Endorsement

Introduction

COURT FILE NO.: 82/23
DATE: July 22, 2025
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amy Comeau, Applicant
AND: Jason Wayne Fox, Respondent
BEFORE: Alex Pazaratz
COUNSEL: Deborah Barfknecht, Counsel for the Applicant
Self-Represented Respondent
HEARD: July 21, 2025

Opening Remarks

[1]
“If you sign this piece of paper, it means that any time I choose I can dump you as a client – even on the eve of trial. Suddenly you’ll be on your own in the courtroom.”

[2]
Lawyers are not allowed to say that.

[3]
Or do that.

[4]
A “Notice of Change of Representation” is not the same as a “Get Out of Jail Free” card in the board game Monopoly. It’s not an escape hatch, to be kept in a back pocket until the lawyer tires of the client (or the money runs out).

[5]
And as this case illustrates, in a contest between a lawyer’s shrewd attempt to protect themself and the best interests of a young child, there can be little doubt about who the court is going to side with.

Chronology of Events

[6]
The chronology is simple and critically important.

a. November 2022: The parties ended their unmarried relationship. Since then, they have been engaged in a bitter parenting dispute concerning their daughter who was 20 months old at the time. The child is now four-and-a-half.

b. January 24, 2023: The mother commenced this application, represented by Deborah Barfknecht as counsel of record.

c. April 12, 2023: The father filed an Answer, represented by counsel.

d. Since January 2023 there have been numerous motions and court attendances. The vigorously contested issues include decision-making and timesharing. There are serious allegations and disputed facts. Pursuant to temporary orders, the child resides primarily with the mother, and the father’s time with the child is restricted and supervised.

e. March 26, 2024: Ms. Barfknecht had the mother sign a Notice of Change of Representation indicating that the mother would now be representing herself. But that document was never served on the father or filed with the court. Neither the document’s existence nor any change in the solicitor-client relationship was communicated to the father or the court. Ms. Barfknecht continued to file court documents and present herself as counsel of record at every subsequent court attendance.

f. March 27, 2024: The father signed a Notice of Change of Representation, removing his former solicitor from the file. Except in his case the Notice was properly served and filed, and since then the father has been formally representing himself.

g. July 5, 2024: Justice Walters dealt with a motion brought by Ms. Barfknecht on behalf of the mother. There was no mention of Ms. Barfknecht being removed from the record, or that her status had been changed to “agent”.

h. July 16, 2024: Justice Chappel dealt with a Trial Scheduling Conference. The endorsement lists Ms. Barfknecht as counsel of record.

i. December 3, 2024: Justice Latimer heard a combined Settlement Conference/Trial Scheduling Conference. The endorsement confirms that there was detailed discussion; a Trial Scheduling Endorsement Form was completed; and a six-day trial was scheduled for the sittings of July 28, 2025. Again, Ms. Barfknecht presented herself as counsel of record. In his endorsement Justice Latimer expressed concern that “Ms. Comeau is represented; Mr. Fox is not.” He urged the father to follow up on his stated intention to retain a lawyer as quickly as possible. Ms. Barfknecht participated in the selection of the trial date. She gave no indication to the court that her client had long-since signed a Notice of Change of Representation, or that the lawyer didn’t intend to participate in the trial.

j. April 7, 2025: Ms. Barfknecht served the father and the mother with a copy of the March 26, 2024 Notice of Change. Court staff accepted the document at face value, and amended the court file to indicate that the mother was now representing herself.

k. July 14, 2025: The mother filed a Trial Readiness Form requesting that the matter be spoken to at the July 21, 2025 Purge Court (one week prior to the scheduled trial sittings). The mother was requesting an adjournment of the trial. Her primary reason:

“Ms. Barfknecht stopped being my lawyer recently. I have only just gained access to my file via Case Center. Ms. Barfknecht is refusing to give me my file....I am on WSIB with limited income and have been having a hard time retaining new counsel.”

l. The mother also indicated she was not emotionally strong enough to conduct the trial herself.

m. July 14, 2025: The father filed a Trial Readiness Form expressing his strong opposition to the mother’s adjournment request. He was adamant that the long-delayed trial should proceed.

