ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-09-8512-01
DATE: 20120829

BETWEEN:

Kayla Katz (formerly McNevin) Applicant – and – David Michael McNevin Respondent

Applicant, self-represented
Daniel S. Ableser, for the Respondent

HEARD: August 29, 2012

LEACH J.:

[ 1 ] The motion before me concerns a request by the Applicant, pursuant to Rule 4(1) (c) of the Family Law Rules , O. Reg. 114/99, for the Court’s permission to have her represented by a person who is not a lawyer. In particular, the Applicant seeks permission to be represented, to the conclusion of these proceedings, by William J. Taylor, (“Taylor”), whose relationship to the Applicant and suggested qualifications are addressed below.

Background

[ 2 ] The parties to this matrimonial litigation were divorced by an Order made by Justice Quinn on March 18, 2011; a comprehensive Order that also addressed such matters as custody and access relating to the couple’s two children, child support, (including the manner in which expenses for the children as set out in s.7 of the Federal Child Support Guidelines were to be discussed, incurred and shared), spousal support and property division. The record indicates that the Order reflected Minutes of Settlement agreed upon by the parties, each of whom was represented at the time by separate legal counsel. In that regard, the applicant was represented by Jean Marentette, a lawyer whose office is in Windsor.

[ 3 ] The Applicant now has brought an application to change the aforesaid order, and its support obligations in particular. In doing so, she alleges, inter alia , non-disclosure of the Respondent’s income information and documentation both before and after making of the order, as well as alleged failure by the Respondent to make proper/ordered contribution to special/extraordinary expenses incurred for the benefit of the children.

[ 4 ] The Respondent has answered, contesting the current application. His formal response includes a denial of alleged non-disclosure, allegations that the Applicant has breached the Orders regarding child access and/or interfered with such access, and a request for reduction of child support based on alleged decreases in his income.

[ 5 ] The litigation is ongoing, and there are other outstanding motions, brought by the Applicant, for further documentary disclosure and productions, (from both the Respondent and the professional corporation in which the Respondent has an interest). Hearing and disposition of those motions effectively has been held in abeyance pending determination of the Applicant’s request for non-lawyer representation.

[ 6 ] The parties agreed, during the course of the hearing before me, that the additional production motions should be adjourned again to a later date to be scheduled in consultation with the trial co-ordinator, following determination of the representation issue. In the meantime, the parties also agreed and confirmed that the following documentation has been provided by the Respondent to the Applicant, in at least partial satisfaction of her requests:

a. the tax notices of assessment for the Respondent, personally, for the years 2008 and 2009;

b. the articles of incorporation, for the professional corporation in which the Respondent has an interest; and

c. the complete income tax return filed for the Respondent, personally, in relation to 2011.

[ 7 ] At the time of the hearing before me, the remaining productions sought by the Applicant included the income tax returns of the professional corporation for the years 2010 and 2011, and further documents relating to an investment or possible investment of that corporation. Counsel for the Respondent indicated that the corporate tax returns in question do not yet exist, that they are in the course of preparation by a non-party, and that the Respondent confirms and/or extends his earlier undertaking, (contained in paragraph 18 of the affidavit sworn by the Respondent on May 25, 2012), to provide the corporate tax returns to the Applicant within 30 days of their receipt.

Non-Lawyer Representation: Evidence

[ 8 ] The Applicant’s first formal indication of her desire for non-lawyer representation seems to have been expressed in an affidavit sworn by her on March 8, 2012, the opening paragraph of which reads as follows: “Applicant requests the court give permission for William J. Taylor to represent the Applicant in this matter before the courts for the duration of this file.”

[ 9 ] The Applicant formally advanced her request for non-lawyer representation in a notice of motion dated April 19, 2012, supported by an affidavit sworn by the Applicant on the same date. The content of that affidavit directed to the representation issue again was limited to one short initial paragraph, which expanded on her earlier statement to read as follows:

Applicant requests the court give permission for William J. Taylor to represent the Applicant in this matter before the courts for the duration of this file. Mr. Taylor is familier (sic) with the procedures of Family Law with a working knowledge of the Divorce Act and Income Tax Act which I require assistance on in this case before the courts.

