PHILIPPE ALBERT, Applicant, - v. -, 2023 NBKB 113

FDM-268-2011 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Date: June 22, 2023 Neutral citation: 2023 NBKB 113 BETWEEN: PHILIPPE ALBERT, Applicant, - and - LUCILLE ALBERT, Respondent. DECISION BEFORE: Madam Justice Marie-Claude Bélanger-Richard . AT: Moncton, New Brunswick. DATE OF HEARING: June 7, 2023 DATE OF DECISION: June 22, 2023 APPEARANCES : Monique Veillette, K.C., for the applicant; Céline Robichaud Fournier and Michel Boudreau, for the respondent .

Summary: Motion for removal on grounds of conflict of interest – Motion dismissed [TRANSLATION] BÉLANGER-RICHARD, J. OVERVIEW [ 1 ] Following the filing of proceedings by the respondent seeking a variation of the parenting arrangement and a variation of support for a child retroactive to August 2011, the applicant informed the respondent’s lawyer that she was in a position of conflict of interest and had to withdraw from the file. The respondent’s lawyer refused, and this led to the motion before me. [ 2 ] The conflict of interest alleged by the applicant involves a third party, C.L.

The applicant and C.L. began a romantic relationship in September 2019 and began cohabiting a few months later. Prior to this relationship, i.e., from December 2013 to April 2014, C.L. was Céline Robichaud Fournier’s client. Admittedly, Ms. Robichaud Fournier’s retainer with C.L. ended in 2014. Ms. Robichaud Fournier is now the respondent’s lawyer in this file, her retainer having begun in 2020. The applicant and the respondent were married, separated, and obtained a divorce in 2009. A child, E., was born of their union.

E. is now 15 years old. [ 3 ] The potential conflict of interest is said to arise from the fact that Ms. Robichaud Fournier allegedly received confidential information during the solicitor-client relationship with C.L. and that this confidential information is relevant to the current litigation between the applicant and the respondent, i.e., Ms. Robichaud Fournier’s current client. FACTS [ 4 ] The applicant’s three spouses are involved in this file. They are his two ex-spouses and C.L., his current spouse. At various times, Ms. Robichaud Fournier obtained a retainer agreement to represent these three spouses.

To grasp the backdrop against which my decision is fashioned, I must say something about these three spouses, their relationship with the applicant and Ms. Robichaud Fournier’s retainer with each of the spouses. I will proceed chronologically according to the retainer agreements obtained by Ms. Robichaud Fournier.

A) Spouse C.L. [ 5 ] In December 2013, C.L. leaves her then spouse. C.L. and her spouse have two children. C.L. retains Ms. Robichaud Fournier’s services. Proceedings are filed to determine a parenting arrangement and obtain support. C.L. maintains that she has a relationship of trust with Ms. Robichaud Fournier and confides in her the great distress she feels which results from the difficult situation in which she finds herself, i.e., a separation, a child who requires special medical care and an ex-spouse who threatens her. After the proceedings are filed and an interim order secured, C.L. informs Ms.

Robichaud Fournier, in April 2014, that she no longer wishes to pursue legal proceedings and that she needs to devote herself to her children and her personal well-being. Ms. Robichaud Fournier informs her that she can continue with the legal proceedings at her convenience. A few months later, C.L. rekindles her relationship with her then ex-spouse, and their relationship lasts about five years. [ 6 ] C.L. alleges that, as a result of the ending of her relationship in 2019, she then unsuccessfully attempts to contact Ms. Robichaud Fournier. Ms.

Robichaud Fournier alleges that she has found no confirmation whatsoever of any attempts by C.L. to contact her firm or herself, and she has no knowledge of any communications made by C.L. to retain her services in 2019. [ 7 ] In September 2019, C.L. meets the applicant and a few months later they begin cohabiting. C.L.’s two children also live with the applicant.

B) Spouse M.H. [ 8 ] M.H. and the applicant began cohabiting in August 2009, were married in 2012 and separated in February 2018. A child, El., was born from this relationship in 2012. [ 9 ] In February 2018, M.H. retains Ms. Robichaud Fournier’s services in connection with her separation from the applicant. In January 2020, divorce proceedings are filed, and the applicant is served at his residence where he lives with his spouse C.L.

Subsequently, an amended application is filed and served on the applicant. As part of these proceedings, M.H. files an affidavit in which certain allegations are made concerning the difficulties El. is experiencing with respect to the parenting time with the applicant. Ms. Robichaud Fournier represents M.H. in all these proceedings and the applicant raises no concerns regarding conflict of interest. [ 10 ] Owing to health problems, M.H. decides to file a notice of discontinuance of her divorce proceedings in June 2020. However, in September 2020, M.H. again files an application for divorce.

The applicant is served, once again, at the residence he shares with his spouse C.L. Again, Ms. Robichaud Fournier acts for M.H. in these new proceedings. In October 2020, M.H. and the applicant agree to an out-of-court settlement with the help of their respective lawyers. A consent order is signed, and the divorce is granted in December 2020. At no time does the applicant raise any concerns regarding conflict of interest with respect to Ms.

