Practice of Law

Mandatory Alternative Dispute Resolution in Family Matters

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In Spring 2018, Bill 97, The Arbitration (Family Dispute Resolution) Amendment Act, 2017 and Bill 98, The Miscellaneous (Family Dispute Resolution) Amendment Act, 2017 were passed in the Legislative Assembly. The Acts added provisions to The Children’s Law Act, 1997, The Family Maintenance Act, 1997, The Family Property Act and The Queen’s Bench Act, 1998 to recognize and promote early dispute resolution. The Acts also added provisions to The Arbitration Act, 1992 to facilitate the use of arbitration in family law disputes.   

The amendments to The Queen’s Bench Act, 1998 will require parties in certain family law proceedings to make efforts to resolve disputes through an approved dispute resolution process before proceeding with the court process.

If parties have not already participated in dispute resolution prior to filing court pleadings, they must do so before moving ahead with the court process. The amendments provide that the following processes fall within the definition of “family dispute resolution”: the services of a family mediator, family arbitrator or parenting coordinator, other collaborative law services or any other process or service prescribed.

Regulations setting out the training and experience required to be a family arbitrator or parenting coordinator for the purpose of meeting the mandatory ADR requirement came into force on July 15, 2019, together with the applicable amendments to The Children’s Law Act, 1997, The Family Maintenance Act, 1997, and The Arbitration Act. The ministry has been receiving applications from individuals who wish to be recognized as a family arbitrator or parent coordinator. Members of the public may choose to use, or be ordered to use, a parent coordinator or family arbitrator as of July 22, 2019. Note that the requirement to use a family dispute resolution service before proceeding with a court application is not yet in force. The Ministry of Justice and Attorney General is preparing regulations setting out the training and experience required to be a family mediator and collaborative lawyer for the purpose of meeting the requirements of the new legislation. Once these Regulations are finalized, they will be brought into force along with the mandatory ADR requirement set out in the amending legislation. The mandatory ADR requirement will be piloted in one judicial centre before it is expanded province-wide.  

If you have any questions, please contact Itee Umoh at Itemobong.umoh@gov.sk.ca.

What are you doing this summer? – CPD Summer Replay Series

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Jakaeden Frizzell, CPD Program Coordinator

Summer can be a busy time between work, vacations to the lake, and all that patio weather. The CPD Department has traditionally gone quiet during these months, working through our planning for the fall activities and looking ahead to the new year. While we do offer recorded, OnDemand versions of many of our past activities, the Law Society has a goal to increase ease of access for our members with the intent of raising competency and helping members reach their quota of mandatory CPD hours. This August the Law Society is offering replays of four popular webinars that will be broadcasted over the noon hour every Wednesday throughout the month! Check them out below:

Who do you “Trust”? Guidance on the use and impact of Trust Conditions (CPD-182)

August 14, 12:00-1:00 PM

1 CPD Hour, all of which qualifies for Ethics

“The webinar provided some good points of practical advice for making and accepting trust conditions.”

“Clear, concise and informative. I appreciate the tips that can be applied to my own practice.”

Info & Registration

Artificial Intelligence for Lawyers: Why it Matters to You and Your Success (CPD-219)

August 21, 12:00-1:00 PM

1 CPD Hour, 0.5 of which qualifies for Ethics

“It was an excellent reminder that lawyers need to look forward and think differently about how they can better provide legal services. If we don’t, others will.”

“Area of technology and law that I hadn’t given much thought to before, and I can certainly see how new AI technology will become more and more relevant in the future.”

Info & Registration

Creating and Managing a Digital Practice (CPD-191)

August 28, 12:00-1:00 PM

1 CPD Hour, all of which qualifies for Ethics

“This webinar opened my mind to the potential ways to make my own practice more digital.”

“Suggested solutions can be implemented by someone without spending big $ on the purchase of a document management system.”

Info & Registration

Don’t miss this convenient opportunity to get in your CPD hours! For any questions, comments, or suggestions for future replay webinars please contact Jakaeden Frizzell, CPD Program Coordinator, at jakaeden.frizzell@lawsociety.sk.ca.

National Self-Represented Litigants Project Report Now on CanLII

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By Melanie Hodges Neufeld, Director of Legal Resources

Our friends at CanLII recently announced that 22 reports from the National Self- Represented Litigants Project (NSRLP) are now available on CanLII. The NSRLP builds on the National Self-Represented Litigants Research study conducted by Dr. Julie Macfarlane from 2011-2013 and is committed to advancing understanding of the challenges and hard choices facing the very large number of Canadians who now come to court without counsel. The NSRLP regularly publishes resources designed specifically for SRLs, as well as research reports that examine the implications for the justice system. The reports include: 

To access the complete collection of reports, please visit the CanLII commentary site.

 

Calling all Practitioners

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Christine Muldoon, Resource Coordinator

As you may have noticed if you have visited them lately, the Law Society’s Saskatchewan Practice Checklists need work. While much of the guidance therein is still relevant, there have been legislative changes and new court directives since the checklists were last revised. Some of the authorities and the case law we cite are somewhat dated, too.

