Law Times

LAW TIMES / JUNE 2, 2008 NEWS 'Call to arms' for women BY ROBERT TODD Law Times F emale lawyers in Ontario have ac- cess to a new suite of resources aimed at keeping them in the profession, as the Law Society of Upper Canada has introduced a swath of new programs that include a parental leave benefit and locum service for those in private practice. "It's really a call to arms for lawyers in the province of Ontario to participate in these projects and get onside with the law society so that Ontario can be seen as a leader on these issues," says Kirby Chown, McCarthy Tétrault LLP's Ontario managing partner, regarding the final report of the retention of women in private practice working group. The law society's Convocation on May 22 passed nine recommendations in the group's final report, which brings in measures aimed at closing an exodus of females from a formerly male-dominated profession. "Having read many studies on the prob- lems relating to the retention of women that have been undertaken by private bodies or bar associations in Canada and the United States, I really see this report as being thorough and comprehensive, and coming up with some very interesting and innovative proposals for dealing with the issue," Chown says. The report includes nine recommenda- tions. For large and medium-sized firms — those with more than 25 lawyers and the two largest firms in each region — the law society will administer a three-year pi- lot project, called the Justicia Think Tank. Participating firms will adopt programs promoting the retention and advancement of women, including collection of demo- graphics, provision of parental leaves, busi- ness development opportunities, and plac- ing females in leadership roles. Large-firm lawyers will be targeted with a leadership and professional development institute, a web-based resource centre, and by the collection of data regarding changes of status with the law society. Small-firm lawyers and sole practitioners will have access to practice locums through a five-year pilot project. That measure is aimed at filling the gap for lawyers unable to find an adequate replacement to guide their practices during leaves of absence. A three-year parental efit, which is expected to be used by about 60 lawyers per year. The report's con- servative estimate pegs that to translate into a cost of about $500,000 per year, which would mean $15 per LSUC member. The working group leave benefit pilot program will get underway in 2009. It will provide benefits for those in firms of no more than five lawyers who aren't covered by other parental financial benefit programs. The program will offer $3,000 a month for up to three months. Other measures include the provision by the law society of direct resources for females, such as career development advice and online resources, collaboration be- tween the law society and law schools on provision of information on the business of law, the creation of an advisory group consisting of women from equality-seek- ing communities to help implement the recommendations, and the development of networking strategies for women from equality-seeking communities. The final measure is a review mechanism that'll see programs reviewed after three years of implementation, and after five years for the practice locum program, at which time fur- ther strategies also will be considered. The cost of the programs from 2009 to 2011 is estimated at $600,000 per year. The largest expense will be the parental leave ben- Kirby Chown says firms should prioritize the retention of women. said in a preliminary re- port submitted to Con- vocation in April that clashes between work and family life, particularly those caused by child- birth and parenting re- sponsibilities, are the big- gest reason why women leave the profession. The strain that exodus causes on demo- graphics of the profession is clear, said the report: while women currently represent at least 50 per cent of law school graduates in the province, the overall number of female lawyers in private practice remains low. Al- though women represented about 51 per cent of Ontario's population in 2001, female lawyers at that time made up 32 per cent of the legal profession and 24 per cent of the lawyers in private practice, according to the report. Women now represent 37 per cent of the legal profession and 28 per cent of lawyers in private practice, said the report. The exodus also causes financial strain.The report estimated firms incur turnover costs of $315,000 when a four-year associate leaves. Chown says she's been surprised by the number of female lawyers who work for firms that lack a written policy for maternity or parental leaves. "When there's a sugges- tion that the law society is seeking law firms to participate in making sure those policies . . . are going to be put into place, then this is a really important first step of consisten- PAGE 3 cy and transparency, so when women are choosing law firms they want to work at, they will know that is something that law firm has signed on to." Janet Whitehead, a Sarnia lawyer who prepared the County and District Law Presidents' Association's submission to the law society, says the organization is pleased with the measures. She notes the measures signify a "tremendous landmark" for the profession and will benefit not only law- yers, but access to justice in general. "It represents not only a recognition of the changes in the face of our profession over the past two or three decades, but it's also tremen- dous in the sense that it appears that we've got lawyers across the province, regardless of the size of the firm or the individual type of their private practice, coming together to recog- nize the value of retaining women, and to realize that we all need to work together to advance that issue." Maryellen Symons, chairwoman of the Ontario Bar Association's feminist legal anal- ysis section, says the measures recognize "that women are not a monolithic group." "Francophone women, aboriginal wom- en, racialized women in the legal profession have specific issues," says Symons. "Issues about the intersection of gender and other aspects of identity, and it's really important to pay attention to that." Symons says the report recognizes that "one size doesn't fit all" and that measures must be molded depending on the lawyers' style of practice. "All of the solutions are going to have to be adapted and calibrated so that what suits a lawyer in a large firm in Toronto won't be recommended as 'Oh just perfect' for a sole practitioner in [a smaller area]," she says. Chown says firms should prioritize the retention of women not only for reasons of equality, but to help the bottom line also. Appeal court decision a 'warning' to family law bar A BY ROBERT TODD Law Times n Ontario Court of Ap- peal decision upholding a $5.3-million award to a woman who signed a prenuptial agreement unaware of her hus- band's true wealth should serve as a warning to the family law bar, says a lawyer who worked on the case. "You can't give up rights in a marriage contract unless you know what you're giving up," says Toronto's Epstein Cole LLP lawyer Philip Epstein. "A number of trial judges have said that, and that seems to me to be a sensible principle, and that's the major les- son from LeVan — if you're ask- ing people to give up rights in a marriage contract, they've got to know what they're giving up." Epstein, who represented Erika LeVan in the case with colleague Ilana Zylberman, says the Court of Appeal's May 15 judgment up- holds "a very comprehensive trial judgment that fully explores the law about domestic contracts and in particular, marriage contracts." Epstein tells Law Times that while Superior Court Justice Nancy Backhouse's August 2006 judgment wasn't fully considered by the appeal court, it will "oper- ate as a warning to counsel that do marriage contracts that there are serious risks and serious pit- falls in these kinds of contracts unless parties take care to take some important steps." Counsel must ensure full financial disclosure, and legal advice must be independent, says Epstein, adding, "It is dan- gerous and foolhardy for parties to marriage contracts to inter- fere with the kind and quality of legal advice that the other party is receiving." The appeal court judgment also settles minor issues, says Epstein. For example, if an equalization payment is ordered to be paid over time, it will attract interest. The appeal court in LeVan v. LeVan upheld Backhouse's decision regarding a marriage contract between Richard Bruce LeVan and his wife. Backhouse ordered $5.3 the hus- band to pay the wife an equaliza- tion payment of million, along with retroactive spousal sup- port of $163,340. The judge also ordered LeVan, based on yearly income of $370,000, to pay the wife monthly spousal support of $6,640, as well as monthly child support of $4,544 and retroactive child support of $43,792. Ontario Court of Appeal Justices Stephen Borins, David Doherty, and Jean MacFarland dismissed the husband's appeal, which argued that Backhouse's ruling improperly interpreted the Family Law Act, incorrectly as- sessed the spousal and child sup- port awards, and should not have awarded post-judgment interest on the equalization payment and lump sum spousal support. The couple signed a marriage contract in June 1996, two days before getting married, noted Borins in delivering the appeal court's reasons. At the time, Le- Van and his three siblings each owned 25 per cent of shares that made up a majority interest in the publicly traded company Wescast Industries Inc., the world's largest manufacturer of exhaust mani- folds. The siblings also were the beneficiaries of significant hold- ings in LeVan Family Trust. At trial, the wife's valuator esti- mated LeVan's personal business as- sets at over $14 million, a number uncontested at trial. LeVan's father intended to pro- tect the family's company shares, and instructed his children to enter into prenuptial agreements upon marriage. A model mar- riage contract was created that included provisions to protect the family's control of Wescast, wrote Borins. The agreements "restrict- ed the actions that could be taken directly against the LeVan fam- ily companies and stipulated the method of valuation of the LeVan company shares for the purposes of a property or support claim," wrote Borins. LeVan approached the family lawyers on May 8, 1996, six weeks before the wedding date, regarding the marriage contract. The initial contract was opposed by the law- yer representing the wife, who had been told by the husband that the marriage wouldn't go ahead unless the contract was signed. The wife's lawyer, Goderich general practitioner Paul Ross, advised her that "the contract was 'unconscionable' and ex- pressing his concern that un- www.lawtimesnews.com due pressure was being put on her to sign the contract," wrote Borins. As the wedding neared and an agreement still wasn't reached, the court wrote that LeVan "began to undermine the wife's relationship with, and confidence in" Ross, who was eventually fired, said the judgment. The husband's lawyer, Karon Bales, then of Gowling Laf- leur Henderson LLP, asked Susan Heakes, then a lawyer at Blake Cas- sels & Graydon LLP, if she would represent the wife on the mar- riage contract, said the judgment. Heakes, who had represented Bales on her own divorce, agreed to rep- resent the wife, who wasn't aware of the two lawyers' previous relation- ship, the judgment continued. The marriage contract was signed when the wife met with Heakes. "As the trial judge found, in the contract that was signed, the wife's ability to claim spousal support, contrary to the model marriage contracts, was significantly com- promised," wrote Borins. "She gave up her right to share in the increase in value of virtually all of the husband's assets without knowing the husband's income from all sources, and without hav- ing any idea of his net worth." The court also noted that Heakes "was in no position to ad- vise the wife in a meaningful way about the marriage contract," as she did not have financial disclosure from Bales. Backhouse found that the hus- band failed to comply with the LT disclosure obligation under the Family Law Act. In setting aside the contract, she also found that the wife didn't get "effective inde- pendent legal advice," didn't un- derstand aspects of the contract, the husband misrepresented parts of the contract to the wife, the husband deliberately failed to disclose his entire assets, and the husband interfered with the wife's legal assistance from Ross. "These findings are reason- ably supported by the evidence presented at trial," wrote Borins for the appeal court. "I there- fore see no reason to interfere with them in this case. "In essence, the trial judge found that the husband failed to make full disclosure of his signifi- cant assets, that his disclosure was incomplete and inadequate and that his failure to make full dis- closure was a deliberate attempt to mislead his wife. As such, the trial judge's decision to set aside the contract should be upheld." The court put off taking a stance on a number of issues, how- ever. For example, a decision on whether disclosure requirements call for a description of the assets, or a value of the assets, was put on hold, says Epstein. "Long term, I think the trial judgment of Justice Backhouse and this decision has raised the bar in terms of the professional standards required in advising on a marriage contract," says Epstein. "And I think the bar has recog- nized that ever since LeVan came down two years ago." LT

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