Robichaud Fournier in the context of this second divorce proceeding. [ 11 ] In June 2022, M.H. files a motion to vary requesting a variation of the parenting arrangement and a retroactive and prospective variation of the applicant’s support obligation to El. Ms. Robichaud Fournier acts for her in these proceedings. In August 2022, the applicant files a motion requesting that Ms.

Robichaud Fournier and the Droit Veritas Law law firm be disqualified from acting for M.H. by reason of an alleged conflict of interest. [ 12 ] Prior to the hearing of the motion filed by the applicant, M.H. and the applicant negotiate a settlement, and a Consent Order is signed by the court on April 27, 2023. The Consent Order states that the applicant has withdrawn his motion requesting that Ms. Robichaud Fournier and Droit Veritas Law be disqualified from acting by reason of a conflict of interest.

In the Consent Order, the parenting time that El. spends with the applicant must respect the views and preferences of the child, there is no provision for arrears of support payable by the applicant, and his support obligation to El. is varied so that the applicant pays less than the amount set out in the New Brunswick table based on his anticipated salary for the year 2023. For the purposes of this motion, the applicant was represented by a different lawyer than the one now acting for him in these proceedings.

C) Spouse L.A. (the Respondent) [ 13 ] The respondent and the applicant were married in 2001 and separated in 2009. A child, E., was born of their union. E. is now 15 years old. Following their separation, the respondent and the applicant enter into a separation agreement. In 2011, they obtain a divorce judgment. [ 14 ] In early 2020, the respondent retains Ms. Robichaud Fournier. M.H. encourages the respondent to retain Ms. Robichaud Fournier’s services, who was then M.H.’s lawyer.

At the time, the applicant is cohabiting with C.L. [ 15 ] It is not until 2022 that the respondent feels ready to file a motion to vary requesting a variation of the parenting arrangement, financial disclosure from the applicant and a retroactive and prospective variation of the applicant’s support obligation to E. In her affidavit, the respondent states that she feared and still fears the applicant. The requested variation of the parenting arrangement is due to the fact that E. is now 15 years old and wishes to decide how much parenting time she will spend with her father.

E. has always lived with the respondent and spent the majority of her time in her care. [ 16 ] For the respondent, the one and only issue in these proceedings concerns the applicant’s support obligation. Since 2009, the applicant has been paying child support in the amount of $500 per month. At the time, his annual income was $40,000. Although the applicant should have had to pay child support of $345 per month based on this income, he agreed to pay $500 per month. It appears that the applicant’s income has changed substantially over the last few years.

His anticipated income for 2023 is $130,000. [ 17 ] In April 2022, the applicant is served with the motion to vary filed by the respondent. By letter dated May 18, 2022, the applicant’s solicitor informs Ms. Robichaud Fournier of the existence of a conflict of interest and that she must withdraw from the file. Ms. Robichaud Fournier refuses. The applicant then files a motion for a declaration that Ms.

Robichaud Fournier and Droit Veritas Law are disqualified from acting for the respondent. [ 18 ] Prior to the hearing of the motion for removal, the respondent files a motion requesting that paragraphs 9, 10, 11, 12, 13, 19, 29, 31, 33 and Exhibit A of Céline Robichaud Fournier’s affidavit sworn on May 30, 2023, be sealed by reason of Ms. Robichaud Fournier’s duty of confidentiality to C.L. The applicant agrees to the requested remedy and the Court grants it.

POSITION OF THE PARTIES

A) The Applicant [ 19 ] The applicant claims that Ms. Robichaud Fournier received confidential information in the course of her solicitor-client relationship with C.L., his current spouse. Although no details are provided regarding this confidential information, the applicant alleges that a reasonable and well-informed person would not be satisfied that the confidential information received by Ms. Robichaud Fournier in the course of her solicitor-client relationship with C.L. would not be used in this litigation between the applicant and the respondent.

The applicant contends that this is a matter of appearance and perception. In the applicant’s view, Ms. Robichaud Fournier had breached her duty of loyalty. [ 20 ] The applicant insists that C.L., his current spouse, allegedly has information relevant to the issues between him and the respondent and that C.L. is a potential witness, which could possibly expose her to cross-examination by Ms. Robichaud Fournier. C.L. has not yet filed an affidavit in support of the applicant’s position in the variation proceedings filed by the respondent.

B) The Respondent [ 21 ] The respondent takes the position that there is no conflict of interest. Firstly, the respondent submits that C.L. is a former client and Ms. Robichaud Fournier is not acting under the current retainer against that former client. In fact, C.L. is not a party to these proceedings. [ 22 ] Secondly, the respondent argues that even if Ms. Robichaud Fournier has received some confidential information, the retainer that Ms. Robichaud Fournier had with C.L. is not sufficiently related to her current retainer with the respondent. The respondent adds that any information that Ms.

Robichaud Fournier may have received from C.L. during her four-month retainer in 2013-2014 has no relevance to this matter between the applicant and the respondent and that there is no risk of prejudice to C.L. [ 23 ] Thirdly, the respondent argues that she is entitled to retain counsel of her choice. She indicates that even in the event of a cross- examination of C.L., her lawyer is not in breach of any ethical obligation. [ 24 ] Finally, the respondent submits that the motion alleging a conflict of interest is a tactic designed to discourage her from pursuing her claims.

