What is a “Friend of the Court”? And How Do You Get One in Family Law Litigation?

What is a “Friend of the Court”? And How Do You Get One in Family Law Litigation? 

The Ontario Court of Appeal recently addressed a little-discussed topic in Family Law:  What are the principles that govern the appointment of “amicus curiae” (or “friend of the court”) in private Family Law cases?

The issue arose in a case called Morwald-Benevides v. Benevides where – in an admittedly rare step – the trial judge took the initiative to designate two court-appointed lawyers, one for each of the parents in a contentious Family Law dispute.  In keeping with tradition for such appointments, the fees for the services of each amicus was to be borne by the provincial Attorney General, i.e. the Ontario government.

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In the mother’s case, the trial judge opted to appoint as amicus the most recent of five lawyers the mother (now self-represented) had recently fired.  In justification, the judge had described the mother’s behaviour on the first day of trial as “bordering on hysterical”, with her collapsing in the courtroom and needing to be rushed to hospital by ambulance.

As for the father:  He had been represented for half the trial by his own lawyer, but ran out of money and failed to pay his lawyer’s fees. The trial judge therefore agreed to allow that lawyer to get off the record – but then immediately appointed that same lawyer as the father’s amicus.

The trial judge’s dual appointment was itself noteworthy; normally only a single neutral amicus is called for.  Moreover, the judge openly conceded the rarity of amici under Canadian law at all – never mind in a Family Law matter – but stated that the goal was to get assistance in “making decisions that relate to the best interests of the children.”

In evaluating the legal propriety of the trial judge’s move, the Ontario Court of Appeal explained the nature of, and need for, these uncommon amicus appointments:

The adversarial system, under which our system of justice operates, was designed for and works best when counsel represent the parties. However, increasingly, and in most family law trials, one or both of the parties are self-represented. Trial judges routinely resolve family law disputes about property, spousal support, child support, and child custody and access without counsel on both sides.

Citing from a previous Supreme Court of Canada decision on the point, the Appeal Court went on to say:

 What is an amicus curiae? [As the Supreme Court of Canada said:] “It is not disputed that a court may appoint a lawyer as ‘amicus curiae’, a ‘friend of the court’, to assist the court in exceptional circumstances; or that the Attorney General is obligated to pay amici curiae when appointed.” … “the ability to appoint amici is linked to the court’s authority to ‘request its officers, particularly the lawyers to whom the court afforded exclusive rights of audience, to assist its deliberations,’”

…“[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.” … “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.”

With that general framework in mind, the Court of Appeal concluded that the trial judge had erred in appointing the amici for numerous reasons, writing:

As I will explain, the trial judge made several errors in principle regarding the purpose and role of amicus. He erred in appointing both the mother’s and the father’s former counsel as amicus. It would be rare in a family law case to appoint one amicus, and the circumstances would virtually never justify the appointment of two. 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.

The Court went on to use the case a springboard for itemizing the specific legal and policy principles that govern such appointments in Family Law cases.  This will be the future subject of an upcoming Blog.

For the full text of the decision, see:

Morwald-Benevides v. Benevides, 2019 ONCA 1023 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

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