Can family lawyers include a provision in their retainer agreements giving themselves discretion to withdraw from the case for non-payment of legal fees?
That was one of the issues in a Law Society Tribunal case in which the panel made findings of professional misconduct against a Whitby, Ont., lawyer who acted for a client in her matrimonial dispute. At the very least, a lawyer must advise the client about obtaining independent legal advice, the tribunal found.
In this case, the retainer included a provision noting that the lawyer, Matys Rapoport, “in his discretion may withdraw from acting on my behalf” for reasons including non-payment of an account. “
“I expressly give Max Rapoport permission to sign a notice of change in representation on my behalf should he deem same necessary,” stated the retainer agreement signed by the client in 2010.
With the client not having paid accounts totalling $23,027.52 by September 2011, Rapoport began expressing concern about the outstanding amounts and told her that fall that he’d no longer act for her unless she began making payments, according to the tribunal’s July 7 decision.
In November 2011, the lawyer sent a letter saying he’d continue to act if she signed two consents to judgment. She signed them but with the issues over payment continuing, he sent another letter in March 2012 saying he’d remove himself as solicitor of record unless he received $34,000 towards the outstanding account within 10 days, according decision written by panel chairwoman Susan Opler.
Rapoport ended up filing a notice of a change in representation on the client’s behalf, Opler noted. The client responded with an e-mail calling the lawyer’s withdrawal as “unfair” and “unfortunate.”
For his part, Rapoport noted his reliance on the retainer agreement as a “precedent form retainer agreement that several counsel (unidentified) rely upon in his jurisdiction,” wrote Opler.
But in considering whether his actions were acceptable, Opler compared them to another case in which a family lawyer’s retainer agreement contemplated a client giving up his right to an assessment under the Solicitors Act.
The client in that case had essentially contracted out of the Solicitors Act, she found, noting Rapoport had achieved a similar result by obtaining the consents to judgment and serving a notice of a change in representation.
“This latter appropriation of the client’s right to terminate the relationship ‘at will’ meant the Lawyer effectively bypassed the procedural safeguards that apply to counsel of record established in the Family Law Court Rules, which protect the client and safeguard the process. In our view, both the assessment process and the right to end the solicitor client relationship ‘at will’ . . . are consumer protection provisions designed for the protection of the public which should not be appropriated by the Lawyer,” she wrote.
Opler highligted the power imbalance at issue and the importance of advising on the need for independent legal advice “as a lawyer treads closer and closer to the line of encroaching on existing client rights in favour of strengthening his own economic position.”
The decision continues: “Suffice to say that in this case, where no acknowledgment of the inherent conflict is included in the agreement nor is there guidance given to the client to seek independent legal advice, we find that the Lawyer was in an impermissible conflict of interest when he advised the client to hand over to him all control over service of a Notice of Change in Representation — a right that properly belonged to her pursuant to Rule 4(10).”
While the panel made the misconduct findings, it must still reconvene to consider the penalty.
Rapoport’s counsel Ted Spong declined to comment as the case is still before the tribunal.
While provincial superior courts can decide that federal regulations are invalid, only the Federal Court of Canada can declare them invalid via judicial review — although they have broad discretion to deny such review.
|Mary-Jo Maur believes there’s little chance a challenge to wipe out the Child Support Guidelines would succeed.|
The ruling in Strickland v. Canada involves a divorce case from Alberta in which the appellant, Robert Strickland, challenged the validity of federal Child Support Guidelines under the Divorce Act.
Strickland argued that the regulations, implemented by former justice minister Allan Rock in 1997, are inconsistent with the legislation. Rock’s attempt to amend the Divorce Act (which considers the means of both parents) to correspond with the guidelines (which only considers the means of non-custodial parents) was defeated by the Senate.
It’s this inconsistency that led Strickland and two co-appellants to seek a judicial review at the Federal Court of Canada.
When the court denied application for review — arguing it had little experience in family law matters and was an inappropriate forum — the applicants turned to the Federal Court of Appeal, arguing that the lower court’s reasoning was insufficient to deny the review.
Today’s decision, written on behalf of a unanimous court by Justice Thomas Cromwell, makes clear that superior courts have overriding discretion to deny judicial review, particularly when the court deems itself to be an inappropriate or inadequate forum.
