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#12 - Independent Legal Advice

STANDARD

A lawyer retained to provide Independent Legal Advice must review the documents, facts and circumstance to a degree sufficient to ensure that a client, has enough information to make a voluntary, informed decision.1


REFERENCE MATERIALS

Notes

1. Hartshorne v. Hartshorne, 2004 SCC 22 (CanLII), [2004] 1 S.C.R. 550 - Independent legal advice at the time of negotiation is an important factor in determining whether a decision to enter an agreement was informed and voluntary; Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303 - The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties; Rick v Brandsema, 2009 SCC 10 (CanLII), [2009] 1 S.C.R. 295 - Disintegration of a spousal relationship means that the negotiation of separation agreements takes place in a uniquely difficult and vulnerable context. Special care must be taken to ensure that the assets of the former relationship are distributed through a process that is, to the extent possible, free from informational and psychological exploitation. An agreement negotiated with full and honest disclosure and without exploitative tactics will likely survive judicial scrutiny.

Additional Commentary

Tian v. Cheung, 2016 BCSC 950 (CanLII). Pre-nuptial agreement was partially set aside. The wife, who had poor English comprehension, had never seen it before she spoke to the lawyer from whom she received advice. Ms. Tian was concerned about the expense of the consult so she spent little time with the lawyer. She did not ask what rights she would have if she did not sign the agreement. The Court concluded that the process was pro forma, and there were no negotiations that ILA could have informed.

C.M. MacNeill & Associates v. Toulon Development Corporation, 2016 NSSC 16 (CanLII). Appeal from a Small Claims Court decision regarding an "Offer to Lease." MacNeill was a lawyer but did not have a Canadian legal education and claimed: 1) he had never signed a commercial lease before, 2) did not review the lease, and 3) did not receive ILA. MacNeill attempted to repudiate the lease. The adjudicator found that MacNeill's experience meant that he did not need to be told to obtain ILA. Justice LeBlanc agreed that, in light of his education and work experience, there was no inequality of position.

Poulain v. Iannetti, 2015 NSSC 181 (CanLII). The plaintiff, Poulain, sued his former lawyer, lanetti, for negligence in relation to a Section B claim. Justice Rosinski concluded that, even though Ianetti had only been retained in relation to the Section A claim he had a duty to either advise Poulain "clearly and emphatically" to obtain ILA or to obtain the information needed to offer competent legal advice himself. His failure to do so, and his failure to provide Poulain with sufficient information to allow him to make an informed decision, was a breach of his duty of care. Appealed by the defendant. Appeal allowed on other grounds in Ianetti v Poulain, 2016 NSCA 93 (CanLII).

Northumberland's Fisherman's Association v. Patriquin, 2015 NSSC 30 (CanLII). The Fisherman's Association (NFA) entered into a contract with Patriquin as part of a buy-back program for lobster licenses. The contract was presented to Patriquin by Mr. Maclean, counsel for the NFA who had had prior dealings with Patriquin. Patriquin claimed that Mr. Maclean was his lawyer due to this history and the attitude adopted by Mr. Maclean when the two spoke. Patriquin claimed that this relationship made the contract unconscionable due to the lack of ILA. Justice LeBlanc, cited the test for independent legal advice from Gold v. Rosenberg, 1997 3 SCR 767 which states:

"Whether or not someone requires independent legal advice will depend on two principal concerns: whether they understand what is proposed to them and whether they are free to decide according to their own will. The first is a function of information and intellect, while the second will depend, among other things, on whether there is undue influence."

Justice LeBlanc rejected the claim that it was reasonable for Patriquin to have believed Mr. Maclean was his lawyer and therefore the arguments based on the inadequacy of his 'advice.'

Hyatt v. Ralph, 2015 ONSC 580 (CanLII). Mr. Ralph was in an acrimonious marriage with Ms. Hyatt, a law clerk with experience in family matters. A separation agreement required him to pay support for a child of Ms. Hyatt's previous marriage. Mr. Ralph received no independent legal advice except what he heard from Ms. Hyatt who used Mr. Ralph's perception of her knowledge and experience.

