S.R.W. v W.W. Children, 2022 BCPC 136

Citation: S.R.W. v W.W. Children 2022 BCPC 136 Date: 20220707 File No: 10085 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: S.N.M.W.JR. J.R.J.W.W. CFCSA Matter – Restriction on Access s. 3(6) Provincial Court Act RULING RE APPLICATION TO WITHDRAW AS COUNSEL OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Director: J. Yuen Counsel for the Parent: A.J. Turton, Q.C. Place of Hearing: Prince Rupert, B.C. Date of Hearing: June 9, 16, 2022 Date of Judgment: July 7, 2022

[ 1 ] THE COURT: This is my ruling on an application by Andrea J. Turton, Q.C. to withdraw as counsel for S.R.W. (Mr. W.) Overview [ 2 ] Mr. W. is an Indigenous man and the father of two boys, now age six and eight. Both boys are members of the Nisga'a Nation and the Gitsegukla First Nation. There is a long and unfortunate history of orders under British Columbia's Child, Family and Community Service Act relating to the boys. [ 3 ] Due to reports that Mr. W. was physically abusing the boys, on August 12, 2020, the Director removed both boys from Mr. W.'s care under the authority of the CFCSA .

The Director is now seeking an order under ss. 49(4) and 49(5) of the CFCSA that the boys remain in the continuing custody of the Director. A four-day hearing on the merits of the Director's application for the continuing custody order is set for July 18, 19, 20 and 21, 2022. [ 4 ] Ms. Turton is Mr. W.'s current lawyer of record. She has made an Application to the Court seeking to withdraw as counsel of record for Mr. W. because she has lost contact with him and is unable to get instructions from him to prepare for the hearing.

Relying upon case law out of Ontario dealing with legislation similar to the CFCSA , the Director is opposed to Ms. Turton's withdrawal as counsel of record for Mr. W. because of the timing of the application so close to the hearing dates. [ 5 ] The issues to be determined by the court are as follows: 1. Is the Supreme Court of Canada's decision in R. v. Cunningham , 2010 SCC 10 , applicable to child protection cases? 2. Are there special rules or requirements applicable in cases of child protection lawyers seeking to withdraw as counsel of record? 3. Should the court allow Ms.

Turton to withdraw as counsel of record for Mr. W.? [ 6 ] For the reasons that follow, I am of the opinion that Ms. Turton is entitled to withdraw as counsel of record for Mr. W. Factual Background [ 7 ] Mr. W. and A.R.W. (Ms. W.) were in a long-term relationship from approximately 2012 until 2018. There were two children born during this relationship: S.N.M.W.Jr., now age six, and J.R.J.W.W., now age eight. During his relationship with Ms. W., Mr. W. also acted as a parent for Ms. W.'s son from a previous relationship, D.R.F.W., now age 15. [ 8 ] On August 10, 2017, social workers removed all three boys from Mr.

W. and Ms. W. due to concerns regarding substance abuse and anger management. At the time of the removal, D.R.F.W told social workers that Mr. W. had assaulted him a couple of months earlier. The RCMP commenced an investigation with regard to D.R.F.W 's allegation. In a police interview, D.R.F.W stated that Mr. W. had picked him up by the throat and then dropped him, causing his foot to be broken. D.R.F.W stated that the injury resulted in his foot needing a cast to heal. The police arrested Mr. W. on August 19, 2017, for assault causing bodily harm. The B.C.

Prosecution Service did not proceed with the prosecution of Mr. W. with respect to the assault of D.R.F.W. [ 9 ] After the boys' removal on August 10, 2017, D.R.F.W did not return to Mr. W.'s care. Furthermore, social workers decided Ms. W. was unable to care for D.R.F.W or her other boys due to her severe addiction issues. [ 10 ] On May 15, 2018, the Director returned the two younger boys to Mr. W.'s care under the Director's supervision. [ 11 ] On August 11, 2018, social workers once again removed S.N.M.W.Jr. and J.R.J.W.W from Mr. W.'s care. The reason for the removal was an allegation that Mr.

