Court Information

Sault Ste. Marie Registry No.: 84/15

Date: 2015-06-09

Ontario Court of Justice

In the Matter of: An application under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, respecting L.F., a child apparently in need of protection

Parties

Children's Aid Society of Algoma Applicant

— and —

J.M. and D.F. Respondents

Before the Court

The Honourable Justice Romuald F. Kwolek

Date: 9 June 2015, at Sault Ste. Marie, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 45(7) AND 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Appearances

• Jennifer A. Mealey — counsel for the applicant society
• Respondent father, D.F. — on his own behalf
• Paternal grandfather, A.F. — not party to this motion

Reasons for Ruling

Opening Remarks

[1] JUSTICE R.F. KWOLEK (orally):— All right. Thank you. My reasons will not be as logical or as reasoned if I had months to do them, but I do not think the parties want that — me to take that luxury to take so long to make a decision. At the outset, I do want to thank counsel for — mainly for submissions and the father as well for his submissions and Mr. A.F. for being here and conducting yourself in a very professional manner today. I appreciate that. The court demands respect from the parties who appear before it and that is why I tried to give you at least a few minutes to express your views.

The Motion

[2] This is a motion brought by the respondent parents in a child protection proceeding to have the paternal grandfather, Mr. A.F., represent the respondents in court proceedings pursuant to clause 4(1)(c) of the Family Law Rules, O. Reg. 114/99, as amended.

[3] The paternal grandfather of the child, L.F., had been involved in an informal fashion assisting the respondents and dealing with the children's aid society. The society takes the position that the paternal grandfather should not be so appointed citing various factors. It is the society's position that, on various occasions, the paternal grandfather coached the parents from a meeting in March 2015 to encourage a sense of mistrust of the worker and the society in general and interfered with the society's communication with the parents. From the affidavit material filed by the society at tab 8, as well as the earlier affidavit, the society also alleges that the paternal grandfather had encouraged the parents not to work voluntarily with the society and to force the society to commence court proceedings essentially with respect to the child L.F. if they wished to be involved with the child L.F. Further in March, the paternal grandfather allegedly attended with the father for an unannounced and unscheduled meeting with the child protection worker. The worker interpreted that meeting as an attempt to intimidate the worker, be argumentative, demanding and hostile.

[4] Child protection proceedings were subsequently commenced by the society in April 2015. The society sought an order placing the child L.F. in the care of the parents subject to the supervision of the society for a period of 12 months, subject to terms and conditions. An initial, "without prejudice" order was made on 8 April by Justice Melanie D. Dunn this year. On that occasion, the paternal grandfather was present. The society objected to his presence and he sought to represent the parents. Justice Dunn allowed him to be present, but not to represent the parents on that occasion.

[5] The respondents brought a notice of motion returnable on 29 April 2015 requesting leave to be represented by a person who is not a lawyer, namely Mr. A.F., father of Mr. D.F. and paternal grandfather to the child. The respondents once again rely on clause 4(1)(c) of the Family Law Rules. In support of their notice of motion, a short affidavit was filed. That affidavit indicated that Mr. A.F. had already been assisting the parties. He has been provided by the parents with the court documentation and, as a result, no issue concerning privacy rights has arisen. In support of their motion, the respondents have described Mr. A.F. as: "An experienced professional who has strong, analytical and problem solving skills. He's an excellent public speaker as in his profession he has held seminars and training classes for upward to 70 people at one time." The society once again has detailed its problems with the paternal grandfather in its affidavit at tab 8 and its initial affidavit at tab 3 dated 7 April.

[6] In paragraph 10 of the affidavit of Luanna Koprash dated 22 May, the worker advised that, since the order of Justice Dunn made on 8 April: "The paternal grandfather has not, to date, continued with his hostile and strongly argumentative behaviours and it has been more possible to have a rational conversations. As a result, I have not had to insist that the paternal grandfather not be present at meetings." The worker continues, "Further given the animosity displayed by the paternal grandfather toward the society, I believe he would not be able to exhibit the necessary objectivity and detachment expected from someone assuming the role of counsel." The paternal grandfather to my understanding now is attending with the parents and has been attending meetings with the children's aid society.

