The Ontario Superior Court recently commented on interference with a party’s choice of counsel in family law disputes, and dismissed a request to remove counsel from the record.

What Happened?

The parties signed a separation agreement a number of years ago, and a divorce was later granted in 2007. Both parties were now seeking variations to that agreement. The ex-husband sought a variation in how much child support he owed on the basis that one of the children had been living with him. The ex-wife sought spousal support on the grounds that the husband had failed to provide full and frank disclosure of his income by neglecting to mention his interests in various businesses. In addition, the ex-wife brought a motion to remove the ex-husband’s lawyer from the proceedings (i.e.- to remove him from the record). In support of the motion for removal, she argued that the ex-husband’s lawyer is a key witness in the case; namely that the lawyer was aware that the ex-husband had not complied with his disclosure obligations, and that the lawyer was the only one who could provide “material evidence” of the husband’s finances. The ex-husband opposed this request, arguing that a removal order is only granted in rare circumstances, that the information sought by the wife was protected by solicitor-client privilege (and in any event, available via other sources), and that the request was premature.

Removal of Counsel

Courts are generally very reluctant to interfere with a party’s choice of legal representation. Caselaw has established that removal motions should only be granted in the rarest of circumstances. Courts have removed counsel from the record, where that counsel will be a material witness in the proceeding. A court considering a motion for removal will consider several factors in coming to a final decision, per the decision in Karas v. Ontario (the Karas factors):

• The stage of the proceedings;
• The likelihood that the witness will be called;
• The good faith of the party making the request;
• The significance of the evidence to be presented;
• The impact of removing counsel on the party’s right to be represented by a lawyer of their choice;
• Whether the trial is a judge-only trial, or one before a jury;
• The likelihood of a real conflict arising, or the likelihood that evidence will be “tainted”;
• Who will examine witnesses;
• The connection or relationship between counsel, the prospective witness, and the parties involved in the litigation.

The Ex-Wife’s Position

The ex-wife relied on three arguments in support of her motion for removal:

• She intended to call the ex-husband’s lawyer as a witness;
• The ex-husband’s lawyer had knowledge of the ex-husband’s alleged failure to fully disclose relevant financial documentation, and that the lawyer was complicit in this alleged failure;
• The ex-husband’s lawyer should be a witness since he had intimate knowledge of the ex-husband’s business affairs because he was the lawyer for both the ex-husband, and for the ex-husband’s family businesses.

The Court

Justice William LeMay considered each of the ex-wife’s arguments in coming to his final conclusion, and ultimately dismissed the application for removal of counsel.

Calling Counsel as a Witness

Justice LeMay stated that the calling of counsel as a witness during proceedings does not automatically mean that lawyer should be removed as counsel to one of the parties to those proceedings. Here, the lawyer in question had been the ex-husband’s lawyer for the duration of the family law dispute, and, consequently, the information he had about the ex-husband is privileged. Furthermore:

A court will only permit a party’s solicitor to be called in the rarest of circumstances and only where there is a basis for calling them as a witness that is independent of the fact that they may have helpful evidence.  Indeed, even in circumstances where the lawyer may have the best evidence, the Courts may not require him or her to be removed from the record or called as a witness.

Undoubtedly, the ex-husband’s lawyer would know things about the ex-husband that would be useful to the dispute, but any such information is all privileged. The fact that the ex-wife wishes to have the lawyer testify as a witness does not permit a breach of that privilege.

The Alleged Failure to Disclose

Justice LeMay considered a number of the Karas factors:

• Stage of the proceedings: the motion to remove was being brought at a preliminary stage of the proceedings, making the motion not yet necessary;
• Likelihood the lawyer will be called as witness: it was very unlikely that the trial judge would allow the lawyer to be called as a witness, due to a) the solicitor-client privilege and b) the fact that the information the ex-wife was seeking was available through other means;
• The good faith of the party making the request: Justice LeMay was not prepared to find bad faith on the part of the ex-wife. He was, however, concerned about the timing of the motion and the intention behind it. The timing was suspicious, as the ex-wife brought the motion two days before the ex-husband’s motion for adjustment to child support was going to be heard. A clear explanation for this was not provided. Intent wise, removal of counsel of record is a serious step and should only be considered after other options have been explored;
• Evidence to be led: as previously noted, all evidence sought by the ex-wife could be obtained through a third-party records application. Any evidence that would be presented through calling the lawyer as a witness would be redundant;
• The impact of removing counsel: there was no obvious conflict between the ex-husband and his lawyer, and removing the ex-husband’s lawyer would have a significant impact on the ex-husband.

The Lawyer’s Involvement with the Ex-Husband’s Family Businesses

According to Justice LeMay, the mere fact that the lawyer acted for the family businesses did not mean that he was intimately familiar with their corporate structure such that he would be able to provide information relevant to the ex-husband’s financial status. Further, even if he were able to provide such information, it is privileged and he would not be obligated to share it with the court. Lastly, if the ex-wife wants to obtain information about the family businesses of her ex-husband, again, she could do so via a third party. It was not reasonable to seek this information from the ex-husband’s lawyer.

Lessons Learned

As recognized by Justice LeMay in his reasoning in this matter, Ontario caselaw states that courts will grant a removal motion only in the rarest of circumstances.

“A litigant should not be deprived of counsel of its choice without good cause…” For this reason, Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel.  Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused.  The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice…

Successfully arguing that opposing counsel ought to be removed can be tricky, and a motion to remove can needlessly prolong family law proceedings, which can be already complicated, emotional, and lengthy without introducing additional days of hearing to address further issues.  However, in certain situations such motions will be warranted, and may be granted. If you have questions about separation, divorce, spousal support, child support or any other family law issue, please contact the experienced Toronto family lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation.