



COURT OF APPEAL FOR ONTARIO

CITATION: Morwald-Benevides
    v. Benevides, 2019 ONCA 1023

DATE: 20191224

DOCKET: C66709

Lauwers, van Rensburg
    and Roberts JJ.A.

BETWEEN

Melinda
    Morwald-Benevides

Applicant (Respondent)

and

Jeffery Mark Benevides

Respondent (Respondent)

Baaba Forson, for the appellant non-party, Her Majesty
    the Queen in right of Ontario

Sandra J. Meyrick, appearing as
amicus curiae

Heard: August 29, 2019

On appeal from the order of Justice Edward J. Koke of
    the Superior Court of Justice, dated February 19, 2019, with reasons reported
    at 2019 ONSC 1136.

Lauwers J.A.:

[1]

What are the principles governing the appointment of
amicus curiae
in private family law cases? That is the issue in this appeal.

I.

The Procedural Context

[2]

The trial judge, a judge of the Ontario Court of Justice, made orders
    appointing counsel to represent both parents in a contentious family law
    dispute. He appointed Andrew Thomson as
amicus
on behalf of the
    applicant mother, Melinda Morwald-Benevides (the mother). Midway through the
    trial, he appointed Bonnie Oldham as
amicus
for the respondent father,
    Jeffrey Mark Benevides (the father), immediately after he permitted her to get
    off the record as his counsel for non-payment of fees.

[3]

The trial judge dismissed the Crowns motion to set aside the
amicus
    curiae
orders.
[1]
The Crown appealed to the Superior Court of Justice.

[4]

The appeal judge appointed the same two lawyers to act as
amicus
before him.
[2]
He dismissed the Crowns motion to set aside the
amicus
appointments and
    stayed the Crowns appeal, noting at para. 6 of the decision: 
The stay can be lifted when the AG and the
amici
have negotiated a mutually acceptable rate of compensation for the
amici
,
    or pursuant to further order of this court.
[3]

[5]

This court set aside the
amicus
appointments and remitted the
    matter to the appeal judge.
[4]
The appeal judge then appointed Ms. Meyrick as a single
amicus.
He went
    on to dismiss the Crowns appeal of the trial judges decision appointing
amicus
.
[5]
The Crown appeals.

[6]

The appeal is 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.
Amicus
were paid by the
    Crown on a without prejudice basis to permit the trial to be completed, while
    preserving the Crowns right of appeal.

[7]

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 mothers and the fathers 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. I
n 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
.

[8]

Had the appeal not been moot because
    the underlying family law case has been resolved, I would have allowed it for
    the reasons that follow.

[9]

Before addressing the issues raised by the Crown, I set out the factual
    context.

II.

The factual context

[10]

The appeal judges introduction sets out the factual circumstances
    concisely in paras. 2-9, which I largely paraphrase.

[11]

The applicant mother brought an application for an order for custody of
    the three children of the marriage, then aged 6, 11, and 13 years, an order
    prohibiting access, or in the alternative, supervised access to the respondent
    father, and an order for spousal and child support.

[12]

The litigation was highly contentious with numerous court appearances.
    The father lived in Bermuda. The mothers position was that the father should
    not have access in Bermuda because she feared that he would not return them
    after an access visit, arguing that Bermuda courts have a poor record of
    compliance with the
Convention on the Civil Aspects of International Child
    Abduction
, Can. T.S. 1983, No. 35 (
Hague Convention
). In addition
    to logistical and scheduling issues, the father's residence in Bermuda raised complications
    for grossing-up child support because of different tax treatment of income in the
    two jurisdictions, and the treatment of tax deductions for child support and
    for travel expenses to facilitate access. The father argued that the mother was
    alienating the children from him. The mother alleged abuse.

[13]

After dismissing five counsel, including Mr. Thomson, the mother decided
    to represent herself at trial. She brought an unsuccessful motion at the outset
    of trial for an adjournment on medical grounds. The trial judge described the
    mothers behaviour on the first day of trial as bordering on hysterical. Just
    before noon she collapsed in the courtroom and was rushed to hospital by
    ambulance. In the afternoon her brother attended court on her behalf.

