Focus On

CUSTODY, PARENTING, AND ACCESS - Practice and procedure

Thursday, August 12, 2021 @ 5:38 AM  


Lexis Advance® Quicklaw®
Appeal by Lavender-Smith from an order that removed her counsel as solicitor of record. In response to a motion filed by the respondent in the parties’ contentious divorce proceedings regarding the appointment of a certain individual as counsellor for their children, the appellant’s lawyer filed his own affidavit that outlined his previous experience with the individual in support of his contention that she was not impartial. At the hearing of the motion, the lawyer arranged for another counsel to argue the motion for the appellant. Before substantive arguments were made, counsel for the respondent requested the removal of the appellant’s lawyer. She had not informed the appellant’s lawyer of her intention to seek his removal.

HELD: Appeal allowed. The motion judge erred in law by applying a bright-line test, pursuant to which the lawyer had to be removed by becoming a witness in the proceeding. The removal of the lawyer was a matter of judicial discretion. The motion to appoint a counsellor had no real impact on the parties’ divorce proceeding. The request for removal should not have even been entertained in the manner it was presented. The lawyer’s affidavit was irrelevant and ought to have been struck out. Had it been struck, the request to remove the lawyer would have been dismissed. There was no real risk the lawyer would be required to testify at trial. Considering all the circumstances, the proper administration of justice did not require the lawyer’s removal.

Lavender-Smith v. Smith, [2021] N.B.J. No. 182, New Brunswick Court of Appeal, J.C.M. Richard C.J.N.B. and K.A. Quigg and B.V. Green JJ.A., July 8, 2021. Digest No. TLD-August92021007