The July 21, 2025 Purge Court List

[7]
Prior to the 10 a.m. commencement of the July 21, 2025 Purge Court list, I had court staff invite Ms. Barfknecht to join the Zoom proceeding, to participate in the discussion. Fortunately she attended.

a. We had a discussion.

b. I expressed my concern about the sequence of events.

c. In particular, I expressed concern about the manner and timing of counsel’s unilateral effort to be removed from the file.

d. Speaking plainly, I questioned whether Ms. Barfknecht was really “off the record”, given her very selective use of an out-dated Notice of Change, and her numerous subsequent court attendances where she specifically advised that court that she was “on the record”.

e. I explained that in our overburdened family court system, we try very hard to give priority to parenting cases.

f. I noted that these parties have been litigating for a long time, and in the father’s materials he sets out how the tension and uncertainty of these proceedings has been adversely affecting the child’s emotional health.

g. I also addressed the potential consequences of an adjournment of the trial on each parent, and most importantly, on the child. In all parenting cases it is vitally important that issues be resolved as quickly as possible, because children need and are entitled to certainty, consistency, and stability in their lives. I also noted that the mother’s adjournment request would have strategic implications, because she wants to perpetuate the status quo (restrictions on the father’s time) whereas the father is desperately anxious to resume a more normalized relationship with his daughter. (Notably, he filed a letter from CCAS indicating that the child protection agency has investigated and does not take the position that the father’s time needs to be supervised.)

h. I acknowledged the mother’s concern that given a combination of personal circumstances – which her lawyer would have been aware of – she would have difficulty hiring a new lawyer quickly or proceeding with a July 2025 trial on her own.

i. While the mother was imprecise about how long an adjournment she was requesting, a related document suggested she wanted three to six months. I explained that with the court’s busy trial schedule, if the six-day trial was removed from the July 28, 2025 sittings, the earliest available adjournment date would be the March 9, 2026 sittings.

j. I explained that the court very likely has judges available to hear this trial as scheduled, within the next three weeks. I suggested it would be tragic and a disservice to this child if counsel’s late-stage removal from the file created a further delay of about eight months.

k. After identifying these preliminary concerns, I stood the matter down. Ms. Barfknecht and the mother agreed to have a private discussion in a Zoom breakout room.

l. While the matter was stood down, Ms. Barfknecht emailed to the court an urgent revised Trial Readiness Form in which she indicated her first choice was to adjourn the trial, but if an adjournment was not granted, there was a particular day she was unavailable during the July 28, 2025 sittings.

m. When the matter was re-called, Ms. Barfknecht confirmed that she would be representing the mother and she was no longer seeking an adjournment of the trial. (There was a secondary medical component to the mother’s adjournment request, but that was abandoned.)

Outcome of the Adjournment Request

[8]
So the good news is that we sort of averted disaster.

a. The scheduled six-day trial will proceed.

b. Ms. Barfknecht says she’s “back on the record”.

c. I don’t actually think she was ever off the record.

Broader Issues with Representation

[9]
But this case highlights a serious and increasing problem family court is experiencing with lawyers who are sometimes coy or inconsistent about the extent to which they are assuming responsibility for a file.

a. The Law Society now permits “unbundled services”. Rule 4(1.2) of the Family Law Rules allows for limited scope retainers. Rule 4(1.3) clarifies that a party who is represented by a lawyer acting under a limited scope retainer is considered to be acting in person, unless the lawyer is acting as the party’s lawyer of record.

b. Usually, clients hire lawyers on a limited scope basis in order to limit legal fees. And sometimes it’s better to have a lawyer present – even as an “agent” – rather than have a litigant appear in court on their own.

c. But appearing as “agent only” seems to be a new business model in the legal world. Some notable law firms never seem to go on record. They just have a roster of young, less experienced lawyers who only appear as agents. Sometimes you get the same agent twice in a row. Sometimes you get a different agent who doesn’t know much about what happened during the last court attendance. Sometimes an agent will make promises about things they’re going to do – and then they disappear from the file. Sometimes the agent will insist on a particular return date -- and then the agent won’t show up on their requested date because they’re not on record.

d. From the client’s perspective, repetitive use of “agents” for individual court events tends to promote a piecemeal approach to the issues, rather than the preferred holistic approach which counsel of record can better address.

e. For the opposing party -- and for the court – it’s difficult to organize or advance the matter, when the agent-of-the-day makes it clear that they assume no responsibility for either past or future developments on the file.

