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Party Seeks Representation by a Relative — Rules for Representation

By: Philip Epstein

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Scarlett v. Farrell, 2014 CarswellOnt 5152 (Ont. C.J.): This is a thoughtful judgment by Justice Stan Sherr of the Toronto Family Court wherein he refuses permission for the mother to have her stepfather represent her in the matter. The case is a useful guide for those who seek to have non-lawyers represent them in their family law cases.
The rise of self-represented litigants is becoming a deluge. It is particularly so in provincial courts across this country. More and more frequently I suspect that parties who face the daunting prospect of having to do a trial or complicated motion will turn to unbundled legal services and attempt to hire a lawyer or an agent for a specific task. That will undoubtedly force the courts into determining who can act, and in what circumstances representation will not be permitted.

In this case the mother wanted her stepfather to help her with what appears to be a complicated trial about custody and access issues. The mother had a lawyer but he resigned and was removed from the record. The mother deposed that she could not afford to retain a lawyer and that Legal Aid would not provide a certificate. Her stepfather was a lawyer under suspension. The father was an experienced lawyer. The mother's stepfather deposed that he has extensive experience in civil litigation and trial work and further deposed that he was under an administrative suspension by the Law Society for non-payment of fees.

That was a somewhat over simplification of the story in that the stepfather had a record of professional misconduct, and compounded his problems by leaving a message with the father's lawyer that indicated that he lacked the emotional distance to properly represent the mother.

Justice Sherr accepts that the mother will be at an unfair disadvantage and does not have proper representation at trial, and she suggests that this could affect the best interests of the child. Justice Sherr was not unmindful of the fact that the mother wanted her stepfather as her representative and that he could clearly do a better job at trial than she could. He recognized that the Court had the discretion to permit the stepfather to represent the mother, but nevertheless he dismissed the mother's application. In so doing he reviewed all of the important cases on this topic, in particular, Katz v. McNevin, 2012 CarswellOnt 10939 (Ont. S.C.J.). That case is the starting point for a discussion of this issue. In Pires v. Dedvukay, 81 R.F.L. (6th) 231 (Ont. C.J.) Justice Sherr notes that Justice Heather Katarynych added the following three considerations:

It seems to me that both the Law Society Act and the Solicitors Act make visible to all who seek remedy from the court that business in the courts is serious business. The governance built into those statutory schemes, on a plain read, remind all who would "represent" litigants in a court case that competence, integrity, honesty and respect for the law and our legal institutions matter. Proper administration of justice depends on that attention to the quality of the representation. The court is not a playground.

Competence, integrity, honesty, respect for the law and our legal institutions are no less important when the issue is "representation" of a party by a non-lawyer.

The narrow exercise of discretion also takes into account certain vulnerabilities in non-lawyer representation that may impact on the "client" of the non-lawyer, on the other participants in the court case and on the court itself.

In particular, Justice Sherr makes note of Kopyto v. Ontario (Attorney General), 1997 CarswellOnt 3402 (Ont. Div. Ct.), where Justice Douglas Bean noted:

In my opinion, a disbarred solicitor ought not to appear per R. 9.4 in a non-professional capacity when he cannot appear in a "professional capacity".

Justice Sherr appreciates that the stepfather here is seeking to do at trial what the Law Society prevents him from doing i.e. practising law when he is under suspension. Justice Sherr also expresses some grave doubt about the step-father's honesty and integrity because of his failure to disclosure his discipline record. He also recognizes that while having a personal relationship with the litigant does not automatically preclude someone from acting on their behalf, it may well create a conflict of interest that requires the lawyer to be removed. For example, Windsor-Essex Children's Aid Society v. D. (B.), 2013 CarswellOnt 1207 (Ont. C.J.), McWaters v. Coke, 16 R.F.L. (6th) 271 (Ont. C.J.), and Kam v. Hermanstyne, 1 R.F.L. (7th) 494 (Ont. C.J.). Justice Sherr quotes from the important comments of Justice Spence in Kam where he writes:

I realize that the result of this decision may be to deprive the respondent of legal representation. However, while it is generally preferable for parties to have counsel rather than to proceed unrepresented, the lack of counsel does not in and of itself mean that the respondent will be deprived of his fundamental right to justice. In our courts, a very large percentage of litigants are self-represented. Judges work hard to ensure that the playing field is maintained as evenly as possible, particularly in cases where one side is represented and the other side is not.

Thus, the motion to have the stepfather act as counsel was dismissed. The trial was briefly adjourned so that the mother might pursue an appeal with Legal Aid to reinstate or grant a new certificate. I suspect we are going to see a lot more of these cases and it is a reminder that if parties are going to seek to have a third party represent them who is not a practising lawyer, then that party is going to have to make full disclosure of all relevant information.

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