Elliott v. Elliott, 2017 ONSC 527

Oshawa Court File No.: FC-16-180-0000 Date: 2017-01-20

Ontario Superior Court of Justice Family Court

Between:

Anne Elizabeth Elliott Applicant

– and –

Daniel George Elliott Respondent

Counsel: Marie Michaels, for the Applicant Self Represented, for the Respondent

Heard: January 16, 2016

Decision on Motion

Fryer, J

I. Introduction

[1] I heard a motion brought by the Respondent, Daniel Elliott on January 16, 2017 at Volume 2, Tabs 6 and 7 of the Continuing Record with a response by the Applicant, Ann Elizabeth Elliott at Volume 2, Tab 8.

[2] Mr. Elliott seeks to have Ms. Michaels removed as solicitor of record for Mrs. Elliott as she formerly acted as collaborative counsel. He submits that to permit Ms. Michaels to act for Mrs. Elliott is contrary to the principles of collaborative practice to which he and Mrs. Elliott both committed. He is forced to bear the expense associated with losing his collaborative counsel whereas Mrs. Elliott does not.

[3] Mrs. Elliott’s position is that she retained Ms. Michaels when her former collaborative lawyer, Valerie Hazlett-Parker left practice in Durham. However, as no new collaborative participation agreement was signed, Ms. Michaels is not restricted from representing her in this litigation. She further submits that even if the participation agreement was binding on her and Ms. Michaels, Mr. Elliott has breached the agreement by failing to keep the requisite insurance coverage in place. Lastly, as Mr. Elliott is representing himself in this litigation he is not incurring any additional expense.

II. Background

[4] Mr. and Mrs. Elliott separated in August 2012. They have four children ranging in age from 18 to 24. Mr. Elliott is an accountant employed by the Town of Aurora and Mrs. Elliott is a teacher with the Durham District School Board.

[5] Following separation Mr. Elliott retained Russell Alexander and Mrs. Elliott retained Valerie Hazlett-Parker. Both lawyers were collaborative practitioners and members of the practice group, Collaborative Practice Durham Region.

[6] The parties and counsel executed a collaborative participation agreement on October 22, 2012.

[7] The parties also engaged a collaborative family professional and two collaborative financial professionals to assist them.

[8] The parties had several collaborative meetings with counsel and the other professional team members. According to Mr. Elliott they were relatively close to an agreement and a draft separation agreement was being prepared.

[9] Ms. Hazlett-Parker who was representing Mrs. Elliott left private practice in Durham. Mrs. Elliott then engaged Marie Michaels who is also a collaborative lawyer and a member of Collaborative Practice Durham Region. Mr. Elliott continued to be represented by Mr. Alexander. Ms. Michaels had some communication with Mr. Alexander but it is not clear if any further actual meetings took place during Mr. Alexander’s retainer.

[10] Mr. Elliott terminated Mr. Alexander’s retainer and retained Tom Hamer who is also a collaborative lawyer and a member of Collaborative Practice Durham Region. Tom Hamer made it clear to Mr. Elliott that he does not litigate. Mr. Elliott was not concerned as he understood that the parties continued to be engaged in the collaborative process.

[11] The parties had another meeting with their collaborative lawyers, Ms. Michaels and Mr. Hamer and the jointly engaged professionals and there were also follow up negotiations.

[12] Mr. Elliott advises that Mr. Hamer sought to have a new Participation Agreement signed but Ms. Michaels declined to execute the agreement. The evidence did not disclose when Mr. Hamer made those requests.

[13] Ms. Michaels was not able to say when, if ever, she advised Mr. Elliott and Mr. Hamer that she did not consider herself bound by the collaborative prohibition against litigating on behalf of Mrs. Elliott.

[14] On January 27, 2016 Ms. Michaels commenced an Application on behalf of Mrs. Elliott.

[15] On April 25, 2016 this matter came before Hatton J. at a Case Conference. The issue of Ms. Michael’s retainer was the primary issue at the conference. Hatton J. in her endorsement dated April 25, 2016 stated that she was ‘uncomfortable with Ms. Michaels now acting as counsel for the mother in the litigation on the technicality of no updated agreement being signed…when all parties and counsel clearly believed collaborative law continued with each party’s new counsel.” Justice Hatton encouraged the parties to return to the collaborative process to resolve the outstanding issues and she left it open to Mr. Elliott to bring this motion.

[16] Ms. Michaels did not step off as solicitor of record. Rather after several months, she brought a motion for spousal support, among other things for Mrs. Elliott. Mr. Elliott brought his cross-motion to have Ms. Michaels removed.

III. The Lawyers Role in the Collaborative Process

[17] The collaborative process is a valuable dispute resolution option for separating parties. The collaborative process is unique from other dispute resolution options such as mediation or arbitration. In the collaborative process the parties drive the negotiations aided and educated by their individual collaborative lawyers. The separating parties in a collaborative process are encouraged to craft unique solutions, grounded in the applicable law, that will meet both of their needs. By selecting the collaborative process, parties make a conscious choice to opt out of having strangers such as an arbitrator or a judge make decisions for them and their family.

[18] One of the cornerstones of the collaborative process is the undertaking by the parties and their lawyers not to litigate. This commitment creates a strong disincentive to walk away from the bargaining table or to threaten litigation when the negotiations get difficult as they inevitably do. It also creates a guaranteed safe space to problem solve and explore options. If the collaborative process fails, neither the collaborative lawyer nor any member of that lawyer’s firm can act for the client in the litigation. This commitment is documented in a participation agreement.

