Use of amicus curiae in family law clarified by top court

In a recent Ontario Court of Appeal decision, the appellate judges took the opportunity to lay down the law around the proper use of amicus curiae, or friend of the court.

Jason Howie, of Jason Howie PC, says it’s especially interesting — in a case full of interesting aspects — that the court noted in Morwald Benevides v. Benevides that the appeal was “technically moot.”

“That is a signal, in my mind, that the Court of Appeal felt it had to set some law down,” he says.

Court of Appeal judges Peter Lauwers, Katherine van Rensburg and Lois Roberts, who were unanimous in their ruling, addressed the issue of the appeal being technically moot because “the trial has been completed with both amicus participating; nothing substantive between the parties to the family law case remains to be resolved.”

However, the appellate judges wanted to address the trial judge’s “several errors,” noting “it would be rare in a family law case to appoint one amicus, and the circumstances would virtually never justify the appointment of two.” The ruling goes on to say that had the appeal not been moot because the case was resolved, it would have been allowed for the reasons discussed.

“When you unpack it, the court says essentially the way the judge went about this whole approach was not appropriate,” says Daniel Melamed, a partner at Torkin Manes LLP. “It was a statement to the bar and to the judges — don’t do this. They wanted a message sent — don’t ask for this unless it’s truly an amicus case.”

Howie says the case looks like “a trial judge’s nightmare” with multiple previous lawyers — a red flag, he adds — an initial schedule of four days that turned into 23 days and a hysterical party who fainted in court and required an ambulance — not to mention the issues of fact themselves, which were complex. “How do you calculate child support when the income is from a foreign source?” he asks.

The trial judge appointed an amicus on behalf of each party to assist the court when the wife discharged her latest lawyer and, later in the trial, the husband couldn’t pay his lawyer’s fees and also became unrepresented. The judge appointed both parties’ former counsel as amicus. The Attorney General of Ontario challenged the amicus appointments but agreed the trial could proceed and the motion could be heard at a later time. The challenge was ultimately rejected by the trial judge, which prompted the AG to appeal that ruling. The Superior Court of Justice then appointed the same lawyers who had served as amicus at trial, determining their assistance was required to resolve the issues raised on appeal. The appeal was again ultimately dismissed, but the Court of Appeal agreed to hear the case and ruled the trial judge had erred in his appointment of amicus in the case. The appeal court then took the opportunity to flesh out the proper use of amicus curiae.

Melamed says the trial judge likely wanted to be fair by ensuring both parties had an amicus, but that is not the appropriate reason to appoint one. As the appeal court addressed, “maintaining a level playing field is not a valid consideration in appointing amicus.”

Amicus is to assist the court and they’re “supposed to be effectively neutral and the lawyers weren’t, in the sense they were advocates for their clients. That’s not what amicus does — they’re supposed to neutrally provide the court with direction and assistance,” Melamed says.

Howie agrees, adding that the amicus has a duty only to the court and not to any litigant. Clearly, the Court of Appeal wanted to reiterate that an amicus does not take the role of counsel for any party, he says. 

However, the ruling doesn’t preclude family law from getting amicus, the use of which can be a reasonable thing in some cases, but it has to be for the correct purpose and not a way to replace legal aid by assisting the self-represented or as a substitute for paying for lawyers, Melamed says. Those issues don’t mean the court “should, or has the power to, appoint someone as amicus for that case.”

Amicus curiae is used when there is a true need to help the court move the case forward, as a litigant cannot advance their case. Choosing to appear in court unrepresented or running out of money and being unable to continue paying or hire a lawyer doesn’t mean in and of itself that a litigant can’t move a case forward — that’s not an amicus role per se, Melamed says.

“I think the court of appeal, from an amicus point of view, got it right,” he says. “Just because they’re unrepresented or partway through the trial they’re going to be misrepresented, and it might feel uncomfortable or hard for you as the judge, [but] that’s not really the point of amicus. A lot of family law matters are now with unrepresented parties, and if this licence were given whenever there was a difficult case or a difficult person to appoint counsel to help the court, it’s a replacement for legal aid, which isn’t something the province would want to do I presume.”

The Supreme Court of Canada established what an amicus is and when an amicus should be appointed back in 2013, in Ontario v. Criminal Lawyers’ Association of Ontario — but in the context of a criminal case in which the liberty of the accused is at stake, Howie points out.

While the appeal court did not create any new law with regard to the role of an amicus, he says the case is unique in that the trial judge appointed an amicus in the context of a private dispute, which prompted the appeal court to reiterate that the role of an amicus arises in those “exceptional circumstances” in which the court requires assistance, and he says the court did an “admirable job defining the role of an amicus and further setting out the test so narrowly that it will be extremely uncommon that one will ever be appointed.”

The decision says “the relevant principles from CLA must be applied to family law litigation with necessary modifications” and goes on to lay out the non-exhaustive list of exceptional circumstances and considerations to be made. The list includes not infringing on the right of a party to self-represent; noting that the trial judge should exercise their discretion to appoint “sparingly and with caution” and “rarely”; and tasking the trial judge with ensuring that the amicus does not slide over to the role of counsel by way of  “mission creep.”

Another test is “the stakes must be high enough” and Howie calls it a positive development that “the court recognized that the lives of three children can ‘raise the stakes high enough,’ just as much as a potential jail sentence — or at least the court recognized that the argument can be made.”

“Dealing with children is not simply a private dispute, which can be trumped by criminal law,” he adds.

But Howie takes issue with one aspect of the ruling, which he calls troubling — how the court expects the trial judge to deal with the self-represented. He says the Court of Appeal spent some time explaining what the function of the trial judge is with regard to self-represented litigants, where the ruling reiterated the “active approach” that is expected of the trial judge. 

“What is missing in this analysis, in my view, is the possible perception of the represented party that the scales are being tilted in favour of the unrepresented because the trial judge is taking an ‘active approach,’ such as ‘accommodating’ the self-represented parties’ ‘unfamiliarity with the trial process,’” Howie says.

He also notes that the ruling seems to say — “perhaps inadvertently and perhaps not” — that the Court of Appeal endorses what it calls the “common practice” of having the trial judge “walk a self-represented party through the essential documents, giving the party every opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents . . .”

“Unintended consequences are a funny thing,” Howie says. “It seems to me that the more the court bends over to assist self-represented litigants, the more self-represented parties the court will face — and in that group, there are more than enough people who can certainly afford to pay for a lawyer but will not. It will prove to be a self-fulfilling prophecy.”