WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

Ontario Court of Justice

Date: July 31, 2020

Court File No.: Gore Bay K16-0028 - 2

Parties

Between:

R.F. Applicant,

— AND —

Kina Gbezhgomi Child and Family Services, Wiikwemkoong Unceded Territory, Whitefish River First Nation, S.Y.E.B.G., R.B.J. Respondents

Before the Court

Before: Justice Jessica Wolfe

Heard on: July 28, 2020

Reasons for Judgment released on: July 31, 2020

Counsel

Rejean Parisé — counsel for the applicant

J. Rachelle Philippe — counsel for the respondent society

Sarah Clarke — counsel for the respondent, Wiikwemkoong Unceded Territory

Tanya Farkouh Martin — counsel for the respondent, Whitefish River First Nation

Lance Talbot — counsel for the respondent mother

No appearance by or on behalf of R.B.J., even though served with notice.

Decision

Wolfe J.:

Introduction

[1] Counsel of choice is a foundational principle in the Canadian justice system. It is well established that a litigant should not be deprived of their counsel of choice without good cause. However, this principle is not absolute.

[2] The issue in this motion is whether a lawyer who acted on behalf of a society on a child protection file can now represent one of the other parties in a subsequent protection application. For reasons I have outlined below, I have determined that in this case, the conflict is one which should disqualify the lawyer from continuing to act on the matter and I am ordering the lawyer removed from the record.

Background

[3] This case has an unusual history, one which was only made more complicated by the intervening COVID-19 pandemic which caused the suspension of regular court operations. The facts are outlined below.

[4] N.L.J. ("N.J."), born in 2004, was removed at birth from the care of her parents by the Children's Aid Society of Oxford County and a protection application commenced. The child, who has significant physical needs, including a diagnosis of Microcephaly and Severe Developmental Delays, requires specialized care both at home and at school. She is Anishinaabe and along with both her biological parents, is a registered band member of Wiikwemkoong Unceded Territory.

[5] On March of 2005, N.J. was placed with the applicant on this protection application proceeding, R.F. Mr. F. was, at that time, a recognized foster home and the placement was monitored by the Children's Aid Society of Oxford County. N.J. was approximately 18 weeks old at the time.

[6] The file was ultimately transferred to Kina Gbezhgomi Child and Family Services (KGCFS) and the applicant continued to provide a foster placement for N.J.

[7] On December 12, 2005, N.J. was made a crown ward (now "extended society care") under the Child and Family Services Act. She remained in Mr. F.'s care.

[8] On June 29, 2015, Wiikwemkoong Unceded Territory (Wiikwemkoong) passed a Band Council Resolution which provided that N.J. remain in the home of Mr. F. pursuant to a Customary Care Agreement. Wiikwemkoong and KGCFS have a "Joint Protocol" (Protocol) with respect to the provision of child protection services, which includes Customary Care. The Protocol outlines the relationship between Wiikwemkoong and KGCFS and in particular, supports Wiikwemkoong's "Children's Bill of Rights" as well as their inherent right to be involved in decision making on child protection issues. This includes services-planning for children and their families and, through Formal Customary Care Declarations and Agreements. Among other things, the Protocol provides:

Kina Gbezhigomi daapnaanaa'aan niwe naanggzhewinan miinwaa weweni ada zhii'ii'ook ezhi ndawendaagwok zhiwe Wiikwemkoong zhitwaawining miinwaa Gchi Gimaan zhaagnaashi naaknigwein wii naagdowaad zhichgewin

Kina Gbezhgomi Child and Family Services accept [these] responsibilities and shall act in accordance to our laws, traditions and customs and the laws of the Crown in fulfilling its obligations under this Protocol.

Mr. Parisé was the primary lawyer retained by the respondent society, KGCFS, for child protection matters when the Customary Care Agreement was finalized. Because of the Protocol, KGCFS is necessarily a party to that agreement.

[9] On May 5, 2016, the Crown Wardship Order was terminated following a status review application commenced by KGCFS. The existence of the Customary Care Agreement was the basis for the application. Of note, Mr. Parisé was counsel for KGCFS at the time and counsel of record in that proceeding.

