Helicopter Lawyering? Can Mom Represent Son in Family Law Case?

You may have heard about helicopter parenting – the overprotective parent who hovers over their child on the playground, maybe takes them to university, stays in the dorm for a few weeks, maybe even to law school… Well Justice McGee of the Ontario Superior Court of Justice will have none of this! In 2011, she issued an ex parte order preventing a party’s mother from representing him in a family law case. Mom had represented son in his Nova Scotia divorce proceeding. The divorce proceedings were acrimonious and the ill-feelings between Mom and her former daughter-in-law are evident in the correspondence quoted in the court decision. When the former daughter-in-law initiated proceedings in family court in Ontario seeking financial disclosure and revised child support, Justice McGee made an ex parte order on her own initiative as follows:

I further order that Ms. Lavalley [Lawyer-Mom] may not act as counsel for her son without further Court Order. In reviewing the materials filed, I am satisfied that it would not be appropriate for her to so act and may be prejudicial to a determination of this matter. If I am wrong in this, then she should consult Practice Advisory of the Law Society to establish an ethical basis and then file materials to my attention in a claim to act on behalf of her son.

The respondent son moved to set aside the order on the grounds, inter alia, that he cannot afford the cost of legal counsel and his mother was prepared to represent him pro bono; that his mother had acted for him throughout the prior divorce proceedings in Nova Scotia; and that his former spouse had made no attempt to remove her mother-in-law as counsel in those proceedings. Justice McGee declined to set aside her ex parte order.

Her reasons included the following grounds:

(i) The court has an inherent jurisdiction to remove counsel;

(ii) The right to choose one’s counsel cannot be exercised at the expense of the integrity of the judicial system;

(iii) Counsel should be removed if circumstances are such that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor;

(iv) The Court must consider any personal relationship between counsel and client and determine if the personal involvement will impair the lawyer’s judgment;

(v) It is well settled that lawyers cannot act for persons with whom they are romantically involved. 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;

(vi) The record, particularly the email referred to above, is persuasive evidence that Ms. Lavalley cannot separate her personal views from her professional role as counsel; and,

(vii) Ms. Lavalley is clearly in a position where she is a witness to her son’s financial affairs.

Leave to appeal was granted in this interesting and novel case. See Judson v. Mitchele, 2011 ONSC 6004. Fortunately, I am teaching conflicts next week!