Family Law
#3 - Lawyers’ Competence
Standard
A lawyer must be competent to perform all legal services undertaken on behalf of a client.
In the family law context, competence also includes an ability to recognize issues including client competence or impairment, the need to seek out expert advice for the lawyer or client, the ability to recognize if a matter is too complex for the lawyer and ensuring the lawyer has adequate resources available to properly represent the client.
Reference Materials
Notes:
- Mardling v. Malvern, [1983] O.J. No. 212 (QL) (Ont. S.C. (H.C.)). - lawyer found competent despite lack of experience; Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998) c. 2, as amended.
- 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 - Full and honest disclosure of relevant financial information - Emotional environment – Mental state – Informational and psychological exploitation.
Legislation:
See Regulation 9.1.3(b) of the Regulations made under the Legal Profession Act, S.N.S. 2004, c. 28, for a list of factors constituting professional incompetence.
Proceedings in the Family Court are governed by the Family Court Act and the Family Court Rules
Proceedings in Family Division of the Supreme Court in the HRM & CBRM are governed generally by the Civil Procedure Rules but Part 13 is of particular relevance.
Frequently used:
Children and Family Services Act, S.N.S. 1990, c. 5.
Domestic Violence Intervention Act, S.N.S. 2001, c. 29.
Family Court Act, R.S.N.S. 1989, c. 159.
Maintenance and Custody Act, R.S.N.S. 1989, c. 160. (Nova Scotia Child Maintenance Guidelines)
Maintenance Enforcement Act, S.N.S. 1994-95, c. 6.
Matrimonial Property Act, R.S.N.S. 1989, c. 275.
Pension Benefits Act, R.S.N.S. 1989, c. 340.
International Agreements:
Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980 (entered into force 1 December 1983).
Federal Legislation and regulations:
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.).
Federal Child Support Guidelines, SOR/97-175.
Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.), as amended.
Pension Benefits Divisions Act, S.C. 1992, c. 46, Sch. II, as amended.
Additional Commentary:
Rowe v. Lee, 2007 NSSC 31; Hunter v. Hunter, 2000 MBCA 138 (CanLII), 12 R.F.L. (5th) 113 –> Misconduct of lawyer - lawyer ordered to pay costs personally.
Verdun v. Dorrance, 2006 NSSC 305 (CanLII), 249 N.S.R. (2d) 67.
Morash v. Morash, 2004 NSCA 20 (CanLII), 221 N.S.R. (2d) 115 – Expert Evidence – Pensions.
Gomez-Morales v. Gomez-Morales, 1990 CanLII 2349, 100 N.S.R. (2d) 137 (C.A.) See also the annotation by James G. McLeod accompanying Gomez-Morales v. Gomez-Morales, 1990 CarswellNS 57 (N.S.C.A.) (WC)
Denelzen v. R., [1996] 2 C.T.C. 2464, 1996 CarswellNat 1300 (WC), (sub nom. Denelzen v. Canada) [1996] T.C.J. No. 98 (QL) (T.C.C.), aff’d Denelzen v. Canada, 1998 CanLII 8604, (sub nom. Denelzen v. R.) [1999] 1 C.T.C. 80 (F.C.A.).– Expert Evidence – Tax Consequences.
Orabi v. Qaoud, 2005 NSCA 28 (CanLII), 12 R.F.L. (6th) 296. - expert evidence with regards to foreign law;
Stutz v. Stutz, 2006 NSSC 228 (CanLII), 246 N.S.R. (2d) 172. - expert evidence - cost of living in foreign jurisdiction.
Conrad v. Thompson-Sheppard, 1998 CanLII 1402, 167 N.S.R. (2d) 282 (S.C.). - failure to obtain expert advice.
J.Y.P. v. R.J.L.M, 2007 NSCA 58 (CanLII), 255 N.S.R. (2d) 90. - expert evidence;
Bishop v. Bishop, 2005 NSSC 220 (CanLII), 236 N.S.R. (2d) 86. - The authors of expert reports containing opinion must be made available to testify.
MacLean v. Van Duinen, 1994 CanLII 4333, 131 N.S.R. (2d) 60 (S.C.). - No lawyer undertakes perfection, no client is entitled to that expectation.
Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269
Kerr and Baranow separated in their late 60s after a 25 year common law relationship. Ms. Kerr claimed spousal support and a share of property in Mr. Baranow’s name. This decision also dealt with the case for Vanasse v. Seguin, one of a twelve-year common-law relationship during which the couple had children. Ms. Kerr brought a claim for unjust enrichment. The court considered and resolved the five main issues as follows:
- The “common intention” approach to resulting trust has no further role to play in the resolution of property claims by common-law couples.