[14]

The trial judge decided to appoint Mr. Thomson as
amicus
to
    assist with the presentation of the mothers case because he had previously
    acted for her and was familiar with her and with the issues. This was the first
amicus
order. Based on the record, it is fair to say that the mother did
    not support the appointment of
amicus
for her, but she did co-operate
    with him. This sense emerges from paras. 67, 72, 75, 96 and 97 of the reasons,
    and from the transcript.

[15]

In his written endorsement, the trial judge wrote that he had appointed
amicus
to assist the court in relation to the interest of the applicant. However, his
    formal order stated that
amicus
was to assist the Court in making
    decisions that relate to the best interests of the children. The record shows,
    as the Crown submitted, that despite the text of the order, Mr. Thomson largely
    acted as counsel for the mother throughout, with the limited exceptions when he
    resisted the mothers instructions on two contentious issues: the psychological
    assessment of the mother and whether the judge should appoint
amicus
for
    the father: at para. 99.

[16]

The trial was originally scheduled for four days and began in the
    Ontario Court of Justice on April 11, 2014. Remarkably, despite the pretrial estimate
    of its length, the trial stretched intermittently over 23 days and finished in
    late June 2015.

[17]

Midway through the trial the father ran out of money. His lawyer, Ms. 
    Oldham, brought a motion to get off the record. The trial judge granted the request,
    and then immediately appointed her as
amicus
to assist with the
    presentation of the fathers case. His written endorsement stated that he was
    making an
amicus
order in favour of the father in the usual form. The
    second formal
amicus
order is in the same terms as the first, but Ms.
    Oldham simply carried on as counsel for the father.

III.

The Issue

[18]

As noted at the outset, the issue in this appeal can be concisely
    stated: What are the principles governing the appointment of
amicus curiae
in private family law cases? (Child protection cases involve different
    considerations and are not the subject of this decision.)

[19]

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.

[20]

This is the context within which the
amicus
issue is addressed.
    This court should give guidance to trial courts about the appointment of
amicus
,
    even though the particular appeal is moot:
New Brunswick (Minister of Health
    and Community Services) v. G.(J.)
, [1999] 3 S.C.R. 46, at paras. 45-47. The
    circumstances of this case, the full exposition of reasons by the trial judge
    and the appeal judge, and the representation of both perspectives by counsel
    (the Chief Justice of this court appointed Ms. Meyrick to serve as
amicus
in this appeal in order to provide submissions opposing the Crowns
    submissions), provide an opportunity to address the issue in an appropriately
    adversarial setting.

IV.

Analysis

[21]

The precedent governing the appointment of
amicus
is the decision
    of the Supreme Court in
Ontario v. Criminal Lawyers Association of Ontario
,
    2013 SCC 43, [2013] 3 S.C.R. 3 (
CLA
).

[22]

What is an
amicus curiae
? Speaking for the majority, Karakatsanis
    J. said, at para. 2: 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. She explored the genesis of the ancient and venerable concept
    of
amicus
at paras. 44-47, noting, at para. 46: the ability to appoint
amici
is linked to the courts authority to request its officers, particularly the
    lawyers to whom the court afforded exclusive rights of audience, to assist its
    deliberations, quoting from B.M. Dickens, A Canadian Development: Non-Party
    Intervention (1977), 40
Mod. L. Rev.
666, at p. 671.

[23]

Speaking for the minority, Fish J. did not disagree, and said, at para.
    87: [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. He added that 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.
[6]


[24]

It is common ground that a judge of the Ontario Court of Justice has the
    implied jurisdiction to appoint
amicus
to assist the court. It extends
    to those family law matters in which the appointment is essential for the court
    to adequately discharge its judicial functions:
CLA
, at

para. 112.

(1)

The principles governing the appointment of
amicus
in private
    family law cases

[25]

The principles governing the appointment of
amicus
have developed
    in the context of criminal proceedings in which the liberty interests of the
    unrepresented party, the accused, are especially acute, and in which the Crown
    is always well represented, while the accused faces a loss of liberty. By
    contrast, private family law cases involve disputing citizens, although they
    often have important public aspects because protecting the best interests of
    children is a longstanding public commitment reflected in the courts
parens
    patriae
jurisdiction.

