Windsor-Essex Children’s Aid Society v. B.D., 2013 ONCJ 43

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 one or more of subsections 45(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 . . . 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) or 76(11) (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. COURT FILE No.: 415/11 DATE: 2013-02-04 Citation: Windsor-Essex Children’s Aid Society v. B.D., 2013 ONCJ 43 ONTARIO COURT OF JUSTICE BETWEEN: WINDSOR-ESSEX CHILDREN’S AID SOCIETY, Applicant — AND — B.D. Respondent Before Justice Barry M.

Tobin Heard on January 28, 2013 Endorsement released on February 4, 2013 Frank Philcox ..................................................................................................... for the applicant Kendal McKinney ........................................................ on behalf of D.D., Solicitor for respondent TOBIN J.:

ENDORSEMENT [1] The issue on this motion is whether D.D. should be removed as solicitor of record for the respondent. The solicitor isthe respondent’s father. 1: FACTS [2] The Society started a child protection application on August 8, 2011 against the mother. It sought a finding that C.T.D.-T., born […], 2011, ("the child") is in need of protection under Child and Family Services Act, subclause 37(2)(b)(i).

The dispositionrequested was that the child be placed in the care of her paternal grandmother subject to Society supervision for a period of six monthsand the mother’s access to the child be supervised. [3] The mother, represented by counsel (not then D.D.), filed an Answer in which she sought specified access with thechild. [4] The Society amended its Application on May 7, 2012.

Instead of requesting an order placing the child in the care of thepaternal grandmother subject to terms of supervision, the Society requested an order placing the child in her custody pursuant to Childand Family Services Act s. 57.1. [5] The mother's amended Answer sought the same relief as originally requested: a six month supervision order withaccess. In her Answer the mother disclosed that the child’s father died on April 28, 2012. [6] The case was placed on the court's trial list in July 2012.

It was not reached during the fall trial sittings. [7] The mother filed a Notice of Change in Representation on November 29, 2012. It named her father, D.D. as her newlawyer (“D.D.”). [8] The Society brought this motion very shortly afterward. 2: POSITION OF PARTIES 2.1 The Society [9] The Society argues that the lawyer must be removed as solicitor of record because: 1. He is too personally involved in this case as a father and grandfather to be able to provide objective representation to themother. 2. He is not able to provide effective or competent counsel to the mother.

Though a lawyer for 30 years, he has noexperience in child protection matters. 3. He will be a witness at the hearing. 2.2 The Mother [10] That position of the mother is the court should not interfere with her choice of lawyer because: 1. D.D. is not adverse in interest to the mother, his daughter. 2. Though he has no child protection experience, he has been a lawyer for 30 years. This should not be a ground to disqualify himfrom acting as counsel. 3. It is at best speculative that D.D. will be a witness. 3: LEGAL CONSIDERATIONS [11] The mother is entitled to be represented by a lawyer and to change lawyers.

See Family Law Rules subrules 4(1)(

b) and(10)(b). [12] D.D. is a lawyer allowed to practice law in Ontario as a barrister and solicitor and to represent the mother in thisproceeding unless removed by court order. See Law Society Act, R.S.O. 1990 cL.8, ss. 27, 62(0.1) and (1) and By-law 4. [13] A court should not lightly prevent a litigant from choosing counsel. See Urquhart v. Allen Estate, [1999] O.J. No. 4816(Ont. S.C.J.) at para. 19. It is a fundamental principle that a litigant's choice of counsel should only be infringed in clear cases. SeeJudson v. Mitchele, 2011 ONSC 6004 , [2011] O.J. No. 4914 (Ont.

S.C.J.) at para. 23. [14] The jurisdiction to make an order removing counsel is found in the inherent right of the court to determine, in a judicialmanner, to whom it will give audience. A motion to remove an opposing solicitor is not brought pursuant to any statute or rule. SeeNewmarch Mechanical Constructors Ltd. v. Hyundai Auto Canada Inc. (1992), 13 C.P.C. (3d) 349 (Ont. Master) at para. 11 andR.(C.) v Children’s Aid Society of Hamilton (2004), (ON SC), 4 R.F.L. (6th) 98 (Ont.