- If not linked to a claimant’s contribution to specific property, the money remedy for a successful unjust enrichment claim should not be based on a “fee for service” approach but on a “co-venturer” approach.
- The mutual conferral of benefits should generally be considered at the defence and remedy stage of the case.
- The legitimate expectation of the parties plays a limited role and has to be considered in relation to whether there is a juristic reason for the enrichment.
- Spousal support should commence on the date of the commencement of the application.
The Court confirmed the law of unjust enrichment did not mandate a presumption of equal sharing nor does the fact of cohabitation alone entitle one spouse to share in the other’s property.
For more information on this case, read Kerr v Baranow and Vanasse v Seguin and Rubin v. Gendemann by Philip M. Epstein QC
NSBS Discipline Cases:
Nova Scotia Barristers’ Society v. Richey, 2002 NSBS 8; DD5/109 – Competence and quality of service
Nova Scotia Barristers’ Society v. McNeil, 2006 NSBS 3; HP1/14 – Competence and quality of service
Nova Scotia Barristers’ Society v. Corkum, May 29, 1996. 1996 NSBS 4; DD3/76 - Communication - failure to communicate.
Maintaining a Solicitor-Client Relationship:
- Assist the client to develop realistic expectations. This may include discussing various options, as well as what the legal process can and cannot achieve, and when necessary, what legal ethics will or will not permit.
- Do not delay in completing agreed upon work, answering client phone calls or other communications.
- Keep clients informed of file progress - preferably in writing.
DOWNLOADS
Forms
The Family Division of the Supreme Court in the HRM and CBRM.
Outside the HRM and CBRM family law matters (except for Divorce and Property) are dealt with in the Family Court.
For Family Court Forms outside the HRM & CBRM if you are dealing with divorce or division of property, you will go to the Supreme Court.
Practice Memoranda:
Supreme Court Family Division (Jan 29, 2010) Re: CPR Practice Memoranda
Related Ethics:
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998), as amended.
Chapter 2 - Competence.
Chapter 3 - Quality of Service
Chapter 4 - Honesty and Candor when advising clients (see Commentary 4.1 & 4.2 - A lawyer should consider whether obtaining expert advice, evidence and guidance is needed and appropriate)
Chapter 11 - Withdrawal
Chapter 15 - Making Legal Services Available.
Resources:
Nova Scotia Lawyers Assistance Program provides its members access to a full range of confidential health and wellness services. 1 866 299 1299
CLIA - (Canadian Lawyers' Insurance Association) – provides helpful links and Bulletins related to Family Law issues.
NSBS - (The Nova Scotia Barristers’ Society) – Professional Development; helpful links; etc.
LIANS – (Lawyers' Insurance Association of Nova Scotia) – Report potential issues.
Best Practices, a database that combines an online version of Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia (as amended) with supporting additional resources.
Legal Information Society of Nova Scotia – contains basic information clients may find helpful.
CBA Practice Link:
Great Expectations: A Lawyer-Client Handbook
Precedents:
Family law Resource list from NSBS' Library & Information Services
Child Family Benefits Online Calculator
Costs and Fees in Nova Scotia (including waiver of court fees)
Pension Benefits Act - Guide - Federal Guide to understanding the division of pension and pension benefits for separating spouses and common law partners
Articles
Gillis, Deborah E. / Communication is Key (January 2007), in Society Record, vol. 25 No. 1
Gillis, Deborah E. / Effective Intake Procedures (Part 1) (August 2006) in Society Record, vol. 24 No. 4
Gillis, Deborah E. / Effective Intake Procedures (Part 2) (October 2006) in Society Record, vol. 24 No. 5
Gillis, Deborah E / Managing client expectations, fulfilling professional obligations and achieving balance in your life (March 2009), in Calling all sole practitioners : risk and practice management seminar. [KB 267 N935C 2009]
Kruzick, Emile / Negligence in family law (October 1988), in Family Law 1988. [KB 135 C760 1988]
Kruzick, Emile / The problems of negligence (May 1990), in Family Law 1990. [KB 135 C760 1990]
Dellapinna, Leslie J. / Costs in family law (May 2006), [KB 261 D357 2006] Includes annotated list of cases. Material prepared for National Judicial Institute Supreme Court of Nova Scotia Educational Seminar held May 4 and 5, 2006. Redistributed with permission of the author.
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