“In this case,” the decision states, “the appellants’ position that they are entitled to a ruling on the legality of the Guidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised. The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines; the Federal Court has discretion to do so, which it has decided not to exercise. . . .”
“The provincial superior courts deal day in and day out with disputes in the context of marital breakdown concerning the needs of children. . . . Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious, to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts, which as a result of federal legislation have virtually no jurisdiction with respect to family law matters.”
Glenn Solomon, the litigator at Jensen Shawa Solomon Duguid Hawkes LLP who represented the appellants, says the ruling is by no means a decisive loss for his clients.
While the SCC decision shuts the door on a Federal Court review, it leaves open the possibility that the Child Support Guidelines will be rendered inconsistent with the Divorce Act through a traditional proceeding. Indeed, Solomon says an action at the Alberta Court of Queen’s Bench, which has been pending the SCC decision, will now proceed.
“It seems to me that what the Supreme Court has said is that only the Federal Court can declare the guidelines ultra vires the Divorce Act, but the superior courts can, in a case where there are other issues, decide that the guidelines are ultra vires the act,” says Solomon.
“And so we have the distinction between what the superior courts can decide, and what only the federal courts can declare.”
If Strickland’s challenge at the Court of Queen’s Bench succeeds, an appeal on the regulation itself — versus the discretion of the courts — could still make its way back up to the Supreme Court of Canada.
“A decision at the Federal Court doesn’t bind a provincial superior court,” says Solomon. “If anybody wants a ruling once and for all on the validity of the guidelines, it’s going to have to go up through the court system to the apex of the system, to the Supreme Court, to get a decision that binds everyone.”
Mary-Jo Maur, an assistant professor and family law expert at Queen’s University, says she “admires the boldness” of the attempt to wipe out the Child Support Guidelines, but she believes there’s little chance that such a challenge could succeed given the number of divorce cases that would be caught up in the maelstrom.
“Does this mean that people can go to the provincial superior court and ask to have the Child Support Guidelines declared invalid? Theoretically, somebody could do that, in the context of their own divorce application . . . but do they have a chance of winning it?!” she laughs.
“Ask me what the odds are — they have to be into the negative numbers. I mean, think about all the cases going back to May 1, 1997. What happens to them?”
|Virtually all the changes come into effect today and those that don't will be retroactive, says LAO's Thomas Nye.|
“Virtually all of them come into effect immediately,” he says of the changes, noting the only exception involves the changes with respect to bail matters.
“However, they will be retroactive to June 8,” he adds.
With the Ontario government pumping more than $96 million into LAO over three years, the agency is moving ahead with an expansion of certificate coverage to provide assistance in a greater range of areas. This is in addition to the series of increases to the income eligibility threshold that started taking effect last year.
In criminal law, for example, LAO will now issue certificates based on criteria besides the loss-of-liberty test that considers an applicant’s likelihood of going to jail. Under the changes, certificates will be available to those meeting the income eligibility criteria who are facing secondary consequences of a criminal conviction such as a risk of deportation; immediate loss of public housing; or a significant impact on access to family and child custody.
In addition, LAO will expand coverage for those meeting the income criteria with no prior criminal record in situations where the Crown is seeking a conviction or discharge and the defendant is First Nation, Métis, or Inuit; has a mental illness; or is a victim of domestic violence charged with an offence related to a partner.
When it comes to bail, the changes include providing for enhanced certificates for reviews that will expand the number of hours lawyers have to challenge bail orders and improper conditions imposed on those released.
In the area of family law, the changes will expand coverage for complex cases. According to Thomas, they refine the definition of complexity to deem certain matters, such as those dealing with applications under the Hague Convention on the Civil Aspects of International Child Abduction, to be “presumptively complex.”
As well, they’ll include provisions for what Thomas calls “client complexity criteria” to define complexity on the basis of client characteristics such as literacy issues or language barriers.
Additional changes will provide for certificates in mental-health proceedings to assist those meeting the income eligibility criteria who wish to bring guardianship applications before the Consent and Capacity Board or the Superior Court.
In addition, the changes provide for expanded coverage in refugee matters and domestic violence cases. They’ll also provide for targeted services for aboriginal clients and expand LAO’s public-interest criteria for test cases that address systemic issues affecting the poor.