[10] The child remained in the home of Mr. F. under this Agreement until October of 2019 when N.J. was removed by KGCFS and placed in another customary care home. The Customary Care Agreement between Mr. F., Wiikwemkoong, KGCFS, and the biological parents of N.J. was terminated sometime thereafter. It was at this time that Mr. Parisé started acting as counsel of record for Mr. F.

[11] Mr. F., represented by Mr. Parisé, filed a status review on November 22, 2019, which was ultimately dismissed without prejudice to the applicant bringing an application under s.81(4) of the Child, Youth and Family Services Act (CYFSA) or under the relevant custody/access provisions of the Children's Law Reform Act by His Honour Buttazzoni in his decision released on January 21, 2020.

[12] Mr. F. filed a protection application on January 31, 2020, and on February 25, 2020, KGCFS brought a motion to remove Mr. Parisé as counsel of record. This matter was scheduled for a first appearance on March 5, 2020 and was adjourned to April 9, 2020. This was the first time the issue of potential conflict was raised with the court.

[13] On March 16, 2020, the Office of the Chief Justice released a Notice to the Public Regarding Family Court Matters in the Ontario Court of Justice (Notice) ordering the suspension of normal court operations in light of the COVID-19 pandemic. The Notice provided that all family matters, unless urgent, were to be adjourned administratively for eight to ten weeks. As a result, Mr. F.'s application was adjourned, and with it, KGCFS's motion.

[14] In April 2020, the Customary Care placement was revoked when the respondent mother withdrew her consent but did not seek custody at that time. This meant N.J. no longer had a customary care placement. KGCFS commenced their own protection application without naming Mr. F. as a party. After dealing with the initial removal to a place of safety, the court remanded both matters to the same date to be spoken to in order to deal with jurisdictional issues arising out of the fact that there are now two separate child protection applications dealing with the same child, and which do not have all the same parties. The parties on both applications agreed that this motion would need to be heard first before other substantive issues could be addressed.

Test for Removal of Counsel

[15] KGCFS's motion to remove the applicant's lawyer is not brought pursuant to any statute or rule. The jurisdiction to remove counsel is found in the inherent right of the court to determine "to whom it will give an audience" (See Windsor-Essex Children's Aid Society v. B.D., 2013 ONCJ 43 at para. 14).

[16] The test that the courts have developed for determining if counsel should be removed is outlined in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, as whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur.

[17] Justice Tobin in Windsor-Essex Children's Aid Society v. B.D. noted at para. 13 that the threshold for court intervention should be high:

A court should not lightly prevent a litigant from choosing counsel. See Urquhart v. Allen Estate, [1999] O.J. No. 4816 (Ont. S.C.J.) at para. 19. It is a fundamental principle that a litigant's choice of counsel should only be infringed in clear cases. See Judson v. Mitchele, 2011 ONSC 6004, [2011] O.J. No. 4914 (Ont. S.C.J.) at para. 23.

[18] In R.(C.) v. Children's Aid Society of Hamilton, 4 R.F.L. (6th) 98 (Ont. S.C.J.), the court stated at para. 34:

The standard for the removal of counsel is an objective one, which is that of a reasonably informed member of the public. The issue is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor.

[19] When balancing the competing values of the right of litigants not to be lightly deprived of counsel of their choice and maintaining the integrity of the administration of justice, the predominant consideration is, and must be, the integrity of the justice system. See MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, per Justice Cory in his concurring decision, and Kam v. Hermanstyne, 2011 ONCJ 101, [2011] O.J. No. 1019 (Ont. C.J) at para. 11.

[20] Given this overriding principle, in order to make a determination about whether the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur, a court must first decide whether confidential information attributable to the solicitor client relationship was received that would be relevant to the matter now before the court. In MacDonald Estate v. Martin, the court noted:

Once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. (emphasis added)

However, evidence can be used to rebut this presumption (MacDonald Estate v. Martin).

[21] Second, the court must decide if this confidential information will be misused or, put another way, whether the lawyer's duties to either client – past or present – would be compromised as a result. The result of a finding in the affirmative would undermine the public's faith in the legal profession and in the integrity of the justice system itself.

[22] This is particularly significant when one considers, as was raised by Mr. Parisé, the historic and negative relationship between Indigenous peoples and the justice system, which includes the legal profession. In fact, in response to this reality, the Law Society of Ontario (LSO), whose mandate is the regulation of the legal profession in Ontario to ensure that the people of Ontario are served by lawyers and paralegals who meet high standards of learning, competence and professional conduct, as well as to protect the public interest, to maintain and advance the cause of justice and the rule of law, and to facilitate access to justice for the people of Ontario, has formerly recognized that First Nation, Métis and Inuit peoples face unique access to justice challenges.

