Solicitor Negligent in Collaborative Family Law Settlement
In Webb v. Birkett, 2011 ABCA 13, the Alberta Court of Appeal held that the defendant solicitor Birkett was negligent in representing the plaintiff Webb in a collaborative family law settlement.
The Alberta Court of Appeal held that CFL practitioners must meet the same standard of care required of other family law practitioners — including taking appropriate steps to get the financial information needed to properly advise the client. A lawyer must 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 so advise the client. A lawyer should 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 provide to that client an assessment of the impact f 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. A prudent solicitor would put this advice in writing.
While it comes from the Alberta court of appeal, the comments on the required standard of care in the CFL setting make this decision worthwhile reading for collaborative family law lawyers in other Canadian jurisdictions. The decision also dealt with limitation periods and proving damages (despite the lawyer’s negligence, the court took a very tough stance on proving damages and held none were proven in this case).