ISSUE [ 25 ] The only issue raised by this motion is whether Ms. Robichaud Fournier and the Droit Veritas Law law firm should be disqualified from acting for the respondent on the grounds of conflict of interest. LEGAL ANALYSIS [ 26 ] Two well-known basic principles of our judicial system are at odds in this case: the right of every litigant not to be deprived of his or her choice of counsel without good cause, and the integrity of our judicial system, which includes maintaining high ethical standards.

Part of these ethical standards is the duty of every lawyer to avoid conflicts of interest. [ 27 ] In Canadian National Railway Co. v. McKercher LLP , 2013 SCC 39 [ McKercher ] , McLachlin C.J. (as she then was) explained the role of the courts in resolving conflicts of interest as opposed to the powers of law societies to establish rules of professional conduct and regulate the practice of the legal profession: 13 Courts of inherent jurisdiction have supervisory power over litigation brought before them. Lawyers are officers of the court and are bound to conduct their business as the court directs.

When issues arise as to whether a lawyer may act for a particular client in litigation,

it falls to the court to resolve those issues. The courts’ purpose in exercising their supervisory powers over lawyers has traditionally beento protect clients from prejudice and to preserve the repute of the administration of justice, not to discipline or punish lawyers. 14 In addition to their supervisory role over court proceedings, courts develop the fiduciary principles that govern lawyers in their dutiesto clients.

Solicitor-client privilege has been a frequent subject of court consideration, for example. 15 The inherent power of courts to resolve issues of conflicts in cases that may come before them is not to be confused with the powersthat the legislatures confer on law societies to establish regulations for their members, who form a self-governing profession: MacDonaldEstate v. Martin, (SCC), [1990] 3 S.C.R. 1235, at p. 1244.

The purpose of law society regulation is to establish generalrules applicable to all members to ensure ethical conduct, protect the public and discipline lawyers who breach the rules — in short, thegood governance of the profession. 16 Both the courts and law societies are involved in resolving issues relating to conflicts of interest — the courts from the perspective ofthe proper administration of justice, the law societies from the perspective of good governance of the profession: see R. v. Cunningham,2010 SCC 10, [2010] 1 S.C.R. 331.

In exercising their respective powers, each may properly have regard for the other’s views. Yet eachmust discharge its unique role. Law societies are not prevented from adopting stricter rules than those applied by the courts in theirsupervisory role.

Nor are courts in their supervisory role bound by the letter of law society rules, although “an expression of aprofessional standard in a code of ethics... should be considered an important statement of public policy”: Martin, at p. 1246. [Emphasis added.] [28] In that same decision, McLachlin C.J. described the duty of loyalty as a duty that has three dimensions: (1) a duty to avoid conflicting interests; (2) a duty of commitment to the client’s cause; and (3) a duty of candour. [29] In this case, the applicant invokes Ms.

Robichaud Fournier’s breach of her duty to avoid conflicting interests as a breach of herduty of loyalty to C.L. [30] Although courts are not, in their supervisory role, bound by the letter of the standards set out in codes of professional conduct, thefact remains that those standards are important statements of public policy: McKercher, at para. 16.

In this case, both parties referred toseveral excerpts from the Code of Professional Conduct of the Law Society of New Brunswick and, in my opinion, the followingexcerpts dealing with conflicts of interest provide a clear understanding of a lawyer’s duties to his or her client in this regard: 3.4 Conflicts Duty to Avoid Conflicts of Interest 3.4-1 A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code. Commentary [1] Lawyers have an ethical duty to avoid conflicts of interest.

Some cases involving conflicts of interest will fall within the scope of thebright line rule as articulated by the Supreme Court of Canada. The bright line rule prohibits a lawyer or law firm from representing oneclient whose legal interests are directly adverse to the immediate legal interests of another client even if the matters are unrelated unlessthe clients consent. However, the bright line rule cannot be used to support tactical abuses and will not apply in the exceptional caseswhere it is unreasonable for the client to expect that the lawyer or law firm will not act against it in unrelated matters.

See also rule 3.4-2and commentary [6].

[2] In cases where the bright line rule is inapplicable, the lawyer or law firm will still be prevented from acting if representation of theclient would create a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by thelawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.

The risk must be more than amere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer. [...] Other Duties Arising from the Duty of Loyalty [7] The lawyer’s duty of confidentiality is owed to both current and former clients, with the related duty not to attack the legal work doneduring a retainer or to undermine the former client’s position on a matter that was central to the retainer. [...] Acting Against Former Clients 3.4-10 Unless the former client consents, a lawyer must not act against a former client in: (

a) the same matter, (

b) any related matter, or (

c) any other matter if the lawyer has relevant confidential information arising from the representation of the former client that mayprejudice that client. Commentary [1] This rule guards against the misuse of confidential information from a previous retainer and ensures that a lawyer does not attack thelegal work done during a previous retainer, or undermine the client’s position on a matter that was central to a previous retainer.