Please consider volunteering to help us update the checklists if you have any experience in the following areas, or even if you are a student or a new lawyer who is relatively new to these subjects:

  • Corporate & Commercial Law
  • Criminal Law
  • Family Law
  • Litigation
  • Real Estate
  • Wills & Estates

We are immensely grateful to our past contributors and would welcome further assistance from anyone who is available and willing, but we would also like to encourage new members to take part in the process.

If you are interested in making your mark on the Saskatchewan Practice Checklists, please do not hesitate to contact me at christine.muldoon@lawsociety.sk.ca.

Reminder: Check Us Out on SlawTips

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For the last two years, some of the best legal research and technology tips from our Legal Sourcery team have also been featured on SlawTips. Every Tuesday, Wednesday and Thursday, SlawTips features advice you can use on technology, practice and research. If you want to receive these tips directly, you can sign up with email or RSS, and you can follow @SlawTips on Twitter. Excerpts also appear each Tuesday on Slaw.ca for the week’s most recent entries.

Recent SlawTips include:

How to Save a Specific Paragraph from a Decision from CanLII on Lexbox

The Verb Summons: A ‘Horrible Expression’?

Printing Clean Versions of Web Pages

A full list of all 125 of our legal research tips so far can also be found under the ‘Tip of the Week’ category on the right hand side of our blog or by following this link. Our technology tips are listed under ‘Technology’ or can be found here.

Referral Fees – What you should know

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[Reprinted with permission from the October 2018 edition of Communiqué, by Darcia Senft, General Counsel , Director of Policy and Ethics at the Law Society of Manitoba.]

From time to time, we receive questions about fee referral “pitches” and whether such fees can be paid and received without causing a lawyer to act in breach of the rules set out in the Code of Professional Conduct.

The Code has rules and commentaries that relate to the division of fees and referral fees. Rule 3.6-7 specifically prohibits a lawyer from directly or indirectly sharing, splitting, or dividing his or her fees with any person who is not a lawyer and from giving any financial or other reward for the referral of clients or client matters to any person who is not a lawyer.

From time to time lawyers receive telephone calls or emails from individuals who indicate that they want to help increase the number of new cases that the lawyer takes on. For example, a caller explains that his company will provide contact information to potential clients in whatever practice area or geographic area that the lawyer selects. It is not a directory service but some form of customized referral process that relies upon the company’s technology. When asked how the company makes money from the proposed referral process, the lawyer is told that he will be required to pay a flat fee each month to the company although they will not charge a fee for each referral. The caller is from another jurisdiction and is not a Manitoba lawyer. Under the circumstances, the proposed payment system would amount to a referral scheme that no Manitoba lawyer could participate in without breaching the referenced Code referral fee rules. If you have become involved in this kind of an arrangement, you should revisit it in light of the Code restrictions.

Certain types of referral fee payments are allowed. With the exception of referrals as a result of conflicts, Rule 3.6-6 allows a lawyer who refers a matter to another lawyer because of the expertise and ability of the other lawyer to handle the matter to receive a referral fee but there are a couple of conditions that must be met. First, the fee itself must be reasonable. Second, the client must be informed about it and must consent to its payment. You might wonder what a “reasonable” fee might look like. You might also wonder why the Law Society would even care about a referral fee arrangement where the client consents.
Consider the following situation. A lawyer who does not practise in the area of family law at all meets with one of his long-standing clients who now needs a divorce. The lawyer says he doesn’t practise in that area but can make a referral to a lawyer in another firm who does this work. The lawyer who accepts the domestic retainer agrees to pay 15% of all fees generated back to the lawyer who made the referral. The domestic case may take several years to complete and the client may end up paying in excess of $40,000 to the family law lawyer. Would it be reasonable for the referring lawyer to receive $6,000 in fees simply for making the initial referral? Even if the client purportedly “consents” to the referral fee, at the beginning of a retainer the client would have no idea how much the referring lawyer ultimately will be paid. How could consent, under those circumstances, be described as “informed?” What would the client say if he knew that in order for the domestic lawyer to keep up those anticipated long-term referral payments, she had to charge a higher hourly rate?

Where the Code allows payment of a referral fee from one counsel to another, it stands to reason that the fee must be fully known (i.e. quantifiable) in order for the client to provide informed consent. Before considering any kind of division of fees or fee referral payments, consult the Code and please call us if you have any questions about whether the contemplated arrangement is appropriate having regard to your ethical obligations.

Queen’s Bench Administrative Notice

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From the Court of Queen’s Bench for Saskatchewan

The Court of Queen’s Bench has issued an Administrative Notice to endorse revised template orders for receivership and for orders pursuant to The Companies’ Creditors Arrangement Act.   The Administrative Notice together with the endorsed templates and explanatory notes can be found on the Courts’ website.