Court File and Parties

Toronto (North York) No. D55033/11

Date: 2014-04-17

Ontario Court of Justice

Between:

ROBERT DELVARDO SCARLETT

Danny M. Bertao, for the applicant

APPLICANT

- and -

ROBYN JEAN FARRELL

The respondent, acting in person, in the company of Barbara Ballantyne

RESPONDENT

Heard: 16 April 2014

JUSTICE S.B. SHERR (Endorsement)

1: INTRODUCTION

[1] The respondent (the mother) has brought a motion (the representation motion) pursuant to clause 4(1)(c) of the Family Law Rules (the rules) seeking the court's permission to have her step-father, Frederick Sagel (Mr. Sagel) represent her in this case that is scheduled for trial starting on April 28, 2014. She also orally sought an adjournment of the trial in the event that the representation motion was denied.

[2] The applicant (the father) opposes the mother's representation motion. He also opposes any adjournment of the trial.

[3] The parties and Mr. Sagel filed affidavits on this motion.

[4] The court permitted the mother's mother, Barbara Ballantyne, to represent her on this motion only, as it was procedural in nature. The court informed Ms. Ballantyne that she will not be permitted to act as the mother's representative on any future court appearances, as she will be a witness at the trial.

2: BACKGROUND FACTS

[5] The parties are the parents of a seven-year-old child. The child lives with the mother.

[6] The father has only seen the child once in the past three years and has not seen the child for over two years. The mother is seeking custody of the child, an order of no-access to the father, a restraining order against the father and child support. The father is seeking an order for custody of the child and, in the alternative, generous specified access.

[7] This case has been case managed by Justice Carole Curtis. On 31 January 2013, Justice Curtis dismissed Mr. Sagel's motion to represent the mother on the basis that he was a lawyer under suspension by the Law Society of Upper Canada (Law Society).

[8] The mother subsequently retained a lawyer (Jennifer Ryan) to represent her.

[9] On 6 January 2014, this case was assigned trial dates starting on 28 April 2014. The trial is estimated to last 5 days.

[10] On 26 March 2014, Justice Deborah Paulseth removed Ms. Ryan as the mother's counsel, at Ms. Ryan's request.

3: THE EVIDENCE

[11] The mother deposed that she cannot afford to privately retain a lawyer. She said that Legal Aid Ontario (Legal Aid) will not provide her with another certificate for a lawyer. On this motion, she indicated that she was unaware that she could appeal Legal Aid's decision to refuse to grant her another certificate. She described the case as complicated and does not believe that she can effectively present the case on her own. She asked that Mr. Sagel be permitted to represent her in order to have a fair trial. She advised the court that Mr. Sagel would not be a witness at the trial.

[12] Mr. Sagel deposed that the mother is his step-daughter. He also described the case as high-conflict and complicated. He submitted that the mother is at a considerable disadvantage as the father is represented by an experienced lawyer.

[13] Mr. Sagel deposed that he has extensive experience in civil litigation and especially in trial work. He was called to the Ontario Bar in 1975. He said that he has tried approximately 200 cases.

[14] Mr. Sagel stated that he has not practised law for several years. He stopped practising when his son died after a lengthy illness. Mr. Sagel deposed that his grief left him unable to devote the necessary time and energy to practise law. As a result, he said, he discontinued paying his law society fees, which resulted in an administrative (his emphasis) suspension for non-payment of annual fees.

[15] The father responded to these affidavits. He provided the court with a printout from the Law Society of Upper Canada Directory of Lawyers for Juergen Frederick Sagel.

[16] The printout confirmed that Mr. Sagel is currently under administrative suspension. It did not state the reason for this. It also set out the following discipline history that Mr. Sagel has with the Law Society:

1. In 1995, Mr. Sagel was suspended for 6 months and ordered to pay costs of $5,000 to the Law Society. He was found guilty of professional misconduct for wrongfully depriving his partners of fees in the amount of $36,000 while a partner at a firm, failing to keep his clients reasonably informed of developments in their litigation and failing to fairly and promptly report to his former law firm with respect to his representation of the firm's former clients pursuant to charging orders of the Ontario Court (General Division).

2. In 2001, Mr. Sagel was suspended for 30 days. He was found to have engaged in conduct unbecoming a barrister and solicitor for being found guilty of committing an assault on "Mary Doe" causing bodily harm.