Baker v. Baker, 2012 NSCA 24 (CanLII) – Separation Agreement overturned at Trial but upheld on appeal – The Wife’s lawyers advised her not to sign Separation Agreement but the Wife signed it anyway – Separation Agreement must be looked at in totality and not in two silos of “spousal support” and “property division”.

Quinn v. Epstein Cole LLP, 2008 ONCA 662 (CanLII) - As between the parties, when one party makes choices with the benefit of ILA, that party cannot resile from the agreement unless the financial disclosure received was inaccurate, false or misleading.

LeVan v. LeVan, 2008 ONCA 388 - affirmed at 2008 ONCA 388 – A Marriage Contract was set aside. The wife did not receive effective independent legal advice, and some advice provided was wrong. The wife did not understand the nature and consequence of the marriage contract, and the husband misrepresented the nature and terms of the marriage contract. The husband's failure to disclose his entire assets to his wife was deliberate.

Dillon v. Dillon, 2014 ONSC 2236 - A Marriage Contract was upheld. Documented ILA provided. The Court found that Ms. Zivcakova had ample opportunity to review the draft marriage contract, ask questions or request further information. The lawyer providing ILA addressed those matters in their initial meeting. As a result of receiving ILA the Court concluded that the Wife was content with the disclosure received

MacNeil v Hedmann, 2014 YKSC 16 (CanLII) – Adequate time needs to be provided to enable a party to seek meaningful independent legal advice. Appeal dismissed by Yukon Court of Appeal in MacNeil v. Hedmann, 2015 YKCA 6.

Richards v. Richards, 2013 NSSC 127 – Agreement set aside. There was no financial disclosure or ILA. Full and complete financial disclosure is a necessity before settlement agreements can properly be created, especially in the child support context. is helpful to ensure the parties understand their rights and obligations and to ensure agreements accurately reflect the intentions of the parties.

Giebelhaus v. Giebelhaus, 2012 BCSC 1100 (CanLII) – Separation Agreement overturned despite ILA for both parties – ILA must be meaningful - The Husband’s lawyer was inexperienced and did not know how to gross up the Wife’s untaxed Veteran’s Affair pension, nor that the wife’s pension could be divided at source and provided to the Husband – The Husband’s lawyer did not enquire about his income in previous years and did not know how to calculate the husband’s income given that he had only worked 6 months in the previous year.

E.K. v. J.K., 2012 BCPC 48 (CanLII) - A Consent Order was overturned. The Father was abusing crack cocaine and alcohol when he entered into the agreement. The mother had counsel. There was a duty on counsel for the Mother to ensure that the Father was aware that legal counsel only represented the Mother and to advise the Father in writing of such and, further, to recommend that the Father seek independent legal advice or even speak to duty counsel. This did not occur. [See also: Standard #7 - Unrepresented Party]

Stevens v. Stevens, 2012 ONSC 706 (CanLII) – Marriage Contract was set aside. The Wife’s lawyer did not pick-up a drafting error that advantaged the Husband. The Husband and his counsel were aware of the error and took advantage of this error. The wife had bi-polar disorder and lacked the capacity to understand and appreciate the nature and consequences of the agreement. The husband was aware of the wife's vulnerabilities when the contract was being drafted. He knew that clarification of a major inconsistency was needed before the contract could be finalized, yet he persisted in authorizing his lawyer to put the agreement in a form ready for signing before he obtained the required clarification. Decision upheld by Ontario Court of Appeal in Stevens v. Stevens, 2013 ONCA 267.

Connell v. Connell, 2011 ONSC 5814 (CanLII) – Motion by husband to set aside Minutes of Settlement that had been incorporated into an order and terminate spousal support was dismissed – The court commented that the duty a lawyer owed to an unrepresented opposing party was to advise them to obtain ILA and did not extend to assisting them in understanding family law concepts – A lawyer must ensure that the unrepresented opposing party understands that they are acting exclusively for their client and not for the opposing party.

Peraud. v. Peraud, 2011 NSSC 1 (CanLII) – A Separation agreement barring a claim for spousal support was overturned - There was a lack of ILA – The solicitor simply drafted the Agreement presented by the parties and did not provide ILA to either party – The Agreement did not meet the objectives of the Divorce Act for spousal support.