Legal Framework and Case Law Analysis

The Niagara Region Decision

[7] The society also argues that the respondents have not demonstrated that there are special circumstances nor that the proposed representative has special expertise justifying such representation. The case law on which the respondents rely is the decision of the Ontario Superior Court of Justice, Justice Joseph W. Quinn in the case of Children's Aid Society of Niagara Region v. D.P., 62 O.R. (3d) 668. In that child protection case, Justice Quinn found that special circumstances that have been required to allow paid agents to appear with the self-represented litigant should not apply to unpaid non-lawyer agents or friends. He disagreed then with earlier decisions. He has cited Stone v. Stone, 4 R.F.L. (5th) 433, and Gotlibowicz v. Gillespie, 28 O.R. (3d) 402. In Children's Aid Society of Niagara Region v. D.P., the father of two infant children who were apprehended by the children's aid society — therefore they were in care — attempted to represent himself during trial. He started representing himself during trial, but found it difficult to ask personal questions of some of the witnesses. On the fourth day of the trial, the father made, what he thought was a simple request, asking leave of the court to allow a friend to assist him by conducting the examinations of the remaining witnesses and perhaps presenting closing argument on his behalf. The society was proceeding with its examination in-chief of its fourth and last witness and it was expected that the respondent parents would testify and each call possibly one additional witness.

[8] In that case, Justice Quinn identified the issues as follows: "What is the test for allowing representation by an unpaid, non-lawyer agent or friend? What level of assistance is such an agent entitled to provide? Justice Quinn found that the test was a simple one: "Does the litigant believe he would benefit from the assistance of his friend and is that belief reasonable?" On the issue of the extent of the level of assistance, Justice Quinn found that the litigant had a right to a fair trial and ultimately decided that the friend could act as agent for the father for the balance of the trial, including questioning witnesses and, if necessary, to make closing arguments. There is not very much stated about his qualifications or how the father had done during his questioning. The judge would have known at that time whether or not the father had done a proper job. Suffice it to say that, from His reasons, I read that the judge felt that the assistance of someone at that time was helpful and I read into it, necessary in the interests of the administration of justice and access to justice, to have that individual help. I read that between the lines, but clearly, the judge felt in that particular case that it was necessary and preferable to have some assistance for the father.

The Restrictive Approach

[9] Justice Quinn's liberal views about the use of clause 4(1)(c) do not appear to be shared by the majority of his judicial colleagues. In Katz v. McNevin, 2012 ONSC 4946, 222 A.C.W.S. (3d) 1015, Justice Ian F. Leach of the Ontario Superior Court of Justice dealt with a motion by the mother who sought permission to be represented by her live-in boyfriend. The mother complained of difficulty interacting with the father; asserted that he bullied her and that she could not find a lawyer willing to act against the father. The father was a local lawyer in that jurisdiction.

[10] Justice Leach found the following principles and these are different from what Justice Quinn found: "There's a very limited judicial discretion to permit non-lawyers to represent parties in civil matters before them. The relevant Family Law Rules " which were fairly recently changed at that time for the Superior Court — I think 1999 — "should not be regarded as a substantial change in law representing — respecting who may represent parties in family law matters. It should only be implemented where the party requesting non-lawyer representation demonstrates in a convincing way that there are special circumstances and the proposed representative has special expertise justifying such representation." He also found that the court should be mindful of dangers of non-lawyer representation, but the most important factor that he found, and his greatest concern, was the fact that most lay representatives will lack the necessary training, education and experience in litigation to properly represent their clients.

[11] Justice Leach cited early decisions indicating, "There is a vast and significant difference between lending assistance to a litigant and representing the litigant for all purposes of litigation." Justice Leach did agree to this extent, although he did not — (nobody seems to have mentioned Justice Quinn's decision and I have looked at a whole series of decisions, none of them seemed to mention the decision in Children's Aid Society of Niagara Region v. D.P. . I am not sure why, maybe it was never brought to their attention) Justice Leach did agree with Justice Quinn that it would be "Inadvisable for such party proposing to act as advocate in place of a lawyer to also give testimony." I do not know whether I would even agree with that necessarily, but traditionally, if you are an advocate or a lawyer, you do not testify. I think from the involvement of Mr. A.F. that he would be a crucial and potentially very important witness for the respondents.

The Advocate-Witness Issue

[12] I do not think there should be a hard and fast rule, however about that issue of providing assistance and testifying. The reality today — and I think we have got some recent statistics that up to 78 percent of items in family court and Old City Hall in Toronto, are filed by self-represented litigants — 78 percent. Some of them subsequently get to be represented and so on. That is a scary situation and I would think that, given that many of those individuals end up having to question, if they go to trial, and to testify, that clearly they do not have that type of distance or — or what we expect from a lawyer to have to be totally objective. Certainly, they cannot be totally objective. So what do we do in a case like that? I think the case law and judges are going to have to review that situation, where someone may potentially be acting as a representative under clause 4(1)(c). However, it is clear that all the case law to date says you cannot be an advocate, cannot be a representative and you cannot testify.

