I read an interesting case decided by the Honourable Justice S.L. Hunt McDonald; you can read it here: http://www.canlii.com/en/ab/abqb/doc/2012/2012abqb685/2012abqb685.html.
One issue was the enforcement of a Matrimonial Property Agreement. One of the spouses was challenging an agreement that was prepared by lawyers, signed by the spouses before lawyers, and had certificates of Independent Legal Advice signed by lawyers attached to the document.
It was found that the lawyer for the spouse challenging the Agreement spent between 18 and 30 minutes in total on the file, which included meeting with the spouse and signing the document. Such a short period of time was not found to be enough to achieve a reasonable standard of care applicable to a lawyer retained to provide independent legal advice on an agreement.
Ultimately, the Agreement was set aside to the detriment of one of the spouses. Do not let this happen to your agreement.
When you reach an agreement with your spouse, either directly or through mediation, make sure that your separation agreement is prepared properly and that both you and your spouse have proper legal representation. This means more than just having a lawyer witness your signature. It means, among other things that your lawyer must:
1. Obtain sufficient reliable information to be able to ascertain what the client would likely receive or be required to pay for spousal support, child support and matrimonial property division should the matter be resolved at trial, and to so advise the client,
2. Give the client a description of options to any proposed settlement, an opinion on whether any proposed settlement is reasonable, and a discussion of the pros and cons of that settlement in comparison to the other options so that any decision to settle is an informed decision, and
3. Tell a client who takes the position that he or she wants to settle without having received full information from the other side that they may therefore be accepting less or paying more than what would be required according to law, and to provide to that client an assessment of the impact of the risk, including estimates of the value of what might be lost or paid above what was necessary, to the extent possible, on the basis of the information then available.
This was the conclusion of the Alberta Court of Appeal, which you can read here: http://www.canlii.com/en/ab/abca/doc/2011/2011abca13/2011abca13.html
I receive inquiries and questions all the time about separation agreements that people sign without ever seeing a lawyer, getting legal advice, or having a lawyer sign a certificate of legal advice. I refer these individuals to these cases, so that they aware of the risks they take by not having their separation agreement drawn up properly, including certificates of independent legal advice.
I can help you with this; feel free to call or email me.
