Court File and Parties

COURT FILE NO.: 35/38/013554/13 DATE: June 28, 2016 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SOULARD v. SOULARD (conflict) Brian Richard Soulard, Applicant AND: Trinidi Elizabeth Soulard, Respondent

BEFORE: The Honourable Justice R. Raikes

COUNSEL: George McFadyen, Counsel, for the Applicant James Oxley, Counsel, for the Respondent Ms. Faddoul, Acting on behalf of Herself

HEARD: April 14, 2016

Endorsement

Overview

[1] Ms. Faddoul was removed as counsel of record mid-trial due to a conflict of interest she had vis-a-vis her client, the Respondent. The conflict was confirmed by counsel at the Law Society of Upper Canada with whom Ms. Faddoul spoke before asking to be removed. The conflict arose from Ms. Faddoul’s failure to properly appeal from a final Order made September 10, 2015 by Justice Desotti or to remedy that failure in a timely fashion once it was clear and obvious that she had failed to do so.

[2] The trial was adjourned to permit the Respondent to engage new counsel. She was unable to find counsel on her own. She is a legally aided and, as a consequence, Legal Aid offered to have a senior family law counsel in its employ act for her. She accepted that proposal. Transcripts of the trial were prepared and the trial was scheduled to resume on April 11, 2016.

[3] Approximately a week or more before the recommencement date, Ms. Faddoul sought to serve and file a Notice of Change of Representation by which she would go back on the record and act for the Respondent for the remainder of the trial. She was directed to bring a motion for that purpose which she did.

[4] The motion was served on short notice to counsel for the Applicant. The Affidavit in support is notably silent with respect to the conflict which caused Ms. Faddoul to ask that she be removed as counsel. At the hearing of the motion, Ms. Faddoul advised that nothing has been done to remedy the appeal of Justice Desotti’s order. She had no further information from the Law Society but had received a letter from her insurer that advised her that she had no conflict in representing the Respondent. That letter or the excerpt from that letter was not filed as part of her motion material.

[5] The Respondent prefers that Ms. Faddoul continue to act as her counsel. Mr. Oxley for Legal Aid supports the Respondent’s right to choose her own counsel but confirmed he was prepared to act for her. Counsel for the Applicant opposed Ms. Faddoul returning as counsel given the inevitable appeal, should the Applicant succeed, based on ineffective counsel at trial who was acting while in a clear conflict of interest. He also wishes to address the costs which his client has incurred from the numerous attendances at court to address the issue of the Respondent’s counsel.

[6] At the core of this motion is the tension between the right of a party to have the counsel of his/her choice and the duty of the court to ensure public confidence in the administration of justice including the efficient use of court resources.

FACTS

Background

[7] The parties are the biological parents of a 13 year old girl, Kasia, and a 9 year old boy, Jacob.

[8] The children resided principally with the Respondent mother following separation. The litigation over custody and access has been high conflict. The trial of the custody and access issues was scheduled to commence May 25, 2015. On that date, the parties entered into Minutes of Settlement by which they agreed that each parent would have the children in their care on a week about basis. That agreement was incorporated into a consent final order on May 25, 2015.

[9] Almost immediately following the Order of May 25, 2015, there were significant problems with the access by the Applicant father. In short, he was not getting the access agreed to. He blamed the Respondent mother and asserted that she was poisoning his relationship with his children. He brought a motion to enforce compliance with the May 25, 2015 Order which was heard by Justice Desotti on August 28, 2015.

[10] On September 10, 2015, Justice Desotti released his decision in which he thoroughly reviewed the history of the proceedings between the parties and the evidence filed including two reports of the Office of the Children’s Lawyer. He ordered the Respondent to comply with the May 25, 2015 Order, failing which the Applicant would have sole custody of the children. He specifically addressed the adequacy of the Respondent’s efforts to comply and concluded that they fell far short of what was expected of a parent in these circumstances.

[11] The Respondent was represented by Ms. Faddoul on the motion heard by Justice Desotti. It is undisputed that the Respondent instructed Ms. Faddoul to appeal that decision.

[12] In September, 2015, Ms. Faddoul served a Notice of Motion on counsel for the Applicant seeking leave to appeal to the Divisional Court from Justice Desotti’s Order. The motion was brought returnable in the Divisional Court, not the Superior Court as is proper where leave to appeal is being sought.

[13] Counsel for the Applicant wrote to Ms. Faddoul pointing out this error. She then caused a new Notice of Motion to be served to seek leave to appeal, this time returnable in the Superior Court. She ascribed the error initially made to someone working in her office.

[14] Ms. Faddoul did not take further steps to proceed with the motion for leave to appeal. It sat apparently unpursued. At some point in the Fall of 2015, it became apparent that there was an issue as to whether leave was required at all; viz. that Justice Desotti’s Order was a final order.

