Client Module in Family Law – Test Your Understanding
1. An Introduction to the Module
2. Background: Understanding Emotional and Cultural Intelligence in Family Law
3. Meeting Gita Menon
4. Issue #1 – Can Her Son Attend?
a. What are Your Professional Responsibilities
b. What are the Risks to Ms. Menon
5. Issue #2 – Can Ms. Menon Get Her Assets Back?
Background: Understanding Emotional and Cultural Intelligence in Family Law
Like other practice areas where parties must settle personal and financial differences, a family lawyer must operate in accordance with their client’s specific ability to engage in dispute resolution and litigation. In doing so, all lawyers benefit from emotional and cultural competencies. However, circumstances in family law can heighten client reliance on a counsel’s competencies.
The need for emotional competency in family law arises because parties exploring divorce can experience a loss that some say is like death. Clients experience a range of emotions associated with grief but still have the responsibility to make important decisions that will impact them as well as their children. It can be especially difficult for lawyers to manage client emotions in these circumstances. To make matters worse, divorce is also a business transaction. Because few clients experience transactions as complex as divorce in their lifetime, they are rarely well prepared for the tasks they must now undertake. Divorce requires attending to the mundane details of documenting the separation of assets and making decisions for the future that have large financial implications. Lawyers explain the complexities and uncertainties inherent to those decisions but must still be patient with the client’s capability to learn and make the decision for themselves. While it is the client who is going through the divorce, their frustration or limited ability to manage that process can manifest as frustration with their own counsel. Counsel must then manage their own emotions dealing with a frustrated client and a file that is not proceeding as expected.
The need for cultural competencies arises in family law when counsel and their client may be influenced by different cultural assumptions when communicating and making decisions. By this, we mean that they operate with different patterns of traditions, beliefs, values, and norms that influence their perspective on whether divorce arrangements meet a client’s needs. For example, counsel must navigate differing views on the appropriateness of decisions impacting children’s religion, diet, clothing, schools, and social activities and determine how to address it in legal proceedings.
Differences between client and lawyer may be sourced to different ethnic or national norms but also may be rooted in class, gender, hierarchy, modes of communication and other informants of community identity. Practicing with cultural competency means moving beyond minimizing culture and undertake conscious acceptance of cultural differences and adaptation.[1]
There is an increasing call for lawyers who can deploy emotional and cultural intelligence in their practice and in service to their clients. The call for emotional and cultural training in the legal profession comes from increasing attention to the diversity of the legal practice and clients they serve. However, it also recognizes that lawyers with emotional and cultural capabilities better serve clients than those who have less understanding of, and control over, their emotions as well as an inability to identify, understand, and adjust to cultural dimensions of others’ behaviour.
If the capability to learn emotional and cultural skills suggests the need for educational tools, the legal profession has been slow to develop relevant programs and professional requirements. Professional bodies and law firms have generally taken up the challenge with in person training but given cost, and reluctant uptake, they are looking to other solutions. One proposed solution has been to develop e-learning modules that offer practitioners the opportunity to learn at their own pace and in a non-judgemental environment.
This is an e-learning module that allows learners to consider how they will interact with the client in a given interaction, and one in which they will receive immediate feedback on their choice of action.
Given the effort to provide something realistic, we turned to lawyers for insight into the kinds of fact patterns that pose difficulties for lawyers. It is our view that to be relevant to lawyers training is ideally practice specific and client specific. Scenarios can be developed in any area of law.
This particular scenario relates a problem that often arises in family law.
What Are Your Professional Responsibilities?
The Law Society of Ontario has a number of directives for practicing lawyers for this kind of situation. As a legal professional, you must demonstrate competence, adhere to a duty of honesty and candour, and duty of confidentiality. To read the full chapter on the Complete Rules of Professional Conduct, visit the Law Society of Ontario. To review a few of the salient lines from the Rules of Professional Conduct, please review the following interactive module, open and closing the various guidelines in the interactive accordion below.
Meeting Gina Menon
In this scenario, you are a lawyer working in a family law practice. From a written pre-screening process, here is what you know about Gita Menon:
Your Client:
Ms. Menon is 45 years old and mother to a 15 year-old son, named Jayan. Ms. Menon is originally from Thiruvananthapuram, capital city of the province of Kerala in India. She immigrated to Canada 17 years ago, with her father. Shortly after arriving, she met and married her husband, Hargun Menon. She lives in a home owned by her husband and volunteers at her son’s school library. Hargun owns a business that sells food, spices and catering.
