The Ontario Superior Court of Justice recently had the opportunity to review a lawyer’s role in the collaborative process when the husband in a family law matter (Mr. Elliott) brought a motion to have the lawyer acting for his ex removed as solicitor of record. Mr. Elliott argued that the lawyer should be removed on the basis that she had first acted as collaborative counsel for his ex, and that to permit her to continue to act as counsel in the context of litigation would be contrary to the principles of collaborative practice. The Collaborative Process In Elliott v. Elliott, Justice Fryer described the collaborative process as a “valuable dispute resolution option for separating parties”. It is unique from mediation or arbitration. During the collaborative process the parties drive the negotiations with assistance from their individual collaborative lawyers. Collaborative lawyers have specialized training, and they are expected to adhere to both the procedural form of the process, as well as the spirit of the process. Justice Fryer elaborated further on the process:
The separating parties in a collaborative process are encouraged to craft unique solutions, grounded in the applicable law, that will meet both of their needs. By selecting the collaborative process, parties make a conscious choice to opt out of having strangers such as an arbitrator or a judge make decisions for them and their family.
The collaborative process should provide a safe space to problem solve and explore options. Justice Fryer notes that this is so because
…one of the cornerstones of the collaborative process is the undertaking by the parties and their lawyers not to litigate.
One hopes that this commitment to avoid litigation when the “going gets tough”, as it often does, provides a strong disincentive to walk away from negotiations. If the collaborative process fails, neither the collaborative lawyer nor any member of that lawyer’s firm can act for the client in the litigation. This commitment is documented in something called a Participation Agreement. The Positions of the Parties in Elliott v. Elliott Following their separation, the parties in Elliott each retained collaborative practitioners and executed a collaborative participation agreement, which provided in part:
“If either Dan Elliott or Ann Elliott end their professional relationship with his or her lawyer, but wish to continue with the Collaborative process, he or she will provide written notice of this intention to everyone. The new lawyer will sign a new Participation Agreement within 30 days of the party giving notice. If a new Agreement is not signed within 30 days, the other person will be entitled to proceed as if the Collaborative process was terminated as of the date written notice was given.”
Mrs. Elliott retained a new lawyer, Ms. M, to represent her after her former collaborative lawyer left practice. No new collaborative participation agreement was signed. Mrs. Elliott argued that she was therefore entitled to have Ms. M represent her in court. Mr. Elliott argued that Ms. M acted as collaborative counsel when she replaced his ex-wife’s former collaborative lawyer, and therefore it was contrary to the principles of collaborative practice to allow her to act as counsel when the process changed to litigation. He said that he was forced to bear the expense of losing his collaborative counsel whereas Mrs. Elliott was not. The Court’s Decision The Court did not allow Mr. Elliott’s motion to remove Ms. M as solicitor of record. Justice Fryer noted that her discretion to remove a party’s chosen solicitor of record must be exercised sparingly. Further, the Court reasoned that:
- Even though Ms. M was retained as a collaborative lawyer and charged a reduced rate in accordance with this role, there was no evidence that Mrs. Elliott gave notice of her intention to continue in the collaborative process following her former collaborative counsel’s departure; and
- Ms. M did not sign a new Participation Agreement, nor did Mrs. Elliott provide written notice off her intention to continue with the collaborative process as required by the original Participation Agreement.
Although Justice Fryer declined to remove Ms. M as solicitor of record, she stressed that clients and their collaborative lawyers must be clear as to the process they are embarking upon. The process needs to be clearly documented. In this case, if Mr. Elliott had known that it was open to Ms. M to shift her role from collaborative lawyer to litigator, he may have made different choices with respect to his counsel and his strategies. Questions About Collaborative Family Law? Gelman & Associates is pleased to offer collaborative family law services to our clients. We have six lawyers trained in the collaborative process, and we are happy to answer your questions at any time. For more information about these services, contact the experienced lawyers at Gelman & Associates at (416) 736-0200 or (844) 736-0200 or contact us online for a confidential initial consultation.
