On November 21, 2022, we were fortunate to attend the Family Dispute Resolution Institute of Ontario’s 2022 Annual Conference, co-chaired by Nick Esterbauer and sponsored in part by Hull & Hull LLP. Ian Hull was also a speaker at the event, starting the first session of the day with an interesting discussion on “grey divorce” (described as divorce after a long marriage or divorce amongst seniors, depending on who you ask).    

The day was structured around a variety of plenary and breakout sessions, providing participants plenty of choice to tailor the day to their interests. The theme of this year’s conference was “Widening the Scope of FDR”, a common element that tied all the sessions together, especially the last breakout session we attended on avoiding liability. 

As FDR, or family dispute resolution, becomes more broadly embraced, the integration of many different professionals in the dispute resolution process is becoming more common. Besides counsel and a mediator, FDR may potentially involve the services of accountants, valuators and other experts (such as medical or tax). All these professionals are potentially open to liability. Common claims against lawyers involved in FDR center around the formation of domestic contracts and settlements. Accountants have been found liable for negligence where an alleged conflict of interest or bias exists between the parties, or when assisting in tax planning on marriage breakdown. 

The session’s speakers noted the most common malpractice errors all professionals involved in dispute resolution should be aware of:

• Communication: Infrequent communication, or communication laden with technical jargon and legalese, leaves clients in the dark about their matter

• Errors of law: Practitioners unfamiliar with the nuances of family and estates law are the most likely to misapply or miscomprehend a principle of the law

• Time management: Missing deadlines and limitation periods can be fatal to a client’s claim

• Inadequate investigation: Proceeding without all the facts, or without revisiting the facts after new information emerges, can be negligent 

The speakers also had a few helpful tips to ensure practitioners are being proactive about avoiding liability and any claim for negligence from arising:

• Fees: Clients need to be aware of what work they will be billed for and when they will be billed

• Roles: Confusion about parties’ roles and responsibilities, especially if someone is acting in more than one capacity, can be resolved through clear communication
  
• Retainer letters: Formal communication to clients early on should confirm the scope of the retainer, your skills and area of specialty, and any areas you are particularly not able to assist in

• Boundaries: Act only in the capacity you were retained for and “stay in your lane”
  
• Communicate and document: Clear, frequent, two-way communication can help manage client expectations and create a record of your advice and discussions.

We really enjoyed this year’s Conference and recommend it to everyone in the future.

Enjoy the rest of your day!

Suzana Popovic-Montag & Marie Kazmer