S.C.J.) at para. 32. [15] In R. (C.) v Children’s Aid Society of Hamilton, supra. at para. 34 the court stated: “The standard for the removal of counsel is an objective one, which is that of a reasonably informed member of the public. The issue iswhether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the

removal of the solicitor.” [16] There are two competing values presented and which must be considered in this case; (1) maintaining the integrity of theadministration of justice and (2) the right of litigants not to be lightly deprived of counsel of their choice. When balancing these valuesthe predominant consideration is the integrity of the justice system. See McDonald Estate v. Martin (SCC), [1990] 3S.C.R. 1235, per Justice Cory at paras. 57 and 58 and Kam v. Hermanstyne, 2011 ONCJ 101 , [2011] O.J. No. 1019 (Ont. C.J)at para. 11.

Personal Relationship [17] The presence of a personal relationship between the lawyer and client may give rise to a conflict of interest that requiresthe lawyer to be removed. [18] Rule 2.04 of the Rules of Professional Conduct of the Law Society of Upper Canada defines a "conflict of interest" or"conflicting interest" as one, "(

a) that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client..." [19] The commentary to this rule states, in part: "Where a lawyer is acting for a friend or family member, the lawyer may have a conflict of interest because the personal relationshipmay interfere with the lawyer's duty to provide objective, disinterested professional advice to the client." [20] These rules of professional conduct are not binding upon courts but are persuasive. Their importance was recognized bythe Supreme Court of Canada in McDonald Estate v. Martin, (SCC), [1990] 3 S. C. R. 1235.

See Urquhart v. AllenEstate, supra at para. 16. [21] Courts have tended to disqualify counsel where the lawyer and client have a personal relationship, usually described asintimate and emotional. See for example, McWaters v. Coke, 2005 ONCJ 73 , [2005] O.J. No. 996 (Ont. C.J.) and Kam v.Hermanstyne, supra. [22] Where a personal relationship is found to exist, the court must consider whether there remains the "...necessary degree ofindependence and detachment..." to allow the solicitor to remain as counsel. See Chouinard v. Chouinard, (ON SC),[2007] O.J. No. 3279 (Ont. S.C.J.) at para. 27.

Lawyer As Witness [23] The Rules of Professional Conduct also address the lawyer as a witness.

Rule 4.02(2) provides: "Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appearsas advocate shall not testify before the tribunal unless permitted to do so by the rules of the court or the rules of procedure of the tribunal,or unless the matter is purely formal or uncontroverted." [24] The commentary to this rule states in part: "The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer." [25] In the Urquart decision – which dealt with a motion to remove a lawyer because he was required to give evidence –Justice Gillese (as she then was) considered case law and professional conduct rules in concluding that the imposition of the hardshipoccasioned upon a client by removing a lawyer of choice "should be only to relieve the risk of real mischief and not a mere speculation ofmischief." [26] More recently, the court in Karas v.

Ontario, [2011] ONSC 5181 (Ont. Master) at para. 30, sets out the factors to beconsidered on a motion to remove counsel on the basis that counsel will be a witness as follows: "When considering the removal of a lawyer from the record on the basis that the lawyer will also be a witness, the court adopts a flexibleapproach and considers each case on its merits. The Divisional court in Heck v. Royal Bank, [1992] O.J. No. 2581 (Ont. Div. Ct.)[hereinafter Essa] at para. 48, set out a number of factors which should be considered on a motion to remove a lawyer on the ground thatthe lawyer will be a witness at trial.

The factors include: • the stage of the proceedings; • the likelihood that the witness will be called; • the good faith (or otherwise) of the party making the application; • the significance of the evidence to be led; • the impact of removal counsel on the party's right to be represented by counsel of choice; • whether the trial is by judge or jury; • the likelihood of a real conflict arising or that the evidence will be "tainted"; • who will call the witness if, for example, there is a probability that counsel will be in a position to cross-examine a favourable

witness, a trial judge may rule to prevent that unfair advantage arising; • the connection or relationship between counsel, the prospective witness and the parties involved in the litigation." Lack of Experience [27] Counsel did not cite any cases dealing with removal of counsel on the grounds of lack of experience in a complex area ofthe law. I have considered two cases. The question of disqualifying counsel on the basis of competence was considered in Milligan, Re(1991), 1 C.P.C. (3d) 12. The court held at paras. 11 and 12 as follows: "11.