Andrist v. Andrist, 2010 NSSC 285 - Ms. Andrist retained counsel to draft a separation agreement. She brought the separation agreement to Mr. Andrist in Halifax and drove him to a lawyer`s office the same day to have the agreement signed. Mr. Andrist acknowledged he was advised to obtain independent legal advice concerning the separation agreement, but did not do so. The agreement was set aside because Mr. Andrist did not have independent legal advice before signing the agreement, Ms. Andrist’s income was misrepresented, and there was an unequal division of the parties’ matrimonial assets in Ms. Andrist`s favour.

MacLean v. MacLean, 2009 NSSC 216 (CanLII) – The Husband did not receive ILA. The Agreement was changed on its face multiple times with hand noted changes. There was a lack of understanding by the Husband of the financial situation. All circumstances surrounding the negotiation and execution of this agreement were fundamentally flawed the Agreement was set aside

Haughn v. Haughn, 2008 NSSC 265 – The Agreement was upheld. The Wife received ILA two months before signing the Agreement. The lawyer requested that she obtain further information. The Wife did not return otto the lawyer before signing the Agreement. The Court found that the Agreement was in keeping with the objectives of the Divorce Act in any event.

Dimick v Dimick, 2008 NSSC 333 – The parties concluded a separation agreement in 2001, which incorporated their marriage contract “as amended.” The Agreement was upheld. The Respondent did not establish that there was any impropriety in the circumstances of the execution of the marriage contract or the amendments. The parties had counsel and there was no evidence of the Respondent being under a disability, or that inappropriate pressure was brought to bear, when the separation agreement was negotiated.

Webb v Tomlinson, 2006 CanLII 18192 (ON S.C.) - A lawyer provided ILA to a client who entered into a amnortgage transaction, which was risky. She lost on the venture and sued the lawyer for compensation arguing that she had not received adequate ILA. The court preferred the evidence of the lawyer who had used a detailed checklist and had taken detailed notes.

Rogerson v. Rogerson, 2004 NSSF 37 (CanLII), 222 N.S.R. (2d) 324. - Minutes of Separation set aside because the Wife did not independent legal advice. Although the agreement states that she “had had the opportunity to be advised” of her rights, the evidence disclosed that she in fact did not have such an opportunity. She did not have the financial ability to retain counsel and was unaware that Legal Aid was available.

Lang v. Lang, 2003 MBCA 158 (CanLII) - Absence of counsel is a factor relevant to weight to be given to a Separation Agreement. An Agreement not in substantial compliance with the Divorce Act is to be scrutinized even more closely if both parties do not have counsel throughout the entire negotiation and execution process. (Wife became unrepresented towards the end of the negotiation process).

DOWNLOADS

Related Ethics

Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012:

  • rule 3.4-1: "Duty to Avoid Conflicts of Interest"
  • rule 3.4-2: "Consent"
  • rule 3.4-5: "Joint Retainers"
  • rule 7.2-9: "Communication with Unrepresented Party"

Precedents and Practice Tools

ILA Checklist - prepared by Philip Epstein QC & publicized by LAWPRO

PracticePRO Retainer Precedents

Includes:

  • Family Law Agreement Retainer
  • Client Billing Information Document
  • Client Information Document

Independent Legal Advice Checklist – Family Law Matter (Canadian Bar Association)

CBA: Conflicts of Interest Toolkit: Guidelines for giving independent legal advice

LIANS: Independent Legal Advice - http://www.lians.ca/rpm/risk_management/independent_legal_advice/

Community Resources

Nova Scotia Legal Aid: There are 16 offices across the province: Call 1 877 420 6678

Dalhousie Legal Aid (DLAS)

Legal Information Society of Nova Scotia

Legal Resources in Nova Scotia: Brochure

Nova Scotia Family Law Website

ARTICLES

Tjaden, Ted. / The law of independent legal advice -- Scarborough, Ont. Carswell, 2000, [KB 261 T625 2000]

Lawyers Weekly, "Independent Legal Advice in Family Law", (Nov. 25, 1994)

Creighton, J. Ronald / Undue Influence and Independent Legal Advice (October 1992), [KB 170 C760 1992]

Approved by Council on March 25, 2011