CITATION: Kuang v. Young, 2026 ONSC 4851
COURT FILE NO.: FS-22-00029253-0000
DATE: 20260821
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hugh Kuang, Moving Party/Applicant
AND:
Diana Young, Responding Party/Respondent
BEFORE: Leach, J.
COUNSEL: Shaun Laubman, for the Moving Party
John Adair, for the Responding Party
HEARD: August 13, 2026
ENDORSEMENT
[1] This is the Applicant Hugh Kwang’s (“Hugh”) motion for an order to remove the Respondent Diana Young’s (“Diana”) solicitor of record on the basis that she has a conflict of interest.
[2] For the reasons that follow, Hugh’s motion is dismissed.
Background
[3] The parties separated on March 13, 2021 after 16 years of marriage. In the course of their marriage, they built a small corporate empire based on commercial and residential real estate in the greater Toronto area. They have three children.
[4] Shortly after separation, Hugh sought recommendations for family law counsel to consult. He met with three lawyers: Harold Niman (Hugh’s current counsel), Ken Cole (Epstein Cole LLP) and Martha McCarthy (McCarthy Hansen & Company). Hugh met with Ms. McCarthy on April 6, 2021 for over an hour and divulged confidential information to her. The meeting ws coordinated by Ms. McCarthy’s executive assistant, Ms. Strong. Ms. McCarthy gave him advice on starting a proceeding and referred him to a company to assist with document preservation. Hugh asked Ms. McCarthy if Diana could subsequently retain her and was given assurances that she could not.
[5] Hugh subsequently retained Harold Niman and Niman Mamo LLP. Hugh issued his application in April 2022 and the litigation began. Hugh has had the same counsel throughout. Diana has had several different counsel.
[6] The parties agree that this litigation is both complicated and high conflict. There have been multiple conferences and over twenty motions. A threshold issue in the litigation is ownership of five corporations that form part of the real estate empire and the validity of a 2007 marriage contract. These two issues were the subject of a five week “Phase One” trial before Stevenson J. in October and November 2025.
[7] In May 2025, after the Phase One trial dates were fixed, Diana attempted to retain Heather Hansen. Ms. Hansen is Martha McCarthy’s partner at McCarthy Hansen & Company (“MHC”). Ms. Hansen ran a conflict check and discovered that Hugh had consulted with Ms. McCarthy in April 2021. She contacted Hugh’s counsel and asked if Hugh would waive any alleged conflict. Hugh objected. In light of the peremptory trial dates, Ms. Hansen did not feel it was in Diana’s best interests to engage in a contested motion over her choice of counsel. Diana proceeded to trial with her then counsel.
[8] Stevenson J.’s decision was released in April 2026. He determined that Hugh owned 100% of four of the five corporations and 50% of the fifth and that the marriage contract was not valid. Diana has appealed this trial decision. Hugh has brought motions to enforce that decision including a receivership motion scheduled for September 2026 and a contempt motion scheduled for October 2026. Phase 2 of the trial, which will deal with parenting, support, and equalization, remains to be heard.
[9] After the release of the trial decision, Diana sought to retain Ms. Hansen. On June 24, 2026, Diana filed a Notice of Change in Representation indicating that MHC would now be acting for her. Hugh seeks to remove Hansen and MHC as Diana’s solicitors of record.
[10] Since Hugh met with Ms. McCarthy in 2021, two former employees of Niman Mamo LLP have joined MHC. Lawyer Candace Santaguida joined the firm in June 2024 and law clerk Stephanie Alejo joined in September 2025.
[11] Ms. McCarthy’s executive assistant, Ms. Strong, worked for Ms. Hansen at the time of the 2021 consultation and continues to work at MHC. Ms. Strong scheduled Hugh’s consultation with Ms. McCarthy, collected intake information from him, and opened his file.
Legal Framework
[12] The leading case on this issue is MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, in which the Supreme Court of Canada set out the principles that apply in potential conflict situations. Writing for the majority, Sopinka J. directed that in any particular case a court must have regard to at least three competing values, at p. 1243. They are:
a. The concern to maintain the high standards of the legal profession and the integrity of the justice system;
b. The concern that a litigant ought not to be deprived of his or her counsel of choice without good cause; and
c. The desirability of permitting reasonable mobility in the profession.