[ 10 ] The Applicant repeated her request for non-lawyer representation in another notice of motion dated May 14, 2012, accompanied by a further affidavit, sworn the previous day. That affidavit also contained just one paragraph relating to the representation issue. The paragraph is identical to that set out above, apart from inserting a specific indication that the Applicant was advancing her request “under rule 4 of the Family Law Act” (sic).

[ 11 ] In an affidavit sworn on May 25, 2012, the Respondent details numerous concerns he has about the suggestion of Mr Taylor being permitted to represent the Applicant in these proceedings. I have regard to the entirety of that evidence, but for present purposes it generally may be summarized as follows:

a. The Applicant previously has been represented by lawyers in her legal disputes with the Respondent;

b. The Applicant has the financial wherewithal to retain counsel again to deal with the present dispute, (insofar as she earns income of approximately $70,000 a year and receives approximately $90,000 annually in child and spousal support), but chooses not to do so;

c. The Applicant is well educated, with two post-secondary degrees, and is capable of formally representing herself if necessary;

d. The Respondent understands Taylor to be the Applicant’s “live-in boyfriend”;

e. Taylor’s continuing relationship with the Applicant dates back to the time of the parties’ divorce proceedings, such that he is a potential witness with evidence in relation to such matters as:

i. the negotiations and disclosures prior to the Minutes of Settlement and Order the Applicant seeks to vary; and

ii. the consultation or lack thereof that may have taken place prior to special/extraordinary expenses being incurred on behalf of the children;

f. Taylor has no experience or training sufficient to conduct a case in court; and

g. Taylor has a demonstrated history of untrustworthy conduct and open hostility towards the Respondent.

[ 12 ] In relation to the last point, the Respondent detailed a number of specific incidents and episodes to illustrate his concerns. These included the following:

a. An unnamed man, identifying himself as Taylor’s former employer, is said to have approached the Respondent at home with a document found on Taylor’s computer. The document, (not produced as an exhibit to the affidavit), is said to have contained an analysis of the Respondent’s financial disclosure and indications of a contemplated “strategy” and reprehensible tactics. (These included “using” the Respondent’s children against him, and “pretending to sell” the matrimonial home to pressure the Respondent into negotiations so as to avoid displacement of his children.) The Respondent contends a number of these “strategies” were reflected in subsequent events, including the Applicant’s abortive listing of the home for sale.

b. Trudie Carlesso (“Carlesso”) is said to have approached the Respondent, identifying herself as a former business partner and girlfriend of Taylor. In particular, Carlesso indicated she was romantically involved with Taylor in March to December of 2010. During that time, Taylor allegedly misled Carlesso as to the nature of his simultaneous relationship with the Applicant, (describing it as being “like brother and sister”), but repeatedly exhibited a “strange and unusual” obsession with “getting” the Respondent that eventually led Carlesso to make further inquiries and discover the true nature of Taylor’s relationship with the Applicant, thereby precipitating the end of the Carlesso-Taylor relationship.

c. Taylor allegedly has harassed and threatened the Respondent in earlier direct email and text messages, (not filed as exhibits), that persisted despite the Respondent’s request for a termination of communications. The Respondent alleges that the messages were copied to the Windsor Police, who indicated a likelihood of charges if the Respondent attended to file a complaint. The Respondent says he elected not to file such a complaint in an effort to avoid inflaming the situation further.

d. On or about November 2, 2011, Taylor allegedly confronted the Respondent in front of the children’s home and chased/followed the Respondent down the street, in the presence of the Respondent’s former neighbours, loudly voicing unfounded accusations relating to support cheques.

[ 13 ] In the circumstances, the Respondent contends that allowing Taylor to go beyond the provision of informal assistance to the Applicant would hinder effective progress of the case, delay the proceedings, and cause needless complications.

