COURT FILE NO.: FS-13-385391
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZAHRA OUTALEB
Applicant
– and –
MUHAMMAD ERIC WAITHE (AKA MUHAMMAD ZUBAIR UMAR)
Respondent
No one appearing for the Applicant
Self-represented, Respondent
Self-represented, Sage Harvey
HEARD: May 11, 2021
REASONS FOR DECISION
faieta J.:
[1] The Respondent’s solicitor, Sage Harvey, brings this motion on an urgent basis to be removed as solicitor of record.
BACKGROUND
[2] This Application was commenced more than eight years ago.
[3] On April 25, 2019, Paisley J. ordered that the Respondent pay interim spousal support in the amount of $2,407.00 per month commencing on April 1, 2019.
[4] A Trial Management Conference was held on February 26, 2021. Justice Shore’s Endorsement states:
TMC held. The outstanding issues are spousal support, child support and equalization of net family property. The children were aged 14, 16, 18 and 20 at separation but are now 22, 24, 26 and 28 years old.
Pursuant to the order of Paisley, J., dated April 15, 2019, the respondent was required to pay spousal support to the applicant in the sum of $2,407 per month, based on his income of $87,030. The respondent acknowledged he only made a few payments of spousal support (if any) under the order. The applicant is currently on social assistance.
From the outset of the TMC, I expressed my concern as to why the respondent should be permitted to seek any order from this court, or to participate in these proceedings when he has ignored an order of this court.
Further, he did not permit the applicant’s property appraiser to enter the home, as he was required to do pursuant to that same order and he has not provided the disclosure, as set out in the order of Justice Boucher, dated September 21, 2020.
I appreciate that both parties are having difficulty producing documents from the date of separation given that it has been over eight years since separation. I have given the respondent a final opportunity to bring his arrears into good standing, before exercising my discretion under rule 1(7.1) and (8) of the Family Law Rules.
Order to go as follows:
Eight-day trial scheduled starting the week of May 31, 2021.
The parties shall attend a TMC on May 19, 2021 at a time to be set by the TC Office.
Trial Scheduling Endorsement Form completed and attached.
Arabic Interpreter is required for the TMC and the trial.
If the respondent has not paid the outstanding arrears of spousal support within 30 days of this order or fails to pay his ongoing spousal support obligation pending trial, the applicant may bring a 14B motion to my attention to strike the respondent’s pleadings. The respondent shall file any responding materials within three business days of being served with the 14B motion materials.
If a support deduction order was not completed and signed when the order of Justice Paisley was made, the applicant may bring a 14B motion to my attention for the correction of same.
[5] On May 5, 2021, the Applicant filed a 14B motion for an Order to strike out all materials filed by the Respondent in this proceeding and to permit the trial to proceed on an uncontested basis. On May 11, 2021, Mr. Harvey filed an affidavit on behalf of the Respondent in respect of the Applicant’s 14B motion.
[6] A few days earlier, on May 7, 2021, Mr. Harvey filed his motion to be removed as solicitor of record for the Respondent.
[7] The Respondent appeared on this motion. He filed no materials. While he does not dispute the evidence provided by Mr. Harvey, the Respondent opposes Mr. Harvey’s motion because he wants legal representation at the upcoming TMC and trial. He appreciates that he likely will not be able to retain a lawyer to represent him at the TMC or at trial on such short notice.
ANALYSIS
[8] The following principles guide whether counsel should be permitted to withdraw:
• A court should allow counsel to withdraw for any reason if such request is made far enough in advance of any scheduled proceeding such that its adjournment will not be necessary;
• Even if timing is an issue, a court must accept at face value counsel’s evidence that the withdrawal is sought for ethical reasons and grant the withdrawal. “Ethical reasons” include a client asking counsel to act in violation of his or her professional obligation as well as a client who refuses to accept counsel’s advice on an important trial issue.
• However, if timing is an issue and counsel seeks to withdraw for any other reason, then the court may inquire further about counsel’s reasons so long as it does not reveal information that is subject to solicitor-client privilege. In these circumstances, removal may be denied if it would cause serious harm to the administration of justice: See Cunningham v Liles, 2010 SCC 10, paras. 46-54.
[9] Given the grounds relied upon by Mr. Harvey, I am compelled to grant the order sought even though these grounds appear to have existed for some time and will likely result in a request for the adjournment of the trial and possibly further delay the final resolution of this Application.
ORDER
[10] I order that Sage Harvey is removed as counsel of record for the Respondent.
____________________ Faieta J.
RELEASED: May 12, 2021
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZAHRA OUTALEB
Applicant
– and –
MUHAMMAD ERIC WAITHE (AKA MUHAMMAD ZUBAIR UMAR)
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: May 12, 2021