W. was unable or unwilling to care for the boys due to his alcohol abuse, the home being unsanitary and unsafe for occupation, and his neglect of the boys. The boys remained in foster care until January 17, 2019, when the Director returned them to Mr. W.'s care under the Director's supervision. [ 12 ] On January 21, 2019, the court made a continuing custody order concerning D.R.F.W. He is currently residing in foster care in Prince Rupert. [ 13 ] On August 12, 2020, social workers once again removed S.N.M.W.Jr. and J.R.J.W.W from Mr. W.'s care, this time due to reports that Mr. W. was physically abusing the boys.

The RCMP opened an investigation into the allegations of physical abuse and interviewed the boys. Once again, the B.C. Prosecution Service did not proceed with the prosecution of Mr. W. Nevertheless, the boys have been in the Director's care since. [ 14 ] There have been two previous hearing dates scheduled for the Director's application for a continuing custody order in relation to S.N.M.W.Jr. and J.R.J.W.W. The first hearing dates were August 26, 27, 30, and September 3, 2021. Counsel for the Director applied to adjourn the hearing dates, as one or two witnesses were not available.

Judge Gouge granted the adjournment and made a direction to

schedule an hour hearing to deal with the outstanding issue of disclosure of the relevant police files to Mr. W. [ 15 ] New hearing dates were subsequently set for February 7, 8, 9 and 11, 2022. [ 16 ] On January 25, 2022, Judge Stewart ordered the RCMP in Prince Rupert to provide disclosure of the relevant police files to Laurie Ogilvie, a social worker associated to this matter, within 14 days of the RCMP receiving a copy of his disclosure order. [ 17 ] Ms.

Turton brought an application on February 1, 2022 to adjourn the February hearing dates, due to a combination of factors: a personal matter, a lack of disclosure by the Director of the relevant police files, and because she was unable to get instructions from Mr. W. Judge Stewart granted the adjournment. [ 18 ] New hearing dates were then subsequently set for July 18, 19, 20, and 21, 2022.

[19] Mr. W.'s court appearances have been sporadic at best. January 17, 2020, was the last time Mr. W. appeared in person for one ofhis court appearances. On that occasion, Judge Struyk made an order under s. 46(3) of the CFCSA returning the boys to the custody ofMr. W. under the Director's supervision for a period of six months. Including today, there have been 22 court appearances scheduled inthis matter since January 7 of 2020. Mr.

W. has attended four of the court appearances: May 19, 2022 by MS Teams audioconferencing,November 25, 2021 by MS Teams audioconferencing, March 25, 2021 by telephone, and July 16, 2020 by telephone. [20] Ms. Turton made her application to withdraw as counsel for Mr. W. on June 9, 2022. [21] As I wanted to reflect upon the submissions of counsel and review the case law provided by counsel for the Director, I adjournedthe matter to the Judicial Case Manager to fix a date for my decision.

July 7, 2022 was the date set by the Judicial Case Manager. [22] This morning counsel for the Director informed the court that he has now made full disclosure of the relevant police files to Ms.Turton. Ms. Turton in turn confirmed that on June 30, 2022, she received the relevant police disclosure from counsel for the Director. Ms. Turton also confirmed that last week she successfully made contact with Mr. W., however, she was unable to get any instructionsand thus she is still not in a position to proceed to trial on July 18, 2022. Accordingly, Ms. Turton still wishes to be removed as counselfor Mr. W.

Issue One: Is the Supreme Court of Canada's decision in Cunningham applicable to child protection cases? [23] Although Cunningham was a criminal law case, judicial precedent in British Columbia and throughout Canada is clear that theprinciples set out in Cunningham related to the withdrawal of counsel are applicable to civil cases, including family law and childprotection cases: American Creek Resources Ltd. v. Teuton Resources Corp., 2014 BCCA 521, at paragraph 2; De Medeiros v Helgesen,2020 BCSC 589 at paragraph 46; Behm v Hansen, 2021 ABQB 701 at paragraphs 10 to 12; Outaleb v.

Waithe, 2021 ONSC 3480 atparagraph 8; Catholic Children's Aid Society of Toronto v. F.H., 2011 ONJC 428, at paragraphs 12 to 14, 19 and 23. Issue Two: Are there special rules or requirements applicable in cases of child protection lawyers seeking to withdraw as counselof record? [24] Counsel for the Director stated in court on June 9, 2022 that there is "a special obligation on counsel in CFCSA matters that goesbeyond the case law set out in R. v. Cunningham." With respect, I disagree.

