Each of these answers have some right components to them and reflect what many lawyers say. But, some have more direction than others. If you are being sensitive to the client’s anxiety about speaking to you without her son, then you can step back and resist the urge to tell her what is right and wrong.
The first and second option appear to empower the client but could produce more anxiety about getting this decision right, even if she will actually need to decide in order to proceed.
The key to emotional regulation for the lawyer is to avoid feeling responsible for making the client do what you think is right, or defensive when they don’t take that advice. The third option is probably the best of the three because it indicates that you are willing to pay attention to your client and the problem, and that she does not need to persuade you. Using body language that is relaxed and attentive, keeping good eye contact and providing her with options allows you to discuss, rather than decide.
At the end of the discussion you can still encourage her to try to proceed in this meeting without her son or bring him back in at the end when thinking about her options, and it is helpful to let her know she can decide to proceed without him in this meeting but change her mind next time, if that is what she wants. She retains the power to change her mind and include him.
Ms. Menon has asked how she can get back control of her father’s inheritance. She allows her husband to “take care of things” relating to financial matters, but because he transferred it out of the joint account, the assets and proceeds of the father’s estate appear to now be solely in the husband’s control.
In Ontario, joint bank accounts are considered marital assets. This means that each person has a right to a percentage of the money in the joint accounts during a marriage and upon divorce. In Ontario, the Family Law Act generally precludes inheritances from being considered a marital asset and divided equally. However, if you place inherited money into a joint account, then the court will presume that you intended to make a gift of half of that money to your spouse, as per section 14 of the Family Law Act. Consequently, upon divorce, there will be a presumption that Ms. Menon’s husband was entitled to receive half the funds that were transferred into the joint account.
Even though you know that the best recovery outcome Ms. Menon could hope to receive upon divorce is 50% of her inheritance, divorce will likely take a long time to start and finish and it isn’t clear that this is what Ms. Menon wants. Ms. Menon still has the more immediate problems of how to get the funds returned and secured for her future plans.
Because the client has not yet started the divorce process, her option of recovering those funds through the law would be to file a mareva injunction to freeze her spouse’s assets, while she sues to recover the removed funds. It is clear that the law is a heavy handed tool in this situation. How will you determine whether this is the only avenue or whether there are other options that can be pursued?
What is the first question you might ask of Ms. Menon that would provide greater insight or context into the situation and how to solve it?
- Do you explain to Ms. Menon what limited options the law provides and offer to write a demand letter to her husband as a first step?
- Do you ask Ms. Menon to discuss it with her husband or have you discussed it with her husband to see if he will voluntarily return the money?
- Do you explore why Ms. Menon’s husband controls the family assets?
Questions to Ask:
- Have you discussed this issue with your husband? How has he responded to your concerns? Have you asked him to return the funds? What might he agree to that would satisfy your concerns?
- Do you want to divorce
- Cultural factors?
- Divorce only way out? Lawsuit?
- How to protect assets from being depleted? (Gambling)
- Theft? Trust?
Questions to Ask:
- Do you typically pool all assets? Do you divide financial decision-making responsibilities? Are there any cultural barriers to the concept of financial independence?
- What was the amount of the inheritance? What assets were inherited? How much money is involved? Do you have access to records? Where are the proceeds now? Do you have the ability to track these proceeds?
- What will happen if you are unable to recover any proceeds of the inheritance? In the short-term? In the long-term?
- Do you see separation and/or divorce as an option of last resort? Does your husband see separation and/or divorce as an option?
You will need to ask Ms. Menon to gather all bank records for the affected accounts showing when the withdrawals were made, by whom, and the amount. Next, she will want to set up individual banking accounts in just her name.
Ms. Menon is considering whether divorce is an option although she does not know what this entails. She wants to know whether it is a viable option given her situation, with her teenage son and lack of control over financial assets.
What legal considerations might arise in this situation? What questions might you ask of Ms. Menon that would provide greater insight or context into the situation?
- What cultural factors might affect divorce and separation as options for your client?
- What are some generational concerns?
- What does the concept of “divorce” mean to you? Are your primary concerns financial in nature? Personal security? Independence? Infidelity?
- Emotional preparedness