Can You Help Your Kid?
Parents, inherently, try to help their children. Initially the help your kids need is easy to determine; food and sleep, being the obvious requirements. As they get older, their needs change. It starts with something simple like homework, generally progresses to how to deal with the high-school break up, maybe eventually getting into the existential “What should I do with my life? What should I be?” Clearly, I’m over-simplifying. This slight hyperbole is still likely to resonate with most people, especially parents. Helping your kids is a natural inclination. Yet when a mother (a lawyer), accepted service of materials on her son’s behalf in a recent family law matter before the Ontario Superior Court, it spurred enough debate to come up on appeal and to be addressed in a recent article in Law Times.
The matter that brought this issue before the court seems to be a fairly standard family law matter. Yet, as noted, a mother agreed to accept service of materials on her son’s behalf. An interlocutory order was made, ex parte, indicating that it would not be appropriate for the mother to act as counsel, as it may be prejudicial to a determination on the matter. The judge also provided a direction that counsel should consult with the Law Society to establish an ethical basis for representation. It should be noted that the relief granted was not sought by the wife in this matter, but was a conclusion reached by the Judge on the evidence included in the motion seeking substituted service. The Order was brought before the Superior Court of Justice seeking leave to appeal and leave was so granted. A copy of Justice Boswell’s decision on this issue can be found here.
The Court’s review of lawyers obligations under Rule 2.04 in the Rules of Professional Conduct and the accompanying summary, are given thorough consideration by Justice Boswell on the motion for leave to appeal. The findings in this matter seem limited to the issue of whether a family member can act as legal representation in family court. Yet, the issue could be drawn across many legal fields, in particular Estate litigation, where families and emotions play very prominent roles. The Court’s conclusion, that a case by case analysis is required where such severe restriction on a party’s choice of counsel is considered, seems in line with the fundamental principles of ethics we all learn when preparing for the bar exam. Still, I doubt that this is the last time I’ll see this issue appear before the Courts.
Food for thought,
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
