Do Not Hold a Notice of Change in Representation in Escrow

In the recent endorsement by Justice Alex Pazaratz in the case of Comeau v. Fox, 2025 ONSC 4318 (CanLII), lawyers are cautioned against holding a client’s signed Notice of Change in Representation to self-represent in escrow to be used at a later date, if and when the lawyer wishes to end the retainer.

This case highlights fundamental principles about legal ethics, client rights and the integrity of the court process.

In Comeau v. Fox, the mother’s lawyer had her client sign a Notice of Change of Representation which indicated that the client would begin representing herself. However, the Notice was not filed or served on the opposing party when it was signed. The mother’s lawyer continued to act for the mother as counsel of record in all subsequent proceedings for over a year later including motions, conferences, and the setting of a trial date.

Then, just three weeks before a long-awaited trial, the mother’s lawyer filed the Notice with the court, effectively trying to remove herself from the record.

Justice Pazaratz wrote:

“If you sign this piece of paper, it means that any time I choose I can dump you as a client – even on the eve of trial. Suddenly you’ll be on your own in the courtroom. Lawyers are not allowed to say that. Or do that. A Notice of Change of Representation is not the same as a ‘Get Out of Jail Free’ card in the board game Monopoly. It’s not an escape hatch, to be kept in a back pocket until the lawyer tires of the client (or the money runs out).”

Justice Pazaratz stated that the Notice of Change cannot be a strategic tool for lawyers to invoke whenever it is convenient for them. The judge described this action as invalidand misleadingwhen used after continued court appearances as counsel of record.

Justice Pazaratz claimed that this lawyer’s attempt to retroactively terminate her involvement in the file after continuing to represent her client for more than a year violated her duty and risked derailing a high-conflict parenting trial. 

He stated that if a lawyer wishes to withdraw from a file, there are only 3 valid pathways:

1. The client decides to terminate the retainer and files a Notice of Change;
2. The client and the lawyer decide to terminate the retainer and the client files a Notice of Change to end the relationship; or 
3. If the client does not agree, the lawyer must bring a motion before a judge and obtain permission by court order to be removed as counsel of record.

According to Justice Pazaratz, pre-signing a Notice of Change for possible future use is not on the list. He stated that the improper use of a pre-signed Notice jeopardized that client’s trial date and misled the court. The judge invited the mother’s lawyer to attend and explain the situation. After discussion, and in recognition of the significant consequences to the client and the child, the mother’s lawyer resumed her role as counsel.

Justice Pazaratz extended his remarks beyond the facts of the case to issue a broader warning to the legal community: Lawyers cannot appear in court as counsel of record for months and then suddenly claim they were acting only in a limited role.

Comeau v. Fox is a cautionary case for every lawyer. If you’re going to be counsel of record, be prepared to remain on the record subject to the 3 pathways listed above. Holding a pre-signed Notice of Change in escrow to be used at a lawyer’s discretion is unethical.

CASE LINK: https://www.canlii.org/en/on/onsc/doc/2025/2025onsc4318/2025onsc4318.html 

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