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November 21, 2011

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Litigation Support Our cost effective service scans and indexes your documents into a quickly searchable database. Call us today, we can help! TF: 1.888.781.9083 www.docudavit.com $4.00 • Vol. 22, No. 37 ntitled-2 1 7/7/11 9:10:05 AM Covering Ontario's Legal Scene titled-10 1 Can lawyers represent their kids? Case involving mother acting for son heads to Divisional Court BY KENDYL SEBESTA Law Times C an lawyers represent their children in court? 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 au- thor 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 Jud- son and Richard Mitchele. Mitchele's mother, lawyer Susan 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 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 obliga- tions 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 'It may not be wise to have the mother represent the son. But I don't think it should be stopped unless there are egregious reasons for the court to interfere,' says Philip Slayton. matter proceeded to Superior Court Justice Cary Boswell upon Mitchele's application for leave to appeal. Boswell directed the matter to the Divi- sional Court. Boswell's judgment quoted an e-mail alleg- edly from Lavalley to Judson showing her inter- est in her son's affairs. "I have also questioned 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 proce- dural 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 pro- cedural fairness that transcend the interests of the litigants in this case. Moreover, a limi- tation on counsel representing family mem- bers 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 compet- ing interests," wrote Boswell. "On the one hand, the right to retain counsel of one's own choice. On the other, considerations about See Lawyers, page 5 jury selection process in the re- cent prosecution of two defen- dants charged with fraud. A special panel assembled for a trial that was supposed to have begun in September received a notice that named the two de- fendants and their alleged crime weeks before the jury selection process was to begin in court. The juror information sheet sent out to approximately 300 people in Simcoe County for what was expected to be a lengthy proceeding stated: "You have been summoned as a possible Questions raised about jury notice naming accused T BY SHANNON KARI For Law Times he courts in Barrie, Ont., are facing new questions about irregularity in the juror in the fraud trial of James Emms and Vernon Martin. It may last three to four months." This is the second time there have been alleged irregularities in jury selection in a case involv- ing Emms. The Supreme Court of Canada will hear his appeal Emms case. There's no provision in the Juries Act, however, that instructs the sheriff to name de- fendants, their alleged offences, and the length of trial in notices sent out to potential jurors. The standard Juries Act summons issued in Ontario lists only the Any content that is included in the juror information sheet is in the discretion of and at the direction of a Superior Court judge. next spring of a 2008 conviction in a separate fraud prosecution because of the secret background checks previously conducted by the police on behalf of the Crown in Barrie. There is no allegation of back- ground checks in the most recent date and location for a potential juror to attend. There was no jury selected in the Emms and Martin case this fall due to a stay of the charges for unreasonable delay. The Crown and police repeatedly failed their disclosure obligations November 21, 2011 11-08-31 2:53 P Inside This Issue 3 Monetary Penalties 6 Repatriation Revisited 9 Focus On Environmental Law Quote of the week "There are people issuing permits and licences all over the place. Because treaties are historic, there is a tendency not to know how to deal with them in a modern context." — Juli Abouchar, Willms & Shier Environmental Lawyers LLP, See Grassy, Page 13 in a case that took more than five years to get to trial from the time of arrest, Ontario Superior Court Justice Alfred Stong con- cluded. "What prolonged the intake time was primarily disorganiza- tion and a lack of resources to conduct simple tasks such as photocopying, not any inherent complexities of the case." Defence lawyer Carlos Rip- pell, who represented Emms, didn't specifically address the circumstances of the jury notice because of the successful Char- ter motion related to the delay. But he remains concerned about what was in the jury notice and whether it's a common practice in the province. See Did, page 5 ADR Connect: Find an ADR Professional 416-487-4447 • admin@adrontario.ca Untitled-2 1 Mediators Arbitrators www.adrontario.ca/findapro.cfm Gold Standard www.lawtimesnews.com 5/20/11 1:11:30 PM PM# 40762529

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