“The old test-case criteria were pretty narrow,” says Thomas, noting it will now be possible to provide a certificate in a test case with significant implications for the poor even if the representative client doesn’t meet the financial eligibility criteria.
“We are growing the program to match the funding,” says Thomas, adding there may be further changes as the funding continues to grow — including another $67 million announced by the province in its spring budget for 2017-18 — and LAO assesses the impact of the expanded services so far.
|Lawyers see updates to Manitoba’s family laws as very positive. (Photo: Shutterstock).|
“The best interests of a child must always be the most important and often the only consideration in the area of family law. This is clearly entrenched within the proposed legislation, which would also include strong, new tools to collect child support from parents following separation or divorce,” Justice Minister Gord Mackintosh said in a statement.
Among the proposed changes and additions to the law:
• Online posting of the names and photos of delinquent parents with outstanding arrest warrants to determine their whereabouts.
• Withholding of recreational hunting and fishing licences.
• Increasing the maximum compensatory amount for late or missed support payments to $5,000 from $500.
• Allowing a child to apply for child support.
• Withholding of the Manitoba enhanced identification card for entrance to the U.S.
“I think that most family lawyers in Manitoba see the legislation as very positive . . . it gives more clarity to certain areas, especially around relocation and mobility,” says Robynne Kazina, a family lawyer at Taylor McCaffrey LLP in Winnipeg. “Traditionally these are really difficult cases because there’s no middle ground — [one parent] is going to either be allowed to move or not.”
She it was difficult to advise clients because of lack of clarity in existing legislation but now it is better codified. For instance, one parent has to give notice within a certain time frame, there are rules if one parent wants to contest the move.
“When you look at the legislation, the biggest piece of the legislation that will have an impact on our work will be around mobility.”
For lawyers it’s not about toughening up on deadbeat parents. They way the government sells it in its news release doesn’t really “reflect how big of a change that is to our practice — it’s huge, says Kazina. “If you talk to any family lawyer this week, that’s all they’re talking about. It’s a big, big deal, this relocation and mobility stuff.
One very innovative part of the new law, sh says, deals with declaration of parentage and updating the law around assisted reproductive technology.
“The other stuff is great, it’s basically adding more tools to the toolkit.”
She notes the “shaming” aspect of the proposed law hasn’t been controversial because it’s really aimed at extreme cases.
“[E]specially with the posting online — that has to be for someone who has an outstanding arrest warrant. These measures are probably not going to be used every day, they’re for the exceptional circumstances. They’re still good to have in place.”
Mackintosh said there’s been a 205-per-cent improvement in child-support compliance since 2000, but that 40 per cent of parents still fail to meet their full obligations.
A 2014 CBC investigation found that Manitoba parents owe a collective $58 million in support arrears, while the nationwide total is a staggering $3.7 billion.
Manitoba’s online initiative matches an Ontario site called Good Parents Pay, which shows photos, last known location, and other information on a rogues’ gallery of deadbeat dads.
|Civil court survey, general civil cases by level of court and type of action (click for full view)|
The one area where there continues to be more volume though, is motor vehicle litigation with 20-per-cent more active cases than five years earlier.
The information is part of the annual Statistics Canada civil court survey, which was released today. The survey collects data on civil court events and cases at the superior, provincial and territorial court levels, for the fiscal years ending March 31. Appellate courts and federal courts are not included in the survey.
In 2013-14, there were 613,622 civil cases in the country (not including family law) which had at least one event take place in the courts over that period. The largest single type of action was motor vehicle, with 116,472 cases. That is up from just over 94,000 in the 2009-10 period.
The next highest category was contract-related litigation, not including collection or bankruptcy proceedings, with nearly 81,000 cases.
|Civil court survey, number of active family cases, by issue(s) identified over length of case and number of fiscal years since case initiation (click for full view)|
In the family law sphere, the trends in the Statistics Canada survey are similar. There were 313,000 active cases in 2013-14, almost unchanged from the previous year, although down nearly five per cent from the 2009-10 period.