It is notimproper for a lawyer to act against a former client in a fresh and independent matter wholly unrelated to any work the lawyer haspreviously done for that client if previously obtained confidential information is irrelevant to that matter. [31] At the outset, it is important to note the distinction that exists in the rules that apply to conflicts of interest according to whetherone is dealing with former or current clients. As McLachlin C.J. stated in McKercher, at para. 23, a lawyer’s main duty to a former clientis to refrain from misusing confidential information.

With respect to a current client, the lawyer must neither misuse confidentialinformation, nor place himself in a situation that jeopardizes effective representation. In this case, the applicant admits that C.L. is aformer client of Ms. Robichaud Fournier. The issue in this case is therefore about receiving confidential information and its potentialmisuse by Ms. Robichaud Fournier to the prejudice of her former client C.L. [32] The leading authority on conflicts of interest is MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235.

Inthat case, the Supreme Court of Canada set out a two-part test for determining whether there is a conflict of interest:

(1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

(2) Is there a risk that it will be used to the prejudice of the client?

[ 33 ] The question as to what confidential information a lawyer may have received raises a dilemma, since it is inappropriate to disclose in subsequent proceedings the confidential information that is sought to be protected. In MacDonald Estate , Sopinka J. therefore set out a rebuttable presumption that a lawyer has confidential information where the lawyer’s new retainer is “sufficiently related” to the retainer agreement he had with his former client.

Sopinka J. states as follows, at para. 46: [46] [...] In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge.

Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden. [ 34 ] Recently, the New Brunswick Court of Appeal considered this notion of sufficiently related retainers in Bourgeois v.

R. , 2022 NBCA 62 , and stated, at para. 71: 71 Speaking to the issue of whether two retainers are related, Cromwell J.A. stated the following, in Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd. , 2008 NSCA 22 , [2008] N.S.J. No. 94 (QL) : Whether two retainers are related must be considered in light of the underlying purpose of the inquiry. In the MacDonald Estate analysis, the focus is on protection of the client’s confidential information.

In that context, two matters will be sufficiently related to trigger the principle if, as Goudge J.A. put it in Chapters at para. 30, “... it is reasonably possible that the lawyer acquired confidential information pursuant to the first retainer that could be relevant to the current matter.” The issue is not so much whether the subject-matter of the two retainers is the same, but whether confidential information learned in one would be relevant to the other.

Ultimately, the “overriding policy” must be “that the reasonably informed person would be satisfied that no use of confidential information would occur.”: MacDonald Estate , p. 1260. [para. 50] [ 35 ] In Bourgeois , the Court of Appeal held that the trial judge had not erred in determining that the prosecutor had not received relevant confidential information, which was at risk of being misused or had been used in the trial involving the accused. Consequently, the rebuttable presumption did not apply. [ 36 ] In Sandhu v.

Mangat , 2018 BCCA 454 (B.C.C.A.) , the applicant sought to have his wife’s lawyer disqualified from acting in the divorce proceedings because that lawyer had represented the applicant’s brother in divorce proceedings two years earlier. The applicant alleged that the lawyer had received confidential information while representing his brother, including information about a loan between the brothers and their mother’s capacity to look after their children. The trial judge granted the motion to remove the lawyer. The wife appealed.

The British Columbia Court of Appeal allowed the appeal, holding that the two retainers were not sufficiently related and stating as follows: [TRADUCTION] 43 On ne saurait trop sous-estimer le fait que les deux mandats doivent être suffisamment liés. En l’absence d’une telle connexité, les préoccupations relatives au mauvais usage de renseignements confidentiels ne sont pas en cause. Comme l’a expliqué le juge d’appel Thackray dans l’affaire Kaila c. Khalsa Diwan Society , 2004 BCCA 236 (C.A.C.-B.), au para. 63 : [63]...

La question à laquelle [ Succession MacDonald ] exige qu’on réponde est de savoir si l’avocat a pu obtenir des renseignements se rapportant à la question en litige en l’espèce et s’il y avait un risque que ces renseignements confidentiels pertinents soient utilisés au détriment du client.

L’avocat ne sera automatiquement déclaré inhabile à agir en vertu de [ Succession MacDonald ] que s’il a appris des renseignements confidentiels pertinents : « Un avocat qui a appris des faits confidentiels pertinents ne peut pas agir contre son client ou son ancien client. » (p. 268) (Souligné dans l’original.) 44 Les mêmes enjeux se posent s’agissant d’avocats qui défendent des thèses opposées, comme le montrent les extraits suivants tirés de l’arrêt Brookville Carriers :

[51] … [L]a connexité entre les deux mandats doit être très étroite de sorte que l’avocat qui reçoit le nouveau mandat attaque ou mine la valeur du travail juridique fourni à l’ancien client ou change effectivement de camp sur une question qui était au cœur du mandat précédent . ... [55] ...

