As a collaborative family law practitioner, I often find my work a difficult balance.
The challenge is to meet my professional obligations while at the same time satisfying my client's interest in managing and owning the dispute resolution process that's inherent to collaborative family law.
Webb v. Birkett is a recent case dealing with solicitor's negligence from Alberta. What is noteworthy is that it involves the collaborative family law process and addresses the duties owed by collaborative lawyers to their clients.
In Webb, the parties each retained counsel certified in collaborative family law. In fact, it is Marguerite Webb who sought out the process and then secured her husband's agreement to participate. She knew what she wanted out of the process and proceeded on that basis.
As is tantamount in collaborative family law, several four-way meetings took place. Two experts came on board to assist along with a financial adviser and an accountant who had acted for the parties privately in the past. During the first meeting, they signed a collaborative family law agreement outlining the rights and obligations of the participants. Thereafter, they began the disclosure process.
A few months down the road, a meeting took place with the two experts and the parties. Both lawyers participated via teleconference. While they hadn't yet gathered all of the disclosure, as is often the case, they reached a settlement with the experts' help.
Three years later, Webb realized she had struck a bad deal and brought an action against her former lawyer alleging a breach of the duty of care in advising her on issues of support and property division.
In all cases, whether they involve collaborative family law or not, the duty of care is that of "the reasonably competent solicitor." It's not enough to simply show there was an error. A claimant must prove that a reasonably competent solicitor wouldn't have done the same thing. However, as noted by Justice W.P. Sullivan, the context of the retainer must be included in the analysis of what a reasonably competent solicitor would have done.
In his decision to reject Webb's claim, Sullivan relied on evidence from Susan Zwaenepoel, an expert on collaborative family law. He held that in collaborative law, "the role of the lawyers is to develop the process" while the role of the parties is "to take ownership of the process, gather their own information, and actively and fully participate in assessing the quality of that information." This is quite a difference from the traditional solicitor-client relationship where the lawyer must do the "assessing" as to the quality of the information.
Sullivan further held that Webb's interests were to make sure she had enough money to live on for the rest of her life without having to return to work, to keep the standard of living she had become accustomed to, to have her own home, to ensure a good relationship with her child, and to maintain that child's relationship with extended family. Moreover, Webb wanted to be economically independent from her ex-husband and therefore didn't want to collect spousal support from him each month. Unlike in the collaborative family law process, a trial decision would address none of these interests.
On the issue of property, Sullivan found that Webb knew that the businesses involved were her husband's family's enterprises and that she therefore didn't want any part of them.
Moreover, Webb spoke with the financial adviser about her potential to generate sufficient income out of the property settlement to satisfy her desire to not work again and maintain a standard of living she would be happy with. After discussing this, she believed there would be sufficient income. In fact, she was able, out of the settlement, to purchase a $200,000 home mortgage-free and she received a further $800,000 out of the matrimonial property.
Notwithstanding a lack of disclosure, including details on the husband's income tax returns and proper valuations of the businesses at issue, Sullivan found that Webb already had sufficient information to satisfy herself of the merits of the settlement as they accord with her interests.
Based on this case, the lawyer's obligations can be seen to be threefold.
The first is to educate Webb on the basics of family law entitlements. The second is to tell her about the rights associated with the collaborative family law process, primarily full and frank disclosure. The third, and probably most important for our purposes, is that her lawyer was there to enforce her rights of disclosure, but it was up to Webb to decide on how much information she actually wanted from her ex-husband. This is a marked difference from the duties owed by a solicitor representing a client in a rights-based process.
A collaborative practitioner's duty of care rarely comes up in the case law. For all of us collaborative lawyers out there, this case certainly illustrates the issues involved and what our obligations are versus the duties imposed on us in rights-based dispute resolution processes.
Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at firstname.lastname@example.org
[This article is reprinted with permission and first appeared in the November 2009 issue of The Law Times.]