[15] On December 10, 2015, Justice Hebner resolved that question. She ruled that Justice Desotti’s September 10, 2015 Order was a final order. Accordingly, the appeal lies to an appellate court without any requirement for leave. By then, the time for filing a Notice of Appeal was long expired. Ms. Faddoul had not filed a Notice of Appeal or motion to extend the time to appeal just in case it was indeed a final order.

[16] In any event, it was absolutely clear by Justice Hebner’s Order that Justice Desotti’s Order was final in nature. Ms. Faddoul knew of Justice Hebner’s Order immediately upon its release. Nevertheless, she did nothing to remedy situation. She did not bring a motion to extend the time to file the appeal. She did not seek to convert her motion for leave to appeal into an appeal. She indicated that the failure to do so was attributable to some illness on the part of staff at her office.

[17] Following Justice Desotti’s Order, the Applicant did not get access to his daughter, Kasia, as ordered. He did get access with Jacob which has proceeded without incident since Justice Desotti made his Order.

[18] In October, 2015, the Applicant brought a motion for contempt arising from the lack of access with Kasia. That motion was delayed and eventually directed by Justice Hebner to proceed as a trial on an expedited basis. That is how the matter came before me – as a contempt trial in a family law proceeding.

The Trial

[19] The trial commenced on January 20, 2016. In her opening statement, Ms. Faddoul initially advised that:

1. The motion before Justice Desotti was a contempt motion “by ambush”; and,
2. She had appealed that decision.

[20] Applicant’s counsel then drew to my attention that no appeal had actually been filed and provided the above information concerning the steps actually taken. I specifically asked Ms. Faddoul in her opening statement whether she had applied to extend the time to file her appeal. She advised that she was in the process of doing so; it was scheduled to be done that week but one of her staff was having surgery. Therefore, at that point she had taken no steps to remedy the late filing of the appeal.

[21] I pause at this point to note that no request was made to adjourn the trial before it started.

[22] The evidence at trial proceeded in a somewhat disjointed fashion. Ms. Faddoul summonsed the author of the OCL reports. He now resides in Sudbury and attended court on the first day of trial because no one from Ms. Faddoul’s office called to coordinate the timing of his attendance to testify. Counsel for the Applicant suggested that his evidence be taken first so as to minimize the inconvenience to him, which is what happened.

[23] After the Applicant closed his case, the Respondent took the stand to testify. Early in her evidence, Ms. Faddoul began to elicit evidence concerning the lack of access that led to Justice Desotti’s Order. An objection was made and I ruled that if the purpose for which the evidence was being adduced was to put in question the correctness of Justice Desotti’s Order, it was inadmissible as a collateral attack. No other purpose was advanced.

[24] At that point, four days into the trial, the issue of re-litigating Justice Desotti’s decision was the subject of much discussion with counsel. Following my evidentiary ruling, Ms. Faddoul moved to adjourn the trial so that she could file her appeal from Justice Desotti’s Order. She indicated that the appeal was at her office “ready to go”.

[25] Ms. Faddoul confirmed that she had not filed a Notice of Appeal or a motion to extend the time to do so despite her earlier advice when the trial started (weeks earlier) that it would done within days. Further, she confirmed that she had counselled her client on the consequences of her failure and the Respondent’s options.

[26] I declined the requested adjournment. In my ruling, I stated, inter alia:

“The respondent filed a notice of motion for leave to appeal the decision of Justice Desotti, even though it was a final order and said so on its face. Respondent’s counsel did not agree that it was final in nature when so advised by counsel for the father. Whether the order was temporary or final was determined by Justice Hebner on December 10, 2015. She ruled it was final. Despite the warnings of opposing counsel, and the decision of Justice Hebner, the respondent has not delivered a notice of appeal, nor a motion to extend the time to do so.

This trial started January 19, and has proceeded to the close of the applicant’s case. The respondent is the first witness called on her behalf. The notice of appeal has still not been filed, but counsel says she is in a position to file it by tomorrow. She offered the same advice earlier in the trial, yet did not do so. Respondent’s counsel asks that this trial be adjourned pending the outcome of the appeal she wishes to file. She argues that if she is successful on that appeal the findings of Justice Desotti will be set aside, and her client will not have been found to be in earlier non-compliance with the May 25 order, which may have significance as to whether a contempt order should issue.

By respondent counsel’s own admission the failure to file the notice of appeal or to take steps to remedy that failure is entirely attributable to her. She has had instructions to move or appeal from soon after the decision of Justice Desotti.

The applicant opposes the adjournment as another delay tactic. In the alternative, he asks for terms to the adjournment if granted.

I decline the respondent’s request to adjourn this trial. There is no appeal pending at this time. The respondent is months past the date by which such appeal should have been brought. The motion to correct counsel’s misapprehension of the nature of the order is likewise very late, without any adequate explanation. The time to have sought an adjournment was before this trial started, not at the close of the applicant’s case. The respondent should have filed whatever is necessary to remedy the defective appeal and moved promptly to do so. An adjournment here would greatly or significantly prejudice the applicant at this stage.

Therefore, we will proceed with this trial. The order of Justice Desotti remains in effect, and his reasons for same are a matter of record. A collateral attack on that decision is not permitted in this trial.”

[27] Immediately following that ruling, Ms. Faddoul asked for the opportunity to reflect on whether it would be appropriate for her to continue to act. She spoke with the Respondent and advised that her client was uncertain whether she wished to have Ms. Faddoul continue as counsel. Both Ms. Faddoul and the Respondent wished the opportunity to seek independent legal advice. The trial adjourned early to permit them to do so.

[28] When the trial resumed the next day, Ms. Faddoul presented two options:

1. Ms. Faddoul be removed as counsel and the trial adjourned to permit the Respondent to file her appeal of Justice Desotti’s Order; or,
2. I reconsider my ruling with respect to evidence which collaterally attacks Justice Desotti’s decision and Ms. Faddoul would continue to assist the Respondent at trial until she found new counsel.

[29] Ms. Faddoul advised that her client wished her to continue to act as counsel. Ms. Faddoul indicated the she recognized “the potential for a conflict [of interest]” but did not believe she had a conflict at that point. She advised that:

“I’ve already fallen on the sword. The conflict already exists, right? The facts that are going before the court of appeal already reflect all of the facts…that my client would put forward in the event she would make a claim for ineffective assistance of counsel, correct?...I would insist that she does that in order to protect her position…”

[30] Ms. Faddoul further indicated that she saw no conflict of interest and, in any event, her client was prepared to waive the conflict so that Ms. Faddoul could continue as her counsel at trial. Applicant’s counsel objected. He argued that Ms. Faddoul was in a clear conflict of interest and her client could not possibly foreswear asserting that conflict on a subsequent appeal when asserting ineffective assistance of counsel.

[31] I declined to reverse my ruling refusing the adjournment pending the outcome of the appeal, once properly constituted, of Justice Desotti’s Order of September 10, 2015. I also declined to change my evidence ruling.

[32] I had Ms. Soulard resume her position in the witness box and was prepared to proceed on the basis of her apparent voluntary and informed decision to waive the conflict of interest which was obvious. At that point, Ms. Faddoul received a return call from the Law Society of Upper Canada and asked that we stand down to allow her to seek their advice. I advised Ms. Faddoul that she must pointedly ask the Law Society whether or not she could continue with the trial. We then stood down to allow her to speak with the Law Society.

[33] When court resumed, Ms. Faddoul informed me that after speaking with counsel from the Law Society, she had decided not to proceed as counsel at trial. She asked that I consider adjourning the trial so that “she [the Respondent] can proceed on the basis of ineffective counsel, another ground to her appeal.” Ms. Soulard indicated that she reluctantly agreed to Ms. Faddoul’s request to withdraw as counsel of record which was granted.

[34] The trial was then adjourned to allow Ms. Soulard to engage new counsel. She advised on a return date that her efforts were unsuccessful. That is when Legal Aid stepped in and Mr. Oxley advised the court that Legal Aid was prepared to have him act for the Respondent to complete the trial. Ms. Soulard indicated that she was content that he do so. She also indicated that prior to the commencement of the trial, she was unaware that the appeal had not been filed or filed properly.

[35] The trial date was further adjourned to April 13, 2016 in order to allow sufficient time for the transcripts of the trial to the point to be typed, and for Mr. Oxley to properly prepare. The transcripts were ordered, transcribed and provided to Mr. Oxley.

Motions by Ms. Faddoul

[36] As mentioned, Ms. Faddoul tried to file a Notice of Change of Representation by which she would go back on the record as counsel. Court staff refused to accept the Notice of Change and Ms. Faddoul was advised to bring a motion for that purpose. She also attempted to file a motion to adjourn the trial because she had other commitments including preparation of facta on other matters. That could not be filed because she was not on the record.

[37] The motion to be appointed counsel of record was served on Applicant’s counsel two days before the recommencement of trial. The motion is supported by an affidavit sworn by one of Ms. Faddoul’s staff. The affidavit is entirely silent on the conflict of interest which led to Ms. Faddoul being removed as counsel; in fact, the affidavit merely recites the efforts made to schedule time to re-attend and/or file materials. Once again, the shortcomings in the affidavit were blamed by Ms. Faddoul variously on her staff and new associate. She acknowledged that she did not read it before it was served and filed.

[38] On April 13, 2016, the date set to resume the trial, Ms. Faddoul sought to be restored as counsel of record for the Respondent. I have outlined above the information provided and positions taken on the motion for context. I dismissed the motion with Reasons to follow.

