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

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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.

ASK A LAWYER: Can my personal emails be subpoenaed?

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Divorce proceedings can sometimes get ugly.

Timothy N Sullivan Ottawa lawyer answers questions

“I’m in the midst of a messy divorce, and my soon-to-be ex is convinced I had an affair – and he says he’s going to subpoena my personal emails to prove it. I’m not having an affair, but I don’t want this guy to have access to all my personal emails, regardless of what’s in them. Should I be worried?”

Probably not.

While it’s not unusual for work-related emails to be subpoenaed in the event of a criminal investigation, subpoenas to a third party (such as an ISP or email services provider) in civil and family are hardly ever sought because of the difficulty in obtaining them and their questionable relevance to any issue in a family law matter.  Sometimes police records are subpoenaed for motor vehicle accidents and CAS case files are requested for family cases, but emails are rarely sought in family law cases.

One exception might be if your ex was contending that you were hiding financial assets relevant to the divorce settlement and made the case that your email communications were the only or best way to prove this.  However, in the situation you describe, it’s unlikely that his lawyer would be requesting a subpoena or that the judge would grant one.

“What about my confidential email communications with my lawyer?”

Emails between you and your lawyer are protected under solicitor-client privilege just like all your other communications with your lawyer. However, emails aren’t 100% secure: Your email provider’s servers could get hacked; someone with a bit of technical knowledge could intercept them; or an unnoticed auto-complete in the address field could send your email to the wrong recipient (we’ve all done that from time to time).  However, communications between you and your lawyer are still protected and are inadmissible in court.

Additionally, some security experts will tell you that if you are working ‘in the cloud’ and you happen to be using a cloud server located in the United States, your data could be accessed by the US under the Patriot Act.  It may lose protection in the US but Canadian courts would still have to respect privilege.  While I have not encountered any situations in which this has been an issue in Canadian family law, our practice is not ‘in the cloud’ and our servers are located in Canada – like most lawyers, I tend to err on the side of caution.

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.  

ASK A LAWYER: Do employees have to sign non-compete agreements? Are they enforceable?

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Non-competes are increasingly common – but they have to be reasonable

Timothy N Sullivan Ottawa lawyer answers questions

Employees may be required to sign an employment contract as a term of employment. Typical employment agreements include the employee’s start date, payment terms, details of future increases or changes in remuneration, duties, the term of employment and the terms of dismissal.

As with most contracts, the common law and statutory rules must be respected. Consideration, meaning a promise of exchange of something of value must be made, there must be proper offer and acceptance and a contract must be in writing. Non-comps signed after employment has already started are seldom enforceable without additional consideration. Any employment contract that contains a non-competition clause should be reviewed by a qualified legal professional before signing.

The employment contract may also include, as part of the conditions of leaving/termination, a non-compete clause.  But are these clauses legal?  Are they enforceable?

Non-competition clauses must be as permissive as possible

As a general rule, non-competition clauses must be as permissive as possible:  They must allow the employee to work (in another organization), while protecting the employer should the employee leave their employ.  Certain positions may leave the employer open to increased threat of competition:  If the employer has provided the employee with intellectual property, proprietary training, confidential client information or other advantages that could be used against the employer after the employment relationship ends.

Typical non-compete clauses

Non-competition clauses are usually comprised of two components:

  1. Geographic limitation.  In this case, former employees may be prohibited from working in the same industry within a certain geographical area.  So a salesperson whose territory may have been Toronto may not be able to sell the same products/services within Toronto.
  2. Time period.  The former employee may be restricted from working within the same industry for a specific period of time following their departure from the employer. This is generally to prevent employees from ‘stealing’ clients when they leave a given employer.

What do the courts say?

Generally speaking, Ontario courts have not enforced non-compete clauses when they are deemed to be too restrictive, but have upheld reasonable limitations on post-employment competition by former employees.

What is ‘reasonable’ depends on the nature of the industry.  Dentists, for example, may require a certain neighbourhood to be off-limits to a former associate dentist – but only for a certain number of years.  A software developer, on the other hand, may be prevented from working in a larger geographic area – like a country or even a continent – but, again, only for a certain number of years.
The court may reduce the geographic or time constraints if they are deemed to be unreasonable.  However, courts are usually unable to prescribe a ‘reasonable’ alternative, so when non-competes go to court, they either fail or succeed – they aren’t modified.  For this reason, employers may specify wide geographical areas and long time periods in their employment agreements, but provide alternatives in the event of a dispute.

The courts have wanted to give autonomy to contracting parties and to permit them to contract any way they see fit but the courts have also been loath to encourage a limitation of a competition. This balance between competing concerns is reached when the geographic limitation and time limitation successfully achieved the objectives of both contracting parties. One is to foster a good and profitable relationship during employment and the other is to limit the resources from an employer being used against it to an economic detriment. The courts have only entered when that restriction to competition becomes unreasonable.

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 professional lawyer in your province.  

 

ASK A LAWYER: What happens when 2 executors can’t agree?

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What are the rights and responsibilities of executors?

“My cousin wants a car from the estate of our recently-deceased, not-wealthy uncle. One of the executors of our uncle’s will is willing to give him a pretty good price for the car, just to get rid of it, but the other executor says they should sell it on Craigslist where they’ll get more money for it. Meanwhile, my cousin’s mother says he should get it for free, since ‘it’s family’. 

Who’s right? How should this sort of thing be resolved?”

The first thing to remember is that executors have a duty to all the beneficiaries of a will until all the beneficiaries affected by that will agree otherwise. In other words, an executor’s responsibility is to make decisions that will best benefit all beneficiaries of an estate.

In the case of a car to be disposed of by the estate, the terms of the will should dictate what happens: Sometimes a will specifies to whom the car is to be left; sometimes a will specifies that a beneficiary should be given preferential treatment regarding the purchase of the car from the estate. In the absence of such direction, it’s up to the executors to sell the car in a way that best benefits all beneficiaries – so Cousin Bob shouldn’t be allowed to purchase the car for $500 if the car could obtain $10,000 on the open market, unless all beneficiaries agree that this is acceptable.

However, the responsibility to obtain a beneficial value should not be excessive and co-trustees shouldn’t let a personal dispute get in the way. If Cousin Bob is prepared to pay a reasonable sum for the car – such as $9000 – then the beneficiaries may be consulted, and consideration may be given to the fact that holding out for a higher sum on Craigslist may mean increased storage, maintenance or financing costs. A relatively easy, early disposition of an asset may put money in the hands of the estate to earn interest or reduce borrowing charges.

There isn’t always a clear-cut answer to questions like this. Trustees have an obligation to respect the intentions of the testator and to act in a way that best benefits the heirs.

Questions? Don’t hesitate to get in touch.

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 professional lawyer in your province.