or other issues; Ryan and Schwartz v. Schwartz, 2000 NSCA 82 (CanLII), 185 N.S.R. (2d) 122. - Removal of mother as son’s litigation guardian was ordered as interests may be adverse.
- K. (M.) v Nova Scotia (Minister of Community Services) (1996), 153 N.S.R. (2d) 20 (N.S. Fam. Ct.) – Inquiry into fitness and competency; McClenahan v Clarke, 2004 CanLII 25843 (Ont. Sup. Ct.) - Circumstances that may impact on a client’s ability to receive information, make decisions and provide instructions in the normal course.
Related Legislation
Civil Procedure Rule 60 - Child and Adult Protection Children and Family Services Act, S.N.S. 1990, c. 5.
Domestic Violence Intervention Act, S.N.S. 2001, c. 29.
Regulations - Domestic Violence Intervention
Additional Commentary
Miglin v Miglin, 2003 SCC 24 (CanLII)., [2003] 1 S.C.R. 303.- Emotional stress – Effect of professional assistance – Referring a client for advice or counselling before negotiating a final settlement or agreement.
Rick v Brandsema, 2009 SCC 10 (CanLII)., [2009] 1 S.C.R. 295. - Unconscionable agreement – Emotional environment – Mental state – Informational and psychological exploitation.
Dyer, J.'s approach adopted in Nova Scotia (Community Services) v. T. C., 2010 NSSC 69 (CanLII) - Engaging a professional for an assessment - Child’s capacity to instruct counsel and to receive advice.
Children’s Aid Society of Halifax v. V. (C.) and F. (L.), 2005 NSSC 170 (CanLII)., [2005] 235 N.S.R. (2d) 67. – Child in need of protective services - psychiatric assessment ordered of parent - Charter challenge; Appeal dismissed - 2006 NSCA 2; 2005 NSCS 49 – application to amend notice of appeal - appointment of counsel – appointment of amicus curiae.
D.(G.) v. Family & Children’s Services of Lunenburg (County), 1997 CanLII 14392, [1997] 160 N.S.R. (2d) 270. (NSCA) – CFSA statutory duties – failure to question appellant as to her understanding and voluntary consent to Order – Appellant suffering from chronic stress; history of mental illness; below average intelligence.
Hemphill v. Hemphill, 1998 CarswellNS 227. – Presumption of Competency until proven otherwise.
Domestic Violence and Undue Influence:
Geffen v. Goodman Estate, 1991 CanLII 69, [1991] 2 S.C.R. 353. – Estate Matter – Discussion of Undue Influence.
M.C.S. v. T.L.M., R.H.(R.M.) and W.G.R., 2005 NSSC 112 (CanLII). - Domestic violence is not limited to physical assault; it includes yelling and demeaning one another.
E.M.G. v. G.R.W., 2007 NSSC 356 (CanLII)., [2007] 263 N.S.R. (2d) 55. - Emergency Application - Domestic Violence Intervention Act
Crouse v. Crouse, 88 N.S.R. (2d) 199. – Family Law-Undue Influence – Wife emotionally distraught during negotiation and signing of agreement.
Downloads
Forms and Information
Domestic Violence Intervention Act brochure (PDF)
How to apply for an EPO?
Call the Justice of the Peace Centre toll free at 1(866) 816-6555
Legal Information Society website:
Family Violence
Violence familiale
How to Apply for a Peace Bond
Faire une demande d’engagement de ne pas troubler l’ordre public
Competency:
Law society of Upper Canada -
Determining Competency – Mental Health
Legal Information Society website:
Power of Attorney
Community Resources
- Emergency shelters
- Directory of Nova Scotia Family Resource Centres
- L’Association des juristes d’expression française de la Nouvelle-Écosse can provide assistance to francophone Nova Scotians.
- NS Victim Services
Frequently Asked Questions:
NS Government
- Internet & Email Safety
- About Child Abuse-Nova Scotia Department of Community Services
- Dealing with Spousal Abuse or Family Violence
- Dealing With Separation or Divorce
- Debtor Assistance
Articles and Books
Domestic Violence:
Chewter, Cynthia L. “Violence Against Women and Children: Some Legal Issues” (2003) 20 Can. J. Fam. L. 99.
Chewter, Cynthia L., “The Domestic Violence Intervention Act in a nutshell”, (May 2007), in Understanding the Domestic Violence Intervention Act.
Chewter, Cynthia L., “Statistics for the Domestic Violence Intervention Act”, (May 2007), in Understanding the Domestic Violence Intervention Act.
Nova Scotia Barristers’ Society. Continuing Professional Development / Understanding the Domestic Violence Intervention Act—Halifax, N.S. The Society, 2007. KB 139.C2 N935 2007
National Clearinghouse on Family Violence: a national resource centre for all Canadians seeking information about and solutions to violence with the family.
Schmitz, Cristin. “Bullying spouse gets harsh reprimand”. (July 2009) in The Lawyers' Weekly.
Surtees, Doug. "The Evolution of Co-Decision-Making in Saskatchewan" (2010) 73 Sask. L. Rev. 75.
Mental Disability and Competence
Robertson, Gerald B. Mental disability and the law. Scarborough, Ont.: Carswell, 2nd ed. KB 93 R649 1994
Birnbaum, Rachel, Barbara Jo Fidler & Katherine Kavassalis / Child Custody Assessments: A Resource Guide for Legal and Mental Health Professionals. (Toronto: Thomson Carswell, 2008). KB 137 B617 2008
Borrowing books, online help, reference questions - For all information requests, members may contact Library & Information Services by telephone at 1-866-219-1202 (toll- free) or 902-425-BOOK (2665), by fax at 902-422-1697, or by email at nsbslib@nsbs.org web: Library
Approved by Council on March 25, 2011