“Friend of the Court”, Part Two – Where Parties are Self-Represented
Recently we covered the little-discussed topic of amicus curiae which is essentially a “friend of the court.” In narrow – and atypical – circumstances, Ontario courts are themselves entitled to appoint lawyers for assistance where it is required to do justice to the parties in the case. These kinds of amicus appointments by the court are especially rare in Family Law proceedings, and tend to come up (if at all) when one or both parties are self-represented.
This second in a two-part Blog continues the discussion, focusing on the principles set out in a recent case called Morwald-Benevides v. Benevides. There, the Ontario Court of Appeal clarified those situations in which these kinds of amicus appointments are made – especially in these self-representation scenarios.
The Appeal Court said:
- The help offered by the amicus must be essential to the adequate to the court’s discharge of is judicial function in the case;
- In the opinion of the judge, the stakes must be high enough to warrant appointing amicus; and
- The court’s authority to appoint amicus should be used sparingly, and with caution, in response to “specific and exceptional circumstances.”
In fact, the courts must look to other options first. They must consider:
- Whether straightforward self-representation will suffice;
- Whether the party can get the help of Legal Aid, the Office of the Children’s Lawyer, or other resources in aid of his or her self-represented status; or
- Whether it is sufficient for the unrepresented party to get the trial judge’s help as needed as the proceedings go along.
Only once these factors are considered, can a court entertain the idea of appointing amicus. The mere fact that one party is self-represented does not justify a court appointing amicus to “level the playing field”.
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On the topic of the trial judge’s own efforts to assist an unrepresented party: The judge must consider whether he or she can provide guidance to the point where a fair and orderly trial is ensured even without the help of amicus – and even if the party’s case would not be presented quite as effectively as it would be with counsel’s help. The Appeal Court added it is only in “rare cases” that such help will be insufficient to ensure a fair trial.
On the procedural side, the Court made some further observations:
- While the general role of amicus is to “assist the court”, his or her specific duties may vary; in some uncommon situations the amicus lawyer may have to assume duties approaching the role of counsel to a party in a Family Law case;
- While amicus may assist in presenting evidence, he or she cannot control either of the parties’ litigation strategy; and
- Because amicus does not represent either party specifically – but rather is appointed to assist the court – neither party is entitled to fire a lawyer who has been appointed amicus.
Finally, the Court of Appeal gave examples of when the appointment of amicus might be warranted:
- Where a self-represented party is ungovernable, or contumelious;
- Where he or she refuses to participate, or else disrupts the trial proceedings; and
- Where a party is adamant about conducting the case personally, but is hopelessly incompetent to do so, risking real injustice.
For the full text of the Court of Appeal’s decision, see:
Morwald-Benevides v. Benevides, 2019 ONCA 1023 (CanLII)
FamilyLLB is written by Russell Alexander, a collaborative family lawyer based in Ontario, Canada who has helped his clients for over twenty years. Russell Alexander Collaborative Family Lawyers practice in all aspects of family law including separation and divorce, property division, child support, child custody and access, and spousal support.