[26]

In the delicate exercise of determining when
amicus
will be
    appointed and for what purposes, the relevant principles from
CLA
must
    be applied to family law litigation with necessary modifications. The
    principles or factors that have emerged thus far in the cases are set out
    below, but the list is not exhaustive.

[27]

First, the assistance of
amicus
must be essential to the adequate
    discharge of the judicial functions in the case:
CLA
, at para. 47. The
    stakes must be high enough to warrant
amicus
. This is a circumstantial
    determination within the trial judges discretion.

[28]

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: see e.g.
R.
    v. Imona-Russel
, 2019 ONCA 252, 145 O.R. (3d) 197;
Zomparelli v.
    Conforti
, 2018 ONSC 610.

[29]

Third, relatedly, while
amicus
may assist in the presentation of
    evidence,
amicus
cannot control a partys litigation strategy, and,
    because
amicus
does not represent a party, the party may not discharge
amicus
:
Imona-RusseI,
at para. 67.

[30]

Fourth, the authority to appoint
amicus
should be used sparingly
    and with caution, in response to specific and exceptional circumstances:
CLA
,
    at para. 47. And see
C.C.O. v. J.J.V.
, 2019 ABCA 292, 91 Alta. L.R.
    (6th) 237, at para. 50. This is in part a recognition of the financial
    exigencies, which is ultimately a political question under our separation of
    powers doctrine, as
CLA
noted at paras. 27-31, 83.

[31]

A trial judge should consider whether a Legal Aid certificate would be
    available and whether the matter should be adjourned to permit a party to apply
    for it. A trial judge should also consider whether other resources could be gathered
    together to suffice. For example, where the interests of children are involved,
    the judge may request the participation of the Office of the Childrens Lawyer
    under ss. 89(3.1) and 112 of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43. There are several modalities of participation available
    including, most recently, Voice of the Child reports. However, the
    consideration of any such services would need to be expedited to avoid delay,
    particularly in a case that involves children.

[32]

Self-represented parties are increasingly routine in family law
    cases. The system recognizes this fact and does provide some resources.
[7]
That one or both parties are self-represented is not a sufficient reason to
    appoint
amicus
, in itself, nor is it sufficient based on the idea that
    since one party is represented,
amicus
is necessary to level the playing
    field. As is sometimes noted in criminal cases, a party is entitled to a fair
    trial, not a perfect trial:
R. v. G. (S.G.)
, [1997] 2 S.C.R. 716, at
    para. 101;
R. v. Harrer
, [1995] 3 S.C.R. 562, at para. 45.

[33]

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 partys case would not be presented quite as effectively as it
    would be by counsel:
Imona-Russel,
at para. 69.

[34]

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:
Dujardin v. Dujardin
, 2018 ONCA 597, 423 D.L.R. (4th) 731,
    at para. 37, repeated in
Gionet v. Pingue
, 2018 ONCA 1040, 22 R.F.L.
    (8th) 55, at para. 30. The court added, at para. 31 of
Gionet
: 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, citing
Davids
    v. Davids
(1999), 125 O.A.C. 375, at para. 36. See also
Manitoba
    (Director of Child and Family Services) v. J.A.
, 2006 MBCA 44, at paras.
    19-20.

[35]

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 partys pleading, financial
    statement, and pertinent documents, requesting the partys responding position
    and evidence. Once the evidence of a party has been received, then the other
    party may cross-examine.

[36]

This active approach on the trial judges part can only work if the
    judge explains the purpose and nature of the exercise beforehand, and maintains
    a calm and impartial temperament throughout. The trial judge should not cross-examine
    a party. Doing so would cross the line into the adversarial representation of a
    party, which would give rise to possible bias allegations.
[8]


[37]

Importantly, it is only in rare cases that the assistance provided by
    the trial judge will be insufficient to ensure trial fairness. Only then might
    the appointment of
amicus
be considered.

[38]

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
amicuss
duties
    mirror the duties of traditional counsel, care must be taken to address the
    issue of privilege, as in
Imona-Russel
, at para. 89.

[39]

Finally, the order appointing
amicus
must be clear, detailed and
    precise in specifying the scope of
amicuss
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.

