Is it a good idea to bring a friend to a lawyer’s appointment?

Supports in family law

A trusted confidante can be helpful in lots of ways

Sometimes, a client going through a separation or divorce will ask me – usually with some trepidation – if they can bring a friend or family member to a meeting. Though we’re often taught that lawyer meetings should be ‘private’, the truth is that having a second set of ears in the room, or a calming presence beside you, can be a great help in what is often a painful situation.

Separation and divorce need support systems

In almost every situation, people going through a separation or divorce need a number of supports to help them get through what is a stressful process. Financial strains can be acute; childcare and custody arrangements can be logistically challenging even when both parents are getting along reasonably well; and there are often residential, healthcare or employment-related issues that need to be sorted out. All of this can mean that both soon-to-be-ex-partners are navigating extended periods of high stress and emotional strain.

Friends, parents, family members – all of these can help to provide the additional support needed to get through the separation and divorce. Bringing one of the members of your support team to a meeting with your lawyer can be comforting – and a reminder that you don’t need to go through the process all alone.

What about confidentiality and lawyer-client privilege?

When clients bring a friend or family member with them to appointments, I explain the following. The solicitor-client relationship is between the client and the lawyer, so anything said within that relationship is privileged. However, privilege may be lost when a client brings the support to an appointment who obviously overhears and may be involved in the discussion between the client and the lawyer. The lawyer cannot ensure confidentiality in that case and privilege may be waived. At some point I may clarity the rules and allow an opportunity to speak with me one-on-one.

A rare, but more significant and difficult problem, is when the accompanying person gets over-involved in the meeting. Asking an unasked question or explaining in different words so the client understands what a lawyer says are real upsides to bringing somebody along. But potentially devastating downsides include dominating the conversation, trying to instruct or direct the lawyer, and interrupting the flow of discussion for the relevant points in raising questions of a personal concern.

For example, parents may accompany an adult child in the course of a family breakdown. Of course most parents want the best for their child – but if they become too emotionally invested in the process, or angry at the ex, they can be disruptive to the meeting. I have, on the rare occasions when this has occurred, asked the parent to wait outside for the remainder of the meeting. 

Solicitor-client relationships are like other intimate relationships

They involve the discussion of personal and potentially embarrassing details, personal finances, the admission of significant errors of judgment or mistakes. Strategy and tactics, personalities and court rules, juggling emotional, financial and logistical family problems are all in a day’s work for a family law lawyer. Attending with a loved one to help means to allow that solicitor-client relationship to thrive with support, be it emotional, financial or logistical. Ask the loved one and the lawyer how you can be helpful and stepped back when it appears the helpfulness is waning.

Good advice: Approach a co-parent as you would a co-worker

 

It’s helpful if you can take emotions out of the process (as much as possible)

The other day I came across this piece on Worthy.com, and it’s stuck with me. The core of the piece is that when it comes to custody and co-parenting arrangements between former spouses, the more you can behave as though your ex is a co-worker with whom you need to accomplish specific tasks rather than someone with whom you have a complicated, non-professional past, the better the parenting thing will go.

Not a particularly complex idea – in theory. I recognize it’s much harder in practice. But if you’re in the process of a separation or divorce in which there are young children involved, this may be a helpful article.

Most people know the difference between a personal versus a professional relationship. A personal relationship is usually a friendship that includes voluntary sharing of time, knowing intimate details about one another, and is a more relaxed partnership wherein the parties can be their true, uninhibited self. A professional relationship tends to be more reserved. Information is more guarded, people tend to be on their best behavior, and the relationship is usually confined to specific times and places.

 

Read the rest of the piece here.

 

FROM ADVOCATE DAILY: Life insurance and how it affects spousal support and children

Life insurance as security for children and spousal support has some flaws

From AdvocateDaily this week:

A recent Ontario Court of Appeal (OCA) ruling that allows a second wife and child to claim support from a deceased common-law husband’s life insurance policy raises some important questions and issues, says Ottawa family and estate lawyer Timothy N. Sullivan.