[23] In order to remedy some of these challenges, the LSO has developed a guide for lawyers working with Indigenous peoples to ensure the competence and professional conduct of lawyers in providing legal services to Indigenous peoples (Guide for Lawyers Working with Indigenous Peoples, A joint project of: The Advocates' Society, The Indigenous Bar Association and The Law Society of Ontario, hereafter, the Guide). The Guide explains:

Understanding the cultural underpinnings of Canada's legal history is important because legal professionals, historically, were deliberate in which cultures they sought to promote and which cultures they attempted to eradicate. Whether consciously or unconsciously, within today's context, lawyers, judges, and others in legal professions still develop, implement and enforce laws drawing from their cultural frames of reference.

As the law has developed in Canada, many Indigenous peoples have grown to distrust Canadian legal systems and the professionals working within them. From Indigenous perspectives, the law was only designed and meant to be enforced against Indigenous peoples, and never designed or meant to serve them. One need only review the disproportionately high levels of Indigenous children and families involved with Child and Family Services, or the overrepresentation of Indigenous peoples in the criminal justice system and in our jails and prisons, as examples of the consequences of a lack of cultural competency. The history and impact of attempts at colonialization, the dispossession of land and forced relocation, including the Indian Residential School System, form a demonstrable basis for the distrust.

These unacceptable trends will continue unless lawyers, judges and others in legal professions acknowledge the institutional and systemic cultural biases historically perpetuated through the legal system, and become more culturally competent in Indigenous cultures, with a view to implementing cultural changes within legal systems (Guide at p. 22).

The decision to remove counsel against the wishes of a client is always a difficult one reserved for the clearest of cases, but where an Indigenous litigant has a trusting relationship with their lawyer, as is the case here, it makes the analysis even more complex. That said, the courts owe a duty to the Indigenous people they serve to intervene in the clear cases of conflict, in order to mitigate this crisis of confidence.

Position of the Parties

[24] KGCFS's position is that given Mr. Parisé was the primary lawyer retained by the agency for child protection matters and was the lawyer of record in April 2016 when the agency sought to terminate the Crown Wardship Order for N.J., he is precluded from acting for Mr. F. in an adversarial position to his former client.

[25] KGCFS also argued that although Mr. Parisé is experienced counsel with a breadth of knowledge related to child protection matters, he is not the only lawyer in the jurisdiction. Mr. F., who is undoubtedly entitled to be represented in a fulsome way, is not precluded from doing so should Mr. Parisé be removed due to a disqualifying conflict.

[26] Mr. F.'s position is that Mr. Parisé has capably and thoughtfully represented his interests. He submits that there has not been any breach of confidence owed to Mr. Parisé's former client, KGCFS, who is the respondent to this application. No specific evidence was presented on this point apart from Mr. F.'s evidence that the process was "never controversial" and that his communication with Mr. Parisé about N.J. began when he retained him in October of 2019. Mr. Parisé submitted that his role was peripheral because the Customary Care Agreement, which formed the basis of the termination of the Crown Wardship Order was drafted on consent of the parties.

[27] Mr. Parisé submitted that, akin to a Crown acting on instructions from a colleague to withdraw a case in the criminal context, his role in the proceeding to terminate the Crown Wardship Order was limited to acting on the agreement of the parties via the Customary Care Agreement.

[28] Mr. Parisé further submitted on behalf of his client that the court must go through the analysis as set out in the leading case, MacDonald Estate v. Martin, mindful of the difference between commercial matters as was heard in that case, and the security of the person interests at stake in child welfare matters. He submitted that the character of the case and what issues are at stake should play into the court's balancing of interests.

[29] Wiikwemkoong agreed with Mr. F.'s position that child protection matters are distinguishable from the commercial interests in the MacDonald Estate v. Martin case, but argued that given the serious interests at stake, this should only make the test for disqualifying conflict more stringent. They argued that Mr. Parisé ought to be removed in this case as he is acting in an adversarial role both to KGCFS, and by inference, given the relationship between Wiikwemkoong and KGCFS, to the citizens of Wiikwemkoong who entrust KGCFS to administer child protection in a manner consistent with the Protocol.