There were also just over 41,000 of those active cases last year, which were initiated at least four years earlier. That number is also virtually unchanged in recent years.
|B.C. is still No. 10 in terms of per-capita spend on legal aid, says Alex Shorten.|
“This is 25 years with no new funding,” says Birgit Eder, a defence lawyer and co-chairperson of the Trial Lawyers Association of B.C.’s legal aid action committee.
The Canadian Bar Association-British Columbia chapter also expressed its concerns about the budget.
“This is a big part of the access-to-justice problem,” says Alex Shorten, a Vancouver lawyer and president of the CBA-BC. “There needs to be more money for legal services for the most vulnerable in the province.”
Even with a large surplus and an annual provincial budget of $46 billion, the CBA has been told by the government there is no new money for legal aid, because each department must balance its own budget, says Shorten.
The CBA has asked the province to inject another $10 million, over the next three years.
“This province is still No. 10, in terms of per-capita legal aid,” says Shorten.
The overall annual budget for the Legal Services Society, which administers legal aid in B.C., is expected to be $79 million this fiscal year. That total is projected to drop by about $1 million over the next three years. Two decades ago, the budget was $89 million. If the cost of living is included, funding for legal aid in the province has dropped by nearly 40 per cent since 1995.
Legal aid funding is primarily on a block tariff system and a lower level criminal charge that ends with a one-day trial, will result in a total payment of about $500 to defence counsel, says Eder.
For other matters, such as a full-day preliminary hearing, the tariff published by the LSS provides for payment of $600. A one-day trial to defend an indictable offence pays $800, according to the tariff.
Eligibility has also been reduced, resulting in a sharp increase in the number of unrepresented accused, notes Eder.
An individual seeking legal aid in B.C. must have a net income of less than $18,000 annually. For a family of four, the net household income must be below $36,000.
An increase of about $50 million to legal aid in B.C. would not only ensure representation in criminal and family courts, it could prove to be revenue neutral, suggests Eder.
“Unrepresented litigants slow down the court system tremendously,” she says.
Defence lawyers in B.C. are planning to continue protests over legal aid funding that began last year. The job action includes a refusal to schedule any matters other than urgent bail hearings, in the first week of every calendar month.
The protest began in Vancouver and Kamloops and is scheduled to expand next month to Abbotsford and Chilliwack, says Eder.
A spokesperson for the Ministry of Justice pointed to five pilot projects, announced last year, at a cost of $6 million over three years, as part of the province’s legal aid efforts. The projects included the hiring of a full-time family law duty counsel in Victoria and expansion of a family law help line, which people can call from anywhere in B.C.
In terms of the rise in unrepresented litigants, the province has made more legal information available online, as has the LSS, the spokesperson explains.
It is also encouraging out-of-court resolutions in family law matters.
Update 4:30 pm: Corrected numbers regarding CBA-BC's requests for legal aid funding.
Update 5:30 pm: Comments from Ministry of Justice added.
In a case that illustrates the desperation of self-represented litigants in family courts, Rhonda Nordlander, also known as Rhonda Nordlander-Nalli in court documents, asked the court to allow her to be represented for free by a person who dubs himself “a family justice advocate.”
Nordlander is fighting for access and custody of her children. She says she has become impecunious since attempting to resolve her issues in the courts but does not qualify for legal aid.
For her representation motion, Nordlander partly relied on a web page that said a court may allow non-lawyer agents to represent litigants unless the agent has been shown to be incompetent, is in trouble with the law, or would damage the fairness of the proceedings.
“The webpage extract is a perfect example of how unreliable the Internet is as a source of information,” Justice Jamie Trimble said. “The unattributed, anonymous statement of law this [website] provides and on which Ms. Nalli relies, like so much on the Internet, should not be accepted blindly or uncritically.
“This ‘advice’ is just wrong,” he added.
Nordlander had also relied on R. v. Romanowicz to point out that non-lawyer agents could represent people with courts’ approval. But the judge rejected that argument, saying, “In my view, since the Criminal Code specifically allows agents to act in summary convictions, the case has no application to the issue before me.”
Trimble said in some circumstances, family courts may approve of an agent if the person is “a subject to a binding code of ethics that reinforces professional, ethical conduct and sanctions departure from it.”
The agent would also have to be bound in law by confidentiality laws and carry liability insurance, the judge said, adding Nordlander did not present proof of any of this.
Vernon Beck, the agent Nordlander wanted to be represented by, is the founder of an organization called Canada Court Watch. He says for 20 years, he’s provided information and support to families caught up in the system for free and has previously been granted approval by a court to represent a 16-year-old pregnant girl in a child protection matter.
If people choose to be represented by a non-lawyer, they should be allowed to, he tells Legal Feeds.
“People have that right to make informed choices. Once we start using the law to take away their informed choices, we are taking away people’s freedoms,” says Beck. “We should not have legislation taking away people’s right to free choice. It’s a very fundamental right that people have. Many people would agree that the Law Society [of Upper Canada] has become a monopoly.”
Trimble said he had “great sympathy” for Nordlander’s situation but she has failed to meet “the legal and evidentiary burden to be met in order to convince the court to exercise its discretion under [Family Law] Rule 4(1)(c).”
For her part, Nordlander says the case is being compromised by her self-representation and she is at her wits’ end.
“I wanted somebody to speak for me because it’s too emotional for me,” she says. “I get a lot of anxiety from court,” she adds, noting she’s now looking for lawyer who would help her pro bono.
|‘I find that the father can choose to be a vital part of his son’s best interests if he commits to it,’ wrote Justice Cheryl Robertson.|
The father, Keith Tuttle, had pled guilty to sexual exploitation and creating child pornography in 2012. His crimes included sexually abusing a four-year-old foster child, who was in the care of a relative, and possessing 36,000 pornographic images of children.
After he was released from prison, Tuttle pursued custody of his 12-year-old son, who was in the care of the mother.
Robertson ultimately ordered that sole custody be given to the mother, but allowed the father limited supervised access to his son.
“The supervision order is not a punishment but is the safe course for the child to pursue a healthy relationship with his father,” she wrote. “When the father can prove he has permanently changed his thought process, it could be a material change in circumstance.”
Robertson’s ruling, composed of short, declarative sentences, is filled with similar moments of empathy for Tuttle, which sit beside condemnations of his criminal behaviour and the deceitful actions he’s taken since his release.
“He presents as a soft-spoken, polite, sincere individual anxious to move forward with his relationship with his son. He is likeable. His positive demeanour and task sharing history is offset by his secret truth when considering trustworthiness. Despite these positive attributes, he was also a man who was disrespectful, inappropriate, sneaky, deceptive, and unable to maintain self-control at the expense of his child.”
At one point, Robertson acknowledged Tuttle is trying to change through therapy and relapse prevention programs, but that may never be enough.
“He is working on changing his behavior and thought pattern but his own expert evidence confirms he faces a long term struggle. Not all things can be fixed,” she wrote.
Despite the singular circumstances of the case, Robertson focused on the same issues that are the mainstay of any custody ruling — the best interests of the child.
“I find that the father can choose to be a vital part of his son’s best interests if he commits to it,” she wrote. “He must step into the child’s world and cannot expect his child to step back into his isolation.”
Robertson acknowledged that finding ways for father and son to spend time together with a supervisor present and away from other children would be difficult. But she goes as far as to suggest, in great detail, five specific ways Tuttle and his son would be able to spend productive time together.
These included starting a book club facilitated by a volunteer, starting a small, supervised lawn-cutting or snow-shoveling business with his son and a retired professional or enlisting the help of a graduate student to develop a plan for the two of them, which could form part of the student’s thesis project.
But Robertson worried that what she saw as Tuttle’s failure to come to terms with the effect his actions have had on the people around him would kill any potential future relationship.
“While his crimes were offensive, I am more concerned with his lack of follow through to deal with his other problems,” she wrote. “He cannot change his history but he can go forward with a realistic team approach to raising their child. It is up to him.”
Joan Rothwell, a lawyer with Legal Aid Ontario, says cases like these present a number of problems for the family law system.
“You feel bad for judges in those kind of circumstances because they have to protect the child at all costs,” she says. “But fortunately these cases are fairly rare.”
Rothwell recalls one case where a person convicted of child pornography was given supervised access to his child. The supervised access program however was run out of a community centre where other children were, so the man wasn’t able to go there.
According to Rothwell, it’s rare for a judge to give a long-term supervised access order, as Robertson did. But even in cases involving child pornography, judges will generally provide some form of supervised access versus cutting off all contact.
