In what is being reported as the first known case in Canada, a trial judge in a family law proceeding has made amicus curiae orders, appointing counsel to assist the parents, and ultimately the court, in acting in the best interests of the children.
What is Amicus Curiae?
Amicus curiae is a Latin phrase which means ‘friend of the court.’ In Canada, amicus curiae is a person who has been specifically appointed by the court to provide a non-partisan perspective which the court believes is necessary and otherwise absent.
The case of Morwald-Benevides v Benevides, 2015 ONCJ 532, involved a high-conflict custody and access dispute between parents. Both parents had been through several lawyers and were self-represented by the time the amicus orders were made. The trial involved complex issues including abduction, parental alienation and abuse, and was scheduled to last 23 days. According to the judge, ‘even an emotionally stable person could not have effectively managed [the issues in this case.” It was clear to Justice Keast that neither parent would be able to represent themselves at the trial. In fact, on the first day of trial, the mother behaviour bordered on hysterical, she collapsed in the courtroom and had to be rushed to hospital.
In his decision, Justice Keast noted the primary reason for appointing amicus curiae was to stabilize an emotionally charged proceeding:
“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” (para 70).
Justice Keast was satisfied that this case constituted exceptional circumstances such that the high threshold required to make an amicus order had been met.
If you have questions about high conflict divorce or any other family law matter, please contact Jason P. Howie, online or at 519.973.1500.
To read the full decision, click here.