[30] Wiikwemkoong submitted that primacy is to be given to the integrity of the legal profession and the administration of justice. They submitted that in the circumstances, his disqualification should be automatic.

[31] Whitefish River First Nation, with whom Mr. F. is a member, takes no position on this issue.

[32] The respondent mother, newly represented by counsel and whose position, to be fair, has changed a couple of times over the course of these proceedings, argued that she has concern based on the affidavit evidence before the court, that Mr. Parisé would have had access to confidential information, including information about her as a parent and issues relating to her mental health and other grounds raised in earlier protection proceedings. This includes both the Customary Care Agreement and the termination of the Crown Wardship Order. This information, her counsel argued, could be used against her by Mr. F. should she decide to put forth a plan for N.J. She argued that Mr. Parisé needed to be removed in the circumstances.

[33] The respondent father, who is self-represented, was not present and therefore no submissions were made on his behalf.

Analysis

[34] I am not satisfied that Mr. Parisé has rebutted the presumption that he would have been privy to confidential information about his former client, the file itself, and the other parties. His involvement was not peripheral and in fact, he was counsel of record for the society and on the specific orders of consequence to the new proceedings. This includes the original Customary Care Agreement which Mr. F., KGCFS, Wiikwemkoong and both parents were party to, as well as the Order to terminate Crown Wardship. Both would have required that he have access to confidential information.

[35] Further, as Ms. Clarke pointed out on behalf of her client, Wiikwemkoong, lawyers are governed by the Rules of Professional Conduct (Rules) as set out by the LSO, and as such, are always required to act with a duty of loyalty and confidentiality in a manner that is competent, conscientious, and diligent in order to ensure the integrity of the legal profession. Even though a court's authority to remove counsel doesn't come from these Rules and rather from its own inherent jurisdiction, the Rules are important context for understanding the public policy regarding the role of lawyers in our communities (see MacDonald Estate v. Martin).

[36] While it appears Mr. Parisé's argument about his limited role in the file while retained by the society was intended to address the second part of the analysis by mitigating some of the risk of breach of confidentiality that other parties argued would necessarily have occurred, it simply cannot be that a duty owed to a former client is lessened by virtue of a practice that involves a failure to discharge the meaningful responsibilities owed to that client. Counsel was retained to provide a service to the society which created a duty to carry on the practice of law and discharge all responsibilities to his client, the court, the public and other members of the profession honourably and with integrity (see Rule 2.1-1 of the Rules). Clearly, providing advice based on thorough knowledge of the file, and certainly before acting upon it, is a part of that duty. A lawyer's responsibility to practice in a competent way requires it.

[37] The information that Mr. Parisé was necessarily privy to included confidential information about the parties now engaged in the current proceedings, and there exists a very real risk that it could be used to prejudice his former client, KGCFS, as well as other parties. As a result, I find that the nature of Mr. Parisé's retainer with KGCFS which required him to act for the agency on the file relating to N.J. puts him in a position of conflict in relation to his retainer with Mr. F. He will have acted on both sides of a child protection file, and on particular issues of consequence that are currently before the court.

[38] While the court is not questioning his professional integrity or the vigour with which he has represented Mr. F.'s interests, the public as represented by the reasonably informed person, would simply not be satisfied that this passes the proverbial sniff test. The Indigenous communities in Manitoulin District and elsewhere in Ontario, along with all Ontarians, would simply not be satisfied that a lawyer who has acted on both sides of a specific child protection file has not put the integrity of the profession – and thus the justice system as a whole – into question. The court is satisfied that there is clear conflict in this case, and Mr. Parisé is removed as counsel for the applicant, Mr. F.

[39] The court is concerned that the respondent society did not bring this issue to the court's attention earlier in the proceedings, including at Mr. F.'s status review. The failure to do so has resulted in a delay in decision-making regarding the child, that is inconsistent with her statutorily protected rights under the CYFSA to ensure timely responses in protection proceedings so that children are not left in legal limbo. Further, while this decision will result in the applicant needing to retain other counsel or representing himself, the rights of the child – including timely decision making with regard to custody and care – must prevail. Mr. F. is encouraged to move quickly in this regard.

Released: July 31, 2020

Signed: Justice Wolfe