QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 176 Date: 2006 04 13 Docket: D.I.V. No. 004480/2002 Judicial Centre: Moose Jaw (formerly Assiniboia), Family Law Division BETWEEN: NADINE MARIE PONDER (formerly Therrien) and MICHAEL GEORGE THERRIEN Counsel: L. Lee Mountain for the respondent, Michael George Therrien Ronald J. Miller for the Reginald E. Sauer FIAT GUNN J. April 13, 2006 [1] Michael Therrien brings an application for a court order requiring Reginald Sauer to withdraw as solicitor for Nadine Therrien. [2] The basis of the application is that the parties participated in Collaborative Law process whereby it is alleged by Mr. Therrien that confidential information was shared. Mr. Therrien submits that it would be conflict of interest for Mr. Sauer to continue to represent Ms. Therrien, as the issues between the parties have not been settled. Mr. Therrien further relies on the provisions of the collaborative law agreement signed by the parties. [3] There is dispute on the facts concerning what was discussed at the initial meeting of the parties with their lawyers. The Parties’ Views Nadine Ponder( formerly Therrien) [4] Ms. Ponder (formerly Therrien) deposes to the following: 2. retained my current lawyer, Reg Sauer, of Richmond Nychuk law firm in October, 2003 when decided would be moving to Texas.... 3. was notified by Michael in late November ... that he retained Mr. Merv Nidesh. Attached as Exhibit “B” is true copy of the December 11, 2003 correspondence sent by my lawyer to Mr. Nidesh. [That correspondence provides in part the following:] You may recall that we spoke to each other on November 27, 2003 regarding Nadine and Michael Therrien. At that time you indicated that you had met with Michael, but you were not formally retained. Following that conversation wrote to Michael Therrien suggesting that he and Nadine resolve their custody issues through the collaborative process. Attached is copy of my November 27, 2003 correspondence to Michael. On December 8, 2003, Michael contacted Nadine to inform her that he had met with you. He indicated that he did not want to go to court and would prefer to use mediation or collaborative process. Please confirm whether you are now representing Michael Therrien. If Michael is interested in the collaborative process, our client would like to see first meeting occur before Christmas. look forward to hearing from you. 4. We were not able to schedule our first meeting until January 9, 2004 at my lawyer’s office in Regina. attended that meeting with my lawyer, Mr. Nidesh and Michael. Both Mr. Sauer and Mr. Nidesh explained to Michael and at that meeting that we had two versions of the Collaborative Contract to choose from. One version required our lawyers to withdraw if matters proceeded to court and the other version allowed us to keep our lawyers if we chose to. 5. It was my position at this meeting that did not want to incur the additional cost or delay involved in retaining new counsel if we could not resolve matters. Michael agreed and we decided to sign the version of the Collaborative Contract which did not require our counsel to withdraw if matters went to court. 6. On March 11, 2004 Michael contacted me to inform me that he was no longer interested in proceeding with the collaborative meetings. then instructed Mr. Sauer to inform Mr. Nidesh that would be bringing court application. Attached as Exhibit “C” to this my affidavit is true copy of the March 12, 2004 correspondence from Mr. Sauer to Mr. Nidesh. [That correspondence provided the following in part:] ... [Michael] indicated that he is no longer interested in attending any further collaborative meetings. In light of this information, Nadine has instructed me to give you the notice required under section 13.4 of the Collaborative Contract that she intends to bring court application returnable after the 30 day waiting period from the date on which Michael notified her that he withdrew from the process. 8. On July 13, 2004 was contacted by the R.C.M.P. and notified that required new Court Order before could cross the border into the United States with the children. also received letter in the mail from Michael’s new lawyer, Lee Mountain. Attached as Exhibit “E” to this my affidavit is true copy of the July 12, 2004 correspondence from Lee Mountain. [The correspondence provided the following in part:] This office acts as solicitor for Michael Therrien of Willow Bunch.... Mr. Therrien has instructed this office to make court application changing the principal residence of the children from you to him.... Could you please advise this office of who your new lawyer will be so that we can provide copies of the court papers for the Application we are preparing now, to them. The lawyer you used in the collaborative law process would have signed an agreement that he could not continue to act for you if no settlement was reached collaboratively. We will be making an Interim application for court order providing that you cannot take the children out of the province.... [Emphasis added] Michael Therrien [5] Michael Therrien deposes to the following in his affidavit of February 27, 2006: 2. That in December of 2003 and January of 2004 took part in Collaborative Law process with Nadine Marie Therrien. Nadine’s lawyer in that process was Reginald E. Sauer, mine was Merv Nidesh. Collaborative Law Contract was signed by us dated January 9th, 2004.... 