I am unable to find that the three Ontario child protectioncases provided to the court in support of the Director's position are persuasive or binding on this court. Furthermore, all three decisionsare distinguishable from Ms. Turton's situation. [25] Catholic Children's Aid Society of Toronto is the only one of the three Ontario cases to consider Cunningham. In CatholicChildren's Aid Society of Toronto, counsel for the mother made an application to withdraw less than three weeks before the start of thehearing.

At paragraph 12, the court accepts the proposition that the authority to refuse counsel's request to withdraw as counsel of record"must be exercised sparingly and only when necessary to prevent serious harm to the administration of justice." The court then stated theproposition which counsel for the Director in the present case wants this court to accept: [14] The reasons in favour of courts exercising their jurisdiction to refuse a request for the removal of counsel in child protectioncases may even be more compelling than those set out in The Queen v. Cunningham.

It is well accepted that timely permanencyplanning for young children is imperative for their welfare. Delay in obtaining a permanent placement for a child is often critical to hisor her emotional, mental and physical development. It can undermine the child's stability and opportunity to form stable attachmentswith a permanent caregiver. The longer the delay, the greater the risk is to the child. The importance of timely permanency planning forchildren is reflected in the Act.

Subsection 70(1) of the Act provides (with limited exceptions) that a child under the age of six cannot bemade a society ward for more than one year. At the trial of this matter, the court will have one of two choices: return the child to aparent or make him a Crown ward. [15] The reality in child protection cases is that granting a request by counsel to be removed as solicitor of record so close to trial willusually result in a request on the first day of trial by the unrepresented party for an adjournment to obtain new counsel. This places thetrial judge in a very difficult position.

The importance of counsel in child protection cases is well articulated by the Supreme Court ofCanada in New Brunswick Minister of Health and Community Services v. J.G., [1999] 3 S.C.R. 46, 244 NR 276, 216 NBR (2nd) 25, 552A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, , [1999] S.C.J. No. 47, 1999 CarswellNB 305. The trial judge would have to balance this factor against the fact that the case would not be reached until the next trial sittings that starton 30 January 2012.

By then, this child will have been in care for over 25 months. [26] It is important to note that Justice Sherr stated that there were no ethical issues preventing counsel for the mother fromcontinuing as counsel in the case. It was a matter of remuneration. The court refused to allow counsel to withdraw: [20] It is with considerable reluctance that I am going to dismiss this motion. Child protection lawyers are the unsung heroes of thelegal profession. They often represent vulnerable and challenging clients for little remuneration.

The overwhelming majority of childprotection counsel with whom this court deals do so with considerable skill, passion, empathy and integrity. It is difficult to order suchlawyers to continue to represent clients against their will. The mother's counsel has conducted herself in a professional mannerthroughout this case. Her reasons for wanting to be removed as solicitor of record are legitimate. She has acted in good faith and hermotion would have been granted if brought much earlier. [27] Jewish Family and Child Service of Greater Toronto v.

J.Z., 2013 ONCJ 461, is another case where counsel sought to withdrawas counsel in a child protection case. The court does not refer to Cunningham in the decision. The mother's counsel participated in settingthe dates for an anticipated five-week child protection trial. Nine weeks before the start of the trial, the mother's counsel applied towithdraw as counsel and the mother filed a Notice of Change in Representation (Form 4), indicating that she would be representingherself at trial. Justice Spence wrote: [15] Ms.

Hirschberg makes it clear in her motion that her request to be removed as counsel of record is not due to a breakdown in herrelationship with the mother. Instead, her request is based solely on financial considerations. This litigation has so far generated literally

hundreds of thousands of dollars in combined legal fees and mother has no present capacity to pay any further fees to her counsel. And because she is gainfully employed, mother does not come anywhere near the financial threshold for entitlement to a Legal Aid Certificate. [16] Unfortunately, then, the reality for Ms. Hirschberg is that all of this results in the prospect of having to prepare for and participate in a trial of about five weeks' duration, potentially without any financial remuneration. Ms.

