I have written recently about the upsurge in self-represented litigants in Family Law proceedings, and some of the inherent dangers involved in choosing to act on your own and forego being represented by an experienced lawyer.
In a recent Ontario case called Scarlett v. Farrell, the mother in a custodial dispute likely thought she had the next-best thing: she asked the court permission to have her step-father – who was a former lawyer with about 200 trials under his belt – represent her at the hearing.
Perhaps surprisingly, the court refused.
The background facts of the case were not remarkable: the mother had custody of the 7-year old child, and the father had seen the child only once in three years. Nonetheless, the father was now seeking full custody. The mother claimed she could not afford to hire a lawyer but had been denied Legal Aid; she wanted to have her step-father appear on her behalf in court.
Normally, courts will not intervene in allowing a family litigant to choose his or her own lawyer, nor will it lightly interfere with a litigant’s decision to represent him or herself. And one would think that a court would have little objection over allowing the mother to be represented in court by a former lawyer, and family member to boot.
But in this case, the court had concerns over the mother’s choice: not only was the mother’s step-father currently under suspension with the Law Society of Upper Canada for failure to pay administrative fees (and was therefore not permitted to practice law), but he also had a past disciplinary record with them – which included previous suspensions for professional misconduct.
Given that suspension – and despite having over 30 years’ experience in practice — the step-father was technically a non-lawyer at this stage, and the court had to consider him as such. The rules of court provided only limited circumstances in which a non-lawyer can appear, and another judge had already denied a similar request by the mother to have the step-father represent her.
But more to the point, the court was particularly concerned in this case that the step-father would not conduct himself with honesty, integrity, and forthrightness if he was allowed to represent the mother. (And it pointed out that the step-father had not disclosed his past disciplinary record to the court voluntarily; it came to light when the father brought it to the court’s attention, after discovering that the step-father was using a different name in court than he had used for Law Society records). Nor, for that matter, would the step-father be likely to maintain the required level of objectivity and “appropriate emotional distance” in the matter.
Although the circumstances were unusual, the court’s concern with the integrity of the justice system were uppermost. It would compromise the underlying values of that system to allow a suspended or disbarred lawyer to appear before the court.
In the end, the court refused the mother’s request (with which, incidentally, she was assisted by her own mother), but adjourned the trial to allow her a chance to appeal the Legal Aid rejection or find a way to come up with the money to hire a lawyer.
For the full text of the decision, see:
Scarlett v. Farrell,  O.J. No. 1913, 2014 ONCJ 194