[13] On a motion to remove a solicitor of record because of a conflict, the test is whether a fair-minded and reasonably informed member of the public would conclude that the removal of counsel is necessary for the proper administration of justice: MacDonald Estate, at p. 1259. Where the motion concerns a conflict with a former client, the analysis is primarily concerned with whether the lawyer’s former retainer offers them an opportunity to misuse the former client’s confidential information. As the Supreme Court explained in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 SCR 649, at para. 24:
The first major concerns addressed by the duty to avoid conflicting interests is the misuse of confidential information. The duty to avoid conflicts reinforces the lawyer’s duty of confidentiality – which is a distinct duty – by preventing situations that carry a heightened risk of a breach of confidentiality. A lawyer cannot act in a manner where he may use confidential information obtained from a former or current client to the detriment of that client.
[14] At p. 1260 of Macdonald Estate, the Supreme Court set out a two-part test in assessing whether a lawyer or law firm is in a disqualifying conflict of interest:
(1) Did the lawyer receive confidential information attributable to a solicitor client relationship relevant to the matter at hand?
(2) Is there a risk that this confidential information will be used to the prejudice of the client?
Analysis
[15] Diana accepts that it is reasonable to infer that Hugh shared confidential information with Ms. McCarthy. The evidence is that they met for over an hour. A 19-page file was generated, which included an intake form completed by Hugh and notes taken by Ms. McCarthy. There is also no dispute that there is a clear nexus between this confidential information and the outstanding issues in this case. The parties are still litigating the same action which brought Hugh to Ms. McCarthy. Finally, there is no dispute that a solicitor-client relationship was formed between Hugh and Ms. McCarthy.
[16] In applying the two-part test established by the Supreme Court, I find that the following factors are key:
a. The limited nature of the consultation and the time that has passed since it took place;
b. The fact that Hugh’s consultation was with Ms. McCarthy, not Ms. Hansen; and
c. The “ethical wall” set up at McCarthy Hansen & Company.
The nature and timing of Hugh’s consultation with Ms. McCarthy
[17] Hugh’s evidence is that he gave Ms. McCarthy confidential information about his and Diana’s financial circumstances, their children, Diana’s conduct, a marriage contract, corporate ownership and documents, and an argument that Hugh and Diana had prior to separation. Outside of these broad categories, the court does not have the particulars of the information shared. However, this information was provided at the outset of a matrimonial dispute when Hugh was still in the process of selecting the lawyer who would represent him. The litigation process had not yet started. It is reasonable to infer that the information shared would have been preliminary in nature.
[18] Moreover, since his consultation with Ms. McCarthy in 2021, Hugh has sworn numerous affidavits detailing his concerns about Diana, has sworn multiple financial statements, has been questioned about his financial positions and circumstances at the time of marriage and separation, produced documents through discovery, and participated in a five-week trial. The litigation is now at an advanced stage. All of this calls into question whether the information that Hugh disclosed to Ms. McCarthy more than five years ago remains truly “confidential” in the sense that Hugh would be prejudiced if MHC represents Diana.
Hugh did not consult with Heather Hansen or the other members of Diana’s legal team
[19] This is not a case where the lawyer who received confidential information through a consultation is now also being retained. There are numerous cases where lawyers have been removed in this situation. This is because in such circumstances it is not possible to put measures in place to contain the confidential information.
[20] There is of course a presumption that lawyers who work together will share confidential information. This presumption is rebuttable. As noted by Sopinka J. in MacDonald Estate, at p. 1262:
Moreover, I am not convinced that a reasonable member of the public would necessarily conclude that confidences are likely to be disclosed in every case despite institutional measures to prevent it. There is, however, a strong inference that lawyers who work together share confidence. In answering this question, the court should therefore draw the inference, unless satisfied on the basis of clear and convincing evidence, that all reasonable measures have been taken to ensure that no disclosure will occur by the “tainted” lawyer to the member or members of the firm who are engaged against the former client. Such reasonable measures would include institutional mechanisms such as Chinese walls and cones of silence.
