Court File and Parties

Court File No.: C360/10 Date: 2012-07-30

Ontario Court of Justice

Re: Children's Aid Society, Region of Halton (Applicant) And: D.K. and F.J.S. (Respondents)

Before: Justice R. Zisman

Counsel:

• Megan Pallett for the Applicant
• Peter Tensuda for the Respondent, D.K.

Heard On: July 30, 2012

Endorsement

Background

[1] This is a motion by counsel for the respondent mother to be removed as counsel of record. The children's aid society opposes this motion. The respondent father was previously noted in default.

[2] This is a status review application that has been before the court since January 26, 2011. The society seeks an order of Crown wardship for the purpose of adoption to the three children before the court who are 11, 10 and 5 years old. The children have been in the care of the society for about 18 months.

[3] The society initially sought an order for society wardship for seven months but following a parenting capacity assessment, the mother's untreated mental health issues and concerns about ongoing drug addiction the society amended its application to seek Crown wardship.

[4] A settlement conference was held on July 12, 2012. A trial management conference is scheduled for August 9, 2012 and a trial date will then be scheduled for the week of October 15, 2012. At the settlement conference the society advised that it is waiting for the outcome of a recent drug test and upon obtaining the results, it may proceed to a summary judgement motion.

[5] Counsel for the mother requests to be removed as counsel of record on the basis that legal aid has only granted him permission to represent his client on a summary judgement motion and not for a trial. He is therefore bringing this motion so that he does not have to attend and prepare for the trial management conference. Counsel further deposes that his client does not have the funds to retain him privately for a trial.

[6] Counsel for the society advises today that as a result of the drug tests, it will be proceeding with a summary judgement motion but she opposes counsel being removed as counsel of record and wishes to continue with the trial management conference and to confirm trial dates in the event the summary judgement motion is not granted in whole or in part. Ms. Pallett submits that if counsel is removed or the trial management conference is delayed there will be further delay in securing a trial date or the mother will have to represent herself which would not be appropriate.

Legal Principles

[7] The court has the authority to refuse counsel's request to be removed as solicitor of record, but the authority must be exercised sparingly and only when necessary to prevent serious harm to the administration of justice. See The Queen v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331.

[8] Although the circumstances of removal of counsel in The Queen v. Cunningham, supra, is in the context of a criminal proceeding, the reasoning is applicable to child protection proceedings where the stakes can be even higher namely, the permanent removal of children from the care of a parent. See Catholic Children's Aid Society of Toronto v. F.H., [2011] O.J. No. 4107.

[9] In The Queen v. Cunningham, the court discussed the reasons in favour of courts' exercising their jurisdiction to refuse a counsel's request to be removed as solicitor of record in paragraph 22 as follows:

[22] The reasons in favour of courts exercising this jurisdiction are numerous. An accused, who becomes unable to pay his lawyer, may be prejudiced if he is abandoned by counsel in the midst of criminal proceedings. Proceedings may need to be adjourned to allow the accused to obtain new counsel. This delay may prejudice the accused, who is stigmatized by the unresolved criminal charges and who may be in custody awaiting trial. It may also prejudice the Crown's case. Additional delay also affects complainants, witnesses and jurors involved in the matter, and society's interest in the expedient administration of justice. Where these types of interests are engaged, they may outweigh counsel's interest in withdrawing from a matter in which he or she is not being paid.

[10] The reasons in favour of courts' exercising their jurisdiction to refuse a request for the removal of counsel in child protection cases may even be more compelling than those set out in The Queen v. Cunningham. It is well accepted that timely permanency planning for young children is imperative for their welfare. Delay in obtaining a permanent placement for a child is often critical to his or her emotional, mental and physical development. It can undermine the child's stability and opportunity to form stable attachments with a permanent caregiver. The longer the delay, the greater the risk is to the child. The importance of timely permanency planning for children is reflected in the Act. Subsection 70(1) of the Act provides (with limited exceptions) that a child under the age of six cannot be made a society ward for more than one year. At the trial of this matter, the court will have one of two choices - return the children to the mother or make the children Crown wards with or without access. In this case one of the children is under 6 years of age and although the two older children are 10 and 11 years old, they have significant special needs that can only be adequately addressed when their future is determined.

[11] It is almost inevitable that if an order is made granting a request by counsel to be removed as solicitor of record so close to trial that there will be a request by the unrepresented party for an adjournment to obtain new counsel or if new counsel is obtained that counsel will request an adjournment to properly prepare for trial.

[12] The trial judge will then be placed in a very difficult position. The importance of counsel in child protection cases is well articulated by the Supreme Court of Canada in New Brunswick Minister of Health and Community Services v. J.G., [1999] 3 S.C.R. 46. The trial judge would have to balance this factor against the fact that the case would not be reached in the early fall but sometime in 2013.

