Catholic Children’s Aid Society of Toronto v. F.H., 2011 ONCJ 428

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 48(7) , 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto (North York) Registry No. C43206/07 DATE: 2011·IX·02 CITATION: Catholic Children’s Aid Society of Toronto v. F.H. , 2011 ONCJ 428 ONTARIO COURT OF JUSTICE BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — F.H. and R.B., Respondents. Before Justice Stanley B. Sherr Heard on 31 August 2011 Endorsement inscribed on 2 September 2011

CIVIL PROCEDURE — Representation — Lawyer’s removal from record — Grounds — Prejudice to child as result of removal —Children’s aid society had apprehended child (now 20 months old) at birth and child had been in society care since then — Society’sattempt to have matter disposed of several months after birth by way of motion for

summary judgment did not prove successful and casewas sent to assignment court for setting of trial dates, which did not happen until 3 weeks ago — By that time, child had been in societycare well in excess of 1-year statutory ceiling — Less than 3 weeks before trial, mother’s lawyer made motion to be removed fromrecord — Lawyer did not allege any ethical issues that preventing lawyer from acting for mother nor was there toxic relationship betweenlawyer and mother — Reality was that mother would not have enough time to hire new lawyer or have new lawyer familiarized with case— Mother’s inevitable request for adjournment would, if allowed, mean that this case would not be reached until next trial sittings, bywhich time child would have been in care for over 25 months — And if court dismissed mother’s motion for adjournment and forced herto represent herself, she could have some grounds for appeal that, even if not successful, would further delay child’s permanencyplanning — Lawyer’s motion for removal would have been granted if only it had been made much earlier — At this late date, however,potential harm to child and to administration of justice outweighed unfairness or prejudice to lawyer — Further delay would produceunconscionable outcome for this child — With regret, court dismissed lawyer’s motion.

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], clause 37(2)(b), clause 37(2)(

g) and subsection 70(1). Family Law Rules, O. Reg. 114/99 [as amended], subrule 4(10) and subrule 4(10.1). CASES CITED Children’s Aid Society of Niagara Region v. R. (Lynne Jean) and R. (Kenneth Birger Alan) (No. 2), , 22 R.F.L. (6th)156, [2005] O.J. No. 4788, 2005 Cars​well​Ont 6337, 2005 Cars​well​Ont 6631 (Ont. Fam. Ct.). Durham Children’s Aid Society v. H.(F.) and B.(R.), , 180 A.C.W.S. (3d) 449, [2009] W.D.F.L. 4814, [2009] O.J.No. 3748, 2009 Cars​well​Ont 5429 (Ont. Fam. Ct.). New Brunswick (Minister of Health and Community Services) v.

G.(J.), [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 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 Cars​well​NB 305. The Queen v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, 399 N.R. 326, 283 B.C.A.C. 280, 480 W.A.C. 280, 317 D.L.R. (4th) 1,254 C.C.C. (3d) 1, 73 C.R. (6th) 1, [2010] S.C.J. No. 10, 2010 Cars​well​Yukon 21. Shamshad B. Bee ........................................................................... counsel for the applicant society Thora H.

Espinet ................................................................ counsel for the respondent mother, F.H. No appearance at motion by or on behalf of the respondent R.B., even though served with notice For previous proceedings, see Durham Children’s Aid Society v. F.H. and R.B., , 180 A.C.W.S. (3d) 449, [2009]W.D.F.L. 4814, [2009] O.J. No. 3748, 2009 Cars​well​Ont 5429 (Ont. Fam. Ct.), per Justice Alan P. Ingram. JUSTICE S.B. SHERR (endorsement):— 1: INTRODUCTION [1] Counsel for the respondent, Ms.

F.H. (the mother), has brought a motion seeking to be removed as solicitor of record. [2] The Catholic Children’s Aid Society of Toronto (“the society”) opposes this motion. [3] Ms. F.H. and the respondent Mr. R.B. (the father) did not attend at court on the return of the motion or file anymaterial. They were properly served. [4] This is a protection application where the society is seeking to make the respondents’ child, A.B., born on […]December 2009, a Crown ward without access for the purpose of adoption.