[19] Collaborative lawyers have specialized training which is a pre-requisite to membership in a practice group. A party who retains a collaborative lawyer is entitled to expect that such lawyers will be committed not only to the procedural form but to the spirit of the collaborative process and they are entitled to expect that their spouse’s lawyer shares a similar commitment.

IV. Test to Remove a Solicitor of Record

[20] Kitley J. in Zaldin v. Zaldin, 2014 ONSC 6504 summarizes the various legal principles applicable on a motion to remove a solicitor of record:

• The jurisdiction to make an order removing counsel is found in the inherent right of the Court to determine, in a judicial manner, to whom it will give audience. A motion to remove an opposing solicitor is not brought pursuant to any statute or rule: at para. 4 citing Windsor-Essex Children’s Aid Society v. D.(B.), 2013 ONCJ 43 at para. 14, citing Newmarch Mechanical Constructors Ltd v. Hyundai Auto Canada Inc. (1992) 13 C.P.C. (3d) 349 (Ont. Master)

• Inherent jurisdiction is not unlimited. It has been described as a “special or extraordinary power” that should be exercised “only sparingly and in a clear case”: at para. 10 citing Judson v. Mitchele [2011] ONSC 6004

• 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”: at para. 4 citing R.(C.) v. Children’s Aid Society of Hamilton [2004] O.J. No. 1251 at para. 34, citing MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 at para. 21

• The onus or burden of proof with respect to a motion to disqualify an opponent’s counsel of choice is on the party seeking to remove the counsel: at para 11

• There does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test. This is particularly true when the litigation involves a family dispute: at para 18 citing Taylor v. Nellist 2004 CarswellOnt 4850 at para. 23, citing MTS International Services Inc. v. Warnat Corp. (1980), 31 O.R. (2d) 221 (Ont. H.C.) and Goldberg v. Goldberg (1982), 31 R.F.L. (2d) 453 (Ont. Div. Ct.)

• A party has a fundamental right to choose counsel which should only be infringed in clear cases: at para 14 citing Judson v. Mitchele supra

V. Analysis

[21] Ms. Michaels was retained to replace Ms. Hazlett-Parker at a time when the parties were engaged in the collaborative process. Ms. Michaels did not dispute that she was retained as a collaborative lawyer and she charged Mrs. Elliott a reduced billing rate while acting in that capacity.

[22] The original participation agreement signed by the parties and their collaborative lawyers, Mr. Alexander (for Mr. Elliott) and Ms. Hazlett-Parker (for Mrs. Elliott) states at paragraph 8(b):

If either Dan Elliott or Ann Elliott end their professional relationship with his or her lawyer, but wish to continue with the Collaborative process, he or she will provide written notice of this intention to everyone. The new lawyer will sign a new Participation Agreement within 30 days of the party giving notice. If a new Agreement is not signed within 30 days, the other person will be entitled to proceed as if the Collaborative process was terminated as of the date written notice was given.

[23] There was no evidence that Mrs. Elliott gave written notice of her intention to continue in the collaborative process following Ms. Hazlett-Parker’s departure. No participation agreement was ever signed by Ms. Michaels.

[24] I am mindful that my discretion to remove a party’s chosen solicitor of record must be exercised sparingly. Given the circumstances of this case, I decline to remove Ms. Michael’s as solicitor of record for Mrs. Elliott.

[25] The participation agreement is an important foundational document in the collaborative process. It operates much like a mediation agreement or an arbitration agreement to set the boundaries and terms of the process. An executed participation agreement is necessary to ensure compliance with one of the key features of collaborative process: the commitment of collaborative counsel or any member of his/her firm not to litigate. As reflected in cases such as Judson v. Mitchele, a party’s right to his or her choice of lawyer should only be interfered with in the clearest of cases. It is therefore important for collaborative lawyers and their clients to be clear as to the process that they are embarking upon and that process needs to be clearly documented.

[26] Ms. Michaels clearly acted in the capacity of a collaborative lawyer. She communicated with Mr. Alexander. Mr. Elliott retained Mr. Hamer knowing that he was a collaborative lawyer and that he did not litigate as he understood that the parties and Ms. Michaels were still committed to the collaborative process. If Ms. Michaels wished to keep her options open in terms of her role for Mrs. Elliott, she had an obligation to state that up front upon being engaged. If Mr. Elliott had received that clear message early on, he might have made different choices with respect to counsel and process.

[27] Although I have found that Mr. Elliott did not meet the high standard for an order removing Ms. Michaels, in light of her stated commitment to collaborative practice, Ms. Michaels should have considered stepping aside rather than acting as litigation counsel when the “collaborative process” broke down. She had a second opportunity to consider that option following Hatton J’s clear recommendations to that effect. Had Ms. Michaels voluntarily terminated her retainer and assisted Mrs. Elliott in an orderly transition to litigation counsel instead of continuing to act, this would have conveyed a message to the collaborative community of which she is a member that she is not a collaborative practitioner in name only.

[28] Although Mrs. Elliott had success on this motion and may have delivered an offer to settle, in this case, pursuant to Rule 24(4) of the Family Law Rules I decline to order costs. Mr. Elliott had good reason to bring this motion based on his understanding of the collaborative process and in light of Hatton J’s endorsement.

ORDER

1. The motion by the Respondent, Husband to remove Marie Michaels as solicitor of record is dismissed.

2. There shall be no costs of this motion.

JUSTICE L.E. FRYER

Released: January 20, 2017