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Family Law Rules – Rule 4: Representation

Angela Princewill

October 19, 2015

DEFINITION

4. (0.1) In this rule,

“limited scope retainer” means the provision of legal services by a lawyer for part, but not all, of a party’s case by agreement between the lawyer and the party. O. Reg. 322/13, s. 2 (1).

REPRESENTATION FOR A PARTY

(1) A party may,

(a) act in person;

(b) be represented by a lawyer; or

(c) be represented by a person who is not a lawyer, but only if the court gives permission in advance.  O. Reg. 114/99, r. 4 (1); O. Reg. 322/13, s. 2 (2).

INTERPRETATION, ACTING IN PERSON

(1.1) Where a party acts in person, anything these rules require or permit a lawyer or other representative to do shall be done by the party. O. Reg. 322/13, s. 2 (3).

LIMITED SCOPE RETAINER

(1.2) Clause (1) (b) permits a party to be represented by a lawyer acting under a limited scope retainer. O. Reg. 322/13, s. 2 (3).

INTERPRETATION, LIMITED SCOPE RETAINER

(1.3) A party who is represented by a lawyer acting under a limited scope retainer is considered for the purposes of these rules to be acting in person, unless the lawyer is acting as the party’s lawyer of record. O. Reg. 322/13, s. 2 (3).

PRIVATE REPRESENTATION OF SPECIAL PARTY

(2) The court may authorize a person to represent a special party if the person is,

(a) appropriate for the task; and

(b) willing to act as representative.  O. Reg. 114/99, r. 4 (2).

PUBLIC LAW OFFICER TO REPRESENT SPECIAL PARTY

(3) If there is no appropriate person willing to act as a special party’s representative, the court may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with that official’s consent.  O. Reg. 114/99, r. 4 (3).

SERVICE OF AUTHORIZATION TO REPRESENT

(4) An order under subrule (2) or (3) shall be served immediately, by the person who asked for the order or by any other person named by the court,

(a) on the representative; and

(b) on every party in the case.  O. Reg. 114/99, r. 4 (4).

REPRESENTATION OF PARTY WHO DIES

(5) If a party dies after the start of a case, the court may make the estate trustee a party instead, on motion without notice.  O. Reg. 114/99, r. 4 (5).

AUTHORIZING REPRESENTATIVE FOR PARTY WHO DIES

(6) If the party has no estate trustee, the court may authorize an appropriate person to act as representative, with that person’s consent, given in advance.  O. Reg. 114/99, r. 4 (6).

LAWYER FOR CHILD

(7) In a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise.  O. Reg. 114/99, r. 4 (7).

CHILD’S RIGHTS SUBJECT TO STATUTE

(8) Subrule (7) is subject to section 38 (legal representation of child, protection hearing) and subsection 114 (6) (legal representation of child, secure treatment hearing) of the Child and Family Services Act.  O. Reg. 114/99, r. 4 (8).

CHOICE OF LAWYER

(9) A party who is acting in person may choose a lawyer by serving on every other party and filing a notice of change in representation (Form 4) containing the lawyer’s consent to act. O. Reg. 322/13, s. 2 (4).

NON-APPLICATION

(9.1) Subrule (9) does not apply if the party chooses a lawyer acting under a limited scope retainer and that lawyer is not the lawyer of record for the party. O. Reg. 322/13, s. 2 (4).

CHANGE IN REPRESENTATION

(10) Except as subrule (10.1) provides, a party represented by a lawyer may, by serving on every other party and filing a notice of change in representation (Form 4),

(a) change lawyers; or

(b) act in person. O. Reg. 91/03, s. 1; O. Reg. 322/13, s. 2 (5).

EXCEPTION, CHILD PROTECTION CASE SCHEDULED FOR TRIAL

(10.1) In a child protection case that has been scheduled for trial or placed on a trial list, a party may act under clause (10) (b) only with the court’s permission, obtained in advance by motion made with notice.  O. Reg. 91/03, s. 1.

NOTICE OF CHANGE IN REPRESENTATION

(11) A notice of change in representation shall,

(a) contain the party’s address for service, if the party wants to appear without a lawyer; or

(b) show the name and address of the new lawyer, if the party wants to change lawyers.  O. Reg. 114/99, r. 4 (11).

LAWYER’S REMOVAL FROM THE CASE

(12) A lawyer may make a motion for an order to be removed from the case, with notice to the client and to,

(a) the Children’s Lawyer, if the client is a child;

(b) the Public Guardian and Trustee, if the client is or appears to be mentally incapable in respect of an issue in the case.  O. Reg. 114/99, r. 4 (12).

NOTICE OF MOTION TO REMOVE LAWYER

(13) Notice of a motion to remove a lawyer shall also be served on the other parties to the case, but the evidence in support of the motion shall not be served on them, shall not be put into the continuing record and shall not be kept in the court file after the motion is heard.  O. Reg. 114/99, r. 4 (13).

AFFIDAVIT IN SUPPORT OF MOTION TO REMOVE LAWYER

(14) The affidavit in support of the motion shall indicate what stage the case is at, the next event in the case and any scheduled dates.  O. Reg. 114/99, r. 4 (14).

CONTENTS AND SERVICE OF ORDER REMOVING LAWYER

(15) The order removing the lawyer from the case shall,

(a) set out the client’s last known address for service; and

(b) be served on all other parties, served on the client by mail, fax or email at the client’s last known address and filed immediately.  O. Reg. 114/99, r. 4 (15); O. Reg. 140/15, s. 4.

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