Court File and Parties

Court File No.: FC-20-312 Date: 2022-04-01 Superior Court of Justice - Ontario

Re: Natasha Dunn, Applicant And: John Bors, Respondent

Before: The Honourable Mr. Justice J.P.L. McDermot

Counsel: Michael McNeely, for the Applicant Danielle Gendron, for the Respondent

Heard: By written submissions

Endorsement on costs

[1] The Respondent requests an order under r. 24(9) of the Family Law Rules that the Applicant’s lawyer, Mr. McNeely, pay the costs of a 14B motion that the Respondent brought for a resumption of parenting time, and the costs of a case conference held on February 23, 2022.

[2] On that date, these parties attended at an urgent case conference before me. The case conference in issue was set by Justice Cameron on the return of a 14B motion on February 17, 2022. The 14B motion was brought by the Respondent Father on February 9, 2022 and it originally came before Christie J. the next day who ordered that the time for response to the motion elapse before consideration by the court. Later, once that time expired, Justice Cameron ruled that a case conference should be set on an urgent basis.

[3] What had made the conference urgent was that, on February 3, 2022, Ms. Dunn advised Mr. Bors that he would not be receiving his week about parenting time that he was entitled to under a temporary order of this court made on March 9, 2021. Ms. Dunn then breached the order by refusing to deliver Bryson to the school for pickup by the father on the commencement of his parenting time on February 7. What made this situation unique was the involvement of Ms. Dunn’s lawyer, Mr. McNeely in this decision and in another contemporaneous decision by Ms. Dunn to withhold telephone parenting time under that order.

[4] On March 1, 2021, Mr. Bors and Ms. Dunn signed a consent which provided for week about shared care of their child, Bryson. This order also provided for the parties to each have telephone calls with Bryson when he was not with them. That order was made into a temporary without prejudice order by Douglas J. on March 9, 2021. That week about schedule and telephone access continued until the sequence of events noted below.

[5] In January of this year, Ms. Dunn became upset because Mr. Bors had a man named “Scott” move in with him and Mr. Bors refused to give her his full name. She also was upset because Mr. Bors refused to advise who was babysitting Bryson on a snow day.

[6] Disputes like this are not uncommon. What was different here was that Ms. Dunn’s lawyer, Mr. McNeely, made no bones about the fact that Ms. Dunn’s overholding of Bryson contrary to the March 9, 2021 order was based on his own advice. He also acknowledged that he advised his client to refuse telephone parenting time, also in the order, because he is hearing impaired and was unable to monitor those telephone calls. He said he gave this advice and wished to monitor the child’s parenting time because he understood from his client that Ms. Dunn was a victim of spousal abuse and family violence at the hands of Mr. Bors and because Ms. Dunn needed protection from Mr. Bors. He felt it necessary to advise Ms. Dunn to breach the order and to withhold parenting time so that he could both monitor the communications between the parties to detect and to prevent ongoing abuse as well as to protect the child from what Ms. Dunn said were urgent issues of Mr. Bors’ failure to disclose who was living in his home and caring for Bryson.

[7] Mr. McNeely failed his client, the court and the child when he did this. Firstly, it is an undoubted ethical rule that a lawyer in Ontario, as an officer of the court, must uphold the integrity of the justice system. In order to fulfill this duty, amongst other things, counsel has a clear duty to advise a client to obey without question a valid order of the court. When Mr. McNeely advised his client not to obey the court order, he failed in his duty to the court, and also put his client at serious risk of being in contempt of a court order. He also put himself at risk of being in contempt of the order. He also failed the child who deserved consistent parenting time with both parents as agreed to and followed by the parties for nearly a year prior to the overholding.

[8] Secondly, Mr. McNeely wanted to monitor the calls between the father and Bryson, another requirement of the court order. Because Mr. McNeely is hearing impaired, he wanted the calls to end so that the parties could communicate through Our Family Wizard, something he could review unlike telephone calls. In doing this, he did not seem to understand that it is also a clear ethical rule that a lawyer cannot be both a witness and advocate in a court proceeding. The reason for this rule is obvious: once counsel becomes a witness, he or she cannot then be an objective advocate for his client without giving evidence in the proceedings. For the lawyer to be a witness deprives the client of both evidence and an effective advocate. And again, to limit telephone communications between the child and his father, again something in place for nearly a year, cannot in any way be in the best interests of Bryson and was a breach of the March 9 interim order.

[9] During the conference, Mr. McNeely argued that his actions were justified because there is a risk of harm to the child and it was his duty to protect the child. However, as I advised Mr. McNeely, if he needs to protect the child, he should act like a lawyer and place the matter before a judge to obtain an order that will protect the child from the perceived harm. Alternatively, as he has a duty to do where a child is in need of protection, he reports the concerns to a child protection agency. He of all participants should understand that he should not participate in self-help remedies or encourage a client to do so. As well, his “urgent” concerns about the child were brought to the attention of Justice Verner on February 9, 2022. In her endorsement, Justice Verner who considered a contested adjournment because the Respondent’s counsel was not available that date, confirmed, “At most the material stated that the mother did not know and had not specifically approved of a babysitter for her child.” Verner J. also confirmed “the lack of evidence to support a need for an urgent case conference” and agreed that the conference could be adjourned. The circumstances did not endanger the child to such an extent so as to permit the Applicant to refuse parenting time under the order. The Respondent was awarded costs of $1,000 for the contested adjournment. Notwithstanding this ruling, the overholding continued until Minutes were signed on February 22, 2022.