3. The Collaborative Law process encourages private and confidential information to be shared at meetings with clients and lawyers, whether or not that information is shareable in court process. would be severely prejudiced if Nadine’s lawyer, who took part in the collaborative law process were allowed to continue to act as her lawyer at trial. The spirit of confidentiality of collaborative law meeting is broken if lawyer that takes part in one can act at trial. 5. did not agree that our lawyers would not have to withdraw. That is not included in the contract. have obtained another lawyer, as required by the Contract, the petitioner has not, despite being asked to do so. When signed this contract it was my belief that if the collaborative law process did not work both of our lawyers would be required to withdraw. We had discuss [sic] at the meeting that that was the main reason that collaborative law could work. It would take the meat out of the process and violate the confidentiality of the process if we went through that process and our lawyers were allowed to continue to act at trial. That was NOT my understanding when signed the Contract. My understanding was that both lawyers would withdraw as set out in par. 13.4. [Emphasis added] [6] Michael Therrien deposed to the following in his affidavit of March 15, 2006: 2. On January 9, 2004 attended Collaborative Law meeting at Reg Sauer’s office in Regina. do not recall seeing another draft of the Collaborative Law Contract that has been filed as Exhibit “E” in the Affidavit of Reginald Sauer, dated March 1st, 2006. have never read that document. have never been given copy of it. do not recall talking about 2nd contract at the meeting. 3. have reviewed the minutes of our Collaborative Law meeting held January 9th, 2004. The minutes were prepared by Reg Sauer. The minutes of the meeting make no mention of discussing two contracts or that there was any agreement that the lawyers need not withdraw.... 4. received letter dated November 27th, 2003, from Reginald E. Sauer.... Mr. Sauer was describing to me what the Collaborative Law process is by sending to me sheet entitled “Collaborative Law Common Questions and Answers”. When read this got an understanding of what Collaborative Law is. The outline Mr. Sauer sent me does not include two versions of collaborative law process. [The first paragraph of the Common Questions and Answers is the following:] 1. What is Collaborative Law: Collaborative Law is concept developed by Minneapolis lawyer named Stu Webb approximately ten years ago. Mr. Webb was discouraged and disheartened by the negative effects of the traditional and legal court process on families during family breakdown. The key concept he developed was that the lawyers and clients would sign an agreement at the outset promising to negotiate in good faith. In addition, the lawyers would promise that if the case was not settled, they would withdraw as would their law firms and the parties would seek new lawyers.... 5. did not agree that our lawyers would not have to withdraw. was not aware there was any type of collaborative law process where the lawyers can stay on in court case. 9. When went to Mountain and Mountain Law Firm to have consent order prepared, in the summer of 2004 did so not because was dissatisfied with Mr. Nidesh’s services, but because believed could not use the same lawyer as set out in the Collaborative Law Contract. [Emphasis added] The consent order referenced by Mr. Therrien was presented to the court by Ms. Mountain July 21, 2004. In her letter to the court Ms. Mountain said the following in part: “The husband and wife used collaborative law to negotiate settlement but did not reach one. Later they reached an agreement which they asked me to register as consent court order. Mr. Therrien advised that the solicitors on record could not continue to act due to the collaborative law agreement. The Lawyers’ Views Reginald Sauer [7] Mr. Sauer deposes to the following in his affidavit of March 1, 2006 filed in response to the application by Michael Therrien: 2. On February 23, 2006 received telephone call from Lee Mountain requesting that provide her with copy of the Collaborative Contract that had been signed by our clients. Lee Mountain also questioned whether could continue to represent the Petitioner in these proceedings. Attached as Exhibit “A” to this my affidavit is true copy of the February 23, 2006 correspondence that faxed to Lee Mountain as result of our conversation. The signed Collaborative Contract that is referred to in my February 23, 2006 correspondence is attached as Exhibit “A” to the Respondent, Michael George Therrien’s February 27, 2006 affidavit. The correspondence provides the following in part: ... attach copy of the Collaborative Contract that was signed by Nadine and Michael. also attach copy of the January 7, 2004 correspondence to Mr. Nidesh confirming that there would be two versions of the Collaborative Contract available for the parties to review at the first meeting on January 9, 2004. At that meeting Nadine and Michael decided to sign the version of the Collaborative Contract that did not disqualify counsel from continuing to act if the matter went to court.... 