A member of the bar in good standing has the right, at least by implication under the provisions of s. 29 of the Law Society Act,R.S.O. 1980, c. 233, to appear in any court in Ontario… 12. The inherent right of a trial judge to control his own court process does not carry with it the right to choose which counsel are toappear before him. He must take them as they come; the good with the bad; the competent with the incompetent; the articulate with theinarticulate; the polite with the impolite; the succinct with the prolix.

The luxury of picking and choosing is not his to enjoy." [28] Some doubt about this proposition was raised in obiter in R. v. Romanowicz, (ON CA), [1999] O.J.No. 3191 (Ont. C.A.) when the court stated: "70. The second decision, Milligan, Re (1991), 1 C.P.C. (3d) 12 (Ont. Gen.Div.), arises out of unusual circumstances. A judge of theProvincial Division refused to proceed with a trial as long as Mr. Milligan appeared for the Crown. The judge took this positionbecause, in his view, Mr.

Milligan had made improper comments before another judge concerning a ruling the Provincial Court judgehad made in another case. … 72. Milligan, Re involved counsel and not an agent who was not a lawyer. The court's power to deny audience to a lawyer raisesdifferent considerations from those raised in this case.

We do not address that issue in these reasons, but should not be taken as agreeingwith Dilk J.'s observation that trial judges are powerless to prevent representation by incompetent counsel." [29] Having regard to these cases and the values that must be considered on a motion to remove a solicitor, representation byincompetent counsel may be prevented if necessary to maintain the integrity of the administration of justice. 4: APPLICATION OF LEGAL PRINCIPLES TO THE FACTS OF THIS CASE 4.1 Personal relationship [30] The Society has been involved with the mother and child since the birth of the child.

Before the child protectionproceedings were started D.D. assisted the mother in her dealings with the Society. He has also made his position known regarding themother and child to the Society shortly after the birth of the child. [31] He expressed concerns to the Society worker about the paternal grandmother. This is the person with whom the mother,child and father (who is now deceased) resided after the birth of the child.

D.D.'s concerns were investigated and in the opinion of theSociety worker were not protection concerns. [32] In one meeting with the Society worker D.D. expressed the concern that he was not being heard. [33] In his correspondence to the Society dated August 23, 2011, D.D. referred to his concerns about his granddaughter. Heviewed his interest to be in line with that of his daughter. He looked forward to participating in mediation where "all interested parties"could "state their goals and visions" for the child.

He believed that the grandparents, including himself, indicated a desire to be involvedin protecting and raising the child. [34] In correspondence dated August 26, 2011, D.D. described himself as a concerned father and grandfather. He suggestedthat he could be a supervisor of the child.

This letter also revealed his enmity toward the paternal grandmother and a challenge to thenature of her involvement with the child and the mother. [35] D.D. remained involved and participated in a Family Group Conference held in March 2012. [36] D.D. has access with the child independent to that of the mother. [37] All the while D.D. was involved with the Society concerning this matter, the mother has been represented by her ownlawyer. [38] The uncontradicted evidence on this motion is that the mother has cognitive limitations that affect her ability to care forthe child.

The mother relies upon and is influenced by her father. The mother describes her father as her primary caregiver andguardian. [39] The affidavit relied upon by the mother on this motion is stated to have been written by D.D. and explained to her. [40] In the affidavit filed by the mother on this motion, she stated that the plan of care for the child will likely see the childlive with the paternal grandmother. The legal basis for this remains an issue. I understand this to mean that the mother is opposed to acustody order being granted to the paternal grandmother.

This is consistent with the concerns expressed by D. D. about the level ofcontrol the paternal grandmother will have should she be granted custody of the child.