[21] In addition to the measures that will be detailed below, Ms. Hansen provided sworn evidence that she and Ms. McCarthy never discussed Hugh’s consultation and that she has not reviewed any of the materials in his 19-page file. She explained that she and Ms. McCarthy both maintain very busy legal practices and might each have upwards of ten new client consultations a month. While they do seek out each other’s opinions and insight on certain matters, this occurs only when there is something about the file that gives them reason to do so; for example, if the matter has precedential value. It is not their practice to discuss a routine consultation, particularly if it does not result in a retainer, and hence not surprising that they would not have discussed Hugh’s consultation. Further, at this stage of their careers, Ms. Hansen and Ms. McCarthy very rarely work on files together. They sit on different halves of MHC’s bifurcated office and have distinct, non-overlapping teams of assistants and clerks. They also have their own workflow groups of junior partners and associates who are staffed on their respective files.
[22] Ms. Santaguida also provided an affidavit setting out the extent of her knowledge about Hugh. She deposed that she was employed as an associate at Niman Mamo LLP from October 2022 to June 2024 and that during this time she was aware that the firm represented someone with the last name “Kuang”. She had a general awareness of the existence of the file due to the significant level of firm resources it occupied but was not aware of specifics beyond that. She deposed that she did not work on the matter, review documents, bill time or engage in any discussions about the substance of the file while she was at Niman Mamo. She states she does not have and has never had information that would be confidential to Hugh.
[23] Mr. Laubman points to the fact that no affidavits have been supplied by Ms. McCarthy, Ms. Strong, or Ms. Aroja to confirm that they have not shared confidential information. He asserts that the absence of affidavits from all counsel and staff (whether they be recipients of potentially confidential information or new counsel) has proven fatal in other cases. In my view, these other cases are distinguishable.
[24] In Marinangeli v. Marinangeli, 2004 CanLII 4041 (ONSC), Stephen Grant (then of Gowlings) acted for the wife in a prior proceeding between the same spouses. He then moved to McCarthy Tetrault. Another lawyer from McCarthy Tetrault, Gerald Sadvari, proposed to act for the husband in the second proceeding. An ethical wall was immediately created. Mr. Grant swore an affidavit for the solicitor removal motion stating that he did not recall the case. Mr. Sadvari did not swear an affidavit affirming that he had not received any confidential information, which proved fatal notwithstanding the ethical wall. In this case, however, Ms. Hansen has sworn an affidavit confirming that she did not receive any confidential information. Further, in my view, there is a qualitative difference between the situation where the first lawyer provides a consultation and where the first lawyer represented the client over a period of time.
[25] In Mohammed-Timal v. Timal, 2014 ONSC 4815, the applicant wife met with lawyer Steven Fehrle. Mr. Fehrle met with her for an hour and together they arrived at a settlement position. After the meeting, Mr. Fehrle discovered that his partner Andrew Kania was already acting for the husband. The wife brought a motion to disqualify Andrew Kania from acting as the husband’s counsel. Mr. Fehrle swore an affidavit confirming that he had not shared any confidential information with Mr. Kania and that the firm had created an ethical wall. However, no affidavit was provided from Mr. Kania as to what he may know, have heard or have access to (described by the judge as a “serious shortcoming”) and Mr. Fehrle’s affidavit did not detail the steps taken to prevent the improper use of confidential information. In this case, Ms. Hansen has provided an affidavit confirming that she has not received any confidential information and outlining in detail the measures she has put in place. As well, the Timal case involved one firm representing both sides of the dispute at the same time, creating potential for breach of both the duty of loyalty and the duty of confidentiality. This is a more concerning scenario than in this case.
[26] Similarly, in M.S.K. v. T.L.T., 2011 ONSC 5478, 10 R.F.L. (7th) 118, the conflict arose because a law clerk working for the husband’s counsel left his firm and began to work for the wife’s counsel on the same file. When this was discovered, the wife’s counsel erected an ethical wall around the law clerk. The law clerk swore an affidavit in which she deposed that he did not have and had not shared any confidential information; however, no affidavit was provided by the wife’s counsel confirming that he had not received any confidential information. This factor, combined with the fact that the law clerk had worked on the file at length for the wife’s counsel before the ethical wall was set up, led to the removal of the wife’s counsel. In this case, Ms. Hansen has sworn an affidavit that she has not received confidential information and the ethical wall was erected a year before she was retained by Diana.