[40]

Ideally the need for
amicus
can be identified and considered at
    the pre-trial case management conference, but sometimes the need only becomes
    evident at trial. A case management judge or a trial judge faced with a trial
    that might require the appointment of
amicus
should prepare an order
    detailing the expected role and work of
amicus
.
Amicus
could, for
    example, be asked to lead some evidence, cross-examine a witness, or make
    submissions on specific issues. The goal should be to use the services of
amicus
only where and to the extent necessary. The order would be a work in progress
    and would be open to change as circumstances demand, with changes made formally
    on the record.

(2)

The Principles Applied

[41]

While the trial judge did not fully observe the principles
    set out above, I would not be unduly critical of his approach, because every
    trial takes on a life of its own, as this one did.
The trial judge asserted that this was the first
amicus
order in a family law case of which he was aware and
    he had nothing outside of the criminal law cases to assist him.
The
    appointment of one neutral amicus with a clearly and properly defined role
    in the very difficult circumstances described by the trial judge would not have
    been an objectionable exercise of his discretion. However, that is not
    what occurred here.

[42]

The trial judge determined that the assistance of
amicus
was
    necessary in the circumstances of this case. He noted that the mother was incapable
    of representing herself: at para. 63. She was bordering on hysterical and
    collapsed in the courtroom: at paras. 61-62. He considered himself to be in a
    crisis situation: at para. 44. The primary reason for the appointment of
amicus
was to stabilize the proceeding: at para. 67. He did not think he could
    manage the mother in the courtroom on his own. Further, because of the
    intensity and desperation as to her deeply rooted fear of the father  [s]he
    needed a buffer: at para. 68.

[43]

Given the mothers attempts to adjourn the trial, the trial judge
    considered it important for
amicus
to be appointed, because she then
    could not dismiss him. Further,
amicus
could proceed even if she did
    not attend court: at para. 75. He noted that the appointment of Mr. Thomson as
amicus
had a significant impact on the potential emotional volatility
    of the mother and that, in his view, she calmed down significantly and the
    proceedings stabilized: at para. 96.

[44]

In addition, the trial judge considered the issues to be complex. He
    noted, at para. 70, that this was not a garden variety case because it
    involved the interpretation and application of the
Hague Convention
, and
    the consideration of multi-jurisdictional tax implications.

[45]

The trial judge addressed the possibility of adjourning the trial to
    permit the mother to apply for legal aid. He noted, at paras. 76-77, that delay
    was the major issue and would have prolonged the dispute. This was a relevant
    consideration.

[46]

The problems of scheduling and delay are real, and delay is especially
    problematic in cases involving child custody and access. Family law trials are
    stressful, perhaps especially so for self-represented parties. It is not
    unusual for trial judges to face adjournment requests. Sometimes one party does
    this repeatedly in the pre-trial process and then presses the request again at
    the outset of trial. Dealing with parties who frequently seek adjournments
    requires judicial patience, determination, and a steady hand, to get cases
    resolved expeditiously and to avoid the waste of scarce judicial resources.

[47]

For the purpose of future guidance, I would point out a number of
    features of this trial that were problematic regarding the appointment of
amicus
.
As I will explain, t
he trial
    judge erred in principle in appointing
amicus
to carry on effectively in
    their roles as counsel for each of the parties.

[48]

First, the trial judge appointed Mr. Thomson, who had previously been
    the mothers lawyer. He did this on the basis of efficiency and the likely
    acceptability of the appointment to the mother. But appointing Mr. Thomson
    immediately injected an adversarial element that was inconsistent with the
    impartial role of
amicus
. The appointment of a partys former counsel as
amicus
was an error in this case.

[49]

Second, the later appointment of a second
amicus
to
    represent the father was contrary to principle. A
single
amicus
could have addressed the courts questions about the application of
Hague
    Convention
Principles as well as the
    complex tax implications inherent in the multi-national dimensions of this
    dispute had the initial error in appointing the mothers former counsel as
amicus
not been made.

[50]

The appointment of the second
amicus
flowed in part from the
    appointment of Mr. Thomson, who could never be seen as neutral because he had
    previously acted as counsel for one of the parties. Mr. Thomsons appointment
    turned out to be problematic when the husbands lawyer quit, because it took
    away from the trial judge the ability to deploy the skills of
amicus
in
    a neutral fashion with respect to both parties.

