What you need to know

By Donna Kydd and Kerry Simmons

In 2010, the Society of Notaries Public of British Columbia requested that the Ministry of Attorney General make changes to the scope of notarial services. It renewed its request again in 2011.¹ The proposed expansion of the scope of notarial services by the Society of Notaries Public of British Columbia pertains to the following areas of law:

ESTATE ADMINISTRATION

• drafting and supervising the execution of wills that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class where the youngest member of that class attains the age of 30 years, from the current limit to the age of majority 19 years;

• probating wills where there are no disinherited children, no challenges to proposed estate administration pursuant to the Wills Variation Act and the probate does not appoint more than three executors: if anyone files a legal challenge to the proposed estate management, the notary would cease to act;

INCORPORATION OF COMPANIES
incorporating simple companies and maintaining such companies in good standing by the preparation and filing of standard resolutions and to act as the Company’s Records and Registry office;

• filing the Company’s Annual Report;

• drafting standard resolutions for use by the Company as provided in the Articles, such as provision for the Company to borrow money; and

• incorporating companies where the company: has no more than two shareholders, uses the standard Articles of Corporation used by the Corporate Registry on its electronic submission site and where the shareholder or shareholders have received advice from an accountant or a tax lawyer regarding the appropriate share structure;

FAMILY LAW

• drafting and supervising the execution of pre-nuptial and co-habitation agreements, provided that the assets of the two parties are of equal or similar value; in the event the parties’ assets are not of equal value, the parties provide a certificate of independent legal advice, the parties are currently not married, the parties can clearly demonstrate the value of their assets and the parties indicate they have been offered and waive independent legal advice; and

• drafting and filing divorce orders, provided that the divorce is uncontested by either spouse, there are no minor children involved or there is joint custody and equal access, there are no ongoing maintenance requirements and there is an equal division of assets.²

In February 2012, the Solicitors’ Practice Issues Committee (“Solicitors’ Committee”) along with the Family Law Working Group of the CBABC made separate written submissions to the Ministry of Attorney General, expressing concerns about the protection of the public as well as access to justice issues.³
The consensus of the Solicitors’ Committee is that the notaries’ proposal raises more questions than it answers, including the following.

• who determines if an estate matter, company matter or family matter is “simple” and thus within the notaries’ proposed expansion of powers? Certainly not the notaries themselves, since that would be a conflict of interest and not in the public interest. The consensus amongst the members of the Solicitors’ Committee is that few legal matters are “simple”;

• without legal training, how will notaries be able to identify, appreciate or address issues that may have adverse legal consequences for a client? There would be an inherent conflict for a notary to determine if legal advice to be provided by a lawyer is appropriate or not;

• is having a client sign a “waiver” for independent legal advice (“ILA”) sufficient and proper protection for members of the public? Does this waiver place a heavier onus on the lawyer providing the ILA than the notary providing the service?;

• if a notary takes conduct of a matter that s/he shouldn’t have, what is the recourse for the client? How is the public safeguarded in this instance?;

• does the client complain to the Society of Notaries Public of British Columbia or sue in court? Does this provide sufficient protection to the public?; and

• is there sufficient insurance for notaries to cover the potential losses to clients if there are expanded notarial services? Who will monitor notary claims?

In rural and remote areas of B.C., a “simple” will or a “simple” incorporation (if such a service actually exists) are a necessary part of a solicitor’s practice. If there is an expansion of notarial services into these practice areas, the solicitor’s potential client pool base will be negatively affected. This, in turn, will make it difficult for solicitors to cover the normal overhead costs associated with maintaining a law practice. There will be less incentive for lawyers to move to these communities and solicitors may retire without being able to have a successor in place to take over those practices, all of which would cause a hardship, and limit the public’s access, to justice in those communities.

With respect to family matters, the CBABC’s Submission highlighted the point that there is no element of family law which can be characterized as “simple.” Not only are the legal issues complex, but family law matters can extend for decades from the birth of a child, through the child’s education, to the time when a party receives pensions and through to the period after a spouse’s death. Agreements and orders govern future relationships other than between the parties who made the agreement, including minor children, previous spouses, future spouses, or adult children seeking to inherit.

Family law lawyers routinely encounter clients who are misinformed or have no knowledge at all about their rights and obligations. Sometimes clients have a self-drafted agreement, which may not be enforceable or may not be in a child’s best interest or their own best interest. In any of these situations, it is the legal advice from a lawyer, which will change the understanding of the client and lead toward an appropriate agreement or order.

The Submission concluded that to assert that family law matters can be simple and to permit notaries to expand their practice into this area effectively misleads the public. It amounts to an endorsement of the public making family law agreements and orders without legal advice. Such a situation will only increase the conflict, stress and expense borne by the public.

Often neglected in the discussion of the proposal to expand notarial services is the unique relationship that exists between a solicitor and a client. This degree of privacy or confidentiality in communications between solicitor and client does not exist with notaries. Not only may the public not be aware of this important difference, but notaries may not be informing the public of this fact when providing services.
In order to effect a more thorough discussion of this issue, both the Solicitors’ Committee and the Family Law Working Group recommended each of the following items.

• Notaries be permitted to join legal firms and perform services under the supervision of a lawyer. Access to justice would be served while protecting public interests. This also would alleviate the issue of the identification and accommodation of complex legal issues, and would enable a notary to pass on a file to a lawyer within the same firm, eliminating the duplication of fees to the public; and

• The Law Society of British Columbia be permitted to regulate notaries. Such regulation would protect the public interest through proper examinations, continuing education, insurance, experience and education requirements.

The Solicitor’s Committee also recommended that the province provide incentives to young lawyers to establish practices in rural and remote areas of B.C. by including them in the student loan forgiveness program, and that the CBABC and the Society of Notaries Public establish a working group to investigate the public’s preference for lawyers or notaries when full risks are disclosed.

If any CBA members wish to add to or comment upon this issue, please do not hesitate to contact either the Solicitors’ Committee or the Family Law Working Group.

 
¹ Under the Notaries Act, R.S.B.C. 1996, c. 334, notarial services are limited to administering oaths; drawing up affidavits and some wills; attesting to commercial instruments; and drawing up land title documents suitable for filing in the Land Title Office.
² Proposed Rights and Powers of the B.C. Notaries’ New Act, August 27, 2010; and Proposal from the Society of Notaries Public, October 15, 2010
³ See: www.cba.org/bc/Intiatives/main/notaries.aspx.


 

Left to right: Donna Kydd, Chair of the Solicitors’ Practice Issues Committee and Kerry Simmons, CBABC Vice President.

This article was published in the June 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.