That was a key question in a new Ontario Superior Court decision granting leave to appeal following Justice Heather McGee’s interlocutory order banning a mother from representing her son in family court earlier this year.
Not everyone, in fact, agrees that lawyers can’t act for their children. “It may not be wise to have the mother represent the son,” says author and lawyer Philip Slayton. “But I don’t think it should be stopped unless there are egregious reasons for the court to interfere.”
Generally, people should be allowed to pick their counsel, he adds, noting that could potentially include family members.
“It seems natural to say that the son, given that he was living with his mother at the time and had financial troubles it appears, would say, ‘Hey mom, represent me,’ because she is a lawyer.
It may not have been a very good idea to have, but the mother shouldn’t be precluded from representing her son.”
The matter first arose nearly two years ago during divorce proceedings between Susan Judson and Richard Mitchele. Mitchele’s mother, lawyer Rosemary Lavalley, was representing him.
After Judson moved to Ontario nearly a year later, the question of whether or not Lavalley could represent Mitchele in the pair’s continuing family court matters arose before McGee, who ultimately determined she couldn’t act for her son due to conflicts of interest.
From there, the matter proceeded to Superior Court Justice Cary Boswell upon Mitchele’s application for leave to appeal. Boswell directed the matter to the Divisional Court.
Boswell’s judgment quoted an e-mail allegedly from Lavalley to Judson showing her interest in her son’s affairs.
“I have also questioned Richard about his income since he moved into my condo but he satisfied me that he had not earned enough to pay me rent after meeting his existing child support obligations and other basic personal expenses,” the judgment quotes her as saying.
“He has also assured me that on his return from Florida he will try to get his tax return prepared and filed.”
The issue of parents representing their children arises so infrequently in the courts that Boswell repeatedly noted its uniqueness and complexity in his judgment this month.
“The proposed appeal raises issues of procedural fairness and the interesting question of whether a lawyer should presumptively be precluded from acting as counsel to her son in family court proceedings due to their close familial relationship,” Boswell wrote in Judson v. Mitchele.
“The proposed appeal raises issues of procedural fairness that transcend the interests of the litigants in this case. Moreover, a limitation on counsel representing family members is a matter that extends well beyond the boundaries of this particular case and is, in my view, of general public interest.”
Boswell’s decision specifically called into question whether or not McGee erred in issuing an ex parte order banning Lavalley from representing Mitchele in court.
“As I indicated, a disqualification order requires the court to consider and balance competing interests,” wrote Boswell. “On the one hand, the right to retain counsel of one’s own choice. On the other, considerations about the administration of justice.
“Justice McGee was unable, on the ex parte motion, to conduct the balancing exercise because there was no evidence filed or submissions made on behalf of the respondent. She did, however, consider a wide range of factors when the matter came back before her on June 22, 2011.
She held, and I fully agree, that the fundamental right to counsel of one’s choice cannot be exercised at the expense of the integrity of the judicial system.
She concluded that the respondent’s right to select counsel of his choice, namely his mother, must, in the circumstances of this case, give way to the safeguarding of the integrity of the justice system.”
But Boswell promptly rejected the idea that a family relationship was akin to romantic involvement between a lawyer and a client. The issue wasn’t, in his view, grounds for disqualification.
“To the extent that Paragraph 40 of the ruling of the motions judge establishes a prohibition against lawyers acting in family court for close family members, it goes farther than the Rules of Professional Conduct and represents a significant extension of the existing common law,” he wrote.
“For that reason, it is open to serious debate and merits consideration at the appellate level.”
The issue is an important one, lawyers say. “These days, it’s hard enough to get before the courts with adequate representation,” says Slayton.
“There are also many consequences to not having adequate representation, like a person ultimately representing themselves when they are unable to find representation, which is neither good for the person or the judge in most cases.”
Yet at least one lawyer says the argument about access to justice doesn’t negate the reality that it’s often difficult for family members to separate feelings from fact in heated family court debates.
“I’m still concerned about the implications of welcoming what may be special circumstances in cases where they are not provided for,” says Heenan Blaikie LLP partner Simon Chester.
He notes that in most cases, lawyers don’t represent people they’re intimately involved with for a variety of reasons, including the fact that they may end up serving as witnesses.
“It’s probably not a good idea if objectivity will become an issue, which is certainly often the case in heated family matters where it may be difficult to separate feelings from the duties required of a lawyer,” says Chester.
Chester adds that lawyers would be “ill advised” to represent a close relative. “Doctors don’t treat their own family members, and lawyers would be ill advised to believe they can do the same,” says Chester. “As a lawyer, you’re not simply a mouthpiece for your client, you’re an official of court. . . . Objectivity becomes an important factor.”
The issue arose frequently in McGee’s decision to ban Lavalley from acting as her son’s counsel. “It is well settled that lawyers cannot act for persons with whom they are romantically involved,” she wrote.
“No less a standard should be applied to lawyers who are in a close familial relationship with a litigant and whose personal interests are caught within the proceeding.
The record, particularly the e-mail referred to above, is persuasive evidence that Ms. Lavalley cannot separate her personal views from her professional role as counsel.”
Boswell, however, ruled McGee’s conclusion and the questions it raised should go before the Divisional Court.
Gavin Smyth, who represented Mitchele, declined to comment on the matter, saying his client was concerned about the impact on the appeal process.
For her part, Judson told the court she was “simply asking for the quickest path through this process” during a hearing on the matter in June. In essence, she took no position on the issue, Boswell noted.
“It’s an interesting decision,” says Chester. “I think it shows there should have been greater provisions. . . . And as the judgment seems to note, there is a debate that needs to happen as to whether law consummates with practice.”