À cette fin, la notion de connexité est beaucoup plus étroite et vise un objet entièrement différent de la notion telle qu’elle est appliquée dans l’analyse élaborée dans l’arrêt Succession MacDonald. (Soulignement ajouté.) 45 Selon ces propos, l’exigence relative à la [TRADUCTION] « connexité suffisante » est d’autant plus accentuée pour ce devoir général de loyauté, puisqu’elle requiert une connexité [TRADUCTION] « très étroite » entre les deux mandats et l’adoption d’une thèse opposée relativement à une question qui est au [TRADUCTION] « cœur » du mandat précédent. 46 Il incombe à la

partie qui prétend qu’un conflit existe de démontrer que les deux mandats sont suffisamment liés, et cette conclusion doit être étayée, selon la prépondérance des probabilités, par des éléments de preuve clairs et convaincants, et non par de simples affirmations : CLS Catering Services Ltd. c. Mahil , 2011 BCCA 321 (C.A.C.-B.), aux par. 25 à 30 ; Soleil Hospitality Inc. c.

Louie , 2010 BCSC 1954 (C.S.C.-B.), au par. 32 , confirmé à 2011 BCCA 120 (C.A.C.-B. [en cabinet]) et 2011 BCCA 196 (C.A.C.-B.) (en révision) . 47 L’appelant soutient que la juge siégeant en cabinet n’a pas procédé à une véritable analyse visant à déterminer si les deux affaires pour lesquelles les services de M e Ellis avaient été retenus étaient même liées, ou du moins suffisamment liées, pour que le prononcé d’une ordonnance de révocation soit justifié.

L’intimé fait état des éléments de preuve dont disposait la juge en cabinet pour étayer son argument selon lequel les mandats étaient liés s’agissant des questions relatives au prêt consenti par Roger aux parties et de la capacité de la mère de l’intimé d’aider à prendre soin des enfants. Roger soutient que les conclusions de fait tirées par la juge sur cette question sont déterminantes et amplement étayées par la preuve. 48 Je souscris à la prétention de l’appelant.

Sur cette question, la juge en cabinet s’est contentée de dire qu’[TRADUCTION] « [a]près avoir examiné tous les éléments de preuve et toutes les circonstances, je suis convaincue que les deux affaires sont suffisamment liées, car certaines questions se recoupent et se chevauchent » (au par. 27). Elle n’a pas expliqué quelles questions se recoupaient et se chevauchaient et comment cela donnait une [TRADUCTION] « connexité suffisante » aux deux mandats pour engager le principe énoncé dans l’ arrêt Succession MacDonald .

Elle n’a pas non plus expliqué comment la connexité entre les deux mandats était suffisamment étroite de sorte que M e Ellis [TRADUCTION] « changeait effectivement de camp dans une affaire qui était au cœur du mandat précédent », comme le décrit l’arrêt Brookville Carriers . Le simple fait qu’il y ait des questions qui [TRADUCTION] « se recoupent et se chevauchent » ne constitue pas, sans plus, une connexité suffisante pour engager ces principes importants. 49 En outre, les éléments de preuve ne permettent pas de conclure à la connexité suffisante des deux mandats.

Il importe de souligner que chaque mandat concernait des parties différentes qui soulevaient des questions relevant du droit de la famille dans un contexte différent. La crainte de l’intimé portait sur deux questions ayant certains points communs — le prêt consenti par Roger et la capacité de la mère de l’intimé de s’occuper des enfants — mais lorsque chacune est évaluée dans le bon contexte, il appert que les questions n’étaient pas les mêmes dans les deux mandats. [Emphasis added.] [ 37 ] In this matter, C.L. alleges that she confided openly and completely in Ms.

Robichaud Fournier, sharing her fears with her [TRANSLATION] “as the situation had become dangerous for the children” and [TRANSLATION] “a wide range of personal information.” In her affidavit sworn on March 27, 2023, at para. 17, C.L. states that [TRANSLATION] “[...] she knows a lot about me, my private life, my children’s lives, my strengths, my weaknesses, that I do not like conflict, that I avoid unhealthy situations, etc.” [ 38 ] Ms.

Robichaud Fournier states that any information received from C.L. from December 2013 to April 2014 is not relevant to her current retainer with the respondent and that she has made no use of any information received in 2014 in the current retainer. As for the current retainer, Ms. Robichaud Fournier states that the dispute is concerned mainly with the applicant’s support obligation to his daughter E., that C.L.’s income or assets are not relevant to the dispute and that C.L. is not requesting parenting time with E.

[ 39 ] According to the applicant, the respondent made surprising allegations about him in the proceedings taken in April 2022. The applicant provides no explanation concerning these allegations. In addition to the variation of his support obligation, which he challenges, the applicant also opposes the application to vary his parenting time in order to respect the views and preferences of his child E., now 15 years old.

In his affidavit sworn on June 1, 2022, at para. 10, the applicant states as follows: [TRANSLATION] “I will need to understand the reasons for this course of action, which will no doubt require the testimony of all the adults involved in the child’s life, including my current spouse.” [ 40 ] In the applicant’s view, there is no doubt that Ms. Robichaud Fournier received confidential information from C.L. and, in support of his position, he cites S.D. v. J.D., 2016 NBQB 175 . In that case, the applicant had been represented by a lawyer in a family law matter that had resulted in proceedings and an order.

