Kam v. Hermanstyne, 2011 ONCJ 101

Toronto (North York) Registry No. D46334/08 DATE: 2011·III·04 CITATION: Kam v. Hermanstyne, 2011 ONCJ 101 ONTARIO COURT OF JUSTICE BETWEEN: SHENNA KA WEI KAM, Applicant, — AND — MARC ANDRE HERMANSTYNE, Respondent. Before Justice Robert J.

Spence Heard on 3 March 2011 Reasons for Judgment released on 4 March 2011 CIVIL PROCEDURE — Representation — Lawyer’s removal from record — Grounds — Impairment of lawyer’s professionaljudgment as result of personal involvement in case — In her claim for increased in support of her 2 children, mother made motion forremoval of respondent father’s lawyer on grounds that lawyer was cohabiting with father in romantic relationship — Mother argued thatshe might wish to call lawyer as witness about father’s lifestyle and that witness role was incompatible with that of legal counsel —Motion judge began by noting that, in any confrontation, litigant’s fundamental right to choose own lawyer must give way to need tomaintain integrity of judicial system — Lawyer who is involved in intimate personal relationship with his or her client cannot, in mostcases, be allowed to represent client in adversarial proceeding because degree of lawyer’s independence for conducting litigation withnecessary emotional detachment would be seriously compromised — In this case, lawyer’s attempt to maintain her professionalobjectivity vis-à-vis client and, as officer of court, to foster court’s confidence in her candour and truthfulness was threatened by herromantic involvement with respondent — Under those circumstances, court could not have such confidence in lawyer’s candour andtruthfulness, not because court necessarily believed that she would intentionally mislead court but, rather, because of frailties of humannature in matters involving intimate and close personal relationships — Motion judge ordered removal of respondent father’s lawyerfrom case.

PROFESSIONS — Lawyers — Conflict of interest and duty — Lawyer has personal relationship with client — Threat to lawyer’s dutyto provide objective, disinterested professional advice to client — Motion judge began by noting that, in any confrontation, litigant’sfundamental right to choose own lawyer must give way to need to maintain integrity of judicial system — Lawyer who is involved inintimate personal relationship with his or her client cannot, in most cases, be allowed to represent client in adversarial proceedingbecause degree of lawyer’s independence for conducting litigation with necessary emotional detachment would be seriouslycompromised — Rules of professional conduct warn against conflict of interest arising when personal relationship with client interfereswith lawyer’s duty to provide objective, disinterested professional advice to client — In this case, lawyer’s attempt to maintain herprofessional objectivity vis-à-vis client and, as officer of court, to foster court’s confidence in her candour and truthfulness wasthreatened by her romantic involvement with respondent — Under those circumstances, court could not have such confidence in lawyer’scandour and truthfulness, not because court necessarily believed that she would intentionally mislead court but, rather, because offrailties of human nature in matters involving intimate and close personal relationships — Motion judge ordered removal of respondentfather’s lawyer from case.

CASES CITED Chouinard v. Chouinard, , (2007), 159 A.C.W.S. (3d) 896, [2008] W.D.F.L. 852, [2007] O.J. No. 3279, 2007 Cars​-well​Ont 5460 (Ont. S.C.). Goldberg v. Goldberg (1982), (ON CA), 141 D.L.R. (3d) 133, 31 R.F.L. (2d) 453, [1982] O.J. No. 1412, 1982 Cars​-well​Ont 356 (Ont. Div. Ct.). MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 121 N.R. 1, 70 Man. R. (2d) 241, 285 W.A.C. 241, [1991] 1 W.W.R. 705, 77 D.L.R.(4th) 249, 48 C.P.C. (2d) 113, , [1990] S.C.J. No. 41, 1990 Cars​well​Man 233.

McWaters v. Coke, 2005 ONCJ 73, 16 R.F.L. (6th) 271, [2005] O.J. No. 996, 2005 Cars​well​Ont 989 (Ont. C.J.). R. v. Smith and Thompson, 1993 NSCA 59 , , 121 N.S.R. (2d) 436, 335 A.P.R. 436, 80 C.C.C. (3d) 91,[1993] N.S.J. No. 124, 1993 Cars​well​NS 414 (N.S.C.A.). RULES CITED Rules of Professional Conduct of the Law Society of Upper Canada, rule 2.04 and subrule 6.01(1). John J.

