Appeal Court Makes Rare Finding of Incompetent Counsel

February 28, 2017

Parties who lose cases often blame their lawyers. “If my lawyer had done a decent job, I would have won.”

My observations over 25 years lead me to conclude that the majority of these claims are unfair. Frequently the client uses the lawyer as a scapegoat so the client can avoid any responsibility for the loss.

However, there are exceptions. Sometimes, it is the lawyer’s fault. Sometimes, the client has every reason to be angry at the lawyer.

An example is C.A.S. of the R.M. of W. v. C.T. and J.B., 2017 ONSC 1022.

This was a child welfare case. The Children’s Aid Society (CAS) sought an order removing a child from her parents’ care so that she could be adopted.

There was a lengthy trial in 2014 and 2015. The trial judge removed the children and denied all contact between the child and her parents.

The parents appealed. The appeal was heard by Justice Grant Campbell.

Justice Campbell issued a stinging decision, where he criticized the CAS, the Office of the Children’s Lawyer, the trial judge, and especially the two lawyers representing the mother and the father.

Justice Campbell found that the two lawyers were incompetent – a rare finding – for the following reasons:

they were unprepared
they ignored instructions
they failed to consult with or explain issues to the client
they lacked a theory of the case
they treated the clients with disdain
they failed to diligently examine evidence
they failed to object when the trial judge had a secret meeting with counsel during the trial
they failed to call relevant evidence that would have been helpful to the parents
they failed to object to when the Office of the Children’s Lawyer violated the rules of evidence
they did not obtain a second drug test to refute the drug tests relied on by the CAS
they failed to apply for return of the child to the parents when the mother obtained a clear cocaine test.
they failed to object to the long delays in the case.

Justice Campbell described the conduct of these lawyers as “shocking.”

Justice Campbell was very critical of Ontario’s child welfare system as a whole. The first paragraph of the decision is “The child welfare system in Ontario is broken. The patchwork of child welfare legislation spread across Canada is not working.”

Justice Campbell was so outraged by the situation that he apologized to the parents:

Your confusion is entirely understandable and although it will offer you little comfort, I apologize to you for the manner in which you have been treated, ignored, demeaned and disbelieved.

Justice Campbell’s decision in the case was to uphold the removal of the child from the parents but to keep the door open to contact between the parents and child after adoption. The child had been separated from the parents for so long that return at this point was not in her best interests.

What’s the moral of the story? A party who loses a case should turn his / her mind to the reasons for the defeat. A fair minded, sober, and honest analysis is in order. If that analysis concludes that it was the lawyer’s fault, then the client should consider an application for a rehearing.

C.A.S. of the R.M. of W. v. C.T. and J.B., 2017 ONSC 1022

For more information on this and other issues of interest in family law, contact James Herbert (jherbert@chappellpartners.ca)