[17] The father deposed that Mr. Sagel called the father's lawyer on 7 April 2014 and left him an abusive voice-mail, stating, "Don't end up being like Scarlett, that shit bag". This evidence was provided in support of his contention that Mr. Sagel has a personal interest in the outcome of this case, as it involves his step-granddaughter, and that he lacks the appropriate emotional distance to properly represent the mother. Mr. Sagel did not file any evidence rebutting the content of this voice-mail.

4: POSITIONS OF PARTIES

[18] The mother argues that this court has discretion to permit Mr. Sagel to represent her. Clause 4(1)(c) of the rules states:

4. Representation for a party. —(1) A party may,

(a) act in person;

(b) be represented by a lawyer; or

(c) be represented by a person who is not a lawyer, but only if the court gives permission in advance.

[19] The mother argues that Mr. Sagel is not a lawyer as defined in subrule 2(1) of the rules since he is not authorized to practise law. This subrule reads as follows:

"lawyer" means a person authorized under the Law Society Act to practise law in Ontario;

[20] The mother submits that she will be at an unfair disadvantage and unable to effectively present her case without Mr. Sagel's representation. This, she submits, could adversely impact the best interests of the child.

[21] The father submits that Mr. Sagel should not be entitled to act since:

(a) Justice Curtis already dismissed the mother's request to have him act as her representative in this case.

(b) He is a lawyer under suspension by the Law Society.

(c) He failed to disclose his discipline history (and his proper name) to the court and has not demonstrated the integrity necessary for the court to exercise its discretion in granting the representation motion.

(d) He is in a conflict of interest as he has a personal interest in the outcome of the case.

5: ANALYSIS

[22] The court is not automatically precluded from considering the representation motion at this time due to the previous decision of Justice Curtis. Arguably, the considerations for a representation order are different at trial than they are during the case management process. At trial, the importance of an individual's ability to present and challenge evidence becomes elevated.

[23] The court considered that the issues in this case are very important, to both the parties and the child. It also considered that the mother may be a vulnerable litigant. She has made allegations of abuse against the father. There appear to be many facts in dispute. The father is represented by an experienced lawyer. The mother will likely face challenges in properly presenting her case on her own.

[24] The court also considered that, given his civil litigation experience, Mr. Sagel would be better able to conduct the case at trial than the mother.

[25] Lastly, the court considered that Mr. Sagel is the mother's chosen representative.

[26] Technically, the court has the discretion to permit Mr. Sagel to represent the mother under the rules. Although he is recognized as a lawyer by the Law Society (albeit under suspension), he is not a lawyer as defined by subrule 2(1) of the rules, as he is not presently authorized to practise law.

[27] Notwithstanding these considerations, the mother's motion will be dismissed for the reasons set out below.

[28] In paragraph [21] of Katz (McNevin) v. McNevin, 2012 ONSC 4946, the court reviewed the legal principles and considerations that have developed in the case law in relation to any non-lawyer request for representation pursuant to clause 4(1)(c) of the rules as follows:

[21] This clause has been considered by the courts on numerous occasions; e.g., Stone v. Stone, Stone v. Stone; Loney v. Loney, and Pires v. Dedvukay, 2010 ONCJ 8. These authorities emphasize and illustrate the following general principles and considerations that should be brought to bear in relation to any request for non-lawyer representation pursuant to Rule 4(1)(c):

There exists, in the courts of Ontario, a very limited judicial discretion to permit non-lawyers to represent parties in civil matters before them. The exercise of that discretion, in any case, would constitute an exemption to subsection 50(1) of the Law Society Act, R.S.O. 1980, c.L.8, which generally prohibits non-lawyers from appearing in court to represent people "except where authorized by law". Rule 4(1)(c) of the Family Court Rules must be read concurrently with that general prohibition.

Rule 4(1)(c) should not be regarded as a substantive change in the law respecting who may represent parties in family law matters. It should instead be interpreted in a manner consistent with existing legislation and the vestiges of the inherent powers of the judiciary to authorize lay representation in the courts; i.e., as a codification of that limited discretion.

Rule 4(1)(c) therefore ought to be interpreted narrowly. It should be implemented only in limited cases where the party requesting non-lawyer representation demonstrates, in a convincing way, that there are "special circumstances" and that the proposed representative has "special expertise" justifying such representation.

Inability to afford a lawyer is not, in and of itself, a "special circumstance" warranting non-lawyer representation pursuant to Rule 4(1)(c).