Freeman ........................................................................... counsel for the applicant mother Gina Da Fonte ............................................................................. counsel for the respondent father JUSTICE R.J. SPENCE:— 1: NATURE OF THE MOTION [1] This is the applicant mother’s motion for an order removing the respondent father’s solicitor of record. The applicantand the respondent are the parents of two children. The mother now has an order granting her final sole custody. The father’s access iscurrently supervised, although he is seeking unsupervised access.

Apart from the issue of access, the mother is seeking both an increasein child support as well as arrears of child support. [2] The father and his lawyer have a romantic relationship and are cohabiting within that relationship. Either at trial, or inout-of-court questioning, the mother will be seeking to elicit evidence about the father’s lifestyle in connection with both the access issueas well as the support issue.

To that end, mother’s counsel may wish to call the father’s counsel as a witness in this proceeding, as shehas knowledge of the father’s lifestyle. [3] The issue in this motion is whether, in all the circumstances, the father’s lawyer should be permitted to continue to actfor her client, or whether it is necessary, in the interests of the administration of justice, to make an order removing her as therespondent’s solicitor of record. 2: FATHER’S POSITION [4] The father states in his factum (at paragraph 14): Although the respondent and his lawyer, Gina da Fonte, are romantically involved, the respondent hasprovided a fulsome and comprehensive description of his lifestyle, activities, and regular behavioursince May 2008.

There is no reason but mere tactical [sic] for counsel to be removed so as to testify tomatters that are within the respondent’s knowledge. This is to deprive the respondent of his right tocounsel, as well as his right to counsel of choice. All information relating to his lifestyle, as requestedby the applicant has been provided.

It is unclear what further information is sought, except to deprivethe respondent of legal representation. [5] The respondent also argues (at paragraph 22 of his factum): The respondent should not be forced to change counsel at the whim or request of the applicant, as aresult of tactical decision to call the respondent’s lawyer as a witness. She is not a necessary witnessand the evidence the applicant seeks to elicit is already in the respondent’s previously filed affidavits. The applicant has not indicated or given any evidence as to what evidence is sought to be elicited thathas not already been provided.

No other relevant evidence will be given and as such, the respondent’slawyer should not be removed as counsel. [6] The thrust of the respondent’s argument is this: While Ms. Da Fonte may have relevant evidence, the applicant does nothave to call her as a witness. The fact of the romantic relationship should not in and of itself result in her disqualification as counsel. This is particularly so where the respondent does not qualify for legal aid, nor does he have the financial wherewithal to retain counsel ona private basis. Accordingly, were Ms.

Da Fonte to be removed as his solicitor, he would be deprived of a fundamental right, namely hisright of access to justice, by losing the only solicitor who is otherwise available to assist him. 3: THE LAW [7] Rule 2.04 of the Rules of Professional Conduct of the Law Society of Upper Canada (“Rules”) prohibits a lawyer fromacting in a case where there may be a “conflict of interest”. A “conflict of interest” is defined as “an interest” (my emphasis): (

a) that would be likely to affect adversely a lawyer’s judgment on behalf of, or loyalty to, a client or prospectiveclient The commentary to this rule states, in part (my emphasis):

Where a lawyer is acting for a friend or family member, the lawyer may have a conflict of interestbecause the personal relationship may interfere with the lawyer’s duty to provide objective,disinterested professional advice to the client. [8] Subrule 6.01(1) states: A lawyer shall conduct himself or herself in such a way as to maintain the integrity of the profession.

The commentary to this rule states, in part (my emphasis): A lawyer’s conduct should reflect credit on the legal profession, inspire the confidence, respect andtrust of clients and the community, and avoid even the appearance of impropriety. [9] Perhaps the leading case on the issue of court-ordered removal of solicitors is MacDonald Estate v. Martin, [1990] 3S.C.R. 1235, 121 N.R. 1, 70 Man. R. (2d) 241, 285 W.A.C. 241, [1991] 1 W.W.R. 705, 77 D.L.R. (4th) 249, 48 C.P.C. (2d) 113, , [1990] S.C.J. No. 41, 1990 Cars​well​Man 233.

In that case, Justice John Sopinka writing for the majority stated, at paragraph[18] (my emphasis): . . . The courts, which have inherent jurisdiction to remove from the record solicitors who have aconflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact thatlawyers are officers of the court and their conduct in legal proceedings which may affect theadministration of justice is subject to this supervisory jurisdiction.

