Court File and Parties
Court File No.: 399/15 Date: 2015-08-04
Ontario Court of Justice
Re: Julja Skribana, applicant And: Alexander Skriban, respondent
Before: S. O'Connell
Counsel: Modupe Ehinlaiye, for the Applicant, Julja Skribana Alexander Skriban, acting in person
Endorsement
(In Chambers)
Motion to Remove Counsel of Record
[1] The applicant's counsel, Ms. Ehinlaiye, has brought a 14B motion for an order that she be removed as counsel of record for the applicant mother, Ms Julja Skribana ("the mother").
[2] The motion was reviewed in chambers on today's date. No one was appearing. The motion and affidavit were served on both parties on July 24, 2015. It is unopposed.
Background
[3] The mother commenced her application for custody and other relief on May 27, 2015. The respondent, Alexander Skriban ("the father") is the mother's husband and the biological father of the children.
[4] The first appearance date was scheduled for July 20, 2015. The first case conference in this matter is scheduled for September 16, 2015 at 2:30 PM. This is the next step in this case.
[5] On July 7, 2015, urgent motions were heard before the Honourable Justice Starr, resulting in an order that the mother have interim custody of the two young children and that the respondent father shall have supervised access to the children. The order also provides, among other relief, that the respondent father shall undergo anger management counseling and parenting classes, and that there be a "no contact" order between the parties, save and except for the purposes of communicating for access.
Evidence of Harassment and Threatening Conduct
[6] The affidavit in support of Ms. Ehinlaiye's motion to be removed as counsel of record for the mother is very concerning. It sets out a detailed history of behavior by the respondent father towards her that is harassing and threatening. Copies of the father's correspondence to her are attached as exhibits to the affidavit. The police have been involved and have warned the respondent father from continuing what can only be described as criminal harassment.
[7] On July 23, 2015, notwithstanding the warning from the police, further messages were sent to Ms. Ehinlaiye at her office which made her fearful for her safety and for that of her husband's safety, whom the father has also attempted to contact. Ms Ehinlaiye's husband works in Toronto, and has no involvement in this case or in the representation of the applicant mother.
Decision
[8] This case is at a very early stage in its proceedings. Based on the evidence filed by Ms. Ehinlaiye, I will grant the order to remove her as counsel of record, for her own safety. I understand that this will no doubt be difficult for the applicant mother, who is rightly concerned that the respondent father will continue to engage in this behavior with any lawyer that she retains to represent her. There is some evidence in the affidavit that another counsel will represent the mother.
Retention of Affidavit in Court File
[9] I also order that the affidavit in support of Ms. Ehinlaiye's motion to be removed as counsel of record remain in the court file. I understand that in normal circumstances, these affidavits should be removed from the court file. Rule 4(13) of the Family Law Rules, provides as follows:
NOTICE OF MOTION TO REMOVE LAWYER
(13) Notice of a motion to remove a lawyer shall also be served on the other parties to the case, but the evidence in support of the motion shall not be served on them, shall not be put into the continuing record and shall not be kept in the court file after the motion is heard. O. Reg. 114/99, r. 4 (13).
[10] This is an exceptional case in which the evidence should remain in the court file. The rationale for sub-rule 4(13) of the Family Law Rules is to protect the client's interests and confidentiality when her lawyer is seeking to be removed as her lawyer of record. However in this case, counsel is seeking to be removed from the record not because of the conduct of her client, but rather because of the disturbing, harassing, and threatening behavior of the respondent's conduct towards her and other family members.
[11] In my view, this evidence should remain in the court file given the issues at stake. The court in this case needs to determine what custody and access order is in the children's best interests. The evidence presented in counsel's affidavit raises serious concerns about the respondent father's mental health and conduct. The affidavit should remain in the court file for the case management judge.
Order
[12] Therefore, I make the following order:
The applicant's counsel shall be removed, at her request, as counsel of record for the applicant.
For safety and security purposes, the affidavit filed in support of the applicant's counsel's request shall remain in the court file, in the continuing record.
A copy of this endorsement shall be served on both parties and the applicant's former counsel of record.
Justice Sheilagh O'Connell
Date: August 4, 2015