The lawyer subsequently joined another law firm. The applicant commenced new proceedings against her ex-spouse and then noticed that her former lawyer was working with the same law firm that was representing her ex-spouse. The applicant then filed a motion requesting that the lawyers in this law firm be disqualified from acting on the grounds of conflict of interest. Chief Justice DeWare granted the motion, stating that it would be an odd case if there were no disclosure of confidential information in a family law file, stating as follows: 24 In this case, there is no issue but that Ms.

Léger-Nowlan did have confidential information which arose from her solicitor-client relationship with Ms. D. Further, the matter for which Ms. Leger-Nowlan was retained by Ms. D. is the exact same matter for which Ms. Peters has been representing Mr. D., that being an acrimonious custody dispute. In regard to the first question, there is no issue – Ms. Leger-Nowlan did receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand. 25 This file has been acrimonious for many years and has been back and forth before the Courts since 2006 at the time Ms.

Léger- Nowlan was involved. There is no mystery in the fact that clients in family law matters, particularly contentious custody disputes, frequently disclose extremely personal information to their lawyers. It would be an odd case where a significant disclosure of personal information relevant to the issues did not take place in a file of this nature. [Emphasis added.] [ 41 ] Although I have no doubt that Ms.

Robichaud Fournier received confidential information from C.L. in 2013-2014 in connection with the litigation between C.L. and her ex-spouse, the fact remains that that retainer with C.L. must be sufficiently related to Ms. Robichaud Fournier’s current retainer with the respondent. The onus is on the applicant to show that the retainers are sufficiently related. On the other hand, there will be no conflict of interest if a reasonably informed member of the public would be satisfied that no confidential information relevant to the lawyer’s current retainer has passed, as alleged by Ms. Robichaud Fournier. Ms.

Robichaud Fournier bears the burden of proof in this regard ( see MacDonald Estate , para. 46 ). [ 42 ] Ms. Robichaud Fournier’s current retainer is to represent the interests of an ex-spouse of the applicant in family law proceedings. The issues are parenting time between the applicant and his 15-year-old daughter, and the applicant’s retroactive and prospective support obligation. Despite the applicant’s hue and cry about parenting time with his daughter E., this issue does not require the involvement and [TRANSLATION] “testimony of all the adults involved in the child’s life,” as the applicant alleges.

What matters is the father-daughter relationship, since the child is now 15 years old, she has the right to express her views and preferences, and the court must take this into account in determining the child’s best interests. I note that at the time the respondent filed her proceedings, the child E. had not visited her father for some time, and the applicant had not filed any proceedings to re-establish his parenting time with E.

Finally, although the applicant seems outraged to hear that his 15-year-old daughter might want to decide how much parenting time she spends with him, he has nevertheless agreed that his other daughter, El., who is 12 years old, can do it. Thus, it is clear to me that the real and only issue in the proceedings brought by the respondent is the applicant’s obligation to support their daughter on a prospective basis, but also retroactively to 2011.

Since the child has always spent the majority of her time in the care of the respondent since the separation, the determination of the applicant’s support obligation requires only proof of his annual income for all the years for which a variation of support is sought. [ 43 ] Let us now turn to the retainer that Ms. Robichaud Fournier accepted from C.L. in December 2013. C.L. had separated from her then spouse and alleged that he had threatened her and the children. C.L. felt [TRANSLATION] “overwhelmed” by the events she was experiencing, including the need for special medical care for one of her children.

At the time of the retainer, C.L.’s children were 3 years old and 15 months old. In this context, C.L. had shared information about her private life, her fears, and her strengths and weaknesses with Ms. Robichaud Fournier. [ 44 ] In April 2014, C.L. terminated Ms. Robichaud Fournier’s retainer and shortly afterwards, she rekindled her relationship with her ex-spouse. Their relationship lasted another five years. When C.L. separated again from her ex-spouse, she retained another lawyer to

represent her. In her affidavit sworn on March 27, 2023, C.L. mentioned none of these radical changes, namely her reconciliation with her ex-spouse, the fact that their family relationship resumed for a period of five years and the fact that she had been represented by another lawyer following their second separation.

Contrary to what the applicant’s lawyer argued, these facts are very important and the fact that C.L. did not disclose them is also very significant. [ 45 ] In my opinion, by avoiding mentioning these radical changes in her personal life in her affidavit, C.L. wanted to give the court the impression that the confidential information she had disclosed to Ms. Robichaud Fournier in 2013-2014 was still very relevant to her current personal situation.

And yet, the radical changes that occurred after 2014 in C.L.’s personal situation had the effect of diminishing the relevance of the confidential information imparted to Ms. Robichaud Fournier. I will explain. [ 46 ] It seems obvious to me that there has been a significant upheaval in C.L.’s life as a result of her reconciliation with her ex-spouse, against whom she had levelled serious allegations. The events that marked C.L.’s life after 2014 obviously influenced, if not changed, her on a personal level. The fact that C.L. preferred to conceal the radical changes that occurred in her life after the end of Ms.