[ 41 ] In a letter D.D. wrote to the mother's lawyer, a copy of which was provided to the Society's counsel, he asked why he was not provided with the Society's booklet entitled "Caregivers Handbook." He also asked why the Society was not looking at all options for the child. He stated that he has come to the conclusion that a "crown wardship and private adoption would be the best thing" for the child.

The letter does not explain how his position would take into account the mother and child having ongoing contact. [ 42 ] I have no doubt that D.D. is well-intentioned and truly cares for the mother and granddaughter. [ 43 ] I find that for a considerable period of time, D.D. has been involved in a personal and emotional way with the mother and her relationship with the child. He has a personal interest in the outcome of the case in that it will determine the nature of the relationship the mother and child will have as well as his own relationship with the child.

His feelings toward the paternal grandmother and his view of the role she should have in the care and upbringing of the child cloud his ability to give objective, disinterested and professional advice to the mother. This is of considerable concern given her cognitive limitations and her dependence upon him. [ 44 ] The conflict of interest between father and the mother is found in these circumstances.

On the evidence, the necessary degree of detachment needed by a solicitor is absent. 4.2: Lack of Experience [ 45 ] The evidence in this case does not disclose a level of incompetence so great that to allow D.D. to appear as counsel would undermine the integrity of the administration of justice. The evidence discloses that if allowed to remain as solicitor of record he would arrange appropriate assistance for himself. [ 46 ] If this was the only ground upon which the Society moved, I would not grant the order requested.

It is D.D.’s inexperience in child protection matters that the Society relies upon and he has adequately addressed this. [ 47 ] But this is not the only basis for the Society's motion. 4.3 Lawyer As Witness 4.3.1: Stage of the Case [ 48 ] This case remains on the trial list and the trial management conference is scheduled for March 5, 2013. While delay in resolving this matter and child protection matters generally is of the utmost importance, some delay to allow the mother to obtain counsel will not unduly prejudice the child or the mother.

In the meantime, the child continues to reside with the paternal grandmother and access is ongoing. The mother is not asking for the child to be returned to her care. She is asking for access and that the child remain in the care of the paternal grandmother. This is the arrangement all parties appear to want.

It is the basis of the placement – whether pursuant to a supervision order or custody order – that keeps this case from resolving. 4.3.2: Likelihood of Being Called As a Witness and Importance of Evidence to Be Given [ 49 ] Counsel for the Society stated emphatically that D.D. will be a witness at the hearing. If D.D. does not give evidence on behalf of his daughter, the Society will call him as a witness.

His evidence will pertain to the issue of whether the child is in need of protection – that is, the risk to the child posed by the mother's parenting abilities – and if so, the proper disposition including the access, if any, D.D. is to be granted. These are important issues in this case. [ 50 ] Counsel for the Society asserts that D.D. is part of the plan of care for the child.

D.D., by virtue of his involvement with the mother including first-hand knowledge of her abilities and challenges as a parent and his involvement with his granddaughter, makes him an important witness in the hearing. [ 51 ] On the basis of representations made by counsel for the Society, D.D.’s likelihood of being a witness is not merely speculative as a submitted on his behalf. 4.3.3: Society's Bona Fides in bringing the Motion [ 52 ] I do not have any evidence that the Society brought this motion in bad faith or for improper tactical reasons. 4.3.4: Ability to Retain Alternate Counsel [ 53 ] The only evidence concerning the mother's ability to retain new counsel is her statement that she may not be able to find a lawyer of her choice. [ 54 ] The record discloses that the mother has been represented by counsel throughout this proceeding. [ 55 ] There is no evidence – other than the mother's simple assertion – that would support a finding that she would be unable to retain alternate counsel within a reasonable period of time. [ 56 ] In all these circumstances, D.D. cannot be both the lawyer for his daughter and a witness on her behalf or called as one on behalf of the Society. 5: CONCLUSION [ 57 ] I am satisfied on the basis of the legal considerations and findings set out above that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that D.D. be removed as solicitor of record. [ 58 ] The Society's motion to have D.D. removed as solicitor of record for the mother is granted.

Released: February 4, 2013 "original signed and released" Barry M. Tobin Justice