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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

It was a chilly but beautiful day supporting St. Mary's Hospital Foundation's Hike for Heart 2024 at the Laurel Creek Conservation Area! Team Giffen was honoured to walk alongside those who have had treatment at the Cardiac Centre and those who work at St. Mary’s Hospital!!

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!

Please help us in welcoming Tory Auld as our newest associate. We are thrilled that he is joining Team Giffen!!

Tory attended law school at the University of Edinburgh in Scotland where he enjoyed the opportunity to learn about the law in the United Kingdom and its influence on the Canadian legal system. Upon returning to Canada, Tory completed his Canadian accreditation and was called to the bar in the spring of 2021.

After being called to the bar, Tory started his own law firm where he practiced a combination of corporate, real estate, as well as wills and estates. He focused on establishing new businesses, contracts, and corporate restructurings.

Welcome to our team Tory!!!

Giffen Lawyers is pleased to announce the admission of Nolan Downer to the firm’s partnership, effective January 1, 2023.

Nolan has distinguished himself through hard work and dedication to our firm’s values of exceptional client service and professionalism, and his admission as partner ensures a bright future for our firm and our clients.

Nolan’s practice will continue to focus primarily  on insurance law (property and bodily injury liability defence, policy coverage analysis, coverage applications), as well as Plaintiff personal injury and employment matters.

Giffen Lawyers is pleased to announce the admission of Jorden P. Gregory to the firm’s partnership, effective January 1st, 2023. Jorden has distinguished himself through hard work and dedication to our firm’s values of exceptional client service and professionalism, and his admission as partner ensures a bright future for our firm and our clients.

Jorden’s practice will continue to focus on corporate and commercial matters (including financing transactions, mergers and acquisitions, and general corporate matters), estate planning (including Wills, Powers of Attorney, and creation of trusts) and estate and trust administration matters, and residential and commercial real estate.

After 36 years with Giffen Lawyers, Phil is retiring and stepping down as Managing Partner and will be Counsel to the firm starting January 1, 2023.

Phil joined the firm as an associate in 1987 and became a partner in 1991.  He invested over 36 years into building his practice and contributing to the growth of the firm and the local community.  He spent considerable time over the years involved with numerous local arts and minor sports organizations and played a key role in the creation of RIM Park and the Grey Silo golf course in Waterloo.  In addition, he devoted many years to leading the firm’s administration.  He oversaw the construction and planning for the firm’s relocation to new offices in Waterloo, accomplishing a seamless move in November of 2020. 

If you consider your career as a novel, Phil is grateful to have had so many wonderful chapters. Phil has had the privilege of practicing in many areas of law – from extensive personal injury and complex insurance litigation to family, corporate, commercial and criminal law.  Phil is thankful to have had the opportunity to represent many wonderful clients and to work with other legal professionals whose guidance, collegiality and humour made practicing law a rich and rewarding career.  Finally, Phil is grateful to his partners and team, both past and present, for their support, kindness and counsel along the way.  

As many of you already know, Phil has been providing services as a mediator for over 15 years. In this next chapter, he looks forward to focusing his time to his growing mediation and arbitration practice through his company, Peaceworks ADR.  Your choices for mediator are many.  Phil hopes you consider him as one of your choices for your mediation needs going forward.

The partners wish to announce that effective January 1st, 2023, Don Olson will step down as a partner in Giffen Lawyers and will become Counsel to the firm until June 30, 2023.

Don joined the firm in 1999 and became a partner in 2001. For over 2 decades, he has been a driving force in the tremendous growth and reputation of our corporate/commercial, wills and estates and real estate departments.  Don was on the Board of Governors of the K-W United Way and did extensive pro bono work for local arts organizations.  He was also a passionate leader of and participant in the firm’s annual Big Brothers/Big Sisters bowling event.  As a result, for many years Giffen annually raised more money than any other local law firm in support of Big Brothers/Big Sisters.

Over the decades, Don has sat on numerous committees, contributed to the firm’s charitable events, and actively participated in the firm’s financial management.  His dedication, loyalty and efforts have culminated in the firm’s ongoing success and sustainability. 

As Counsel to the firm, Don will continue to wind down his practice, transition clients and mentor the firm's associates to assist with managing their files. 

We wish to congratulate Don on his many successes with the firm and thank him for his great contributions for the past several decades!

             If an employee is being wilfully disobedient, insolent, insubordinate, or simply engaging in misconduct, it is possible for them to be terminated (Scott v Domtar Sonoco Containers Inc, para 8). Terminating an employee on one of these grounds is referred to as summary dismissal.

        Summary dismissal allows an employer to terminate an employee without notice and without payment in lieu of notice. However, an employer can only rely on summary dismissal to terminate an employee if it can be justified. It is the employer’s responsibility to prove they have justification for summary dismissal (Scott, para 8). To rely on misconduct as justification for summary dismissal, the employer must also prove that the misconduct made it impossible to for the employment relationship to continue (McKinley v BC Tel, para 39).

        If there are a series of relatively minor transgressions committed by the employee, these can accumulate to just cause for summary dismissal (Scott, para 30). However, in order for the employer to rely on these minor transgressions as justification for summary dismissal, the employer has a heavy burden of proof. Specifically, the employer must be able to prove: (David J Doorey, The Law of Work, p 183–184).

1. The employee was given clear an unequivocal warnings about their actions;
2. The employee was given an opportunity to correct their behaviour;
3. The employee failed to correct their behaviour when given the chance; and
4. The cumulative transgressions of the employee prejudiced the employer’s business.

           Failure by the employer to give the employee warnings and an opportunity to correct their behaviour will prevent the employer from being able to justify the summary dismissal. The employer should warn the employee about all the behaviour that could result in termination, even if it seems obvious. For example, in Cain v Roluf’s Ltd, the employer failed to warn the employee that her pattern of showing up late to work and leaving work early without permission could result in termination (Cain, para 23). When the employer terminated the employee, the court found the employer could not justify the summary dismissal because they failed to warn the employee that her tardiness and absenteeism could lead to termination (Cain, para 33).

        In summary, a misbehaving employee can be terminated. The employer can terminate the employee via summary dismissal without notice and without pay in lieu of notice. However, the employer must be able to justify the termination. If the employer is relying on a series of minor transgressions committed by the employee as justification for summary dismissal, the employer must have given the employee clear and unequivocal warnings that their actions may result in termination and the employer must give the employee the opportunity to correct their behaviour. If the employer fails to do so and skips straight to termination, the employee will be able to bring a claim for wrongful dismissal.

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

Resources:

Cain v Roluf’s Ltd, [1998] OJ No 661.

David J Doorey, The Law of Work, 2nd ed (Toronto: Emond Montgomery Publications Limited, 2020).

McKinley v BC Tel, 2001 SCC 38. < 2001 SCC 38 (CanLII) | McKinley v. BC Tel | CanLII >.

Scott v Domtar Sonoco Containers Inc, [1987] 20 CCEL 290.

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>.