May 06, 2015

Part 3 of 3: Are there limits on a Power of Attorney for Property under the Family Law Act and Rules (Ontario)?

Part III: Representing an Incapable Spouse in Matrimonial Litigation

By: Diya Chopra, Articling Student and Mary Wahbi, Partner

This is the third article in a three-part series discussing the powers and limits of an attorney, acting under a power of attorney for property, in the context of Family Law.

The Family Law Rules provide that the court may authorize a person to represent a “special party”, which includes a mentally incapable person, so long as that person is willing and appropriate for the task. Despite this Rule, Courts in Family Law cases have tended to look to Rule 7 of the Rules of Civil Procedure which sets out a more detailed framework for the representation of mentally incapable persons in litigation. An attorney must satisfy the criteria under Rule 7.03(10) before acting as such. One requirement that often becomes an issue is whether or not the attorney has an interest in the proceeding adverse to the party under disability...

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Photo by: Keoni Cabral