[ 14 ] In reply, the Applicant swore a further affidavit on August 21, 2012, addressing the representation issue, (including the Respondent’s allegations in that regard), in a more fulsome way. Again, I have regard to the entirety of that evidence, but it can be summarized for present purposes as follows:

a. The Applicant rejects the suggestion of Taylor as a potential witness, having any relevant evidence. She emphasizes that “all motions before the court are financial” in nature and stem from the Respondent’s alleged non-disclosure.

b. The Applicant dismisses the allegations regarding Taylor’s supposed former employer and the damning computer document as a “fabrication”. She explains her efforts to list the house for sale, emphasizing that such efforts were genuine and done on the advice of counsel.

c. The Applicant similarly disputes the allegations regarding Carlesso, She says the claim that Carlesso was anything more than a business partner to Taylor is a “false statement”, and that other pending litigation between Taylor and Carlesso prevents the Applicant from saying more in that regard.

d. The Applicant confirms that Taylor was communicating with the Respondent, but claims Taylor was simply “providing information” and “acting as mediator”, because the Respondent’s alleged “constant bullying” made direct contact between her and the Respondent unadvisable. She makes reference to the Respondent becoming “enraged at William Taylor after a recorded conversation”.

e. As for the further incident of alleged confrontation between Taylor and the Respondent, the Applicant denies it occurred as alleged, but also says the incident, such as it was, was “initiated by the Respondent”. Generally, the Applicant suggests that the Respondent should be faulted for any confrontation, noting that he was charged on one occasion with “failing to leave premises and resisting arrest”.

[ 15 ] In her reply affidavit, the Applicant therefore denies much if not most of the Respondent’s affidavit evidence. She nevertheless does not deny the Respondent’s characterization of Taylor as the Applicant’s “live-in boyfriend”. In that regard, I note that the court’s continuing record for this matter contains numerous affidavits of service sworn by Mr Taylor in 2012, (e.g., on March 9, April 25, May 15, and August 23), in which he describes his “relationship to, or affiliation with, any party in this case”, as “Companion to Applicant”.

Facta and Oral Submissions

[ 16 ] On May 25, 2012, Justice Donohue adjourned the Applicant’s motion for non-lawyer representation with a direction that both parties deliver facta to assist in defining the issues and positions of the parties.

[ 17 ] This subsequently was done, but it should be noted that the Applicant’s factum improperly included what is really further unsworn evidence from the Applicant, along with various documents that are really unsworn exhibits. In that regard, this additional material attempts to expand upon:

a. the Applicant’s allegations of bullying and other misconduct by the Respondent, (including allegations of bullying advance in correspondence sent to the Respondent by Mr Eberlie, a London lawyer who apparently represented the Applicant in the earlier proceedings between the parties prior to Ms Marentette’s involvement);

b. the Applicant’s professed inability to retain any lawyer, or at least a lawyer whom she can trust not to have improper communications with the Respondent, because the Respondent is a lawyer based in Windsor and a sessional instructor at the University of Windsor’s Faculty of Law; and

c. the Applicant’s assertion that Taylor has sufficient experience and qualifications to act as her representative in these proceedings, (including experience with corporations and charities, formal education that includes some law courses, and a recent experience representing the Applicant in the Tax Court of Canada).

[ 18 ] The Applicant, representing herself during the course of the special appointment hearing of the motion, also made oral submissions that effectively included further unsworn testimony; e.g., detailing her alleged unsuccessful efforts to locate an acceptable lawyer willing to represent her in these proceedings.

[ 19 ] As indicated to the Respondent during the course of submissions, all such unsworn documentary and oral evidence is not properly before the Court.

General Principles

[ 20 ] As noted above, the Applicant advances her request for representation by Taylor pursuant to clause 4(1)(c) of the Family Court Rules , O. Reg. 144/99, which reads as follows:

A party may be represented by a person who is not a lawyer, but only if the court gives permission in advance.