General litigation experience alone, or experience as a self-represented litigant, does not constitute "special expertise" in the sense required. Nor does familiarity with a litigant's case.

When considering requests pursuant to Rule 4(1)(c), courts should be ever mindful of the dangers inherent in non-lawyer representation, which include the following:

• Non-lawyers are not bound by a code of ethics;
• The solicitor-client privilege will not exist between lay representatives and their clients;
• There usually will be no liability insurance to protect clients from negligence; and
• Above all, most lay representatives will lack the necessary training, education and experience in litigation to properly represent their clients.

[29] In Pires v. Dedvukay, 2010 ONCJ 8, Justice Heather Katarynych added the following considerations in paragraphs [13]–[15]:

[13] It seems to me that both the Law Society Act and the Solicitors Act make visible to all who seek remedy from the court that business in the courts is serious business. The governance built into those statutory schemes, on a plain read, remind all who would "represent" litigants in a court case that competence, integrity, honesty and respect for the law and our legal institutions matter. Proper administration of justice depends on that attention to the quality of the representation. The court is not a playground.

[14] Competence, integrity, honesty, respect for the law and our legal institutions are no less important when the issue is "representation" of a party by a non-lawyer.

[15] The narrow exercise of discretion also takes into account certain vulnerabilities in non-lawyer representation that may impact on the "client" of the non-lawyer, on the other participants in the court case and on the court itself.

[30] The court agrees with Justice Katarynych's interpretation of what the term "representation" means in clause 4(1)(c) of the rules, when she wrote in paragraphs [17]–[21] of Pires v. Dedvukay, as follows:

[17] Although each request must be considered on its own merits, it helps to keep in mind what the court is entrusting to the non-lawyer in a grant of permission under clause 4(1)(c).

[18] The Family Law Rules do not define "representation" for the purposes of this particular rule or otherwise.

[19] It seems to me that the "representation" contemplated by clause 4(1)(c), particularly when set in the context of the jurisprudence, is more than a mere "assist" to a party.

[20] "Assistance" is an act of helping. "Assistance" can be offered without the "assistant's" losing his or her identity through the delivery of the help. For example, in a trial, it is the court itself that has a duty, in the name of just dealing and informed decision-making, to assist an unrepresented litigant to bring forth the fullness of his or her case. That aid, delivered in the name of just dealing and properly informed decision-making, has careful boundaries to ensure fairness to the other participants in the case. The court does not take on a "representation" of that litigant.

[21] "Representation" is more than an act. Within the ordinary definition provided by The Concise Oxford Dictionary, 10th ed. edited by Judy Pearsall (Oxford: Oxford University Press, 2001), to "represent" a person or body is to "fill the place of, or be a substitute or deputy for a person or body". Representation is, in short, a stature. What the court gives when it grants permission for non-lawyer representation under clause 4(1)(c) is authority to act or speak for the unrepresented litigant.

[31] In Windsor-Essex Children's Aid Society v. B.D., 2013 ONCJ 43, in the context of a motion to remove a lawyer, Justice Barry Tobin wrote at paragraph [16]:

[16] There are two competing values presented and which must be considered in this case; (1) maintaining the integrity of the administration of justice and (2) the right of litigants not to be lightly deprived of counsel of their choice. When balancing these values the predominant consideration is the integrity of the justice system. See MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, and Kam v. Hermanstyne, 2011 ONCJ 101.

[32] Courts have specifically considered representation requests pursuant to clause 4(1)(c) of the rules from lawyers who have been disbarred or who have been permitted to resign by the Law Society after disciplinary proceedings.

[33] In Kopyto v. Attorney General for Ontario, the court heard an appeal of a decision of Justice Douglas Bean refusing permission of a disbarred lawyer to act in a case. In a short endorsement, Justice Bean had written:

In my opinion, a disbarred solicitor ought not to appear per R. 9.4 in a non-professional capacity when he cannot appear in a "professional capacity".

[34] The Divisional Court dismissed the appeal and wrote:

With respect, we are of the view that Judge Bean's succinct endorsement, besides being right, displays great wisdom and common sense.

[35] In Roberts v. Senior, the court considered a representation motion concerning the same disbarred lawyer. The court indicated that there should be no absolute rule barring disbarred lawyers from acting as representatives, but given the disbarred lawyer's history of dishonesty (as found by the Law Society), and the lack of any evidence about rehabilitation, it dismissed the representation motion.