Manitoba Approach

[13] In a Manitoba Court of Appeal decision, there was another case that I found, Moss v. NN Life Insurance Company of Canada, 2004 MBCA 10, 180 Man. R. (2d) 253. The court dealt with an appeal of the decision, I believe of a Superior Court. The Life Insurance Company brought a motion to prevent her husband from representing her in litigation — and this is a Court of Appeal decision. The appellate court dismissed the appeal, in other words affirmed the right of the Insurance Company to ensure that the husband did not act, but it stated that he could play a lesser role in the litigation suggesting the trial court retain a discretion to determine the extent of such assistance. Manitoba law is a little bit different — the law society rules are a little bit different, but clearly there is, there is a difference between providing assistance and acting as a representative, and the courts can try to tailor the assistance to ensure that there is access to justice and that access be done.

Paralegals and Paid Agents

[14] Many of the reported cases dealt with representation by paralegals or paid agents or disbarred lawyers, Harry Kopyto one, plus the case presented by — Ms. Mealey, Scarlett v. Farrell, 2014 ONCJ 194, 47 R.F.L. (7th) 481. There was a step-dad there who was not completely honest with his record and the court in that case, again, did not allow that representation. So the courts and judges have consistently prevented paralegals or paid legal agents from acting on behalf of clients in matrimonial proceedings. See Carroll v. Carroll, 100 A.C.W.S. (3d) 270, and Children's Aid Society of Haldimand-Norfolk v. S.A.M.R. (2003), 124 A.C.W.S. (3d) 821, as well. Are times changing? They may be changing due to the number of self-represented litigants. There may have to be changes in regulations and paralegals may be given more responsibilities, but that is not the case today and that is not the law today.

Conflicting Authorities

[15] Given the different line of authorities in the Superior Court of Justice of Ontario relating to the issue and the lack of an Ontario Court of Appeal decision that I could find relating to the issue, I am left with these conflicting cases. We do have Justice Quinn's case that conflicts; however, with what I must say is the vast majority of the other cases. In the context of what I would suggest was an access-to-justice issue, it was important to ensure that there was some assistance to a father who was in the middle of a trial and clearly it appears was having some difficulty.

The Appropriate Test

[16] So what is the appropriate test to be used in dealing with such a motion for representation by a person who is not a lawyer? Well, all the cases are not unanimous and I think they require the judges to look at the peculiar circumstances surrounding the case where such representation is sought. It is anticipated that this issue will become more important. Ultimately, I think the test will be: "What is in the interests of justice and access to justice to have someone appointed to assist the litigant if the litigant needs assistance?" The court does have jurisdiction to do so and has authority under clause 4(1)(c) of the Family Law Rules to do so.

Application to the Facts

[17] So what about the facts in this particular case? Number one, I am very much concerned that the parties have yet to file an answer in these proceedings. The proceedings were started in April and I appreciate that there may be other proceedings, but an answer is normally required to prevent a default from being ordered. Regardless of what else was happening, an answer should have been filed and that causes me concern.

[18] The father advises also that he does have a legal aid certificate available in this case. In a lot of these court cases, legal representation was not available. They just did not have the availability of a lawyer. As indicated by counsel for the society, child protection law is fairly complex. It is full of all sorts of technical rules and it is difficult, even for lawyers — even for lawyers who have some experience in the area to practice. So I do not doubt — and I respect Mr. A.F.'s presence here today. I respect his wish and desire to assist and his involvement with the parents in this particular case. However, under the current law and based on the evidence that is before me — and all that I have before me, is the affidavit material filed, I'm not satisfied that this is a case where Mr. A.F. should be appointed as a representative for the parents. And I will — I will tell you this. In the appropriate case, based on appropriate evidence, I would have no difficulty appointing someone under clause 4(1)(c) of the Family Law Rules, especially if this is — if the situation demands it as an access-to-justice issue. However, based on the case law, based on the evidence before me, this is not such a case. I must therefore dismiss the motion that is brought by the parents. The material filed does not provide the court with much information regarding the suitability of Mr. A.F. to act as a representative and I am not satisfied that under the law, he should be so appointed.

Conclusion and Advice to the Parents

[19] I am concerned that the parents may be denied access to justice by refusing to retain a lawyer who has expertise in this area and instead are relying on a well-meaning family member who has neither the knowledge nor the objectivity to provide proper advice to the parents. I am sympathetic, but my advice certainly to the parents is you do not have to go back to the same lawyer that you used in the first place. If you have lost that confidence, nobody would insist that you do so, but you should get the assistance of a lawyer, especially one that is available to you. I see no problem with having the assistance of Mr. A.F. — and Mr. F., you know that you have to — there is the old expression, "You attract more bees with honey." The more co-operation there is with the society, the more you work with them, the more likely they are to co-operate with the parents.

Transcript prepared by Lauren Burch, court reporter at the Ontario Court of Justice, Sault Ste. Marie, Ontario.