The ruling overturned a Divisional Court decision that found the second wife was not a “creditor” and therefore had no security interest in the policy.

Now the first wife and children, who were irrevocable beneficiaries, are still entitled to receive support from the $1-million policy, with the second wife receiving the remaining proceeds.

Sullivan, principal of SullivanLaw, says the issue has been in the spotlight because if a payor with a life insurance policy dies intestate, or revokes the beneficiary, the support recipients are out of luck since the insurance company isn’t a party to the separation agreement.

“If there’s no money available, then too bad, so sad,” Sullivan tells AdvocateDaily.com.

“It is a challenge for family lawyers to assure clients in the event somebody dies who is paying support doesn’t name you as an irrevocable beneficiary. So we provide things in the agreements such as requiring the payor to prove the recipient is a designated beneficiary, or if there’s a lapse in premiums, the recipient can pay those premiums and be reimbursed.”

Sullivan says he questions the result of the recent OCA case because it is not clear if they were common-law spouses by Ontario law. According to the decision, they were living in different countries and visited often. The woman became pregnant in the final months of the man’s life.

“Is she a dependent? It was a very short-term relationship,” Sullivan says. “I had a case where a couple had a child together but didn’t live together so there’s no spousal support entitlement. You have to cohabit.”

To read the rest of the article, visit AdvocateDaily.

ILA: Independent legal advice and how it works

what is independent legal advice timothy sullivan

“I had a marriage contract drawn up by my lawyer. My lawyer said my fiance needs to get independent legal advice before she signs it. What does that mean and entail?”

First of all, your lawyer is right: Before your fiance signs a marriage contract or cohabitation agreement that has been prepared at your direction by your lawyer, s/he should get independent legal advice. This doesn’t just protect your fiance, by the way – it also protects you. If, at some point in the future, the marriage or cohabitation breaks down and you end up in court, the fact that your fiance got independent legal advice prior to signing the agreement means that there is less likelihood of the agreement being put aside or challenged.

How does Independent Legal Advice (ILA) work? 

The importance of independent legal advice is to assure all the parties that unemcumbered legal advice has been provided to the client. The lawyer providing ILA must be assured that the advice is in fact independent (there is no conflict of interest with the other signing party), the advice is in fact legal (the opinion letter covers this and includes the formalities of the agreement and the appropriateness of the content) and the advice is whether the agreement meets the client’s needs from a legal point of view.

A lawyer would meet with the client, confirm the client’s identity, receive the contract, review it and finalize an opinion letter. The lawyer could attend with the client to witness the client’s signature and remit signed agreements to the client, the other party or the other party’s lawyer.

Then a Certificate of ILA is provided, confirming that advice was provided. However, the content of the advice is privileged between the client and the lawyer. In other words, your fiance could provide you with copy of the Certificate of Independent Legal Advice, but neither s/he nor the lawyer s/he engaged needs to disclose whatever was said in communication with the lawyer.

How much will independent legal advice cost?

A properly executed Certificate of ILA typically represent about three hours of a lawyer’s time, depending on the extent of the draft agreement and its complexity.  This includes meeting with the client, reviewing the documentation, reporting to the client and attending to the execution of the agreement (the signing of the document and witnessing). In my experience, lawyers generally charge an hourly rate for this work.

It’s important to note that a more complex marriage or cohabitation agreement – if there is significant property outside of a family home, if children are involved, or if the agreement is to set out specific details about spousal support in the event of a relationship breakdown – independent legal advice may require more time, and the lawyer’s fee will reflect this.

(Don’t be afraid to ask your lawyer about fees at the outset. The more both of you know about fees and what’s involved, the more successful all your interactions will be.)

Important: In my practice regarding ILA, payment for ILA must come from the client, and not from the person who drew up the contract or another party. I must have assured that it is the client – in this case, your fiance – hiring me, not another interested party, however apparently benevolent. Payment for services rendered must come from the client to demonstrate that it has been independently selected and managed.

More questions?  Don’t hesitate to contact us.

This blog is provided for educational purposes only and should not be construed as specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed lawyer in your province.