[ 21 ] This clause has been considered by the courts on numerous occasions; e.g., Stone v. Stone (1999), 4 R.F.L. (5 th ) 433 (S.C.J.), Stone v. Stone (2000), 5 R.F.L. (5 th ) 151 (S.C.J.) Loney v. Loney , [2004] O.J. No. 3832 (S.C.J.), and Pires v. Dedvukay , 2010 ONCJ 8 , [2010] O.J. No. 294 (O.C.J.). These authorities emphasize and illustrate the following general principles and considerations that should be brought to bear in relation to any request for non-lawyer representation pursuant to Rule 4(1)(c):

• There exists, in the courts of Ontario, a very limited judicial discretion to permit non-lawyers to represent parties in civil matters before them. The exercise of that discretion, in any case, would constitute an exemption to subsection 50(1) of the Law Society Act , R.S.O. 1980, c.L.8, which generally prohibits non-lawyers from appearing in court to represent people “except where authorized by law”. Rule 4(1)(c) of the Family Court Rules must be read concurrently with that general prohibition.

• Rule 4(1)(c) should not be regarded as a substantive change in the law respecting who may represent parties in family law matters. It should instead be interpreted in a manner consistent with existing legislation and the vestiges of the inherent powers of the judiciary to authorize lay representation in the courts; i.e., as a codification of that limited discretion.

• Rule 4(1)(c) therefore ought to be interpreted narrowly. It should be implemented only in limited cases where the party requesting non-lawyer representation demonstrates, in a convincing way, that there are “special circumstances” and that the proposed representative has “special expertise” justifying such representation.

• Inability to afford a lawyer is not, in and of itself, a “special circumstance” warranting non-lawyer representation pursuant to Rule 4(1) (c).

• General litigation experience alone, or experience as a self-represented litigant, does not constitute “special expertise” in the sense required. Nor does familiarity with a litigant’s case.

• When considering requests pursuant to Rule 4(1) (c), courts should be ever mindful of the dangers inherent in non-lawyer representation, which include the following:

o Non-lawyers are not bound by a code of ethics;

o The solicitor-client privilege will not exist between lay representatives and their clients;

o There usually will be no liability insurance to protect clients from negligence; and

o Above all, most lay representatives will lack the necessary training, education and experience in litigation to properly represent their clients.

[ 22 ] With these general considerations in mind, I turn to the specific request of the Applicant for non-lawyer representation in this case.

Analysis

[ 23 ] In an effort to demonstrate “special circumstances” warranting relief pursuant to Rule 4(1)(c), the Applicant generally relies on the Respondent’s alleged history of bullying and harassment, (which she says makes it difficult for the Applicant to confront or have a dialogue with the Respondent), and the alleged difficulties she has encountered, (because of the Respondent’s position as a local lawyer and university law instructor), in retaining a trustworthy lawyer willing to represent the Applicant through to the conclusion of these proceeding.

[ 24 ] I am not persuaded that either consideration presents “special circumstances” in the sense required.

[ 25 ] Acrimony and allegations of past misconduct, making it difficult for parties to interact with each other, unfortunately are not uncommon in matrimonial litigation. They accordingly cannot be regarded as a sufficient touchstone of “special” circumstances justifying resort to Rule 4(1)(c), or the deliberately narrow and carefully guarded doorway to non-lawyer representation would seem destined to swing open far too wide in this context.

[ 26 ] In any event, it seems to me that the Applicant’s concerns in that regard can and will be addressed in this particular litigation without resorting to non-lawyer representation pursuant to Rule 4(1)(c), even if the Applicant remains self-represented. Interaction between the parties in open court will be controlled by the court. As for conduct of the litigation outside the courtroom, it must be remembered that the Respondent now is represented by a lawyer. His involvement inherently creates and interposes a “buffer” between the parties, limiting their direct interaction in the course of the litigation. Moreover, as emphasized by the above authorities, the Respondent’s lawyer, (unlike a lay representative), is bound by a strict code of ethics, and answerable to the court and to the Law Society for any misconduct. All of this greatly limits the scope for inappropriate conduct by either party.