[36] The Pires v. Dedvukay case bears many similarities to the case before the court. It was a family law case where a parent sought permission to have his friend (a former lawyer) represent him at trial. The former lawyer represented to the court that he had retired from practising law. Subsequently, the court learned that the former lawyer had actually been subject to discipline proceedings and the order of Convocation had permitted him to resign. As is the case here, the former lawyer was seeking the court's permission for unfettered representation of the parent — to be able to present evidence, cross-examine the other parent's witnesses and to make closing submissions. In dismissing the representation motion, the court wrote at sub-paragraphs 5 and 6 of paragraph [34] (emphasis mine):

5. It is the order of Convocation that contains the answer to this court's question left at the close of the motion hearing.

On a plain read of that order of Convocation made on 22 June 2000, permission to resign his membership in the Law Society carried with it Convocation's stipulation that Mr. Paskar "thereby be prohibited from acting or practising as a barrister and solicitor, and from holding himself out as a barrister and solicitor".

6. On a plain read of his affidavit, what Mr. Paskar wants to do in this trial is precisely what Convocation's order prohibits.

[37] The Law Society publishes guidelines for lawyers who are suspended. Subparagraph 1(2) of the guidelines states in part:

A suspended lawyer or a lawyer who has undertaken to the Law Society to restrict his or her practice must cease practice as a result of the suspension. . . . Suspended lawyers are also prohibited from providing legal services as defined by the Law Society Act, as only those persons licensed by the Law Society to provide legal services may do so. . . .

[38] This court agrees with the reasoning in Pires v. Dedvukay. It applies just as much to a lawyer under suspension as it does to a lawyer who was permitted to resign by the Law Society. As was the case with the former lawyer in Pires v. Dedvukay, Mr. Sagel is seeking to do at this trial what the Law Society specifically prevents him from doing – to practise law and conduct a trial. It would undermine the Law Society (which is responsible for the governance of lawyers) and compromise the integrity of the justice system to permit a suspended lawyer to appear in this court. Mr. Sagel's technical argument that he is no longer a lawyer (at least as defined by the rules) misses this point. He cannot do through the back door what he is prohibited from doing through the front door.

[39] It also does not assist Mr. Sagel if his suspension is administrative in nature (he provided no documentation about the reasons for the administrative suspension). A suspension is a suspension. He is not entitled to appear in court and practise law as a suspended lawyer. His forum to review whether or not he should be permitted to practise law, as stated by Justice Katarynych in paragraph 36 of Pires v. Dedvukay, is not this court. It is the Law Society.

[40] This court arrives at the same conclusion at this stage of the case as that reached by Justice Curtis on 31 January 2013. Mr. Sagel cannot act for the mother while he is under suspension by the Law Society.

[41] There are other reasons why this court will dismiss the mother's representation motion. The decision to grant a representation order is discretionary. If a former lawyer is going to be granted permission to represent someone in a family law case it is incumbent upon him or her to be transparent about any discipline history. He or she must come to court with clean hands. The court must have confidence that this person will conduct himself or herself with "honesty, integrity and forthrightness". See Codina v. Law Society of Upper Canada (1996), 93 O.A.C. 214; Allen v. Harry, 2012 ONCJ 33.

[42] Mr. Sagel's discipline history causes the court concern about his ability to conduct himself with honesty, integrity and forthrightness. He has been suspended twice by the Law Society after discipline proceedings. One of these suspensions arose out of dishonesty, the other with respect to violence against a woman. That said, the Law Society did permit Mr. Sagel to practise law after both disciplinary suspensions and the suspensions happened many years ago. However, what exacerbates this court's concerns is that Mr. Sagel was not transparent in revealing this very relevant discipline history in his affidavit — it was the father who provided the court with this information and who informed the court that the discipline history was under a different name than Mr. Sagel used with the court.

[43] This court does not have the requisite confidence that Mr. Sagel will conduct himself with honesty, integrity and forthrightness if permitted to represent the mother.

[44] The final concern is the relationship between Mr. Sagel and the mother.

[45] While having a personal relationship with a litigant does not automatically preclude someone from acting on their behalf (see Judson v. Mitchele, 2011 ONSC 6004), many courts have found that the nature of such relationships unduly compromises the administration of justice and have removed the lawyer.

