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 Information

No. C57225/12

Date: 2013-08-21

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties and Representation

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. 11

And in the Matter of: M.S. born […] 2003, and J.S., born […] 2005

Between:

• Jewish Family and Child Service of Greater Toronto (Applicant)
• J.Z. (mother) and H.S. (father) (Respondents)

Before: Justice Robert J. Spence

Motion Heard on: 20 August 2013

Reasons for Judgment released on: 21 August 2013

Counsel:

• Ms. Sara Westreich — for the applicant society
• Ms. Sheri Hirschberg — for the respondent mother
• Mr. Arthur Brown (duty counsel) — for the respondent mother
• Mr. Brian Ludmer — for the respondent father

Introduction

[1] This is a motion brought by Ms. Hirschberg, seeking to be removed as mother's solicitor of record.[1]

[2] The motion was opposed by the Jewish Family and Child Service ("society") and by the mother herself.

[3] The father took no position, although he sought certain conditions in the event the court decided to grant the motion.

[4] At the conclusion of argument I dismissed Ms. Hirschberg's motion, with reasons to follow. These are my reasons for judgment.

Background

[5] The society commenced its protection application in July 2012 following the apprehension of the two children. Shortly afterwards, the mother retained Ms. Hirschberg to represent her in these proceedings.

[6] From the outset, this case became highly contentious. There were multiple motions brought before the presiding case management judge, Justice Stanley Sherr. He heard the temporary care and custody motion on October 22, 2012, and he released his 24-page decision on October 24, 2012, placing the two children in the temporary care and custody of the mother, subject to society supervision.

[7] As the case continued to unfold before Justice Sherr, the documents filed by the parties became ever more voluminous. By the time the case was assigned to me as the trial judge, the documents had swelled to four bankers' boxes in the court office's file room.

[8] Normally, child protection cases which must go to trial, first proceed to assignment court where they are given a trial date for the regularly-scheduled child protection trial sittings. However, it became evident that this case would require far more extensive trial time than could be provided in the normal course. Accordingly, on June 10, 2013, Justice Sherr assigned three weeks of trial dates outside of the regular trial sittings, beginning October 7, 2013, and at the same time recognizing that the trial would likely take considerably longer than three weeks.

[9] All counsel consented to the trial dates.

[10] The matter then came before me on August 1, 2013 for a trial management conference. One of the many issues addressed at that conference was the need for additional trial time. With the consent of all counsel[2], I assigned an additional two weeks of trial time during the month of November 2013.

[11] While she consented to the additional trial dates in November, Ms. Hirschberg did advise the court that it was "possible" she might subsequently bring a motion to be removed as mother's counsel of record.

[12] Ms. Hirschberg did in fact bring her motion, which is now the subject of this judgment. Included as an exhibit in the supporting affidavit, was the mother's signed Notice of Change in Representation (Form 4), dated July 31, 2013, whereby the mother purported to indicate that she would be representing herself at trial.

Discussion

[13] The starting point for a motion of this nature is Rule 4 of the Family Law Rules ("Rules"). Subrule 4(10) provides [my emphasis]:

CHANGE IN REPRESENTATION

(10) 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. O. Reg. 91/03, s. 1.

EXCEPTION, CHILD PROTECTION CASE SCHEDULED FOR TRIAL

(10.1) 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. O. Reg. 91/03, s. 1.

[14] What Subrule 4(10.1) makes clear is that in circumstances such as exist in the present case, a party cannot simply sign a Form 4 to effect an automatic removal of counsel from the record.

[15] Ms. Hirschberg makes it clear in her motion that her request to be removed as counsel of record is not due to a breakdown in her relationship with the mother. Instead, her request is based solely on financial considerations. This litigation has so far generated literally hundreds of thousands of dollars in combined legal fees[3] and mother has no present capacity to pay any further fees to her counsel. And because she is gainfully employed, mother does not come anywhere near the financial threshold for entitlement to a Legal Aid Certificate.

[16] Unfortunately, then, the reality for Ms. Hirschberg is that all of this results in the prospect of having to prepare for and participate in a trial of about five weeks' duration, potentially without any financial remuneration. Ms. Hirschberg has a self-described "small practice" and the financial impact of this on her practice would be very onerous.

[17] The society, in its argument, acknowledged Ms. Hirschberg's difficulty, and in fact agreed that if Ms. Hirschberg were forced to proceed, this would be a "terrible hardship" for her.