Ms. Menon’s father has recently died and left his entire estate to Ms. Menon. The conveyancing of the estate was finalized and the money was transferred to a bank account shared by Ms. Menon and her husband. Ms. Menon’s husband normally takes care of the finances in the house. She has recently learned that her husband transferred the funds from the estate to another account. She is worried that he has full control of those funds and would like access them. A friend that she volunteers with at the school library suggested she speak with you.
Issue #1 – Can Her Son Attend?
Questions to Ask
-
- If you explain to Ms. Menon that she may be waiving her right to confidentiality and privilege, how will you know that she understands the implications of her consent
- Does Ms. Menon understand that her son may hear disturbing details about her husband, about her, and about their relationship that will arise as a result of your duty to ask probative questions?
- Does Ms. Menon understand that the information she hears can impact her son’s relationship with his father?
- Does Ms. Menon understand that her son may tell others, including his friends and her husband, of the information that is discussed in your meeting and that this can impact her home life and her ability to achieve certain outcomes in the proceeding?
- How will you document Ms. Menon’s understanding and consent – in case she changes her mind later and decides it was a mistake?
The key to emotional regulation for the lawyer here is to avoid feeling responsible for making the client do what you think is right, or defensive when she doesn’t take that advice. You might be thinking that it is taking a lot of your time to even have an initial discussion about the legal issues. However, indicating that you are willing to pay attention to your client and the problem, and that she does not need to persuade you is what the client needs at this time. 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.
What are the Risks to Ms. Menon
Again, the client retains the right to have her son with her and to share confidential information with him. Some questions you should consider are how you explain to Ms. Menon the implications of her decision so that she makes this decision with as much information as possible. Some important questions to consider are the following:
- If you explain to Ms. Menon that she may be waiving her right to confidentiality and privilege, how will you know that she understands the implications of her consent?
- Does Ms. Menon understand that her son may hear disturbing details about her husband, about her, and about their relationship that will arise as a result of your duty to ask probative questions?
- Does Ms. Menon understand that the information she hears can impact her son’s relationship with his father?
- Does Ms. Menon understand that her son may tell others, including his friends and her husband, of the information that is discussed in your meeting and that this can impact her home life and her ability to achieve certain outcomes in the proceeding?
- How will you document Ms. Menon’s understanding and consent – in case she changes her mind later and decides it was a mistake?
The key to emotional regulation for the lawyer here is to avoid feeling responsible for making the client do what you think is right, or defensive when the client doesn’t take that advice. You might be thinking that it is taking a lot of your time to even have an initial discussion about the legal issues. However, indicating that you are willing to pay attention to your client and the problem, and that she does not need to persuade you is what the client needs at this time. 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.
Issue #2: Can Ms. Menon Get Her Assets Back
Please move all the content from Final Thoughts Chapter to here (under Issue #2)
Please also Insert additional text Following Text After “Right now she just wants to get her father’s money back”
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 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?
Case Study: Ms. Gita Menon
As you saw and read in the previous chapters and in the modules, 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.
Initial Legal Considerations
In Ontario, the division of marital property is determined through a process called , set out in Part I of the Family Law Act.
In Ontario, money in a joint bank account is presumptively owned equally by both spouses. This means that each spouse is presumed to own fifty percent of the account balance. The Family Law Act generally precludes inheritances from being considered a marital asset and subject to the equalization of property. 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. For Ms. Menon, this means that she may have trouble proving the inheritance belongs solely to her, as opposed to either being inherited by both her and her husband, or having gifted half of it to him when it was placed in the joint account.
You know that, among other things, Ms. Menon will likely be entitled to an equalization payment, and has a claim that her husband wrongfully transferred the inheritance and must return those funds to her. How you advise Ms. Menon about moving forward with either of these claims, or any other potential claims, will be guided by Ms. Menon’s goals.
Discussion
Think About It
To help guide your discussion with Ms. Menon about what she may want, you may also want to ask some of the following:
- What is most important to you moving forward?
- Financial independence
- Physical separation
- Personal security
- A stable home for your son
- Maintaining community and extended familial ties
- What does “divorce” mean to you? Do you see this as an option for yourself?
Ms. Menon’s priorities will give you a sense of what her ultimate aims are, even if she is not able to articulate them clearly at this stage. You will also gain an understanding of what “divorce” looks like to Ms. Menon, and whether culturally/personally she feels that is on the table.
Ms. Menon informs you that she may want to move out, and maybe even a divorce in the future, she isn’t sure, it feels scary and overwhelming right now… she is concerned about money because she does not have control over any finances and is worried if she indicates a desire to separate that her husband will kick her out of the house. Right now she just wants to get her father’s money back.