“The goal is to maintain the relationship in some way, because kids are curious about a parent if they never see them again,” she says.
Update 4:20 pm: comments from Joan Rothwell
|LSUC Treasurer Tom Conway says he's 'very proud' to see his vision moving from concept to reality. (Photo: Yamri Taddese)|
“Two years ago, when I was first elected, the goal I set was to define a new role for the law society in improving access to justice,” says Conway.
The need for a collaborative forum quickly became apparent, he adds, and the law society was in a position to facilitate it.
“I am very proud to see that move from a concept to a reality. Now, it will be up to the TAG participants to ensure its success,” he adds.
Representatives from courts, government, academia, the bar, paralegal associations, and access to justice groups were at the inaugural meeting, and shared examples of what can be done.
At the meeting, participants discussed what they are already doing to share their knowledge with other justice groups, and brainstormed innovative ideas to make justice more accessible. Their suggestions included creating a sort of “incubator” for lawyers building a practice to help underserved clients, coaching self-represented litigants, and setting up a “legal brokerage” to assist family law litigants at a reduced fee.
Some others encouraged pushing for solutions that have been in the radar in Ontario, such as improving court technology, increasing the dollar limit for the Small Claims Court, and leveraging the skills of law students.
Criminal Lawyers Association president Anthony Moustacalis, who was at the TAG meeting at Osgoode Hall in Toronto on Tuesday, says he was happy with the range of ideas that were exchanged. He calls TAG “an excellent initiative by the law society.”
“The problems of access to justice have become so complex and diverse that there’s a real need for those who deal with people who aren’t represented or are marginalized to share information, and successes and failures, to know how to go forward,” says Moustacalis.
Collaborators will use the information they have to press government and other agencies to work together, he notes. While some access to justice issues are tied to funding, others aren’t, and will require simplifying current processes, says Moustacalis.
As the collaboration continues, there will be metrics in place to measure the success of the initiative, says Conway.
“When the law society approved its new access to justice framework, which included the establishment of TAG, it also committed to developing metrics to measure the effectiveness of that framework,” he says.
The regulator is in the process creating the roadmap for TAG, he says, which will include a means of measuring the law society’s success.
|(Source: B.C. Court of Appeal)|
Last year, the number of civil and criminal appeals heard in the province involving self-represented litigants rose, respectively, by seven per cent and four per cent. The court saw 24 per cent of civil appeals and 11 per cent of criminal appeals involving at least one self-represented litigant.
“These are extremely troubling statistics,” Bauman writes. “They demonstrate just how challenging access to justice is to many British Columbians, even in the Province’s highest Court.”
Laura Track, legal director at the West Coast Legal Education and Action Fund — a not-for-profit advocating for women’s equality through legal initiatives — says it “boggles the mind” how litigants without any legal training can attempt to make the complex legal arguments required at the court of appeal level.
“It’s difficult enough to represent yourself at a trial, where you’re presenting the facts of your case. But at the Court of Appeal, you’re trying to show that the judge below erred in law,” she says. “Despite their best efforts, quite a lot of court time is used inefficiently because the litigant is simply not prepared to make these kinds of complex legal arguments.”
The issue is most acute in family law cases, where 38 per cent of appeals heard involve a self-represented litigant. West Coast LEAF has argued that deteriorating access to justice in family law impacts women disproportionately.
“Without adequate legal representation, women are losing custody of their children,” Track told Legal Feeds in February. “They’re giving up valid legal rights to support a fair division of property. They’re being victimized by litigation harassment, where an abuser uses the litigation process to continue patterns of abuse and coercion and control.”
Bauman cites groundbreaking work done by the National Action Committee on Access to Justice, chaired by Supreme Court of Canada Justice Thomas Cromwell.
The committee, struck in 2008, issued its final report last October. The report calls for increased funding to legal aid — which is generally only available to those earning less than $18,000 per year — and measures to reduce the cost of legal services and the length of proceedings.
While the report lays out issues and principles, it leaves implementation in the hands of government. West Coast LEAF, meanwhile, has proposed increased funding that would allow a number of women’s groups — on a pilot-project basis over two or three years — to hire in-house counsel.
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