Hirschberg has a self-described "small practice" and the financial impact of this on her practice would be very onerous. [ 28 ] And at paragraph 26: [26] In dismissing Ms. Hirschberg's motion, I expressed the court's sympathies for her position and for the potential hardship she was facing. However, in balancing the hardship to Ms. Hirschberg as against the other considerations I have examined, I have necessarily concluded that I must, regrettably, dismiss Ms. Hirschberg's motion to be removed as solicitor of record. [ 29 ] The third Ontario decision is CCAS v. B.W-B. et al. , 2017 ONSC 3334 .

Although Cunningham is not referenced in the decision and we are not told the reason for the application by the maternal grandmother's counsel to withdraw -- made some 10 days before the start of an anticipated 15 to 20 day trial -- the court adopts and relies upon the reasoning in Catholic Children's Aid Society of Toronto and Jewish Family and Child Service of Greater Toronto : [8] I adopt the cautious and balanced reasoning set out in both of those decisions.

While parties have the right to be represented by counsel of their choice, and they have the right to represent themselves, the court must also address the inevitable reality that self- represented parties quite often (and understandably) seek last minute adjournments of trials, even if they have promised not to do so. No amount of promising in advance precludes the issue from arising, and this in turn might predictably jeopardize the trial proceeding and the resolution of this child's life. [9] Primacy must be given to the determination of A.M.M.'s situation.

She has already been in care longer than the period prescribed by the legislation, and I cannot allow any circumstance in which the trial might be jeopardized. [ 30 ] I have considered the Ontario cases. Nevertheless, the teachings of the Supreme Court of Canada as set out in Cunningham are clear and unequivocal: i. Counsel do not have an unfettered right to withdraw. The fiduciary nature of the solicitor-client relationship means that counsel is constrained in their ability to withdraw from a case once they have chosen to represent an accused.

The constraints are set out in the rules of professional conduct issued by the provincial or territorial societies. In British Columbia,

chapter 3.7 of the Code of Professional Conduct for British Columbia and the associated notes apply to British Columbia lawyers. ii. In the case of statutory courts, such as the Provincial Court of British Columbia, the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law.

Applications regarding the withdrawal of counsel -- whether for non-payment of fees, conflict of interest or otherwise -- are the types of matters that fall within the necessarily implied authority of a court to control the conduct of legal proceedings before it. iii. Counsel are obligated to be diligent, thorough and to act in the client's best interest. If counsel is retained pro bona or on a legal aid basis, they must act just as professionally as if acting for the client on a retainer at their normal monetary rate. i v.

Where the court rejects a request by counsel to withdraw from a case and requires counsel to continue to represent an accused, counsel must do so competently and diligently. Both the integrity of the profession and the administration of justice require nothing less. v. Refusing to allow counsel to withdraw should be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice. vi.

The court's exercise of its discretion in deciding if counsel should be allowed to withdraw is to be guided by the following principles: [47] If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel's reasons for seeking to withdraw or require counsel to continue to act. [48] Assuming that timing is an issue, the court is entitled to enquire further.

Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.

Counsel may cite "ethical reasons" as the reason to withdraw, if, for example, the accused is requesting that counsel act in violation of his or her professional obligations (see, e.g., Law Society of Upper Canada, r. 2.09(7)(b), (d); Law Society of Alberta, c. 14, r. 2; Law Society of British Columbia, c. 10, r. 1 ), or if the accused refuses to accept counsel's advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2).

If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she is seeking to withdraw for "ethical reasons". However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege. [49] If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C. (D.D.) , at p. 328, and Deschamps , at para. 23).

Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities. [50] If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel's request.

The court's order refusing counsel's request to withdraw may be enforced by the court's contempt power (C. (D.D.), at p. 327).

In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors: - whether it is feasible for the accused to represent himself or herself; - other means of obtaining representation; - impact on the accused from delay in proceedings, particularly if the accused is in custody; - conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time; - impact on the Crown and any co-accused; - impact on complainants, witnesses and jurors; - fairness to defence counsel, including consideration of the expected length and complexity of the proceedings; - the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused. Based upon the practical application of the principles in Cunningham to child protection cases, there is no need for a special obligation on counsel in CFCSA matters.