NOTE:
The most efficient and least expensive option, from both a financial and personal perspective, is for Ms. Menon to have a conversation with her husband, where she asks him to transfer the inheritance funds into an account in her sole name, and he agrees and follows through. However, given what Ms. Menon has described about her relationship and how her husband has responded to her previous attempts to gain independence, it may also not be a realistic option. She may also not feel it is a feasible option for her from a cultural perspective.
Think About It
To explore whether Ms. Menon is comfortable with this option, you may ask her some questions like the following:
- Have you tried to discuss the inheritance with your Husband?
- If not, do you feel like you could try talking to him about it?
- What if we wrote down some talking points for you to bring up with him together?
- What if you practiced the conversation with me?
- Are there strategies that you have found effective when discussing something important with your husband?
- What can I do to make you feel comfortable in having this conversation with him?
Discussion:
The next option to explore is sending a demand letter to Ms. Menon’s husband. If this approach is successful, it will be relatively inexpensive and efficient.
Discussion:
If Ms. Menon is interested in having you write a letter to her husband demanding the return of the inheritance funds, you will want to discuss with her the tone of the letter. While you should provide Ms. Menon advice on what should be said in the letter, Ms. Menon ultimately has control over what is said and how it is said. You should provide her with an explanation as to why you think the inclusion of certain elements is important, but the ultimate choice is hers. For example, she may want to take a softer, less adversarial approach as opposed to a tone that is aggressive or acrimonious. Remember that while you are the legal expert, Ms. Menon is the expert on her life and how her husband is likely to respond to different tactics.
The only way to force the return of the inheritance funds is for Ms. Menon to obtain a court order requiring it. In order to do that, Ms. Menon will need to start a court action.
Think About It
You are not presenting these considerations to Ms. Menon to dissuade her from taking a litigation approach, but it is important that she is fully informed as to both the costs and benefits of litigation. Litigation is often considered a path of last resort because of these considerations, but it may be the only and best option for Ms. Menon if her husband will not co-operate with the return of the inheritance.
Ending Thoughts:
References and Additional Resources
Susan Daicoff, ‘Lawyer Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism’ (1997) 46 American University Law Review 1337; Norm Kelk et al, Courting the Blues: Attitudes towards Depression in Australian Law Students and Legal Practitioners (Brain and Mind Research Institute, 2009) 42.
Susan Douglas, Incorporating Emotional Intelligence in Legal Education: A Theoretical Perspective (2015) e-Journal of Business Education & Scholarship of Teaching 9(2), 56
Feelings Inventory, Retrieved from https://www.courts.ca.gov/partners/documents/2011SRL3gNVC.pdf
Shin Imai, A Counter-Pedagogy for Social Justice: Core Skills for Community-Based Lawyering (2002-2003) Clinical L. Rev. 9, 195
Colin James, Lawyer Dissatisfaction, Emotional Intelligence and Clinical Legal Education (2008) Legal Education Review 18 (1&2), 1.
James Kunnanatt, ‘Emotional Intelligence: The New Science of Interpersonal Effectiveness’ (2004) Human Resource Development Quarterly, 489
Ronda Muir, Beyond Smart: Lawyering with Emotional Intelligence (2017) ABA Book Publishing
Townes O’Brien, Molly; Tang, Stephen; and Hall, Kath “Changing our Thinking: Empirical Research on Law Student Wellbeing, Thinking Styles and the Law Curriculum,” (2011) Legal Education Review: 21:
R. v. Gladue [1999] 1 SCR 688
Silver, M. A. ‘Emotional Intelligence and Legal Education’ (1999) Psychology, Public Policy, and Law, 5(4), 1173–1203.
Danielle Tuly, The Cultural (Re)Turn: The Case for Teaching Culturally Responsive Lawyering (2020) 16 Stan. J. C.R. & C.L. 201
Carwina Weng, Multicultural Lawyering: Teaching Psychology to Develop Cultural Self-Awareness (2004 – 2005) 11 Clinical L. Rev. 369
- Ritu Bhasin and Nora Rock, Cultural Competence: An Essential Skill in an Increasingly Diverse World, Practice Pro - https://www.practicepro.ca/2014/09/cultural-competence-an-essential-skill-in-an-increasingly-diverse-world/ ↵
This means that each spouse usually keeps the assets they own but share in the increase in their net worth over the course of the marriage. The difference in the net worth growth between the two spouses during the marriage is looked at as of the date of separation, and the spouse who experienced larger growth pays the other a sum equal to half of the difference. This sum called an equalization payment.
Feedback/Errata