Nonetheless, an expression of aprofessional standard in a code of ethics relating to a matter before the court should be considered animportant statement of public policy. . . . [10] Justice Cory wrote a separate opinion, concurring in the result, in which he stated, at paragraphs [57]-[58] (my emphasis): [Justice Sopinka] stated that this appeal called for the balancing of three competing values, namely: the maintenance and integrity of our system of justice; the right of litigants not to be lightly deprived oftheir chosen counsel; and the desirability of permitting reasonable mobility in the legal profession.

Of these factors, the most important and compelling is the preservation of the integrity of our systemof justice. The necessity of selecting new counsel will certainly be inconvenient, unsettling andworrisome to clients. Reasonable mobility may well be important to lawyers.

However, the integrity ofthe judicial system is of such fundamental importance to our country and, indeed, to all free anddemocratic societies that it must be the predominant consideration in any balancing of these threefactors. [11] What I take from this case is that there is a fundamental right to choose one’s own counsel, but that right must give wayto the need to maintain the integrity of the judicial system, when those two considerations compete with each other. [12] In Goldberg v. Goldberg (1982), (ON CA), 141 D.L.R. (3d) 133, 31 R.F.L. (2d) 453, [1982] O.J. No.1412, 1982 Cars​well​Ont 356 (Ont. Div.

Ct.), the court examined the principles involved in deciding whether to remove a solicitor for analleged conflict of interest. In that case, Justice Frank W. Callaghan stated, at paragraph 8 (my emphasis): Of more importance, however, is the fact that the principles involved herein are designed not only toprotect the interests of the individual client, but they also protect the public confidence in theadministration of justice. This is particularly so when the litigation involves a family dispute. [13] In Chouinard v. Chouinard, , (2007), 159 A.C.W.S. (3d) 896, [2008] W.D.F.L. 852, [2007] O.J.

No.3279, 2007 Cars​well​Ont 5460 (Ont. S.C.), the court was faced with the issue of whether to remove counsel who was a friend of hisclient. Justice Douglas K. Gray stated, at paragraph 21 (my emphasis):[1] [21] It is clear that if a solicitor is involved in an intimate personal relationship with his or herclient, in most cases that solicitor cannot act as counsel for the client in an adversarial proceeding.

That is because the necessary degree of independence that is required for the solicitor to giveunvarnished, independent advice is lacking and it is a reasonable assumption that the solicitor cannotconduct the litigation with the necessary emotional detachment. [14] In McWaters v. Coke, 2005 ONCJ 73, 16 R.F.L. (6th) 271, [2005] O.J. No. 996, 2005 Cars​well​Ont 989 (Ont. C.J.),Justice Marvin A. Zuker was faced with a motion to remove counsel from the record because he was the husband of the applicant.

Justice Zuker’s reasons are cited below in their entirety: The reasons for my decision are as follows: {1} The court must weigh the potential for any breach of a lawyer’s fiduciary obligations to his orher client and any likely confusion of his or her personal and professional roles. {2} The court must consider a lawyer’s personal involvement and whether that may impair his orher — in this case his — professional judgment. {3} The solicitor-and-client relationship is a fiduciary one and a lawyer’s obligation is heightenedif a client is emotionally vulnerable to the extent that the client’s ability to make reasoned judgmentsabout the future is affected. {4} The solicitor-and-client relationship is characterized by the dependence of a client on alawyer’s professional judgment and a relationship may well result from a lawyer’s exploitation of hisdominant position.

{5} The relationship creates, in this case, the potential, at least, that the lawyer may be called as awitness on behalf of the client. {6} The fiduciary relationship is one of trust in the client or of a client in his or her lawyer in returnfor the lawyer’s placing the interests of the client ahead of any self-interest of the lawyer. {7} In these proceedings, the highest standard of ethical conduct is required.

The more vulnerablethe client, the heavier the obligation that the lawyer has to avoid engaging in any relationship other thanthat of solicitor-and-client. {8} The client must be protected against the strong influence to which confidential relationsnaturally give rise. A solicitor-and-client relationship involves a very high level of trust andconfidence. And confidence must not be used to the detriment of the prejudice of the rights of the partybestowing it. {9} The Law Society’s Rules of Professional Conduct, in particular subrule 2.04(3), isdistinguished.