Analysis

[39] The right to counsel of one’s choice is not unlimited. The courts have recognized that the right to counsel of choice may be abrogated where the interests of justice override that selection.

[40] In R. v. Hargraves (1982), 69 C.C.C. (2d) 380 (ON CA) at 384, Mr. Justice Martin observed that it is in the interest of the public as well as an accused that the fundamental rules of a fair trial be observed in a criminal proceeding. He wrote:

“Public confidence in the criminal justice process would surely be undermined by any appearance of impropriety in the conduct of the trial or any lack of fairness in the cross-examination of a witness. …[T]he necessary public confidence in the administration of justice… rests on the fundamental fairness of the… criminal trial process. It requires not only the avoidance of professional impropriety but also the avoidance of any appearance of impropriety.”

[41] Typically, the issue of conflict of interest and removal of counsel arises where the lawyer or his/her firm has acted for the other party. The danger lies in the risk of misuse of confidential information provided by the former client to the lawyer or his firm. The case law and Rules of Professional Conduct have evolved to deal with this more common scenario. However, that is not the situation here.

[42] In R. v. Clarke, 2012 NSSC 406, Hood J. provided a detailed analysis of the different circumstances in which counsel may be removed as counsel of record for a conflict of interest. She wrote at paras 11 and 12:

“[11] Counsel may be ordered to be removed from a proceeding where there is a conflict of interest. Conflict s of interest can arise where there is a breach of a duty of confidentiality; where there is a breach of the duty of loyalty; where there is a risk of trial unfairness; where the integrity of the justice system is at risk; or where there is a public perception that the administration of justice would be brought into disrepute.

[12] An accused person’s right to have counsel of his or her choice has long been considered to be an important right. However, it is a right which must be balanced against the potential or reality of a conflict of interest.”

[43] In R. v. Con-Drain (1983) Ltd., 2008 ONCJ 114, Armstrong J. addressed the situation where the integrity of the justice system is at risk or there is a public perception that the administration of justice would be brought into disrepute by a conflict of interest. He wrote:

“[66] It is settled law that courts must consider the public interest and the need for public confidence in the administration of criminal justice, even where there is a valid waiver or consent. A valid, fully-informed waiver may be overridden by the public interest in protecting the integrity and fairness of the criminal justice system, particularly the reliability of verdicts. Counsel may be removed if the public interest in the administration of justice creates a legitimate concern about the appearance of impropriety arising from a conflict: see Cote v. Rancourt, [2004] 3 S.C.R. 248, 2004 SCC 58, R. v. Robillard, supra, Proulx and Layton, op. cit., at 333-334 and Chiefs of Ontario v. Ontario, [2003] O.J. No. 580 (S.C.J.).”

[44] In this case, Ms. Faddoul moved mid-trial for an order removing herself as counsel of record because she had a conflict of interest. She did so on advice from counsel from the Law Society of Upper Canada. Nothing has changed with respect to that conflict of interest. The appeal which she was directed by her client to make was not properly taken and no steps have been completed to remedy that default. That failure has already had implications for Ms. Soulard in this matter, and broader implications for the court.

[45] The matter before me is a family law contempt proceeding. It is quasi-criminal in nature. The Applicant, Mr. Soulard, has made clear that he does not seek incarceration if contempt is found and I observe that incarceration, while available, is rarely employed in a family law context. Nevertheless, a finding of contempt is a very serious matter.

[46] In my view, the court has an obligation to protect the integrity of the administration of justice. The public has an overriding interest in ensuring that justice is not only done but is seen to be done. The court cannot simply stand by and allow counsel to act in a matter where he/she has an obvious conflict of interest with the client for whom he/she is acting, particularly in a criminal or quasi-criminal matter, even where the client wishes the lawyer to continue to act. Permitting Ms. Faddoul to act as counsel for Ms. Soulard again virtually ensures an appeal based on inadequate assistance of counsel at trial. That is unfair to the Applicant, does not help Ms. Soulard, and unnecessarily taxes scarce judicial resources.

[47] I also observe that the material filed by Ms. Faddoul for this motion is wholly inadequate. There is not even a passing reference to the conflict which gave rise to Ms. Faddoul being removed as counsel of record. Ms. Faddoul sought to give evidence through her submissions as to an undisclosed letter from her insurer. There is nothing in the material before me to assuage or displace the obvious prejudice of allowing Ms. Faddoul to return as counsel of record.

[48] In these circumstances, which I concede are unique, I find that it is inappropriate for Ms. Faddoul to act for Ms. Soulard in the continued trial of this proceeding. She has been removed as counsel of record and I decline her request to be reinstated.

Justice R. Raikes The Honourable Justice R. Raikes Date Released: June 28, 2016