“The wife seeks disclosure of the husband’s confidential communications with his lawyer wherein he gave instructions to his lawyer about disclosure; however, there is nothing in the husband’s evidence about his instructions to counsel. His evidence is that he relied on his advisers, including his lawyer, to prepare his disclosure.
There is no suggestion that the husband has expressly waived privilege. The question is whether, by giving evidence that he relied on his advisers, including his lawyer, to make his financial disclosure during the negotiation of the marriage contract, the husband has waived privilege over his lawyer’s file.
In my view, the husband’s evidence does not rise to the level of a waiver of privilege.
Family law lawyers routinely prepare financial disclosure, whether in the context of proceedings arising after relationship breakdown or the preparation of a domestic contract. The fact that they do so, and that clients rely on them to do so, is not a disclosure of confidential communications. I agree with the husband that it is no different than a party saying they relied on their lawyer to do her job.
If saying that one relied on one’s lawyer was enough to find a waiver of privilege, privilege frequently would be waived. In my view, such an approach to waiver of privilege would be inconsistent with the guidance from the Supreme Court of Canada that privilege must be as close to absolute as possible.
I adopt the reasoning in Spicer, supra, [2015 ONSC 4175] to the effect that the mere disclosure of the receipt and reliance upon legal advice is not sufficient to give rise to a waiver of privilege. In this case, the husband has not given any evidence that legal advice he received when negotiating the marriage contract formed the basis of his state of mind, disclosed legal advice he received from his lawyer, or relied upon or put in evidence any legal advice he received. Simply saying he relied on his lawyer is not enough to waive privilege.”
Montemarano v. Montemarano, 2020 ONSC 1393 (CanLII) at 21-26