We have discussed that there has been an upsurge in self-represented litigants in Family Law proceedings and we have touched on some of the inherent dangers involved in choosing to act on your own rather than being represented by an experienced lawyer. However, in an Ontario case called Scarlett v. Farrell, the mother in a custodial dispute believed she had the next best thing – her stepfather, who was a former lawyer with roughly 200 trials under his belt.
The background facts of the case were not particularly complex, the mother had custody of the 7 year old child and the father had seen the child only once in 3 years. Nonetheless, the father was now seeking full custody and the mother had been denied Legal Aid and claimed she could not afford to hire a lawyer. She asked he courts if she could have her stepfather to represent her during the hearing and to appear on her behalf in court. Surprisingly, the court refused.
Courts do not typically intervene in allowing a family litigant to choose their own lawyer, nor do they often interfere with a litigant’s decision to represent him or herself. Therefore, one would think that a court would have little objection over allowing the mother to be represented by a former lawyer, and on top of that, a family member to boot. However, in this case, the court had concerns over the mother’s choice.
In this particular situation, not only was the mother’s stepfather currently under suspension with the Law Society of Upper Canada for failure to pay administrative fees and thus not permitted to practice law, but he also had a past disciplinary record which included previous suspensions for professional misconduct. Given that suspension – despite having over 30 years of experience in practice – the stepfather 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 more to the point, the court was particularly concerned in this case that the stepfather would not conduct himself with honesty, integrity and forthrightness if he was allowed to represent the mother.
Although the circumstances were unusual, the court’s concerns to protect the integrity of the justice system were uppermost. To allow a suspended or disbarred lawyer to appear before the court would compromise the underlying values of that system. In the end, the court refused the mother’s request, but adjourned the trial to allow her a chance to appeal the Legal Aid rejection or find a way to gather the finances to hire a lawyer.