Counsel in Alberta family law appeal allowed to withdraw

The Alberta Court of Appeal recently granted a lawyer permission to withdraw as counsel in an appeal from a family law trial for retroactive and ongoing child support.

The appellant, then self-represented, filed a notice of appeal challenging the trial decision dated Oct. 4, 2021. She hired Ms. L. Handfield to argue for her in the appeal, which was scheduled for hearing this Oct. 10.

In the present matter, Handfield filed an application for leave to withdraw as counsel, given that the appellant owed her a significant amount of legal fees. The appellant made no response.

The case of Fitzpatrick v College of Physical Therapists of Alberta, 2020 ABCA 88 provided the test for allowing counsel to withdraw due to the client’s non-payment of fees. According to that ruling, the court could exercise its discretion to refuse the withdrawal after considering this non-exhaustive list of factors:

• whether it was feasible for the client to represent themself
• other means of obtaining counsel
• whether counsel gave the client reasonable notice so that they could seek other means of representation
• the impact on the other party
• the history of the proceedings, including whether the client repeatedly changed counsel

In Fitzpatrick, the Alberta Court of Appeal made the following findings. First, the appellant and her company had reasonable notice of counsel’s intention to withdraw if they failed to pay the outstanding bill. Second, given that the appellant’s factum was filed, she could feasibly represent herself despite her view that she could not make oral submissions. Third, the appellant might have the financial means to hire other counsel and had already been contacted by another lawyer. Fourth, a costs order could remedy any prejudice to the respondents.

Lastly, the appellate court addressed the factor of whether refraining from proceeding with the appeal on the scheduled date would harm the administration of justice. This factor weighed against permitting counsel to withdraw, the appellate court said.

Ultimately, in that case, the appellate court granted counsel permission to withdraw. It considered the factors leaning in favour of and against granting permission to withdraw and concluded that the balance weighed in favour of allowing counsel to withdraw.

Lawyer can withdraw

In the present case of Fleming v Spence, 2023 ABCA 215, the Alberta Court of Appeal also granted the lawyer permission to withdraw as counsel.

First, the appellant could feasibly represent herself, the appellate court ruled. She represented herself in previous family law matters and filed the necessary notice of appeal in this case. The factums and other appeal materials were all filed, the appellate court noted.

Second, the appellant apparently had other means to obtain counsel, given that she used other counsel to deal with past family law matters, the appellate court held.

Third, the lawyer gave the appellant reasonable notice, specifically around five months, to make other arrangements, the appellate court determined. The lawyer’s May 2 letter to the appellant stated that she intended to withdraw as counsel.

Fourth, the lawyer’s absence would have minimal impact on the respondent, considering that the parties’ materials were all filed and the steps required for the appeal were all performed, the appellate court concluded.

Lastly, regarding the history of the proceedings, the appellate court found no apparent reasons why the appeal could not move forward on the scheduled date.