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Amicus curiae in private family law cases

Monday, January 20, 2020 @ 2:10 PM | By Julius Melnitzer


Julius Melnitzer %>
Julius Melnitzer
The Ontario Court of Appeal has enunciated the principles governing the appointment of amicus curiae (friend of the court) in private family law cases — and the message from Morwald Benevides v. Benevides 2019 ONCA 1023 is unequivocally that appointments in such cases should be the exceptions to the rule.

“It would be rare in a family law case to appoint one amicus, and the circumstances would virtually never justify the appointment of two,” wrote Justice Peter Lauwers on behalf of a unanimous bench composed also of Justices Katherine van Rensburg and Lois Roberts. “In more general terms, the fact that one party is represented does not justify the appointment of amicus, even though trial judges would prefer both parties to be represented by competent counsel; maintaining a level playing field is not a valid consideration in appointing amicus.”

Daniel Melamed, a family lawyer and partner at Toronto’s Torkin Manes LLP, says the court stood firm despite the issues arising from the “dozens of unrepresented parties” in family court.

“What the court told the parties and the profession is that they can’t simply come to the court, say they’re out of money, and expect to have amicus appointed,” he said. “True amicus are really independent agents there to assist the court and not to act as advocates for the parties.”

But Sandra Meyrick of Toronto’s Meyrick Law, who appeared as amicus curiae in the Court of Appeal, sees the decision from a different perspective.

“While the court did say the appointment of amicus should occur only rarely, the case is very fact-specific and leaves room for the appointment of amicus where necessary,” she said. “What was helpful was that the court enunciated basic principles regarding the circumstances in which a judge should consider the appointment of amicus.”

The facts of the case were indeed unusual.

The trial judge in the Ontario Court of Justice made orders appointing counsel to represent both parents in a family law dispute. On the unrepresented mother’s behalf, he appointed a lawyer who had acted for her and was familiar with the issues. Then, after allowing the father’s lawyer to be removed from the record when the father ran out of money, he appointed that same lawyer as amicus for the father.

Following the appointments of the amici, the Attorney General of Ontario brought an intervener motion before the trial judge to set aside the amici orders. The attorney general agreed that the trial could proceed and that the motion would be argued at a later date

Meanwhile, counsel were paid at the Legal Aid rate, without prejudice to the attorney general’s motion to set aside the orders and any orders that followed on appeal.

Eventually, the trial judge denied the attorney general’s motion (Morwald-Benevides v. Benevides, 2015 ONCJ 532). The attorney general then appealed to the Superior Court of Justice, where Justice Edward Koke dismissed the appeal (Morwald-Benevides v. Benevides, 2019 ONSC 1136).

The Court of Appeal allowed the appeal. In ruling that the trial judge had improperly appointed amici, Lauwers cited the following principles as applicable to family law cases:

  • The assistance of amicus must be essential to the adequate discharge of the judicial functions in the case, which represents “a circumstantial determination within the trial judge’s discretion”;
  • A party has the right to self-represent, subject to the trial judge’s responsibility “for ensuring that the trial progresses reasonably”;
  • The fact that one or both parties are self-represented is not in itself a sufficient reason to appoint amicus;
  • While amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy;
  • Because amici do not represent parties, they cannot be discharged by the parties;
  • Appointment of amicus “should be used sparingly and with caution, in response to specific and exceptional circumstances ...” Here, Lauwers pointed out that this principle represented a “recognition of the financial exigencies, which is ultimately a political question under our separation of powers doctrine” as the Supreme Court of Canada had noted in its landmark decision in Ontario v. Criminal Lawyers’ Association of Ontario 2013 SCC 43;
  • Trial judges should consider the availability of Legal Aid certificates and consider an adjournment to allow parties to apply;
  • Trial judges should consider whether other resources were available, such as the participation of the Office of the Children’s Lawyer;
  • Amicus should only be appointed in “rare cases” where the fulfillment of the trial judge’s duty to assist the unrepresented is “insufficient to ensure trial fairness”;
  • It will “sometimes, though very rarely” be necessary for amicus to assume duties “approaching the role of counsel to a party in a family case”;
  • The order appointing amicus should specify the scope of amicus’ duties; and
  • The trial judge must “actively” monitor amicus’ activities to “prevent mission creep ...”

As Meyrick sees it, the trial judge’s appointment of the parties’ former counsel was fatal.

“The Court of Appeal left no doubt that it was absolutely inappropriate for former counsel to appear as amicus because the very nature of their relationship with the parties meant they couldn’t help but be aligned.”

Julius Melnitzer is a freelance legal affairs journalist based in Toronto. He can be reached at melnitzer@sympatico.ca.

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