The trial is scheduled to begin on 19 September 2011. 2: BRIEF BACKGROUND [5] The society apprehended A.B. at birth. He has remained in the care of the society since that time. [6] The risk concerns set out by the society are primarily based on the respondents’ past parenting history and their allegedinability to address these concerns. On 31 August 2009, two other children of the respondents were made Crown wards without accessfor the purpose of adoption, after a contested trial. See the decision of Justice Allan P. Ingram in Durham Children’s Aid Society v.

F.H.and R.B., , 180 A.C.W.S. (3d) 449, [2009] W.D.F.L. 4814, [2009] O.J. No. 3748, 2009 Cars​well​Ont 5429 (Ont. Fam.Ct.).

[7] On 30 August 2010, a date was set for 10 November 2010 for the hearing of a

summary judgment motion in this case. [8] After several adjournments, Justice Carole Curtis heard the

summary judgment motion on 23 March 2011. JusticeCurtis granted

summary judgment that A.B. was a child in need of protection pursuant to clauses 37(2)(

b) and (

g) of the Child andFamily Services Act, R.S.O. 1990, c. C-11, as amended (“the Act”).

On 30 March 2011, she found that there was a triable issue as towhat the disposition of the case should be and sent the case to assignment court for trial dates to be set. [9] The case could not be reached during the spring trial sittings. [10] On 10 August 2011, the case was set for trial. [11] On 22 August 2011, counsel for the mother issued this motion to be removed as solicitor of record. 3: LEGAL CONSIDERATIONS [12] The court has the authority to refuse counsel’s request to be removed as solicitor of record, but the authority must beexercised sparingly and only when necessary to prevent serious harm to the administration of justice.

See The Queen v. Cunningham,2010 SCC 10, [2010] 1 S.C.R. 331, 399 N.R. 326, 283 B.C.A.C. 280, 480 W.A.C. 280, 317 D.L.R. (4th) 1, 254 C.C.C. (3d) 1, 73 C.R.(6th) 1, [2010] S.C.J. No. 10, 2010 Cars​well​Yukon 21. [13] In The Queen v. Cunningham, the court discussed the reasons in favour of courts’ exercising their jurisdiction to refuse acounsel’s request to be removed as solicitor of record in paragraph 22 as follows: [22] The reasons in favour of courts exercising this jurisdiction are numerous.

An accused, whobecomes unable to pay his lawyer, may be prejudiced if he is abandoned by counsel in the midst ofcriminal proceedings. Proceedings may need to be adjourned to allow the accused to obtain newcounsel. This delay may prejudice the accused, who is stigmatized by the unresolved criminal chargesand who may be in custody awaiting trial. It may also prejudice the Crown’s case. Additional delayalso affects complainants, witnesses and jurors involved in the matter, and society’s interest in theexpedient administration of justice.

Where these types of interests are engaged, they may outweighcounsel’s interest in withdrawing from a matter in which he or she is not being paid. [14] The reasons in favour of courts’ exercising their jurisdiction to refuse a request for the removal of counsel in childprotection cases may even be more compelling than those set out in The Queen v. Cunningham. It is well accepted that timelypermanency planning for young children is imperative for their welfare. Delay in obtaining a permanent placement for a child is oftencritical to his or her emotional, mental and physical development.

It can undermine the child’s stability and opportunity to form stableattachments with a permanent caregiver. The longer the delay, the greater the risk is to the child. The importance of timely permanencyplanning for children is reflected in the Act. Subsection 70(1) of the Act provides (with limited exceptions) that a child under the age ofsix cannot be made a society ward for more than one year.

At the trial of this matter, the court will have one of two choices — return thechild to a parent, 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 totrial will usually result in a request on the first day of trial by the unrepresented party for an adjournment to obtain new counsel. Thisplaces the trial judge in a very difficult position. The importance of counsel in child protection cases is well articulated by the SupremeCourt of Canada in New Brunswick Minister of Health and Community Services v.

J.G., [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R.(2d) 25, 552 A.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 Cars​-well​NB 305. The trial judge would have to balance this factor against the fact that the case would not be reached until the next trialsittings that start on 30 January 2012.

