Court Of Appeal Weighs In On Amicus Curiae


In 2015 we reported about a case where a judge had made amicus curiae orders, appointing lawyers to assist parents who were working through a contentious custody dispute. Amicus curiae is a Latin phrase, meaning “friend of the court.” In the Canadian legal system, it refers to an appointed person who can provide a non-partisan perspective that the court believes is necessary in order to reach a fair decision.

One of the largest areas of focus to improve family courts is reducing the time it takes for trials to conclude. Self-represented litigants can often cause delays as they struggle to navigate the rules of court, particularly when emotions are running high. Amicus curiae is a way for courts to help move things along. The case we last reported on has recently been argued again before the Ontario Court of Appeal.

Court Finds Assistance is Necessary Due to High Conflict

The initial hearing took place in 2015. The custody dispute was one of high conflict, and both parents had hired and fired a number of lawyers throughout. However, the father ran out of money to pay his lawyer, and the mother had fired her most recent lawyer after deciding to represent herself. The judge, who noted that the trial involved many complex legal issues, could not proceed unless the parties had some sort of assistance. The judge wrote,

“Because of the sharp polarization and conflict of the expected evidence, I wanted amicus to play an adversarial role to properly test the evidence, so I could make findings of fact and credibility – which would then allow me to effectively adjudicate on the best interest test” 

ONCA Clarifies Amicus Guidelines

The trial ultimately concluded, but the Court of Appeal was still asked to weigh in on the issue of when courts can make amicus curiae appointments. The court noted at the outset of its reasoning that the family law system works best when parties have legal counsel. Nevertheless, “judges routinely resolve family law disputes about property, spousal support, child support, and child custody and access without counsel on both sides.”

In Canada, the precedent governing the appointment of amicus curiae comes from a 2013 Supreme Court of Canada decision. In that decision, the court wrote,

“[C]ourts may appoint an amicus only when they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions.” Adding, “once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings…. There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice.”

The court then listed the principles related to amicus curiae as courts interpreted the Supreme Court’s decision. They are:

  • First, the assistance of amicus must be essential to the adequate discharge of the judicial functions in the case;
  • Second, a party has the right to self-represent: CLA, at para. 51. However, the trial judge is responsible for ensuring that the trial progresses reasonably. There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice;
  • Third, relatedly, while amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus;
  • Fourth, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances;
  • Fifth, the trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party’s case would not be presented quite as effectively as it would be by counsel;
  • Sixth, 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. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question. If such an appointment is to be made and the scope of amicus’s duties mirror the duties of traditional counsel, care must be taken to address the issue of privilege; and
  • Finally, the order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits.

The court also took the opportunity to comment on the appointment of amicus curiae, writing,

“It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, ‘it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence’ the court added ‘In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case, a trial judge requires the necessary evidence on which to base a sound decision and getting the evidence can be difficult when a party is unrepresented, is unfamiliar with the process and the venue, or is tongue-tied for other reasons. Recognizing this reality, a common practice has developed in which trial judges 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, and doing the same with respect to the other party’s pleading, financial statement, and pertinent documents, requesting the party’s responding position and evidence. Once the evidence of a party has been received, then the other party may cross-examine.”

If you’re considering other ways to mitigate the costs and time associated with litigation, consider mediation. To speak with an experienced Windsor lawyer about the mediation process and how it might benefit your case, contact the office of Jason P. Howie at 519.973.1500 or reach out online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.

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