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As lawyers, we are advocates, advisors, and sometimes, the bearer of uncomfortable news - especially when ethics come into question. One of the more challenging aspects of being an advocate is engaging in candid ethical discussions that can make or break a case and, sometimes, a career. Judges talk to each other about us: they talk about our skills as advocates and, more importantly, they talk about our trustworthiness. These conversations and our reputations are not things any of us should take lightly. We need not only to educate ourselves on the ethical issues we may face, but also on how to hold conversations with our clients about ethical issues.

Upon being called to the bar, we are mostly left to ourselves with respect to the identification and resolution of various ethical dilemmas that will arise in our daily professional lives. It can be difficult to flag a potential ethical issue, let alone to know what to do once it has been identified.

In this series, we will review various ethical issues faced by lawyers and the best ways to address those issues with clients with input from some of the best lawyers involved with The Advocates’ Society. Specifically, we will provide guidance on what to do if: (i) you’ve determined you do not have the requisite skill set necessary to continue with a file; (ii) you suspect your client may not have capacity to instruct counsel; (iii) there has been a breach of confidentiality (accidentally or otherwise); or (iv) you are proceeding against self-represented parties or lawyers who have been suspended. In this issue, we will address how to head off potential ethical quandaries in the gathering of evidence in family law cases.

First, we need to understand the source of our ethical responsibilities. When we were called to the bar we all swore an oath. We promised to conduct all cases faithfully and to the best of our abilities, to faithfully serve and diligently represent the best interests of our clients, to conduct ourselves honestly and with integrity and civility, to not pervert the law to favour or prejudice anyone, and last, but certainly not least, to strictly observe and uphold the ethical standards that govern our profession.

Here in Ontario, the Rules of Professional Conduct lay out the ethical standards relating to the practice of law. Rule 2.1-1 states that “a lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public, and other members of the public honourably and with integrity.” Rule 3.1-2 additionally provides that “a lawyer shall perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.” The commentary on Rule 3.1-2 directs that competence is founded upon both ethical and legal principles.

One of the most difficult conversations we regularly face as family law lawyers is having discussions with clients about ethical evidentiary issues, including electronic privacy, especially in cases where the other party is self-represented and does not understand the various evidentiary rules. Courts have found that individuals have a reasonable expectation of privacy regarding their personal electronic devices. In highly charged family law cases, counsel must advise their clients about what evidence is fair game and what’s off limits, in cases where a client has access to their partner’s device and knows or can guess the password. Attempting to put such evidence before the court because the client demands it runs the dual risk that not only will the evidence not be admitted but that you have seriously harmed your reputation with the court by complying with the client’s demands in the face of what you know should, and should not, be properly put before the court.

As trusted counsel, the onus is on us to educate and guide our clients through the evidence gathering steps, and to impress upon them the importance of the source of the evidence. When clients provide us with documents, it’s important to make diligent inquiries about how they came into possession of the documents, and segregate any records that may have been obtained improperly. When we approach ethical issues from a trusted advisor perspective, instead of merely a service perspective where the customer is king, the inherent tension lessens and allows us to deepen the client relationship.

 - Jennifer M. Bolduc

Giffen LLP is pleased to announce that Richard Noll (and his esteemed clerk, Rachel Petts) have joined our firm!

While Richard has extensive knowledge and experience within all aspects of family law and related issues, he can also assist with real estate, mortgages, wills and powers of attorney, estate planning, administration and litigation. 

As a seasoned litigator having appeared before all levels of court in Ontario, Richard will assess all options available and work with his clients to best resolve any situation.

We welcome Richard and Rachel to team Giffen!

Every family looks different. When there are children involved, it is important to know the role the adults in the home play in the life of the child.

Biological Children

          For a biological child and parent, it is easy. The birth parent of the child is recognized in law as the parent of the child (Children’s Law Reform Act, s 6(1)). The exception to this rule is surrogacy; surrogates give up their entitlement to parentage via surrogacy agreement or declaration by a court (CLRA, s 6(2)).