[13] Further, in this jurisdiction there is a concern that Legal Aid is refusing to grant a new certificate for a change of solicitor even if counsel is removed as solicitor or record. See C.A.S. Halton v. K.C.M., 2012 ONCJ 382. This would result in the mother being required to represent herself in these proceedings.

[14] If the trial judge denies a request for an adjournment, there is a realistic concern that this could be the basis of an appeal which would then again prevent the permanency planning for the children would be delayed.

[15] The Family Law Rules, O. Reg. 114/99, as amended ("the rules"), address the concern of the late removal of counsel in child protection cases. Subrules 4(10) and (10.1) of the rules read as follows:

(10) Change in representation. -- Except as subrule (10.1) provides, a party represented by a lawyer may, by serving on every other party and filing a notice of change in representation (Form 4),

(a) change lawyers; or

(b) appear without a lawyer.

(10.1) Exception, child protection case scheduled for trial. -- In a child protection case that has been scheduled for trial or placed on a trial list, a party may act under clause (10)(b) only with the court's permission, obtained in advance by motion made with notice.

[16] It is therefore clear that by enacting subrule 10.1, the court in child protection proceedings must be notified if counsel wish to be removed as counsel of record and must consider the competing considerations that is, unfairness to the lawyer of staying on the record against the resultant delay, if a trial is imminent.

[17] Even in cases where a party filed a "Notice of intention to act in person", courts have required counsel to continue to act in order to avoid delay. See Children's Aid Society of Niagara Region v. L.J.R. and K.B.A.R. (No. 2), 22 R.F.L. (6th) 156.

[18] In The Queen v. Cunningham, supra, the court set out the following factors for the court to consider in exercising its jurisdiction on solicitor removal motions in paragraphs [47]-[50]:

[47] If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel's reasons for seeking to withdraw or require counsel to continue to act.

[48] Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g., workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite "ethical reasons" as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations (see, e.g., Law Society of Upper Canada, r. 2.09(7)(b), (d); Law Society of Alberta, c. 14, r. 2; Law Society of British Columbia, c. 10, r. 1), or if the accused refuses to accept counsel's advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2). If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for "ethical reasons". However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.

[49] If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C.(D.D.), at p. 328, and Deschamps, at para. 23). Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.

[50] If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel's request. The court's order refusing counsel's request to withdraw may be enforced by the court's contempt power (C. (D.D.), at p. 327). In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:

• whether it is feasible for the accused to represent himself or herself;
• other means of obtaining representation;
• impact on the accused from delay in proceedings, particularly if the accused is in custody;
• conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
• impact on the Crown and any co‑accused;
• impact on complainants, witnesses and jurors;
• fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
• the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused.

[19] In this case, there is no breakdown of solicitor client relationship and there are no ethical issues that would prevent counsel from continuing to represent the mother. The mother clearly does not have the capacity to represent herself in these complex proceedings that will include a lengthy history of child protection concerns, historic issues of domestic violence, possible interpretation of hair follicle tests and drug screens and expert evidence regarding the mother's parenting capacity. The only reason counsel is bringing this motion is a result of the position of Legal Aid that it will not pay him to represent the mother at trial.

[20] The position of Legal Aid in my view cannot be permitted to control these proceedings. Their position of refusing to permit counsel to represent the mother, in view of the possibility that this mother could permanently lose her children is, unjustifiable.

[21] However, I must balance the unfairness to counsel in forcing him to remain as counsel of record with the potential harm to these children. There is not sufficient time for the mother to retain new counsel and for any new counsel to be prepared for trial. Further, I have considerable concern that Legal Aid, in any event, will not even entertain any attempt by the mother to obtain new counsel. The mother cannot represent herself at trial and would be a complete disadvantage if she was forced to do so.

[22] I must consider the needs of these children who have been in care for over 18 months. The harm to these children and to the administration of justice if this matter is delayed outweighs the unfairness to counsel. Although counsel may be forced to prepare and represent the mother without authorization from legal aid nevertheless, he can apply for public finding in accordance with the Supreme Court of Canada's decision in New Brunswick (Minister of Health and Community Services) v. J.G., [1999] 3 S.C.R. 46.

Decision

[23] The respondent mother's motion to be removed as counsel of record is dismissed.

[24] Counsel have agreed to schedule the summary judgment motion for September 6, 2012. I will vacate the current trial management conference date of August 9, 2012 and instead set a new date for the trial management conference of September 27, 2012 and set the trial, if necessary, for the week of October 17, 2012. This schedule will then not delay the trial and permit a meaningful trial management conference once it is determined if the summary judgment motion is granted in part or in whole.

Justice R. Zisman

Date: July 30, 2012