A BC marriage agreement may be unenforceable if one or both of the spouses did not obtain independent legal advice before signing the agreement. Without independent legal advice, there is a risk that the court will set the BC marriage agreement aside on the basis that one or both of the spouses did not know their legal rights or understand what they were agreeing to.
Effective independent legal advice can remove any taint of unfairness, undue influence, unconscionability or duress from the circumstances leading to the signing of a BC marriage agreement. That being said, are there situations where a spouse can challenge a BC marriage agreement even if legal advice was obtained? Will the court look behind a certificate of independent advice and consider the effectiveness of the legal advice provided? The answer is yes.
Independent legal advice and BC marriage agreements
BC marriage agreements are typically drafted to include a statement that each party has been advised of their rights and has obtained independent legal advice (or has chosen not to obtain independent legal advice). Where independent legal advice has been provided, a BC marriage agreement will typically include a schedule to the agreement called a “Certificate of Independent Advice” signed by the lawyer who gave the advice. If the certificate was signed without really explaining the extent and effect of the BC marriage agreement or applicable BC family law, then it may be that independent legal advice was not truly provided.
Hallmarks of effective independent legal advice
Independent legal advice is a serious matter and should not be approached in an “off-the-cuff” or perfunctory manner such that no actual independent legal advice is given. The purpose of independent legal advice is to ensure the client understands the scope and purpose of what they are signing, the nature of any risks being assumed, and how the BC marriage agreement impacts their legal rights and obligations should the marriage break down. A court will look at the effectiveness of the independent legal advice given prior to signing a BC marriage agreement. For example, the court may consider:
- Who retained, briefed, and paid the lawyer purporting to provide the legal advice (e., was the lawyer truly independent of the other party and the other party’s lawyer)?
- Was the client given the opportunity to review the draft of the BC marriage agreement prior to meeting with the lawyer?
- Did the lawyer ask the client to describe his or her own understanding of the BC marriage agreement and its implications to ensure that the agreement as drafted lines up with the client’s understanding?
- Did the lawyer who provided the advice diligently interview the client, gather information, and provide legal advice tailored to the circumstances of the client and the agreement in question?
Note as well that the fact that a lawyer does not charge for the advice given is not sufficient to affect the duty that a lawyer owes to a client.
Marriage agreement unenforceable despite provision of “legal advice”
In last week’s post, our BC family lawyers discussed Lemoine v. Griffith, 2012 ABQB 685, aff’d, 2014 ABCA 46 a case in which a marriage agreement was found to be unenforceable due to undue influence arising from the circumstances in which the wife signed the agreement. Having established that pressure amounting to undue influence was at play in the circumstances surrounding the execution of the agreement, it then fell to the husband to try to remove that taint so as to justify enforcement of the agreement. That can be achieved by proving that the person challenging the agreement had access to, and took advantage of, independent legal advice.
The court in Lemoine v. Griffith found that the wife did not receive independent advice to rebut the inference of undue influence. On the facts, the court concluded that there was nothing “independent” at all in the lawyer’s services. The wife did not retain the lawyer herself. Rather, the lawyer was presented to her by her husband’s lawyer. The wife was not given any opportunity to review the agreement prior to meeting with the lawyer, whom she had never met before. The lawyer did not open a file regarding the wife and instead sent his statement of account to the husband’s lawyer who paid it.
The court next considered whether legal advice was actually provided. Neither the husband nor the lawyer had any memory of what took place at the meeting. The only direct evidence on point was from the wife, who recalled spending no more than 10 or 15 minutes with the lawyer. The wife’s memory was supported by the fact that the lawyer billed only $75 for his services, despite having a stated hourly rate of $150 to $250. The court concluded that the lawyer could not possibly have had time to provide the wife with independent legal advice about the implications of the marriage agreement.
Take home point on BC marriage agreements and legal advice
The provision of independent legal advice prior to the execution of a BC marriage agreement is the most usual way to show that the agreement was entered into knowingly, voluntarily, and with a full understanding of what was being given up. However, the fact that a meeting with a lawyer took place or the presence of a Certificate of Independent Advice is not conclusive; the court will consider the effectiveness of the advice given if a BC marriage agreement is challenged. For example, undue influence may result in circumstances where the lawyer for one spouse is chosen by the other spouse and the legal advice is ineffective.
For more information about how this may apply to your BC family law claim, contact Onyx Law Group’s team of BC marriage agreement lawyers today at 604-900-2538 to schedule your initial 30-minute complementary consultation.