CCAS v. M.R. and B.W., 2019 ONSC 4679

Court File and Parties

COURT FILE NO.: C-832/17

DATE: 2019-08-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society

Applicant

– and –

M.R.

Respondent Mother

Counsel:

Ms. S. Edwards, for the Applicant

Mr. S. Garcea appearing as Agent for Mr. R. Wasserman, for the Respondent Mother

B.W.

No one appearing (noted in default)

Respondent Father

HEARD: August 2, 2019

JUDGMENT

THE HONOURABLE JUSTICE A. PAZARATZ

[1]

The Issue

Should a trial judge ever receive secret information about one of the parties – even before the trial begins?

2It happens. Quite inadvertently. And usually with little consequence.

3Surprisingly, the Family Law Rules (“the Rules”) include no provision to guard against this obvious affront to procedural fairness.

4The issue arises in the following common scenario:

a. Mid-way through a case, a judge is asked to determine a motion by a lawyer to be removed as counsel of record for a client.

b. Later – perhaps by coincidence -- that same judge is assigned to preside over the trial.

c. Some of the information received by the judge at the earlier motion may directly relate to the issues in the trial.

d. But most of the participants in the trial will never know what information the judge has already received about the client.

5This anomaly is created when a lawyer decides he or she should no longer represent a client, but the client will not voluntarily sign the documents necessary to remove counsel as solicitor of record.

a. If the client won’t consent – or if it’s a child protection case already on a trial list – the lawyer needs to bring a motion seeking the court’s permission to be removed from the record.

b. Removal from the record is not automatic. The lawyer needs to provide the motions judge with a reason – evidence – to establish that it is no longer possible or appropriate for the solicitor-client relationship to continue.

c. If the judge grants the lawyer’s request, that’s a formal determination, based on the judge making a specific determination as to the nature or adequacy of the evidence concerning the client. It’s a finding.

d. Inherently, the evidence from the lawyer will include some negative commentary, criticism, or expression of concern about the client. If the judge grants the motion, implicitly the judge is accepting at least some of that negative or problematic description of the client.

e. It might be a simple issue of legal fees. Perhaps the client isn’t paying his bill. Or Legal Aid may have cancelled a certificate, or refused authorization to proceed to trial.

f. But quite commonly the issue is not just the retainer. There may be a problem with the client’s attentiveness or reliability. There may be a problem getting instructions. The lawyer may complain about inappropriate behaviour by the client, rendering the solicitor-client relationship untenable. All sorts of problems and disputes can arise between lawyers and clients – particularly in the emotional, high-conflict world of family law.

g. Whatever the reason or reasons, the lawyer has to provide the motions judge with fairly persuasive evidence against their client. The lawyer can never be sure whether the client will end up opposing the request. So, typically, the lawyer ends up filing a detailed affidavit portraying the client in a fairly bad light.

6This, of course, puts everyone in a very awkward and difficult position:

a. Lawyers are bound by solicitor-client confidentiality. They aren’t usually supposed to reveal discussions or interactions they have had with their client.

b. Clients become very reliant on lawyers. Often they have invested a great deal of time, money and trust in their lawyer. They are encouraged to speak openly and tell their lawyer everything, because it’s all confidential. Clients may feel severely prejudiced if their lawyer “bails out” at the last minute, without good reason. They may blame the lawyer for any breakdown in communication. They may want to repair and continue the professional relationship.

c. Judges used to be lawyers, so they know how tough it is. Particularly in the child protection realm – where there aren’t enough lawyers willing to do the very challenging work – Judges must be mindful that if we unreasonably perpetuate a doomed solicitor-client relationship, it will only be a disincentive for lawyers to take on difficult cases and difficult personalities.

[7]

The Family Law Rules

Because of these complexities, the Rules include some very specific and unique provisions with respect to motions by lawyers to be removed from the record.

4(12) Lawyer's Removal from the Case A lawyer may make a motion for an order to be removed from the case, with notice to the client and to,

(a) the Children's Lawyer, if the client is a child;

(b) the Public Guardian and Trustee, if the client is or appears to be mentally incapable in respect of an issue in the case.

4(13) Notice of Motion to Remove Lawyer 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.

4(14) Affidavit in Support of Motion to Remove Lawyer The affidavit in support of the motion shall indicate what stage the case is at, the next event in the case and any scheduled dates.

4(15) Contents and Service of Order Removing Lawyer The order removing the lawyer from the case shall,

(a) set out the client's last known address for service; and

(b) be served on all other parties, served on the client by mail, fax or electronic mail at the client's last known address and filed immediately.