3. Attached as Exhibit “B” to this my affidavit is true copy of the January 7, 2004 correspondence addressed to Mr. Merv Nidesh that was referred to in my February 23, 2006 correspondence to Lee Mountain. The January correspondence referred to contains the following in part: ... As discussed, will have two versions of the Collaborative Contract available for the parties to review at that time.... 4. Attached as Exhibit “C” to this my affidavit is true copy of my file notes relating to telephone conversation that had with Merv Nidesh on January 6, 2004. My notes which were made at the time the telephone conversation took place state “have both forms of K’s avail one keep lawyer if ct, one new lawyer if ct”. 5. On February 24, 2006 received letter from Lee Mountain dated February 21, 2006 which indicated that she had received the Collaborative Law Agreement and stated “if you do not agree to withdraw we will be making an application to the court to request that you do”. Attached as Exhibit “D” to this my affidavit is true copy of my February 24, 2006 correspondence to Lee Mountain responding to her correspondence. That correspondence said the following in part: ... The issue of the lawyers continuing to act for the parties if the matter went to court was specifically addressed with both Nadine and Michael. They chose to agree that their lawyers could continue to act for them if the matter proceeded to court. 7. At the time the Collaborative Contract was signed on January 9, 2004 it was the intention of both parties and their lawyers that the meetings would be treated as without prejudice meetings and that both parties would be entitled to retain their lawyers in the event matters proceeded to court. [Emphasis added] [8] Mr. Sauer filed supplemental affidavit sworn March 14, 2006. In it he provides the following additional information: 3. In preparation for the January 9, 2004 meeting had prepared two versions of the Collaborative Contract. The first version included paragraphs 13.1, 13.2 and all of paragraph 13.5 in the Collaborative Contract [which deal with the withdrawal of counsel specifically] ... The second version of the Collaborative Contract was the version that Michael and Nadine ultimately signed.... 4. At the January 9, 2004 meeting Mr. Nidesh and explained to our clients that the standard version of the Collaborative Contract required their lawyers to withdraw if matters were not resolved and the parties had to proceed to court. We also explained that they had an option to delete that requirement which would allow them to retain their lawyers if matters proceeded to court. 5. Michael and Nadine decided to sign the version of the Collaborative Contract that would allow them to keep their lawyers for future court proceedings. [Emphasis added] Merv Nidesh [9] Mr. Nidesh deposes to the following in his affidavit of March 21, 2006: 2. That in January of 2004 took part in Collaborative Law process with Michael George Therrien, and Nadine Marie Therrien. Nadine’s lawyer in that process was Reginald E. Sauer. Collaborative Law Contract was signed by us dated January 9th, 2004, and have been advised, copy was filed as Exhibit “A” to the Affidavit of Michael George Therrien, sworn February 20th, 2006 in this matter. 3. That have looked through my client file. do not have, from reviewing my file, copy of any other Collaborative Law Contract. Specifically have reviewed copy of the document that was “Draft Collaborative Law Contract that has been filed as “Exhibit “E” in the Affidavit of Reginald Sauer, dated March 1st, 2006. do not have copy of that document, nor did have one that later mailed to my client. 4. have reviewed the Minutes of the Collaborative Law meeting held January 9th, 2004. There is no mention made in the minutes of discussion of or review of two contracts. My recollection of the meeting was that the children were the main focus of the discussion. It is possible that two different contracts were discussed but have no recollection of whether it was or not. 6. My file includes no notes or other correspondence, including any letters to my client, in regard to lawyers either withdrawing, or not being required to withdraw as result of the Collaborative Law process. do not have any recollection of whether this was discussed with either of the parties or Reginald Sauer. DISCUSSION [10] The conflict in the facts was apparent at the time of the initial application. The parties were given leave to file additional evidence on the issues which were in conflict. The additional evidence did not resolve the conflicts. [11] Mr. Sauer acknowledges that the only way to resolve the conflicts would be by holding a viva voce hearing. On that basis, Mr. Sauer agrees to withdraw as counsel, so the parties may proceed to pre-trial and a trial if necessary on the issues. [12] As Mr. Miller has agreed to act as counsel for Ms. Ponder for the pre-trial, it is set for April 28, 2006. make no order as to costs.
FIAT: The respondent brings an application for a court order requiring Reginald Sauer to withdraw as solicitor for the petitioner. The basis of the application is that the parties participated in a Collaborative Law process whereby it is alleged by the respondent that confidential information was shared. The respondent also relies on the provisions of the collaborative law agreement signed by the parties. HELD: 1) The conflict in the facts was apparent and was not resolved by additional evidence. 2) Mr. Sauer agreed to withdraw as counsel so the parties may proceed to pre-trial and a trial without the necessity of a viva voce hearing.