Robichaud Fournier’s retainer prompts me to conclude that these changes had a significant impact on C.L. and materially diminish the relevance of the confidential information received during the retainer. As Wilkinson J. noted in Millhouse v. Millhouse , 2012 SKQB 499 , at para. 40 , [TRADUCTION] « [l]es croyances et les perspectives en matière de parentage ne sont pas immuables. Elles peuvent varier d’un enfant à l’autre, d’une année à l’autre et d’une relation à l’autre ». [ 47 ] In any event, I see no relevance whatsoever of the confidential information that Ms.

Robichaud Fournier received from C.L. to the respondent’s current retainer. As I have explained, the real issue between the applicant and the respondent is the applicant’s support obligation. For the purposes of these proceedings, only the applicant’s income is relevant since the child has spent the majority of her time in the care of the respondent since the separation. The evidence discloses no relationship between the applicant’s income and C.L.

In light of the evidence produced by the parties, I cannot think of any evidence concerning the applicant’s income that C.L. would be likely to provide in these proceedings and that would be related to the confidential information she passed on to Ms. Robichaud Fournier in 2013-2014. [ 48 ] The applicant alleges that there is an appearance of conflict because Ms. Robichaud Fournier is not on the same side as her former client and C.L. could be subject to cross-examination by her former lawyer as a witness in these proceedings. It is a pure coincidence that a former client of Ms.

Robichaud Fournier is now the spouse of the applicant against whom Ms. Robichaud Fournier has filed proceedings on behalf of a new client. As Rideout J. stated in LeBlanc v. Allain , 2003 NBQB 141 , [TRADUCTION] « [o]n ne devrait pas nier à une personne l’avocat de son choix sur le seul fondement des apparences ». [ 49 ] Accordingly, I find that the former retainer is not sufficiently related to the current retainer accepted by Ms.

Robichaud Fournier, and I add that a reasonably informed member of the public would not be satisfied that relevant confidential information, namely information concerning this dispute between the applicant and the respondent, was passed on by C.L. to Ms. Robichaud Fournier. [ 50 ] As for the second prong of the test set out to determine whether a conflict of interest exists, namely the misuse of confidential information by the lawyer, there is no need to consider it given my finding on the first question. [ 51 ] The motion to remove Ms.

Robichaud Fournier from this file involving the respondent is therefore dismissed. [ 52 ] If there is any doubt as to the correctness of my decision, I am further of the opinion that the motion to remove Ms. Robichaud Fournier was brought as a tactical weapon designed to thwart proceedings undertaken by the respondent, which also constitutes sufficient grounds to dismiss this motion for removal. I will explain. [ 53 ] The respondent alleges that the motion to remove her lawyer is a tactic designed to discourage her from pursuing her application for variation of child support.

In this regard, Cornell J. commented as follows:

[TRADUCTION] 28 Il y a également lieu de craindre que le recours à une motion en révocation d’un avocat puisse être utilisé comme une arme tactiquedans le cadre du processus judiciaire. Cette forme de [TRADUCTION] « litige par révocation » est conçue pour obtenir un avantagetactique du fait de l’augmentation du coût et de la durée de la procédure et de la prolongation du supplice. [...] 29 Les mêmes préoccupations concernant les [TRADUCTION] « litiges par révocation » ont été soulevées dans l’affaire SharpElectronics of Canada Ltd. c. Battery Plus Inc, [2000] O.J. No. 2642 (C. sup. Ont.).

Le juge Keenan a déclaré ce qui suit auparagraphe 20 : [TRADUCTION] Depuis l’arrêt prononcé par la Cour suprême dans l’affaire Succession MacDonald, les tribunaux ont constaté une augmentationspectaculaire du nombre d’affaires dans lesquelles des motions sont déposées en vue de révoquer un avocat d’un dossier. Les tribunauxsont devenus de plus en plus attentifs à l’utilisation des [TRADUCTION] « litiges par révocation » entrepris par une

partie pour obtenirun avantage tactique sur son adversaire. 30 Ce phénomène a été reconnu par le juge Esson, juge en chef de la Cour suprême [de la Colombie-Britannique], dans l’affaireManville Canada Inc. c. Ladner Downs (1992), (BC SC), 88 D.L.R. (4th) 208 (C.S.C.-B.), à la p. 224 : [TRADUCTION] Nul doute que certaines de ces demandes visent à éviter un préjudice réel. Il est toutefois manifeste qu’un grand nombre de ces demandesconstituent tout simplement un moyen, parmi tant d’autres, de déstabiliser la

partie adverse en augmentant le coût et la durée del’instance et en prolongeant le supplice. En supposant que ces demandes deviennent pratique courante dans notre système judiciaire, ilest peu probable que cela aura une incidence sur l’amélioration des normes professionnelles dans un domaine où il ne semble pas existertrop de problèmes graves. Cependant, cela pourrait compromettre considérablement la capacité des tribunaux de rendre justice en tempsopportun. (Hermant c. Secord, 2010 ONSC 6444 (C. sup. Ont.) [54] The applicant never raised a conflict of interest against Ms.