Adopted Children

            In the case of adopted children, the guiding statute is the Child, Youth and Family Services Act. As of the date the adoption order is made, the adopted child is treated, by law, as if they are the biological child of the adopted parent (CYFSA, s 2(a)). The adoption order effectively breaks all legal ties between the child and the birth parents (CYFSA, s 2(b)). Therefore, as of the date of the adoption order, the person whose name is on the order becomes the legal parent of the adopted child, whereas the birth parent ceases to have any parenting role or legal ties to the child.

Stepchildren

            When it comes to stepchildren, the Divorce Act is the guiding statute. The Divorce Act uses the term “child of the marriage”, which includes the child of two spouses or former spouses where: (Divorce Act, section 2(2))

     (a) the spouses stand in the place of parents; and

     (b) one spouse is the parent and the other spouse stands in the place of a parent.

The term “stand in the place of a parent” is also referred to as loco parentis. Essentially, a person who stands in the place of a parent will be deemed by the court to be a parent of that child. When determining whether a person in standing in the place of a parent, the court will consider several factors outlined in Chartier v Chartier (para 39), including:

     (a) Intention (expressed or implied) to assume parental obligations

     (b) The fact of forming a family with the child, including considering:

1. Whether the child participates in their extended family
2. Whether they provide financially for the child
3. Whether they discipline the child as a parent
4. Whether they represent to the child, their family, and the world that they are responsible as a parent to the child
5. The nature and existence of any relationship between the child and the absent biological parent.

If these criteria are satisfied, the person will be seen as a stepparent to the child, which gives them rights and obligations as a parent. If the marriage were to breakdown, a stepparent has the right to apply for decision-making responsibility (formerly referred to as custody) and parenting time (formerly referred to as access) (CLRA, section 21(1)). However, the stepparent also has an obligation to pay child support for any child in which they stand in the place of a parent (Divorce Act, section 15.1(1)). 

Common Law Marriages and Children

          When it comes to children of common law marriages, the Family Law Act is the guiding statute. A child is defined by the Family Law Act as “a person to whom a parent has demonstrated a settled intention to treat at a child [of their] family” (FLA, s 1(1)). The same test from Chartier, as outlined above, is used to determine if a person stood in the place of a parent to the child in question. Again, if the court finds the person satisfied the listed criteria, this gives rise to rights and obligations as a parent, including decision-making responsibility, parenting time, and child support upon breakdown of the relationship.

If you have further questions or inquiries, please contact 519-578-4150 for more information.

Resources:

Chartier v Chartier, [1999] 1 SCR 242. <1999 CanLII 707 (SCC) | Chartier v. Chartier | CanLII>.

Children’s Law Reform Act, RSO 1990, c C-12. <https://canlii.ca/t/5563b>.

Child, Youth and Family Services Act, SO 2017, c C-14, Sch 1. <https://canlii.ca/t/5569j>.

Divorce Act, RSC 1985, c C-3. <https://canlii.ca/t/551f9>.

Family Law Act <https://canlii.ca/t/55cvm>.

Giffen Lawyers LLP welcomes Emily Metcalfe as an associate lawyer in our Family Law department.  Raised in Waterloo Region, Emily received here undergraduate degree from the University of Regina, before graduating from Queen's University with her Juris Doctor in 2018.   Great to have you with us, Emily!

Spouses involved in family law disputes should beware: online social media posts can be used as evidence in court.  Read the AdvocatesDaily interview with Giffen LLP Lawyers partner and family law lawyer, Lorrie Stojni, here.

Grandparents are asserting their rights to see their grandchildren more frequently in often-difficult family circumstances, says Kitchener family lawyer and Giffen LLP Lawyers partner Lorrie Stojni.

Read Lorrie's interview with on AdvocateDaily.com here.