By then, this child will have been in care for over 25 months. [16] The society also made the legitimate argument that, if a request for adjournment were denied at the start of the trial andthe protection application were granted, it is more likely that the trial decision would be appealed on the basis that the respondent did nothave counsel. Even if the appeal were ultimately unsuccessful, permanency planning for the child would be considerably delayed. [17] The Family Law Rules, O. Reg. 114/99, as amended (“the rules”), address the concern of the late removal of counsel inchild protection cases.

Subrules 4 (10) and (10.1) of the rules read as follows:

(10) Change in representation.— Except as subrule (10.1) provides, a party represented by a lawyermay, by serving on every other party and filing a notice of change in representation (Form 4), (

a) change lawyers; or (

b) appear without a lawyer.

(10.1) Exception, child protection case scheduled for trial.— In a child protection case that has beenscheduled for trial or placed on a trial list, a party may act under clause (10)(

b) only with the court’spermission, obtained in advance by motion made with notice. Subrule 4(10.1) ensures that the court will have the opportunity of weighing the competing considerations (unfairness to the lawyer ofstaying on the record vs. delay) if a trial is imminent. [18] In Children’s Aid Society of Niagara Region v. Lynne Jean R. and Kenneth Birger Alan R. (No. 2), ,22 R.F.L. (6th) 156, [2005] O.J. No. 4788, 2005 Cars​well​Ont 6337, 2005 Cars​well​Ont 6631 (Ont. Fam. Ct.), the court rejected arespondent’s request to file a “notice of intention to act in person” pursuant to subrule 4(10.1) of the rules.

The court found that therequest was not bona fide. The court also recognized the importance of the court’s not interfering in solicitor-and-client affairs unless itwas necessary to avoid undue delay in a case.

[ 19 ] In The Queen v. Cunningham , supra , the court set out the following factors for the court to consider in exercising its jurisdiction on solicitor removal motions in paragraphs [47]-[50]: [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 for withdrawal 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 seeks 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. 4: ANALYSIS [ 20 ] It is with considerable reluctance that I am going to dismiss this motion. Child protection lawyers are the unsung heroes of the legal profession. They often represent vulnerable and challenging clients for little remuneration.

The overwhelming majority of child protection counsel with whom this court deals do so with considerable skill, passion, empathy and integrity. It is difficult to order such lawyers to continue to represent clients against their will. The mother’s counsel has conducted herself in a professional manner throughout this case. Her reasons for wanting to be removed as solicitor of record are legitimate.

She has acted in good faith and her motion would have been granted if brought much earlier . [ 21 ] However, I must balance any unfairness or prejudice to counsel with the potential harm to A.B. and the administration of justice that would be caused by a further delay of this case. The trial is less than three weeks away. There is not sufficient time for the mother to retain new counsel and have counsel properly prepare for this case.

The mother would be at a considerable disadvantage if she had to represent herself. [ 22 ] Here, the potential harm to the child and the administration of justice outweighs the unfairness or prejudice to counsel. The child has already been in foster care far in excess of the statutory timelines. If this case were adjourned for the mother to obtain new counsel, it would not start until 30 January 2012, at the earliest. This would be an unconscionable outcome for this child. [ 23 ] The Queen v. Cunningham , supra , sets out that the court should permit counsel to withdraw if the request is due to ethical reasons.

I would add that counsel should also be able to withdraw, if to continue would subject them to abuse, or if the relationship with the client is so toxic that they cannot objectively represent the client. [ 24 ] Here, there are no ethical issues preventing counsel from acting for the mother. This is not a case where the relationship between counsel and client is toxic or counsel is at risk of abuse. The mother has not sought a change in counsel. [ 25 ] The generosity of spirit that many child protection counsel exhibit in assisting their clients can result in their delaying

bringing a motion to terminate their relationship — they do not want to abandon a client in need. That appears to be the case here. Unfortunately, counsel’s motion has been brought too late in the process. [ 26 ] The motion by the mother’s counsel to be removed as solicitor of record is dismissed.