[ 27 ] Of course, such concerns would be further addressed and/or eliminated if the Applicant was represented by a lawyer, which presents a segue to the other “special circumstances” justification proffered by the Applicant.

[ 28 ] In that regard, I have great difficulty accepting the Applicant’s contention that she is unable to satisfy her professed desire to retain a lawyer, thereby justifying her request for representation by Taylor as a necessary alternative.

[ 29 ] The parties’ litigation history properly in evidence shows that the Applicant was represented, through to the conclusion of the earlier litigation between the parties, by a Windsor lawyer, (Ms Marentette), who was quite prepared to act adversely to the Respondent.

[ 30 ] Even if one accepts that the Applicant is not content with that lawyer’s renewed representation, and is having difficulty finding a lawyer willing to act adversely to the Respondent having regard to considerations of local familiarity or local bar collegiality, the premise inherently has geographic limits.

[ 31 ] In particular, lawyers in other legal centres throughout Ontario no doubt would have less reason to decline involvement in this litigation for such reasons, and would be able to represent the Applicant effectively, with the “trust and confidence” the Applicant says she requires and could expect from Taylor, provided they were properly retained.

[ 32 ] Considerations of distance might increase the cost of such representation for the Applicant. However, as indicated in the uncontested evidence tendered by the Respondent, the Applicant is not without means, and has the financial capacity to retain counsel. Conversely, if there are such lawyers in more distant locations willing and able to represent the Applicant, and the only bar to their retention is the Applicant’s inability to afford the cost of their involvement, the authorities noted above confirm this does not constitute “special circumstances” within the meaning of Rule 4(1)(c). See, in particular, Stone v. Stone , [1999] O.J. No. 5266 (S.C.J.), at para. 7 .

[ 33 ] Even if I was satisfied as to the requisite existence of “special circumstances” in this case, the Applicant has not demonstrated in a convincing way that Taylor has any “special expertise” in the sense required, or that his appointment as the Applicant’s representative would be at all appropriate.

[ 34 ] It seems to me that there are a number of obvious concerns in that regard.

[ 35 ] First, the properly tendered evidence of Taylor’s qualifications amounts to little more than a bald and unsupported assertion that Taylor is “familiar with the procedures of Family Law”, and has a “working knowledge of the Divorce Act and Income Tax Act”. There is no proper evidence before the court that justifies, details or explains that assertion.

[ 36 ] Nor would admission and consideration of the additional unsworn information and documentation proffered by the Applicant, concerning Taylor’s qualifications, alter my conclusion in that regard.

[ 37 ] The Applicant relies heavily on the fact that Taylor has some personal business experience and acumen, and her belief that he is particularly capable of assisting the Applicant with the financial, corporate and tax aspects of this litigation. However, as underscored by the comments of Justice Katarynych in Pires v. Dedvukay , supra , at paragraphs 19-21 , there is a vast and significant difference between lending assistance to a litigant, (which financial consultants do on a regular basis to those with and without lawyers), and representing a litigant for all purposes of litigation.

[ 38 ] In her written and oral submissions, the Applicant repeatedly focused on “the motions” currently before the court, (i.e., her outstanding motions for production of the Respondent’s personal and corporate financial documentation), stressing that they were really “financial” in nature, and therefore something well within Taylor’s ability to understand and address.

[ 39 ] However, the question before the court is whether Taylor should be permitted to assume the special stature of “representative” for the entire litigation, (e.g., through preliminary motions, case conferences, settlement conferences, trial management conferences, oral questioning and trial), having regard to all the concerns regarding lay representation noted above.

[ 40 ] At their best, (i.e., even having regard to the additional information and evidence not properly before the court), Taylor’s limited legal knowledge and experience with the law and litigation matters would not seem to rival or surpass the sort of general litigation experience, possessed by paralegals, or litigants with personal experience as a family law litigant, which the courts have rejected as sufficient “special expertise” warranting resort to Rule 4(1)(c), or permission of lay representation pursuant to the court’s inherent jurisdiction. See Re Gotlibowitz and Gillespie , (1996), 28 O.R. (3d) 402 (Div.Ct.), at pp. 408-409, Stone v. Stone , supra , at paragraphs 2 and 7, and Loney v. Loney , supra, at para. 8 .