The threshold for refusing leave to withdraw as counsel is a high one and requires a proper basis in the record for its exercise. The Cunningham principles support a fulsome review of the circumstances in each individual case, which in turn will allow the judge to determine if the high threshold that must be met to refuse counsel's request to withdraw is answered in the affirmative. Issue Three: Should the court allow Ms. Turton to withdraw as counsel of record for Mr. W.? [ 31 ] The question of whether this case meets the high threshold that must be met to refuse Ms. Turton leave to withdraw as Mr.

W.'s counsel is answered in the negative: no. Ms. Turton is not withdrawing because of non-payment of fees or because of Mr. W.'s failure to refresh his Legal Aid application. [ 32 ] Ms. Turton says: i. She is not in a position to appear as agent for Mr. W. ii. She does not have instructions from Mr. W. iii. She had lost contact with Mr. W. She tried to reach him by telephone and by email with no success. She has now, during this past week, reconnected, but is still unable to get instructions from him. iv. She has had ongoing issues with trying to get in contact with Mr. W.

She would have withdrawn earlier, but she was hopeful that the file would resolve itself with the boys going to Mr. W.'s parents. v. Prior to making her application to withdraw, the only time that she has had contact with Mr. W. was in May 2022, when she went through a third party. vi. Mr. W. has not properly retained her as his counsel because the legal aid referral has expired and although she told Mr. W. that he needed to attend to the legal aid referral, he has not. vii.

The unavailability of two of the Director's witnesses was the reason for the first adjournment of the hearing dates in the summer of 2021. viii. At the time of her application to withdraw, Mr. W. was still awaiting the Director's disclosure to him of the related police files. [ 33 ] Based on Ms. Turton’s submissions to the court earlier today, I take it that despite having received the relevant police disclosure on June 30, 2022, she has not had an opportunity to review the disclosure either personally, or with her client, Mr.

W. [ 34 ] According to counsel for the Director, in addition to the special obligation on counsel in CFCSA matters that goes beyond the case law set out in Cunningham , the timing of Ms. Turton's application to withdraw at this late date will all but ensure yet another adjournment of the four-day hearing presently set to begin in 11 days. As such, he urges the court to deny Ms. Turton's request to withdraw. [ 35 ] I agree with counsel for the Director that the matter is getting old and that everyone involved, not the least of which are the boys, need a final decision of the court.

However, the court cannot ignore the reality that through no fault of her own, Ms. Turton currently cannot comply with her Law Society of British Columbia mandated obligations nor her obligations to the court. Specifically, due to her inability to communicate with and get instructions from Mr. W., she cannot perform all legal services undertaken on Mr. W.'s behalf to the standard of a competent lawyer as required by

chapter 3.1 of the Code of Professional Conduct for British Columbia and the associated notes and the court. Ms. Turton has made reasonable efforts to locate and communicate with Mr. W. as she is required to do by

chapter 3.7 of the Code of Professional Conduct for British Columbia and the associated notes. She has acted in good faith, faced

difficulty in obtaining adequate or any instructions from Mr. W., and has justifiably lost confidence in her client. On top of everythingelse, Ms. Turton waited until June 30th of 2022 for the relevant police files as ordered by Judge Stewart five-and-a-half months ago.Disclosure of the relevant police files is essential, from what I have been told by counsel, for Mr. W.'s preparation for the hearing. [36] Given that Ms.

Turton is requesting permission to withdraw as counsel for ethical reasons, not financial reasons, I have no choicebut to conclude that the timing of the application to withdraw being so close to the hearing dates is irrelevant. At this stage, it is hard toimagine, even if Mr. W. reappears and provides proper instructions to Ms.

Turton, that the hearing would proceed on July 18, 2022, butthat is an issue that can and will be addressed on July 18, 2022. [37] As stated by Justice Harris in American Creek Resources Ltd.: [2] The issue that has arisen involves, according to the affidavit of counsel, professional or ethical concerns. I have made no enquiryinto the circumstances beyond that since it is clear from the decision of R. v. Cunningham, 2010 SCC 10 , [2010] 1 SCR 331,that it is not open to me to do anything other than accept that representation at face value.

It is also clear from the Cunningham decisionthat if withdrawal is sought for such a reason, then the Court must grant the withdrawal and there is no discretion not to do so. Conclusion [38] Ms. Turton is permitted to withdraw as counsel for Mr. W. (RULING CONCLUDED)