[46] In paragraphs [17]–[22] of Windsor-Essex Children's Aid Society v. B.D., supra, Justice Barry Tobin reviewed the law in this area as follows:

3.1: Personal Relationship

[17] The presence of a personal relationship between the lawyer and client may give rise to a conflict of interest that requires the 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 relationship may 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 by the Supreme Court of Canada in MacDonald Estate v. Martin, supra. See Urquhart v. Allen Estate, supra, at para. 16.

[21] Courts have tended to disqualify counsel where the lawyer and client have a personal relationship, usually described as intimate and emotional. See for example, McWaters v. Coke, 2005 ONCJ 73, and Kam v. Hermanstyne, supra.

[22] Where a personal relationship is found to exist, the court must consider whether there remains the "...necessary degree of independence and detachment..." to allow the solicitor to remain as counsel. See Chouinard v. Chouinard, at para. 27.

[47] Justice Tobin removed a parent's father (who was a lawyer) as counsel and wrote at paragraph [43] as follows:

[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.

[48] Similar reasoning was applied in removing counsel who had intimate personal relationships with litigants in McWaters v. Coke, 2005 ONCJ 73, per Justice Marvin Zuker and in Kam v. Hermanstyne, 2011 ONCJ 101, where Justice Robert Spence wrote in paragraphs [17]–[19] as follows:

[17] What I conclude from all of the authorities is that, in the circumstances that exist in the present case, Ms. Da Fonte's role as counsel would be seriously compromised. On the one hand, she is romantically involved with the respondent and understandably wants the same outcome as her romantic partner. It would be unrealistic for anyone to believe otherwise. On the other hand, her professional standards of conduct necessitate that she act in a way that does not adversely affect her judgment in her role as counsel to her client. She must try to maintain her objectivity while, at the same time, being inextricably emotionally intertwined with the respondent and 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 all times have confidence that the lawyer will never knowingly allow false or misleading evidence to be presented to the court. The court must also have confidence that lawyers will answer all questions from the court in a straightforward and honest manner, without having to 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 necessarily believes that she would intentionally mislead the court but, rather, because human nature being what it is, mischief may inevitably result. In my view, Justice Zuker and Justice Gray were correct in deciding that lawyers cannot act for clients with whom they are in an intimate and close personal relationship, and I adopt their reasoning without reservation.

[49] In this case, the evidence indicates that it is more probable than not that Mr. Sagel lacks the requisite degree of independence and detachment to appropriately represent the mother at trial. She is his step-daughter and the case involves the welfare of his step-granddaughter. He certainly has an emotional stake in the outcome of this case. He has already demonstrated poor judgment by recently leaving the abusive voice-mail with the father's lawyer and by his failure to be transparent with the court about his discipline history. The court does not have confidence that he would be able to maintain his objectivity.

[50] In weighing the impact of the denial of the representation motion on the mother, the court echoes the comments of Justice Spence in paragraph 20 of Kam v. Hermanstyne, supra, where he writes:

[20] I realize that the result of this decision may be to deprive the respondent of legal representation. However, while it is generally preferable for parties to have counsel rather than to proceed unrepresented, the lack of counsel does not in and of itself mean that 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 is represented and the other side is not. And in this particular case, the respondent will doubtless have the added benefit, not available to most other self-represented parties, of behind-the-scenes legal advice from Ms. Da Fonte.

[51] The mother's motion to have Mr. Sagel represent her at trial is dismissed.

6: THE ADJOURNMENT

[52] At the conclusion of submissions, the court indicated to the parties that it would likely be dismissing the representation motion and would provide these written reasons. The court entertained the mother's request for an adjournment of the trial that was opposed by the father.

[53] The court provided oral reasons adjourning the trial to my trial week in July of 2014, peremptory on the mother.

[54] In granting this adjournment, the court had to balance the prejudice to the father of having his claim (without being able to see the child) adjourned against the prejudice to a possibly (this characterization is very much in issue in this case) vulnerable litigant in conducting this important trial on her own behalf. The adjournment will give the mother the opportunity to exercise any appeal remedies with Legal Aid or to try and finance a lawyer privately.

[55] The mother was advised that this would be the full extent to which the court would balance these competing concerns in her favour. She was advised that the trial will proceed in July, whether or not she has counsel.

[56] The court reserved all costs issues to the end of trial.

[57] Fresh timelines were provided by the court for the filing of trial material.

[58] The case will return to court on 20 June 2014 at noon for a continued trial management conference.

Justice S.B. Sherr

Released: 17 April 2014