[ 41 ] The second significant concern with Taylor’s suggested representation is his possible involvement as a witness in the litigation.

[ 42 ] In that regard, as noted above, the Applicant’s immediate focus is on the motions for production of financial information from the Respondent, and she is right that Taylor is unlikely to be a witness in relation to such matters. However, the issues raised by the litigation are broader than that, based on the continuing record to date. They involve questions of alleged non-disclosure and lack of consultation at times when Taylor’s apparent proximity to the Applicant, and her dealings with the Respondent, suggest at least a reasonable possibility that he may well have been witness to disputed events and communications.

[ 43 ] Beyond that, there are allegations by the Respondent of interference with his child access, in circumstances where it apparently is not disputed that Taylor is living and residing with the Applicant and the parties’ children. Such realities raise the distinct possibility that Taylor may be a witness to events, (whether in the past or the future), relating to access issues that will need to be addressed during the litigation.

[ 44 ] For the reasons canvassed by the courts in cases such as Urquhart v. Allen Estate , [1999] O.J. No. 4816 (S.C.J.), at paragraphs 27-28 , and Rothman v. Nesbitt Burns Inc. , [2004] O.J. No. 86 (S.C.J.), at paragraphs 11-12 , it is inappropriate for a lawyer to assume a position of party representative and probable witness. Doing so raises an unavoidable conflict between obligations of objectivity and detachment counsel owes to the court, and those of a partisan witness seeking to present evidence in as favourable a light as possible. It also puts the court in the untenable position of having to rely on the objectivity of counsel while simultaneously having to assess counsel credibility.

[ 45 ] A fortiori , these comments and concerns must also apply to a lay person, such as Taylor, who volunteers to assume the role of counsel by taking on a party’s representation pursuant to Rule 4(1)(c).

[ 46 ] In the circumstances of this case, such concerns and difficulties seem inherent and insurmountable regardless of whether Taylor is actually called as a witness. In particular, Taylor’s personal relationship with the Applicant understandably makes it improbable that he could attain and exhibit the aforesaid “objectivity and detachment” normally expected of someone assuming the role of counsel.

[ 47 ] Finally, and most importantly in my opinion, it seems to me that appointment of Taylor as the Applicant’s representative is entirely inadvisable having regard to the clear animosity between Taylor and the Respondent.

[ 48 ] For present purposes, it matters little whether Taylor or the Respondent is responsible for any ill-will between the two. The evidence filed in relation to the motion is sufficient to satisfy me that such animosity clearly exists. The appointment of Taylor as the Applicant’s representative, (including the prospect of Taylor directly questioning the Respondent before and during trial), would be entirely counter-productive, and needlessly inflame an already difficult situation.

Conclusion

[ 49 ] For the reasons set out above:

a. the Applicant’s motion for permission to be represented by a person who is not a lawyer is denied; and

b. the Applicant’s outstanding production motions are adjourned sine die , returnable on a date to be scheduled in consultation with the trial co-ordinator.

[ 50 ] Because my decision was reserved, the parties were unable to make any submissions regarding costs of the Applicant’s motion requesting non-lawyer representation. If the parties are unable to reach an agreement on costs in that regard:

a. The Respondent may serve and file written cost submissions, not to exceed three pages in length, (not including any bill of costs), within two weeks of the release of this decision; and

b. The Applicant may then serve and file responding written cost submissions, also not to exceed three pages in length, within two weeks of service of the Respondent’s written cost submissions.

[ 51 ] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs of the motion.

Ian F. Leach
Justice

Released: August 31, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Kayla Katz Applicant – and – David Michael McNevin Respondent endorsement Leach J.

Released: August 31, 2012