The Problem with Perpetual Agents and Notice of Change

[10]
Perpetual agents are a problem, because they’re unaccountable. But when counsel of record creates a mechanism for them to unilaterally abandon a file any time they want, that’s even more of a problem.

a. A Notice of Change of Representation has a temporal quality. It is a formal statement of threshold change in the status of two people: the litigant and the lawyer. Its efficacy is specifically tied to the date on which it is signed. It speaks in the present tense (“I have decided to act in person. Documents can be served on me at the address set out in this box.”). Rule 4(10) sets out that the change in representation must be served on every other party and filed with the court. It should be obvious that if the Notice is to have any legal significance, it must be acted upon, served and filed with the court immediately upon its execution.

b. A Notice of Change of Representation is intended to change a party’s legal status as of the date the document was signed – and not on some unspecified future date, in unspecified future circumstances, beyond the control of the client. It is intended for current -- not retroactive -- use. It is not a convenient strategic option for the lawyer to preserve their future ability to unilaterally walk away from counsel’s obligation to the litigant and to the court.

c. A Notice of Change is the client’s document, not the lawyer’s. It is signed by the client who has exclusive authority to decide if and when it should take effect.

d. Lawyers have a fiduciary responsibility to their clients. In simple terms, that means they have to be very careful – and transparent – when they do things that are good for themselves, to the prejudice of their client.

e. In this case, Ms. Barfknecht had the mother sign a Notice of Change of Representation on March 26, 2024, even though the lawyer and client agreed that there was no actual change in representation. For more than a year, it was business as usual as far as the father and the court were concerned. Ms. Barfknecht kept taking steps and appearing in court for the mother. By continuing to act on behalf of the mother, the lawyer effectively rendered the Notice of Change of Representation meaningless, and certainly incapable of resurrection on the eve of trial.

f. Indeed, the mother’s last-minute request to adjourn the trial was largely based on the fact that the mother didn’t want to represent herself. She was unhappy about Ms. Barfknecht removing herself from the case and abandoning her.

g. Essentially, the lawyer filed an out-of-date Notice to tell the court that the mother wanted to represent herself—at the precise moment that the opposite was true.

Proper Process for Withdrawal

[11]
Leaving aside, for the moment, the more difficult question of whether counsel should be allowed to withdraw from a file on the eve of trial, more generally the process to get off a file is relatively straightforward.

a. If the client wants to terminate the lawyer’s services, they can file a Notice of Change.

b. If the client and the lawyer mutually agree the relationship should end, they can agree that the client will file a Notice of Change.

c. If the lawyer wants off the file and the client won’t agree or cooperate, the lawyer will have to bring a motion, and the court will decide if the lawyer should be removed as counsel of record.

Professional Responsibilities

[12]
I know it’s tough to be a lawyer. These days it’s tough to be a judge too. But we’re not here to make our professional lives easier. We’ve chosen these jobs to help litigants, families, and especially children.

[13]
If a lawyer doesn’t want to represent a client, then don’t go on the record. Or make it clear that you’re only appearing as agent. And if you’re on the record and want off, do it properly and in a timely way (ie, not on the eve of trial).

[14]
But having a client sign a bogus Notice of Change of Representation may result in the lawyer being stuck with unwanted court commitments. (And having the client sign an undated Notice of Change for future use may only make things worse.)

Today’s Endorsement

[15]
Today’s endorsement:

a. On consent, Ms. Barfknecht is counsel of record for the mother.

b. On consent, the mother’s request for an adjournment of the trial is withdrawn.

c. The trial remains on the July 28, 2025 sittings, not to be called prior to July 29, 2025. Estimated trial time remains 6 days.

d. The Applicant is to serve and file her trial record by July 25, 2025.

e. No later than July 24, 2025 at noon, each party shall email to the other:

i. A list of the witnesses they will be calling at trial, and a brief summary of their anticipated evidence.

ii. A list of any additional disclosure or information being requested. Given the timelines, any requests for additional disclosure should be responded to forthwith.

Justice Alex Pazaratz
Date: July 22, 2025