8Of necessity, on these solicitor-removal motions we end up deviating from some of our most basic legal tenets:

a. Ordinarily a judge only receives evidence after all of the other parties to the case have received that same evidence, and had an opportunity to consider and act upon it. But here evidence is deliberately withheld from the other parties – even if they might have legitimate interest in the contents.

b. Ordinarily there is a permanent record of any evidence a judge relied upon. But here the rules actually require that the evidence the judge received must be removed from the court file after the motion is heard. So there is no evidentiary record of what the motions judge was told (and the potential impact of that information if the same judge ends up being assigned to the trial).

9To add further complication, there could easily be a significant time-gap between when a judge hears a solicitor’s removal motion and when that same judge ends up presiding over the trial.

a. At the time of the removal motion, the judge usually has no way of knowing whether they might be assigned to the trial.

b. The motions judge may have no way of knowing whether the lawyer’s comments about the client might be relevant at the eventual trial.

c. By the time the matter comes up for trial, the judge may have a general recollection of potentially relevant or damaging information which arose at the motion.

d. But with no evidentiary record – and with none of the other parties being aware of what the judge heard at an earlier proceeding – we end up with the worst of all possible worlds: Unbeknownst to the participants in the trial, the presiding judge may have a historic and perhaps imprecise recollection of potentially relevant information or allegations which arose at the motion.

[10]

Examples of Potential Prejudice

A few common examples demonstrate that this is far from a hypothetical concern:

11At the removal motion the lawyer might describe the client as unreliable; constantly missing appointments; and refusing to devote proper attention to important matters.

a. But what if that client’s reliability and attentiveness comes to be an issue at trial?

b. What if it’s a child protection case and the Children’s Aid Society alleges the parent is unreliable with respect to supervised visits; constantly misses appointments; and refuses to address important issues?

c. What if at trial the parent absolutely denies these traits and insists that they are conscientious and never miss appointments?

d. What – if anything – is the trial judge to do with previous information from the client’s own lawyer which is consistent with the Society’s narrative about a person’s unreliability?

e. It’s not evidence. The trial judge is only to consider the evidence formally presented at trial.

f. But if the trial judge received previous information about a litigant which might relate to the issues in dispute, there is the potential that this undisclosed information might influence the judge’s determination or perceptions. Consciously or unconsciously.

g. Fairness and transparency require that all parties to litigation be fully aware of all of the information available to the judge.

h. Everything the judge considered – or might have considered – should be clearly set out in the evidentiary record.

12At the removal motion, the lawyer might describe incidents in which the client attended the law office in an intoxicated state and behaved in an aggressive and disruptive manner. (You might be surprised the number of times lawyers cite client behaviour like this, to justify removal from the record.)

a. What if at trial these same allegations arise? That the party has a drinking problem. That he’s aggressive and intimidating.

b. What if at trial that same party testifies that he has never had a drinking problem; he has no anger control problem; and he’s never been aggressive or inappropriate with anyone?

c. Remember: These issues often arise in custody/access or child protection cases. When the well-being of children is at stake.

d. It’s easy for a judge to say they are disregarding inadmissible evidence.

e. But is it appropriate – or even possible – for a trial judge to completely disregard really troubling information about a parent which the judge has actually received – even if that information arose in a different context, and can’t be revealed? That’s not transparency.

f. And even if the trial judge is able to completely disregard potentially relevant information disclosed at the removal motion – how could the parties ever have confidence that the judge appropriately resolved a dilemma they weren’t even aware existed?

g. And if all of the information a trial judge has ever received is not apparent in the evidentiary record, what of appellate review?

13At the removal motion the lawyer might describe a breakdown in the solicitor-client relationship as a result of serious mental health and cognitive issues relating to the client. Alarming examples of bizarre or inappropriate behaviour might be outlined.

a. What if at trial that party’s mental health and emotional stability is challenged?

b. What if that party submits a professional report suggesting that earlier mental health issues have long-since been resolved, and there are no current concerns?

c. What if the “clean bill of health” submitted at trial by the party is completely inconsistent with their lawyer’s description of recent problems and behaviours?

d. Trial judges are supposed to receive evidence. Not marshal or present it.

e. It’s not the trial judge’s role to raise issues or alert parties that there may be additional information that was systemically withheld from them at an earlier motion.

f. Once again, it puts the trial judge in an untenable position.