Robichaud Fournier when she represented his ex-spouse M.H. duringthe period from 2019 to August 2022. Yet, the applicant was cohabiting with C.L. at the time. M.H.’s claims were similar to therespondent’s claims. It was only when M.H. and the respondent each independently filed a motion to vary that the applicant raised theissue of conflict of interest with Ms. Robichaud Fournier.

It is clear that the applicant must have been very concerned by the financialclaim made in these motions to vary, since his two ex-spouses were claiming child support retroactive to 2011 and the applicant’sincome has increased substantially since 2011. [55] In this matter, Ms. Robichaud Fournier is not acting against her former client C.L. The applicant alleges that C.L. could,however, be subject to cross-examination by her former lawyer, Ms. Robichaud Fournier, in the event that C.L. files an affidavit insupport of the applicant’s position.

None of the parties has produced or referred to any authority in which a court has found that aconflict of interest exists in such circumstances. On the contrary, Cornell J. stated as follows in Hermant v. Secord, supra, at para. 33: [TRADUCTION] 33 Outre cela, Mme Chenier-Secord n’est pas

partie à la présente instance. L’avocat de M. Secord a admis qu’il n’existe aucun jugementpublié qui aille jusqu’à assurer la protection des renseignements confidentiels fournis à un tiers et que si je décidais de le faire, je créeraisune nouvelle règle de droit. Accéder à cette demande reviendrait à étendre la protection des renseignements confidentiels jusqu’à desconfins presque illimités, et je refuse de le faire. [56] In Sandhu, the British Columbia Court of Appeal, referring to Cromwell J.’s decision in Brookville Carriers Flatbed GP Inc. v.

Blackjack Transport Ltd. , 2008 NSCA 22 , stated that the duty of loyalty to a former client may, in very limited circumstances , extend beyond the duty of confidentiality. However, it held that this statement did not apply where a former client was merely a witness in a subsequent proceeding. The Court stated as follows, at para. 54: [TRADUCTION] 54 Le simple fait qu’un avocat adopte une position contraire à celle qu’il avait adoptée pour un ancien client qui est témoin dans une instance en cours est loin des circonstances décrites dans l’arrêt Brookville Carriers .

Dans de telles circonstances, il est difficile d’imaginer comment on pourrait établir une connexité suffisamment étroite entre les deux mandats pour engager ce devoir général de loyauté envers un ancien client. [ 57 ] The applicant alleges that he raised the issue of conflict of interest without delay after being served with the respondent’s motion to vary. That is undisputed in this case. However, I cannot ignore the fact that the applicant never raised a conflict of interest during an extended period of several years when Ms.

Robichaud Fournier was representing another of his ex-spouses in a similar family law matter and that, at that same time, the applicant was cohabiting with C.L. Moreover, the applicant agreed to withdraw his motion to remove Ms. Robichaud Fournier in the other file involving M.H. when an out-of-court settlement was reached and approved by the court. [ 58 ] In my opinion, the position taken by the applicant in the past and in the various files casts serious doubt on the applicant’s good faith in filing this motion to remove Ms. Robichaud Fournier.

I find that the applicant initiated these proceedings for removal to discourage the respondent from pursuing her claims. COSTS [ 59 ] Both parties are seeking costs and have told the court that they spent more than $10,000 in legal fees on the motion for removal. [ 60 ] Rule 59.03 of the New Brunswick Rules of Court requires the court to fix costs on a contested motion if it is satisfied that the motion ought not to have been brought or opposed. Rule 59.03 reads as follows: 59.03 Costs on a Contested Motion

(1) Where, on the hearing of a contested motion, the court is satisfied that the motion ought not to have been brought or opposed, the court shall fix the costs of the motion and may order them to be paid forthwith.

(2) Subject to paragraph (1), the judge hearing a motion shall fix the costs thereof. [ 61 ] The hearing of the motion lasted less than a day, but the parties had submitted extensive briefs in preparation for the hearing. This motion raised an important and complex issue. Much was at stake for both sides on this motion. An important factor in relation to costs is my conclusion that I have serious doubts about the applicant’s good faith in proceeding with this motion for removal.

In my view, the applicant acted strategically to discourage the respondent from continuing with the proceedings filed, which seek child support retroactive to 2011. Ultimately, the respondent was successful, and the applicant’s motion is dismissed. [ 62 ] Accordingly, I award costs of $5,000 to the respondent, payable by the applicant no later than July 21, 2023. The only disbursements incurred by the respondent are the cost of photocopies, but that cost was minimal.

I will therefore award no disbursements. [ 63 ] Since the applicant has not yet disclosed all the financial information required for a determination of the matter between the applicant and the respondent, it is important that this decision be issued as quickly as possible in order to advance the matter. Accordingly, I invoke ss. 24(2) of the Official Languages Act , S.N.B. 2002, c. O-0.5 , to have this decision published in the first instance

in the French language and, thereafter, at the earliest possible time, in the English language. DATED at Moncton, New Brunswick, this 22nd day of June, 2023. _____________________________________ Justice Marie-Claude Bélanger-Richard Court of King’s Bench of New Brunswick