[18] However, as the society pointed out, this trial is likely to be both long and complex. The society has a legal obligation to continually assess its position, not only as trial approaches, but during the course of trial as well, as the evidence unfolds. While mother supports the society's current request for relief being sought at trial (a supervision order with mother) that could well change between now and the commencement of trial, or between the start of trial and its conclusion in November. If that were to occur, mother could find herself in a highly prejudicial position where her interests and those of the society were squarely at odds with one another. In such an eventuality, if mother were without counsel, she could understandably feel compelled to ask the court for an adjournment in an effort to find a lawyer to represent her interests, in the face of the society's changed position.[4] This could potentially occur right in the midst of trial.

[19] For her part, mother sought advice from the court's duty counsel, Mr. Brown, who made submissions on mother's behalf in this motion. As well, mother herself asked for the opportunity to speak directly to the court. She told me that she signed the Form 4, not because she preferred to represent herself at trial, but because she felt she had no choice but to sign.[5]

[20] Mother's first language is Mandarin. And while it appears that her English language skills are at a reasonably well-developed level, mother advised the court there are things said in the courtroom from time to time that she does not understand and for which she has had to turn to her counsel for immediate assistance. The ability to obtain that assistance would be lost if she were forced to proceed to trial without a lawyer.

[21] Furthermore, she points out that not only would she be at the to-be-expected disadvantage were she unrepresented at trial, but in this particular case, she would be facing the prospect of effectively having to climb Mount Everest with both hands tied behind her back. The society is ably represented by highly experienced trial counsel; and the father not only has similarly experienced counsel, but co-counsel as well.[6] Add into that mix the fact that English is not mother's first language, and the result would be a next-to-impossible hurdle for mother to overcome.

[22] The society relied on the case of Catholic Children's Aid Society of Toronto v. F.H., 2011 ONCJ 428, a decision of Justice Sherr. In that case, Justice Sherr dismissed a lawyer's motion to be removed from the record because the motion was brought "less than three weeks" prior to the start of trial.

[23] Ms. Hirschberg argued that the facts of that case are distinguishable because, here, she has brought her motion about seven weeks prior to the start of trial. However, that fact does not alter the more fundamental concerns of this court, which I have earlier discussed.

[24] Unquestionably, there are competing interests at play in a motion such as this. In my view, those competing interests are neatly summarized by the comments of Justice Sherr in F.H., supra. At paragraphs 20, and following, Justice Sherr stated [my emphasis]:

It is with considerable reluctance that I am going to dismiss the motion. Child protection lawyers are the unsung heroes of the legal profession. They often represent vulnerable and challenging clients for little remuneration. The overwhelming majority of child protection counsel with whom this court deals do so with considerable skill, passion, empathy and integrity. It is difficult to order such lawyers to continue to represent clients against their will. The mother's counsel has conducted herself in a professional manner throughout this case.

However, I must balance any unfairness or prejudice to counsel with the potential harm [to the child] . . . . The mother would be at a considerable disadvantage if she had to represent herself.

Here, the potential harm to the child and the administration of justice outweighs the unfairness or prejudice to counsel.

[25] Notwithstanding that in F.H., supra, the child was in foster care at the time of the solicitor's motion, whereas here the children are with the mother pursuant to a temporary supervision order, the principles expressed by Justice Sherr are entirely apt to the present case. And to be clear, on the facts of this case, in my view, there is no principled difference between the two cases simply by virtue that this motion was brought seven weeks prior to the start of trial, rather than three weeks beforehand, particularly since the trial dates were consented to on June 10, 2013.

[26] In dismissing Ms. Hirschberg's motion, I expressed the court's sympathies for her position and for the potential hardship she was facing. However, in balancing the hardship to Ms. Hirschberg as against the other considerations I have examined, I have necessarily concluded that I must, regrettably, dismiss Ms. Hirschberg's motion to be removed as solicitor of record.

[27] I thank opposing counsel for taking an even-handed approach in response to this motion.

Justice Robert J. Spence

August 21, 2013

Footnotes

[1] The Office of the Children's Lawyer, as legal representative of the two children, was served with this motion, but did not appear.

[2] Father's counsel did object to the dates, for reasons having to do with the projected availability of pending co-counsel, although that issue has apparently since been resolved.

[3] Although it appears that only a small percentage has flowed in Ms. Hirschberg's direction.

[4] I make no comment on the likelihood of mother succeeding in such a request other than to observe that the court has an obligation to ensure fairness in the process, particularly in cases such as these which hinge on the best interests of children and impact on the very fabric of their nuclear family composition.

[5] Although I did not take it from any of the evidence or submissions that there was a suggestion of inappropriate pressure applied by Ms. Hirschberg to get her client to sign the Form 4.

[6] And father's interests in this proceeding are adverse to the mother's interests.