The consent of the applicant is not relevant in these proceedings. A lawyer’s freedom ofaction and judgment is subject to other interests, duties and obligations. Any counsel is an officer of thecourt, and he or she must fulfill his obligations as such and to the administration of justice. {10} Great sensitivity, of course, is required in a family law context. I refer, in particular, ofcourse, to MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 121 N.R. 1, 70 Man. R. (2d) 241, 285W.A.C. 241, [1991] 1 W.W.R. 705, 77 D.L.R. (4th) 249, 48 C.P.C. (2d) 113, , [1990]S.C.J.

No. 41, 1990 Cars​well​Man 233, which refers to an objective standard in making such adetermination. [15] For her part, counsel for the respondent referred me to a number of different cases. Some of those cases had to do withthe appointment of amicus curiae by the court. Cases about the appointment of amicus curiae are not relevant to the issue before me. She also referred me to R. v. Smith and Thompson, 1993 NSCA 59 , , 121 N.S.R. (2d) 436, 335 A.P.R. 436,80 C.C.C. (3d) 91, [1993] N.S.J.

No. 124, 1993 Cars​well​NS 414 (N.S.C.A.), wherein the court permitted counsel to continue in thatcapacity even though he was a witness in the proceeding. Again, that case has no applicability to the case at bar because: 1. the lawyer and the client were not in an intimate relationship, 2. the lawyer was giving evidence about a matter already in possession of the Crown and not involving a matter of credibility,and 3.

No objection was made to his continuing to act as counsel at trial and on the appeal. [16] The respondent argues that he should not be forced to change counsel “at the whim or request of the applicant”. I do notconsider the applicant’s request to be whimsical. I note that the applicant’s counsel first requested Ms. Da Fonte to remove herself, inwriting, and before any subsequent court attendances, after he discovered the nature of the relationship that existed between therespondent and Ms. Da Fonte. The respondent and Ms.

Da Fonte have steadfastly refused to accede to this request, necessitating thismotion. [17] What I conclude from all of the authorities is that, in the circumstances that exist in the present case, Ms. Da Fonte’s roleas counsel would be seriously compromised. On the one hand, she is romantically involved with the respondent and understandablywants the same outcome as her romantic partner. It would be unrealistic for anyone to believe otherwise. On the other hand, herprofessional standards of conduct necessitate that she act in a way that does not adversely affect her judgment in her role as counsel to herclient.

She must try to maintain her objectivity while, at the same time, being inextricably emotionally intertwined with the respondentand the outcome that the respondent is attempting to achieve in this case. In my view, this is a near-impossible tension to resolve. [18] Further, as an officer of the court, lawyers must always be candid and forthright with the court. The court must at alltimes have confidence that the lawyer will never knowingly allow false or misleading evidence to be presented to the court.

The courtmust also have confidence that lawyers will answer all questions from the court in a straightforward and honest manner, without havingto worry about, or wonder whether there are extraneous considerations that could impair the lawyer’s ability to act appropriately. [19] In the present circumstances, the court cannot have that confidence in Ms. Da Fonte, not because the court necessarilybelieves that she would intentionally mislead the court but, rather, because human nature being what it is, mischief may inevitablyresult.

In my view, Justice Zuker[2] and Justice Gray[3] were correct in deciding that lawyers cannot act for clients with whom they arein an intimate and close personal relationship, and I adopt their reasoning without reservation. [20] I realize that the result of this decision may be to deprive the respondent of legal representation. However, while it isgenerally preferable for parties to have counsel rather than to proceed unrepresented, the lack of counsel does not in and of itself meanthat the respondent will be deprived of his fundamental right to justice.

In our courts, a very large percentage of litigants are self-represented. Judges work hard to ensure that the playing field is maintained as evenly as possible, particularly in cases where one side isrepresented and the other side is not. And in this particular case, the respondent will doubtless have the added benefit, not available tomost other self-represented parties, of behind-the-scenes legal advice from Ms. Da Fonte. [21] There will be an order removing Ms. Da Fonte as the respondent’s counsel of record. [22] The parties are at liberty to speak to the issue of costs on the next return date.

Should either party choose to do so, he orshe shall give notice of that intention, including any bill of costs that either may seek to file with the court on that date. As well, theparty seeking to argue costs shall confirm that intention by filing a Form 14C confirmation form with the court in the usual manner.