[10] I understand that Mr. McNeely is a relatively recent call to the bar, having been called in 2021. When these issues were raised at the conference, he was contrite and asked if he should remove himself as solicitor for the Applicant (I said that was up to him). He also said he would be seeking out mentoring. However, whatever the circumstances, the issue raised by Ms. Gendron is whether Mr. McNeely’s ethical breaches and errors in judgment in this case warrant an award of costs against him under r. 24(9) of the Family Law Rules.

[11] That rule speaks to the circumstances under which costs can be awarded against counsel. The relevant parts if the rule read as follows:

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

(c) order the lawyer or agent personally to pay the costs of any party;…

[12] As noted above, this is not something often ordered in litigation. The direction from the case law is that this is a power to be used sparingly. For example, in Covriga v. Covriga, 2010 ONSC 3030, Horkins J. stated [at para. 15] that “the court must exercise ‘extreme caution’ in ordering a lawyer to pay costs”; in doing so she followed Justice McLachlan’s decision in Young v. Young, [1993] 4 SCR 3 who also said that extreme caution must be used in ordering costs against counsel lest it caused counsel to fear repercussions for acting as a vigorous advocate for a client where necessary. Justice Horkins confirmed that there was no need for bad faith conduct to order costs against counsel. In that case, costs were ordered against counsel, in part, for failing to follow court orders, a concern in the present case as Mr. McNeely told his client not to deliver the child contrary to a court order.

[13] In Martin v. Watts, [2019] O.J. No. 1440 (S.C.J.), Aston J. re-iterated the principle that “extreme caution” was necessary in determining whether to order counsel to pay costs. In that case, there were allegations that the lawyer had attempted to act as a witness and advocate at the same time, as in the present case. Justice Aston said that there was a two-stage test, firstly to determine whether the lawyer had run up costs unreasonably and then to determine whether the conduct was sufficient to order costs against counsel. Although Aston J. noted that the lawyer had run up costs unreasonably, he also said that incompetence alone could not support an order for costs against counsel and, as he found “no hint of dishonestly, unethical conduct, or bad faith”, he declined to order costs against the lawyer.

[14] In Hunt v. Worrod, 2018 ONSC 2133, Koke J. refused to order costs against counsel where he was not able to review the reports made by counsel to legal aid because they were privileged. He had no basis for finding costs to be payable by counsel where there was no way to prove whether or not the lawyer had warned legal aid against prosecuting an ill-founded lawsuit.

[15] That is in clear contrast to the present case. In the present case, Mr. McNeely was quite open with the fact that he had advised his client not to obey the court order because he was under the impression that parenting time to the Respondent would put the child at risk. He told Verner J. about this at the contested adjournment of the case conference on February 9; she outlines this in her endorsement. Mr. McNeely seemed to be completely unaware of the fact that this had been a serious misstep.

[16] I can easily satisfy the first part of the test noted in both Martin v. Watts and Hunt v. Worrod. There is no issue that Mr. McNeely’s actions have increased the legal costs to the Respondent as he is entirely responsible for the fact that his client overheld the child, necessitating the urgent 14B motion brought by the Respondent Father and the costs leading up to the case conference held on February 23, 2022. Had he not told his client to overhold, the parenting time would have continued and the 14B motion would not have been necessary.

[17] However, it is far from clear that the conference itself was held due to Mr. McNeely’s actions. By the time that the parties appeared before me on the case conference, the issue of parenting time had already been settled by Minutes of Settlement which had been signed the day before the conference, and which provided for a return to shared care and make up time for Mr. Bors. The case conference was only necessary to discuss (and order) the Respondent’s request for police enforcement which I refused because the evidence was clear that it was Mr. McNeely and not Ms. Dunn who was responsible for the overholding. Because the parties had previously agreed to return to the week about parenting care arrangement, the case conference itself could have been avoided but for the Respondent’s request for police assistance, which was not ordered. It is difficult to see why the Respondent would have been entitled to costs for the appearance at the case conference outside of his complaints about the behaviour of the Applicant’s counsel.

[18] And as noted, Mr. McNeely was candid about what he had done. He did not try to cover up his own involvement, because he seemed to be unsure about whether he had done the right thing. His reaction at the case conference to my comments was contrition, not defiance. Although there were breaches of the professional rules of ethics promulgated by the Law Society, these breaches appear to have arisen out of ignorance, not sharp practice or bad faith behavior.

[19] Although the case law seems to indicate that bad faith behaviour is not necessary to make an order for costs against counsel, the cases do indicate that there has to be some element of mala fides for costs to be awarded against counsel. There has to be some intentional breach of the solicitor’s duties to the client and the courts rather than inadvertence or incompetence. Mr. McNeely simply seemed to be unaware of his obligations and exercised poor judgment. As noted, he is a recent call and I could not find dishonest or unethical intent in his actions. Because of this, I decline to award costs against Mr. McNeely.

[20] This does not mean that the court condones Mr. McNeely’s actions. He should seek out mentoring to ensure that he understands the duties that the legal profession imposes on its members. These duties sometimes involve a difficult balancing act, but there is no greater reward, on the other hand, than having conducted oneself in correctly, balancing the client’s needs with the solicitor’s duty to the profession and the courts. Mr. McNeely failed in that duty in this case, and he should be assiduous in avoiding a similar situation again, where another judge may not be as generous.

[21] As there is no request for costs against the Applicant, there shall be no order as to costs for the 14B motion or the case conference held on February 23, 2022.

McDermot J.

Date: April 1, 2022