Article Summary
This article highlights Lisa Handfield's expert commentary on Kaur v. Bains, 2022 ABCA 404, recently featured in OnPoint Legal Research's Alberta Take Five newsletter. Ms. Handfield analyzes this significant Court of Appeal decision that examines the nature of agreements between counsel in family law matters. The case raises important questions about when verbal agreements between lawyers are binding, professional conduct obligations, and the documentation of such agreements. Her analysis offers valuable insights for both legal practitioners navigating inter-counsel communications and individuals involved in family law proceedings.
Tags:
Family
Litigation Process Management
Featured case: Kaur v. Bains, 2022 ABCA 404
Understanding the Alberta Take Five Publication
At The Calgary Legal Team, we believe in keeping our clients and colleagues informed about significant developments in Alberta law. We're pleased to highlight insights from our own Lisa Handfield, who recently provided expert commentary on a notable Alberta Court of Appeal decision for OnPoint Legal Research's Take Five Alberta newsletter.
OnPoint's Alberta Take Five is a monthly publication that summarizes the most significant civil cases from the Alberta Court of Appeal. The newsletter features "Counsel Comments," inviting lawyers involved in selected decisions to share their perspectives on important legal changes and case implications. In the January 2023 edition, Lisa Handfield offered her commentary on Kaur v. Bains, 2022 ABCA 404, a case addressing important questions about agreements between counsel in family law matters.
The Key Issues in Kaur v. Bains
In this case, the Court analyzed a consent order where the Mother would buy out the Father's interest in their family home in Chestermere, Alberta, at an appraised price obtained in October 2021. The consent order established deadlines for the Mother to obtain pre-approved financing (December 21, 2021) and complete the sale (January 31, 2022). If the Mother couldn't secure pre-approval, the family home would be listed and sold on the open market.
The appeal centred on a critical phone call between counsel on December 3, 2021. During this call, the Mother's former counsel and one of the Father's counsel (who was sharing the file with another lawyer from the same firm) discussed the financing deadline. The Mother's counsel claimed they had agreed that the December 21, 2021 deadline was flexible as long as the Mother was actively pursuing financing. The Mother's counsel wrote a letter confirming this agreement the same day, but sent it later. The Father's counsel never responded to this letter.
As the process continued, the Mother's counsel:
Presumed the agreement remained in effect
Provided periodic updates to the Father's counsel
Confirmed pre-approval was obtained in January 2022
Sent transfer documents in February 2022
However, the Father changed counsel and then took the position that no agreement to extend the deadline existed. The real estate market had experienced a significant but short-lived bubble, increasing the property's value substantially. Understandably, the Father wanted to take advantage of this by listing and selling the home beyond the previously appraised price.
When the Mother filed an urgent application to dispense with the Father's signature on the transfer, the application was dismissed. This led to the appeal.
Lisa Handfield's Analysis
In her published commentary in Alberta Take Five, Ms. Handfield offered this perspective:
"The issue for me was whether an agreement between counsel existed. It was certainly imperfect: the late confirmation letter had no response; and the Father's former counsel who actually took the call on December 3, 2021 sent no correspondence on which either party could rely. At the end of the day there was an alleged verbal agreement that one party argued did not happen.
The Father relied on basic contract law, essentially that silence does not mean acceptance. I would agree that if this had been an agreement just between the parties, the Father was probably right. However, it seemed to me that there was a higher standard for agreements between counsel. I leaned heavily on the Law Society of Alberta's Code of Conduct, suggesting there was a duty for counsel to inform the other if there is an apparent misunderstanding. Since the Father's counsel did not inform (or say anything at all), there was an agreement.
To my surprise, the Court of Appeal chose not to address the Code of Conduct in any fashion, instead relying on the content of the Mother's former counsel's confirmation letter. It is unfortunate as many practitioners could have benefited from guidance on how and when we, as counsel, held to a higher standard. How are those sections of the Code of Conduct to be applied in our daily practice, is another question us as practitioners would have welcomed the Courts guidance on."
Source: Alberta Take Five, January 2023 Edition, p. 12-13
Why This Case Matters
The Kaur v. Bains decision, and Ms. Handfield's insightful analysis, offer valuable lessons for both legal practitioners and individuals involved in family law matters:
For Legal Professionals
This case underscores several important professional practice considerations:
Documentation of Agreements: The importance of promptly documenting verbal agreements between counsel and following up when responses aren't received
Professional Conduct Questions: The unresolved question of how the Law Society's Code of Conduct applies to communication expectations between counsel
Changing Market Conditions: How external factors like real estate market fluctuations can significantly impact family law property settlements and potentially motivate changes in position
For Clients
The case highlights several realities of the family law process:
The Importance of Clear Communication: How miscommunications or undocumented agreements between lawyers can affect your case
Timing Considerations: The significant role that deadlines play in family law matters, particularly in property division cases
Market Dynamics: How changing market conditions can impact property settlement values and potentially affect negotiation positions
The Calgary Legal Team's Commitment to Legal Excellence
Kaur v. Bains illustrates the nuanced nature of family law practice in Alberta. The case exemplifies why strategic, detail-oriented representation matters in family law matters, particularly those involving property division. At The Calgary Legal Team, we do not just observe these legal developments – we actively contribute to the evolving legal landscape through professional commentary and analysis.
If you are navigating the complexities of a family law matter, whether involving property division, custody issues, or other challenges, our team of experienced practitioners is here to help. We understand the legal nuances and practical realities of these situations and can provide the strategic guidance you need.