[27] Mr. Laubman points out that there is also no sworn evidence from the other three lawyers working with Ms. Hansen to confirm that they did not access or obtain Hugh’s confidential information in the four years before the ethical wall was erected. While this is true, Ms. Hansen deposes in her affidavit that she has received confirmation from all three lawyers that they have not reviewed the materials related to Hugh’s consultation. My view is that Ms. Hansen’s hearsay evidence on this point will suffice.
Robust measures have been implemented to protect Hugh’s confidential information
[28] I agree with Mr. Laubman that clear and convincing evidence is required to rebut the presumption that confidential information has not been shared between lawyers and staff within the same law firm. Bare assertions that information is not shared or received (“trust me” affidavits) are not sufficient. The evidence presented by Diana goes far beyond a “trust me” affidavit.
[29] Ms. Hansen provided detailed evidence of the measures that MHC has put in place to ensure that Hugh’s confidential information is not shared with members of the team providing Diana with legal services.
[30] First, when Ms. McCarthy was not retained by Hugh, the file folder created for Hugh’s consultation was moved from the “Active Files” directory into the less frequently accessed “Archived Files” repository. While Ms. Hansen was unable to state when exactly this occurred, she indicates that MHC office records show that the file has been archived since at least June 2024.
[31] Diana approached Ms. Hansen about representing her at trial in May 2025. On May 12, 2025, at Ms. Hansen’s request, an ethical wall around Diana and Hugh’s files was put in place. Ms. McCarthy, Ms. Santaguida (who had joined the firm a year earlier) and Ms. McCarthy’s law clerk Angela Brooks were placed on the “Kuang” side of the ethical wall. The rest of the firm was placed on the “Young” side.
[32] MHC’s Chief Financial Officer moved Hugh’s file out of the archive and into a secure server location that is accessible only to her. No one, including Ms. McCarthy, has been able to access the file since May 2025. As such, no inadvertent access to the file can occur.
[33] When Diana’s file was subsequently opened, it was opened within a secured server location to limit access to those who are on the “Young” side of the ethical wall.
[34] When Ms. Alejo joined MHC, she was placed on the “Kuang” side of the wall. This is important because there is no doubt that Ms. Alejo was privy to Hugh’s confidential information. Ms. Alejo was the law clerk to Chloe van Wirdum, a partner at Niman Mamo who had carriage of Hugh’s file until August 2021. From April 2024 to June 2024, she also served as law clerk to Karen Law (one of Hugh’s current counsel). She was copied on emails in this matter and has sworn an affidavit in these proceedings.
[35] Ms. Hansen’s evidence is that after Diana retained MHC, Ms. Hansen or a member of her team spoke with each of Ms. McCarthy, Ms. Santaguida, Ms. Brooks, and Ms. Alejo to ensure that they were aware of the need to maintain Hugh’s confidentiality. Ms. McCarthy’s executive assistant Ms. Strong was also spoken to, as she had coordinated Hugh’s consultation with Ms. McCarthy and opened his file. All of these individuals have sworn an ethical wall acknowledgement, which has been circulated firm-wide.
[36] Finally, Ms. Hansen deposed that, as a matter of practice, MHC’s policy is that lawyers and staff are expected to respect client privacy and only access files when there is a need to do so. This expectation is communicated to all staff and employees at the time of their onboarding and is reinforced by internal firm guidance.
[37] In assessing these measures, I have considered whether they align with guidance provided by the Law Society of Ontario. While the jurisdiction of the courts to remove a lawyer from a matter where a conflict of interest exists is inherent, the Supreme Court has found that “an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy”: MacDonald Estate, at pp. 1245-1246. Other courts have used this approach to assess the measures taken by a law firm to protect confidential client information: see Kummer v. Kummer, 2023 BCSC 895.
[38] I find that the measures implemented by MHC are consistent with the guidance provided by the Law Society of Ontario’s Rules of Professional Conduct for the protection of confidential information in cases in which it is appropriate for another lawyer in the lawyer’s firm to act against a former client. These guidelines also deal with the transfer of lawyers between firms. They are as follows:
Guidelines: How to Screen/Measures to be taken
The screened lawyer should have no involvement in the new law firm’s representation of its client in the matter.