14The reality is that at most solicitor-removal motions the client doesn’t show up for court and doesn’t file responding materials. So most orders removing solicitors from the record are granted unopposed.

a. It is dangerous to presume that the client actually admits the lawyers’ allegations.

b. By the time the solicitor-removal motion has been brought, the client may have no interest in maintaining the solicitor-client relationship. So they don’t bother opposing the motion. They don’t make any effort to tell their side of the story, or clear their name.

c. All of which adds a further level of unreliability to the cumulative information the judge is exposed to.

d. At the solicitor-removal motion, the allegations about the client are untested. The client had no incentive to challenge the information.

e. And at trial, the lawyer’s allegations likely won’t be tested – or even mentioned.

f. Indeed, if the client shows up for trial there’s a very good chance that he or she won’t even realize that the trial judge is the same judge who received highly critical information about them at the earlier removal motion.

g. So there’s the potential that nobody in the courtroom will be thinking what the trial judge is thinking.

[15]

Avoiding Apprehension of Bias

In other contexts, we clearly identify situations in which judges should be precluded from presiding over trials because of their earlier involvement in the same case or with the same parties.

a. Rule 17(24) sets out that a judge who conducts a settlement conference about an issue shall not preside over the trial or determination of that issue.

b. Sometimes if a judge has previously made important credibility determinations in a previous proceeding, that judge will be recused from deciding a future case in which that same individual’s credibility is again a fundamental issue.

c. The objectives are to guard against a reasonable apprehension of bias; and to promote confidence in the fairness and transparency of the judicial system.

16But there is currently no presumption that a judge hearing a solicitor-removal motion should be precluded from presiding over an eventual trial.

17Perhaps there should be such a presumption.

18It could avoid a lot of problems.

a. It could avoid mis-trials which might arise if the trial judge suddenly realizes part-way through the hearing that they received extraneous information at the solicitor-removal motion which bears upon an issue which has become apparent during the trial.

b. It could eliminate a potential ground for appeal, if an unsuccessful litigant looks back and suddenly alleges their own lawyer’s affidavit at the removal-motion might have caused the trial judge to have a negative predisposition about them.

c. Again, remember that this sort of potential problem frequently arises in highly contentious matters involving children. The last thing that children need is for their determinations to be stalled by avoidable mis-trials and appeals.

[19]

Logistical and Administrative Considerations

There are obvious logistical and administrative considerations:

a. Particularly in smaller judicial centers, eliminating even a single judge (who conducted the Settlement Conference) creates challenges in finding another judge to conduct the trial.

b. Eliminating a second judge because they heard a solicitor-removal motion would further reduce the pool of potential trial judges. It could create enormous headaches for trial co-ordinators.

c. But there’s a simple solution: Whenever possible, ensure that solicitor-removal motions are heard by the Case Management judge, who would have been precluded from presiding over the trial in any event. That way there’s no danger the lawyer’s otherwise-confidential information about the client will ever come to the attention of the trial judge.

20Admittedly, there will be many instances in which none of what I have described will actually be a concern.

a. Sometimes the lawyer’s removal motion will be based on reasons which wouldn’t likely have any impact on the issues at trial. (The cancellation of a Legal Aid certificate comes to mind – but theoretically even this might end up being contentious at trial, if there’s a dispute about of a party’s general lack of diligence or competence in accessing community resources.)

b. Sometimes the lawyer’s removal motion will be based on reasons which are precisely and obviously related to important issues anticipated to be disputed at trial.

c. It’s unrealistic to leave it to the motions judge to decide on a case-by-case basis whether the evidence presented by the lawyer might taint the process if the same judge hears the trial. Firstly, because the motions judge might not be sure what will be disputed at trial. And secondly, because any on-the-record determination about the nature of the lawyer’s disclosure about the client would violate the fundamental requirement that no one is supposed to know anything about what the lawyer revealed at the removal motion.

d. The mere fact of the motions judge saying: “I’d better not hear the trial after what I read in the lawyer’s affidavit” would telegraph inappropriate information to the other parties.

[21]

The Bottom Line

The bottom line:

a. Since a judge might receive information at a removal motion which could compromise their ability to conduct the trial;

b. And since it is impractical to weed out or identify the cases where this danger might arise;

c. Then the safest approach is to presume that the removal motion judge should be not preside over the trial.

d. To minimize the number of judges excluded, solicitor-removal motions should be heard by the case management judge (who would be precluded from conducting the trial in any event).

[22]

Application to the Case

Applying these principles to the case before me:

a. The mother’s lawyer has presented evidence which satisfies me that he should be removed from the record.

b. I’m not going to comment on the nature of that evidence.

c. But I am recusing myself from presiding over the trial.

Pazaratz J.