[51]

If it would be rare in a
    family law case to appoint one
amicus
, the circumstances would virtually never justify the
    appointment of two. In this case, the first appointed
amicus
could not fairly act as
amicus
with respect to the father after his counsel was
    permitted to get off the record. But that is an unusual situation I would not
    expect to see again.

[52]

Third, the decision in
CLA
does not preclude the possibility of
    court-appointed defence counsel in a criminal case with
amicus
-like
    features, as in
Imona-Russel
. Appointing a single counsel dedicated to a
    party might make sense in the context of, for example, a constitutional challenge
    to a family law provision where the Attorney General is present to represent
    the other side. Otherwise, a single
amicus
appointment should almost
    always be able to satisfy the basic requirements of the court. In the family
    context, it is hard to imagine a situation in which appointing two counsel as
amicus
to represent adversarial interests would be appropriate, rather than a
    single state-funded friend of the court.

[53]

Fourth, in more general terms, the fact that one party is represented
    does not justify the appointment of
amicus
for the other party. Most
    family law cases have this feature. And while in an ideal world all parties
    would be represented by competent counsel in maintaining a level playing field,
    it is not practical, as preferable as that might be to a trial judge. This
    underpinned the trial judges comment, at para. 70: 
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 can make
    findings of fact and credibility 
which would then allow me to effectively
    adjudicate on the best interest test
 (emphasis in original). He added at
    para. 73: There would be a significant imbalance wherein the fathers evidence
    would not be properly tested, whereas the mothers would; leaving me in a
    deficit position on the material facts and legal issues. I do not accept these
    as legitimate considerations in most private family law cases.

[54]

Fifth, any judge considering the appointment of
amicus
should
    give notice so that counsel for the Attorney General can make submissions on
    the advisability of the appointment in the circumstances of the case.

[55]

Finally, there was no
    litigation plan prepared by the trial judge or proposed by counsel to guide and
    govern the activities of
amicus
throughout the case. It is not possible to know from this record
    whether
amicus
could
    have played a reduced role focussed on specific issues such as the leading of
    some witnesses but not all, the cross-examination of some witnesses but not
    all, or cross-examination limited to specific issues, or submissions limited to
    the application of the
Hague Convention
and the tax questions, to suggest a few choices.
    Going forward, an
amicus
appointment order in a family law case should be as precise and detailed as
    possible in terms of setting out the parameters of the
amicuss
role, and should not be as open-ended in its
    expression or in its operation as the orders in this case.

V.

Disposition

[56]

Had the appeal not been moot because
    the underlying family law case has been resolved, I would have allowed it for
    the reasons set out above.

Released: M.L.B. December 24, 2019

P. Lauwers J.A.

I agree. K. van
    Rensburg J.A.

I agree. L.B.
    Roberts J.A.





[1]
2015 ONCJ 532, 127 O.R. (3d) 165



[2]
2015 ONSC 7290



[3]
2016 ONSC 3505, 88 R.F.L. (7th) 183



[4]
2017 ONCA 699, 416 D.L.R. (4th) 711



[5]
2019 ONSC 1136, 146 O.R. (3d) 472



[6]
The majority and minority in
CLA
did not differ on the issue of the
    proper scope of an
amicus
order, but only on whether the trial judge had
    power to fix the fees of
amicus
in the order, with the majority
    concluding that the trial judge did not have such power.



[7]

See, e.g., the following links to resources for
    family law litigants in the OCJ and in the SCJ:

http://www.ontariocourts.ca/ocj/files/guides/guide-family.pdf;

http://www.ontariocourts.ca/scj/family/resources/



[8]
See Michelle Flaherty, Best Practices in Active Adjudication (2015) 28 Can.
    J. Admin. L. & Prac. 291;
Michelle Flaherty,
    Self-Represented Litigants, Active Adjudication and the Perception of Bias:
    Issues in Administrative Law (2015) 38:1 Dal. L.J. 119; and
Jula Hughes
    & Philip Bryden, Implications of Case Management and Active Adjudication
    for Judicial Disqualification (2017) 54:4 Alta. L. Rev. 849.


