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Former client suing family lawyer over report

|Written By Alex Robinson
Former client suing family lawyer over report
A Whitby man is seeking $47,000 that he paid to his former lawyer, in addition to a number of other damages.

A Whitby, Ont. man is suing his former family lawyer for allegedly failing to take proper steps to exclude a report written by an unqualified witness that contributed to him losing custody of his children.

Mr. S is claiming lawyer Elizabeth Saad was professionally negligent in how she represented him in a custody battle, as she allegedly failed to alert the court to the limitations of the qualifications of Gregory Carter, a psychological associate.

Law Times is withholding Mr. S’s name to protect the identity of his children, who are still minors.

Carter submitted a report in court that contended Mr. S had a personality disorder and should not have custody. The College of Psychologists of Ontario later found Carter was guilty of professional misconduct for holding himself out as a psychologist in the matter.

Carter also faced criminal charges for fraud, obstruction of justice and perjury, but he was later acquitted.

According to a statement of claim filed in the Ontario Superior Court of Justice, Saad took “little or no effort” to tell the court about Carter’s lack of qualifications after Mr. S alerted her to the issue. These allegations have not been proven in court.

A judge first ruled in his wife’s favour after considering Carter’s report, but Mr. S now has custody of his children after a years-long ordeal in the family court system. He is now seeking damages for what he says were unnecessary legal costs he had to pay to resolve the matter.

George Callahan, the lawyer representing Mr. S in his claim against Saad, says it is a vital part of family law practice to stop wrong information from making its way to the continuing record.

“In my experience, that misinformation can turn into incorrect fact,” he says. “You’ve got to be vigilant and I don’t believe Ms. Saad was as vigilant as she should have been.”

Mr. S retained Saad in 2008 to represent him in the family law proceeding that involved a custody battle between him and his wife for their two sons.

In his statement of claim, Mr. S said Saad did not “show the level of skill as might be reasonably expected of counsel competent in family law proceedings” and that she failed to provide meaningful replies to inquiries made by judges in the proceedings.

He alleged that she referred to case law that was not relevant to family law proceedings and that “the degree of Saad’s incompetence became apparent as medical, and other professionals became involved in the proceedings.”

Over the course of the family proceedings, a number of psychological assessments were done on both Mr. S and his wife. A first assessment found that the mother had a serious mental illness and recommended Mr. S should have sole custody.

A second report compiled by Carter after the mother’s lawyer objected to the first one found that Mr. S was narcissistic and had a personality disorder, despite never having met him. Carter further said in his report that the mother had no mental health issues. It later came out that Carter was not, in fact, a psychologist but a psychological associate, according to the statement of claim. Psychological associates are not allowed to administer testing and render diagnoses.

Mr. S claimed that after he sent Saad a copy of a letter from the College of Psychologists that showed that Carter did not have the necessary qualifications, the lawyer took “little or no effort” to tell the court.

The plaintiff said that the “gross incompetence” of Saad and other defendants in his lawsuit made his life “difficult to bear” along with the stress of having to deal with his former wife. The father also brought a claim against Carter, but a judge dismissed that part of the claim, finding professional immunity applied.

Mr. S is seeking $47,000 that he paid to Saad for legal fees in addition to a number of other damages.

When reached for comment, Saad, who has since changed her name to Elizabeth McGrath and now practises in New Brunswick, said she was “unable to provide any information.”

In a statement of defence, Saad’s former firm contended that the lawyer “reasonably and competently” put forward Mr. S’s position and challenged that of the mother. The firm argued that Saad had challenged the “relevance reliability and qualifications” of the mother’s experts by including a letter from the College of Psychologists and by making extensive submissions before the court. The firm also denied that the judge’s order was a result of any alleged incompetence or negligence in how she represented Mr. S.

The statement of defence said the plaintiff chose not to serve a notice of appeal after Saad reviewed the order with him and advised him of his options. The firm also denied that Saad’s conduct prejudiced the plaintiff’s position in the proceeding.

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