Sale of the Matrimonial Home in Family Disputes
Lawyers are often approached by spouses involved in a family law dispute who are seeking joint representation with respect to the sale of a matrimonial home.
Before accepting a retainer to act for such spouses, a lawyer must determine whether he or she is permitted to accept the retainer pursuant to the Rules of Professional Conduct (the “Rules”) and, if so, what steps are required to ensure compliance with his or her professional obligations.
Section 3.4 of the Rules deals with conflicts of interest and joint retainers. A conflict of interest exists when there is a substantial risk that lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person (rr. 1.1-1, 3.4-1).
If a lawyer decides to accept the joint retainer for the sale of the matrimonial home, then, prior to accepting the retainer, the lawyer must advise each spouse that
- the lawyer has been asked to act for both of them;
- no information received in connection with the matter from one can be treated as confidential so far as the other is concerned; and
- if a conflict develops that cannot be resolved, the lawyer cannot continue to act for either of them and may have to withdraw completely (r. 3.4-5).
If the spouses are agreeable to the joint retainer, then prior to accepting the joint retainer, the lawyer must obtain each spouse’s informed consent by
- having the spouse execute a written consent; or
- obtaining the spouse’s oral consent and sending a letter to the spouse confirming his or her consent (rr. 1.1-1 and 3.4-7).
A lawyer who represents one of the spouses in a family law dispute should not act for both spouses in the sale of the matrimonial home because of the potential for a serious conflict of interest developing.
A lawyer who accepts the joint retainer must act in the best interests of both spouses. The lawyer cannot prefer the interests of one spouse over the other. In addition, no information received in connection with the matter from one spouse can be treated as confidential as far as the other spouse in the joint retainer is concerned. The lawyer has a fiduciary duty to protect both spouses and to disclose all relevant information to both of them.
Furthermore, if the lawyer is acting for both spouses and a dispute arises between them as to the manner in which the closing proceeds are to be distributed, the lawyer may not distribute the proceeds in a manner inconsistent with the instructions of both of them. In such a situation, the lawyer should not pay out any portion of the proceeds without the written consent of both spouses or without a court order.
Access to Justice Week
TAG - The Action Group on Access to Justice is organizing Ontario’s first Access to Justice Week from October 17 to 21. Organized with a range of partners the week aims to:
- Diversify participants in the access to justice conversation
- Increase awareness of effective access to justice initiatives
- Advance collaborative access to justice solutions
More information about the events and to register.
Equity Legal Education Series
September 28 - The Law Society of Upper Canada is celebrating the Franco-Ontarian Day at Osgoode Hall on with its partners, the Ontario Bar Association and the Association of French Speaking Jurists of Ontario, with the Honourable Marie-France Lalonde, Minister Responsible for Francophone Affairs, as a special speaker.
October 13 – Hispanic Heritage Month Celebration. More information and to register.
Visit the Law Society Gazette events page for upcoming events.
More information on the Equity Legal Education Series.
CPD for Real Estate Lawyers
ILA and ILR for Real Estate Lawyers - ILA and ILR—they sound similar, but failing to understand the differences in their principles could land you in serious trouble with your clients, the courts, or the regulator. Independent Legal Advice (ILA) and Independent Legal Representation (ILR) are both critical components to properly managing a file, and you need to understand which one to recommend to your clients, and when.
13th Annual Real Estate Law Summit - This annual comprehensive resource has it all — from core topics that permeate your everyday real estate practice to leading-edge developments in real estate law. Get the latest information about changes to condominium laws, details about retainer agreements, and much more.
Working group recommends strategies to end systemic racism in the legal professions
The Challenges Faced by Racialized Licensees Working Group presented a report proposing 13 recommendations to address issues of systemic racism in the legal professions. The report is the culmination of thorough study and province-wide consultations, showing that racialized lawyers and paralegals face longstanding and significant challenges at all stages of their legal careers. Comments on the recommendations are welcome until November 4. More information.
PD&C Committee presents recommendations re: Pathways Pilot, LPP and Lawyer Licensing Process
The Professional Development & Competence Committee is recommending the Law Practice Program end following the completion of its third year (2016-17) and the enhanced articling program continue, with ongoing monitoring. The committee is also proposing a number of enhancements to the Lawyer Licensing Process. Comments on the recommendations are welcome until October 19. More information.
Join The Law Society Referral Service
The Law Society Referral Service (LSRS) continues to support access to justice by connecting people who have a legal need with a lawyer or paralegal who can assist them. LSRS offers immediate referrals at any time of the day at www.findlegalhelp.ca. Trained legal professionals assist callers in need through a crisis line: 416-947-5255 or toll free 1-855-947-5255. Applicants who join now will have their fee pro-rated monthly. Join the LSRS.
On or about October 3 - LAWPRO Online filing of Professional Liability Insurance applications for 2017 begins (subject to Program approval by Convocation).
October 3 - Professional Corporation annual renewal application and fee due.
October 31 - LAWPRO 2016 Third Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.
November 9 - Convocation - check this month's web page for the link to online viewing of Convocation and the archived webcast.