The screened lawyer should not discuss the current matter or any information relating to the representation of the former client (the two may be identical) with anyone else in the firm
No member of the new law firm should discuss the current matter or the previous representation with the screened lawyer.
The firm should take steps to preclude the screened lawyer from having access to any part of the file.
The new law firm should document the measures taken to screen the transferring lawyer, the time when these measures were put in place (the sooner the better), and should advise all affected lawyers and support staff of the measures taken.
These Guidelines apply with necessary modifications to situations in which non-lawyer staff employees leave one law firm to work for another and a determination is made, before hiring the individual, on whether any conflicts of interest will be created and whether the potential new hire actually possesses relevant confidential information.
[39] In Kummer, the court was easily satisfied by the measures put in place as they aligned precisely with the guidelines set out in the Law Society of British Columbia’s Code of Professional Conduct. The issue that the court found more difficult was the timing of the implementation of the measures, which had occurred six days after the conflict was discovered. Ultimately, the court accepted the reason for the delay and concluded that it did not meaningfully exacerbate the risk of prejudice.
[40] Here, Mr. Laubman argues that the delay is significantly more than six days: four years elapsed between Hugh’s consultation with Ms. McCarthy and the date that Ms. Hansen erected the ethical wall. Hugh asserts that the delay in erecting the ethical wall greatly exacerbated the risk of prejudice to him. The difficulty with this argument is that there was no reason for MHC to implement an ethical wall until Diana sought to retain the firm. As Mr. Adair points out, in every case where a conflict arises with a prior consultation, there will be a time period between the consultation with lawyer A and the retainer of lawyer B. I agree that the simple fact that the confidential information was theoretically available within the firm during that period is not sufficient, on its own, to establish prejudice. Moreover, the ethical wall was erected a year before Diana retained MHC. This is not a situation where legal work was well underway before measures were implemented to prevent the improper use of Hugh’s information. The horse had not yet left the barn.
[41] Finally, Mr Laubman argues that there is no evidence that the ethical wall screens off Ms. Strong and Ms. Alejo. However, Ms. Hansen has deposed that they have both executed sworn ethical wall acknowledgements. I am satisfied that they have both been placed on the “Kuang” side of the ethical wall.
Conclusion
[42] When all of the above factors are considered together, I find that the risk that the confidential information that Hugh shared with Ms. McCarthy will be used by MHC to his prejudice is speculative rather than genuine. In MacDonald Estate, the Supreme Court of Canada did not say that a reasonably informed member of the public must be satisfied that no use of the client’s information could occur. The Court said that this member must be satisfied that no use would occur. There is a qualitative difference. In other words, there must be something more than a mere possibility that there may be improper disclosure: Konjevic and Coventry Connections v. Uber, 2016 ONSC 5832, at paras. 47-48.
[43] Diana’s right to be represented by counsel of her choice should only be impaired if it is necessary to protect the integrity of the administration of justice. I am satisfied that a fair-minded and reasonably informed member of the public would conclude that adequate steps have been taken to protect Hugh’s confidential information, particularly in light of the time that has elapsed since he met with Ms. McCarthy and the fact that the matters he spoke with her about have since been litigated extensively.
[44] The Supreme Court was clear in MacDonald Estate that the presumption that confidential information has been shared between lawyers and staff at the same law firm is rebuttable. It is difficult to imagine what more would be required to rebut the presumption. There is insufficient evidence for me to conclude that Hugh strategically consulted with Ms. McCarthy and other leading family lawyers in Toronto to prevent Diana from being able to retain them. I am also unable to conclude that Diana would be unable to find another competent family lawyer in Toronto who is able to staff a file of this complexity. However, these can become genuine issues for family litigants outside Ontario’s urban centres. The MacDonald Estate test cannot be read so expansively that litigants are unnecessarily precluded from accessing legal representation.
[45] Accordingly, I order that the Applicant’s motion, as set out in his Notice of Motion dated July 20, 2026, is dismissed.
Costs
[46] If the parties are not able to resolve costs of this motion, the Respondent may serve and file costs submissions of no more than five double-spaced pages on or before September 21, 2026. The Applicant may deliver his responding submission of no more than five double-spaced pages on or before October 5, 2026.
Justice Carolyn Leach
Date: August 21, 2026