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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. November 30, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Lawyer's actions against casino worth considering further by launching a complaint against a Gatineau, Que., gaming facility for allowing him to drink while he played. Last week, the CBC reported that A police are looking into allegations by Kent Glowinski that the Lac-Leamy casino served booze to drunk gam- blers. As a result, its actions violate Quebec laws that forbid giving alco- hol to people who are already inebri- ated, he claims. Glowinski's issue with the casino isn't new. In fact, he has already launched a n Ottawa lawyer has taken the issue around casino liability for people's gambling problems a step $700,000 lawsuit against Loto-Québec over his $80,000 in gambling losses in recent years. In that case, he argues that despite putting himself on the exclu- sion list, the casino still allowed him to play and drink. The alcohol, he claims, only added fuel to his addiction. The case will raise the predictable arguments about personal responsibil- ity. Already, casinos in Canada have begun facing litigation over claims they don't do enough to stop problem gamblers from coming back to play. Critics, of course, will say it's up to them to control their habit. That argument is certainly true, but Glowinski's actions hint at an in- teresting point. The law in some cases already holds bars responsible for serv- ing alcohol to drunk people who then get into car accidents, so should casi- nos not bear some duty to limit how much they enable their customers to get themselves into trouble? At the same time, laws against serv- ing drunk people would already apply to gaming facilities anyway. But it's certainly worth considering the ex- tent to which society should also hold casinos accountable for their patrons' habits, an issue Glowinski's lawsuit and police complaint — should it lead to charges — will likely address. Of course, concerns over problem gambling have grown as governments have allowed the gaming sector to ex- pand in recent years. Obviously, the in- dustry and the governments that profit from it have an interest in not restricting gambling too much in light of the rev- enues it brings in. But given society's in- terest in dealing with a looming social is- sue, Glowinski's actions at least open an important debate. So rather than accuse him of ducking personal responsibil- ity, let's hope he gets a fair hearing both inside and outside the courts. — Glenn Kauth balance. A The challenge is to meet my professional obligations while at the same time satisfying my cli- ent's interest in managing and owning the dispute resolution process that's inherent to collab- orative family law. Webb v. Birkett is a recent case dealing with solicitor's negligence from Alberta. What is noteworthy is that it involves the collaborative family law process and addresses the duties owed by collaborative lawyers to their clients. In Webb, the parties each re- tained counsel certified in col- laborative family law. In fact, it is Marguerite Webb who sought out the process and then secured her husband's agreement to participate. She knew what she wanted out of the process and proceeded on that basis. As is tantamount in collabor- ative family law, several four-way meetings took place. Two experts came on board to assist along with a financial adviser and an accountant who had acted for the parties privately in the past. During the first meeting, they signed a collaborative family law Analyzing collaborative lawyers' duties to clients Family s a collaborative family law practitioner, I often find my work a difficult agreement outlining the rights and obligations of the partici- pants. Thereafter, they began the disclosure process. A few months down the road, a meeting took place with the two experts and the parties. Both lawyers par- ticipated via teleconference. While they hadn't yet gathered all of the disclosure, as is often the case, they reached a settle- ment with the experts' help. Three years later, Webb real- ized she had struck a bad deal and brought an action against her former lawyer alleging a breach of the duty of care in ad- vising her on issues of support and property division. In all cases, whether they in- volve collaborative family law or not, the duty of care is that of "the reasonably competent so- licitor." It's not enough to simply show there was an error. A claim- ant must prove that a reasonably competent solicitor wouldn't have done the same thing. How- ever, as noted by Justice W.P. Sul- livan, the context of the retainer must be included in the analysis of what a reasonably competent solicitor would have done. In his decision to reject Webb's claim, Sullivan relied on evidence Law By Marta Siemiarczuk from Susan Zwaenepoel, an ex- pert on collaborative family law. He held that in collaborative law, "the role of the lawyers is to de- velop the process" while the role of the parties is "to take owner- ship of the process, gather their own information, and actively and fully participate in assessing the quality of that information." This is quite a difference from the traditional solicitor-client re- lationship where the lawyer must do the "assessing" as to the quality of the information. Sullivan further held that Webb's interests were to make sure she had enough money to live on for the rest of her life with- out having to return to work, to keep the standard of living she had become accustomed to, to have her own home, to ensure a good relationship with her child, and to maintain that child's re- lationship with extended family. Moreover, Webb wanted to be eco- nomically independent from her www.lawtimesnews.com ex-husband and therefore didn't want to collect spousal support from him each month. Unlike in the collaborative family law process, a trial decision would address none of these interests. On the issue of property, Sul- livan found that Webb knew that the businesses involved were her husband's family's enterprises and that she therefore didn't want any part of them. Moreover, Webb spoke with the financial adviser about her potential to generate sufficient income out of the property set- tlement to satisfy her desire to not work again and maintain a standard of living she would be happy with. After discussing this, she believed there would be sufficient income. In fact, she was able, out of the settlement, to purchase a $200,000 home mortgage-free and she received a further $800,000 out of the matrimonial property. Notwithstanding a lack of disclosure, including details on the husband's income tax returns and proper valuations of the busi- nesses at issue, Sullivan found that Webb already had sufficient information to satisfy herself of the merits of the settlement as they accord with her interests. Based on this case, the law- yer's obligations can be seen to be threefold. The first is to educate Webb on the basics of family law en- titlements. The second is to tell her about the rights associated with the collaborative family law process, primarily full and frank disclosure. The third, and probably most important for our purposes, is that her lawyer was there to enforce her rights of dis- closure, but it was up to Webb to decide on how much infor- mation she actually wanted from her ex-husband. This is a marked difference from the duties owed by a solicitor representing a cli- ent in a rights-based process. A collaborative practitioner's duty of care rarely comes up in the case law. For all of us col- laborative lawyers out there, this case certainly illustrates the issues involved and what our obligations are versus the duties imposed on us in rights-based dispute resolution processes. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Kath- leen Chapman & Associates in Lon- don, Ont. Marta can be reached at msiemiarczuk@gmail.com.

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