Can you represent both me and my spouse?
I often receive calls from clients who have already resolved the issues with their spouse or who expect a very amicable resolution to their case. In this situation, I will inevitably be asked if the client can bring her spouse to the consultation so that they can present the agreement to me together. They would then expect me to simply draft the agreement for the two of them. While this may seem reasonable to the lay person, it is strictly forbidden.
There are many requirements that need to be met for a separation agreement to be considered to be valid and binding. One of the most important requirements is that there be no “conflict of interest”. A conflict of interest will immediately arise if a lawyer represents both spouses. If the same lawyer represents both spouses in his or her capacity as a lawyer, then this will significantly increase the chances that the separation agreement will one day be set aside by a court, costing the parties many thousands of dollars to rectify the situation. Furthermore, a lawyer who represents both spouses likely puts himself in the position of breaching his obligation of confidentiality to both parties. This could find the lawyer in trouble with the Law Society of Upper Canada. So, it is in BOTH parties’ best interests for each of them to have their own separate lawyer throughout the case. Lawyers refer to this as “independent legal advice” and it is one of the hallmarks of a sound separation agreement.