



COURT OF APPEAL FOR ONTARIO

CITATION: Morwald-Benevides v. Benevides, 2017 ONCA 699

DATE: 20170912

DOCKET: C62517

Feldman, Gillese, Pepall JJ.A.

BETWEEN

Melinda Morwald-Benevides

Applicant (Respondent)

and

Jeffrey Mark Benevides

Respondent (Respondent)

Chantelle Blom, for the appellant non-party Crown

Bonnie C. Oldham, appearing as
amicus curiae

D. Andrew Thomson, appearing as
amicus curiae

Heard: January 30, 2017

On appeal from the order of Justice Edward J. Koke of the
    Superior Court of Justice, dated May 30, 2016.

Feldman J.A.:

INTRODUCTION

[1]

In a fractious, toxic, and complex custody and access trial in the
    Ontario Court of Justice between two eventually unrepresented parties fighting
    over their children, the trial judge appointed an
amicus
on behalf of
    each party to assist the court.

[2]

The Attorney Generals challenge to the
amicus
appointment was
    rejected by the trial judge. The Attorney General then appealed that ruling to
    the Superior Court. The appeal judge determined that he required the assistance
    of
amicus
to resolve the issues raised on appeal, and appointed the
    same two lawyers who had served as
amicus
at trial.

[3]

The two lawyers appointed by the appeal judge were not prepared to
    accept legal aid rates to act as
amicus
on the appeal. They wanted to
    negotiate rates with the Attorney General. The Attorney General was not
    prepared to negotiate, and instead provided the court with a list of three
    highly qualified counsel who were prepared to assist the court and to accept
    legal aid rates.

[4]

The appeal judge determined that he required the two lawyers who were
    already fully familiar with the case to assist the court, and ordered a stay of
    the appeal until the
amici

and the Attorney General negotiated
    a mutually acceptable rate of compensation, or pursuant to a further order of
    the court.

[5]

It is the propriety of the appeal judges appointment of the two
amici
to assist him, and his decision to stay the appeal, that are the subjects of
    the appeal before this court.

[6]

The responding
amici
submit that the appeal judges decision to
    impose a stay is consistent with
Ontario v. Criminal Lawyers Association
    of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3, and that that judgment obliges
    the Attorney General to negotiate compensation rates in good faith with
    court-appointed
amicus
, failing which, courts may be entitled to
    impose a stay of proceedings. The appellant Crown disagrees, contending that
Criminal
    Lawyers Association

neither requires the Attorney General to
    negotiate in good faith with court-appointed
amicus
, nor does it
    permit a court to impose a stay conditional on such negotiations taking place.
    A stay, in the Crowns submission, is only appropriate when the appointment of
amicus

is truly essential and a qualified
amicus

cannot be
    found.

[7]

I agree with the Crowns interpretation of
Criminal Lawyers
    Association
. For the reasons that follow, I would allow the appeal and set
    aside the appeal judges order.

FACTUAL BACKGROUND

(a)

The underlying custody and access litigation

[8]

Melinda Morwald-Benevides (the wife) and Jeffrey Benevides (the husband)
    were involved in fractious and complex litigation, lasting 23 days, before
    Keast J. of the Ontario Court of Justice, over custody and access of their
    three children  ages 14, 13, and 8. The husband, a resident and citizen of
    Bermuda, alleged parental alienation and requested access in Bermuda. The wife
    alleged domestic violence. Complex child support issues arose. The wife asked
    the court to explore integrating the courts in Bermuda and Ontario. She did not
    want to give evidence with her husband in the courtroom. The wife dismissed
    five lawyers prior to trial, which Keast J. interpreted as an effort to delay
    proceedings. On April 11, 2014, the first day of trial, the wife was
    self-represented and her emotional state bordered on hysterical. She collapsed
    in the courtroom and an ambulance took her to hospital.

(b)

The trial judge appointed
amicus
for the wife

[9]

Keast J. found that the wife was incapable of representing herself and
    sought to stabilize the proceedings in a situation of alleged domestic abuse. He
    appointed Mr. Andrew Thomson
amicus
, at legal aid rates, and rejected
    the wife's request for an adjournment due to her medical situation. The
    Attorney General was not given notice of Keast J.'s intent to appoint
amicus
.

(c)

The trial judge appointed a
micus
for the husband

[10]

The husband was initially represented at trial by Ms. Bonnie Oldham, a
    well-respected member of the local Parry Sound bar. On June 11, 2014, Ms.
    Oldham, brought a motion to be removed
from the
    record. Ms. Oldham's accounts were in substantial arrears and there was no
    reasonable
prospect of payment. The court had recently ordered a
    psychological assessment  which the husband opposed  lengthening the trial
    and increasing Ms. Oldham's expected fees.

[11]

Keast J. found that Ms. Oldham had a sound basis for asking to be
    removed as counsel of record. However, allowing her off the record would
    greatly destabilize the trial, particularly because the husband was a foreign
    resident without the financial resources to retain another lawyer, but whose income
    was too high to qualify for legal aid. To avoid an imbalance due to his
amicus
appointment for the wife, Keast J. decided to appoint Ms. Oldham as
amicus
for the husband. Again, the Attorney General was not given notice of the
    appointment.

(d)

The Attorney Generals motion to set aside the a
micus
orders
    was denied

[12]

The Attorney General brought an intervener motion before Keast J., to
    set aside the two
amicus
orders. Keast J. reserved his decision until
    the completion of trial and then dismissed the Attorney General's motion.
    Following the trial, Keast J. made two custody and access orders, dated January
    29 and May 2, 2016. Those decisions are under appeal by the wife to the
    Superior Court.

(e)

The Attorney General appealed to the Superior Court of Justice

[13]

The Attorney General appealed from the dismissal of its intervenor
    motion to the Superior Court of Justice, on the ground that Keast J. had
    exceeded his jurisdiction in appointing
amici
to act as counsel for
    parties to the proceeding and in requiring the Crown to fund those
amici
.

(f)

The wife indicated her intent to intervene in the Attorney Generals
    appeal

[14]

The wife indicated her intent to intervene in the Attorney General's
    appeal arguing that Mr. Thomsons appointment as
amicus
breached her
    rights to procedural fairness and s. 7 of the
Charter
. The Chair of
    the Family Lawyers' Association of Ontario also indicated that the organization
    was considering whether to seek leave to intervene.

(g)

The appeal judge appointed Mr. Thomson and Ms. Oldham as
amici

[15]

The Attorney General's appeal was scheduled to be heard before Koke J. By
    endorsement dated November 23, 2015, he appointed Mr. Thomson and Ms. Oldham to
    act as
amici
on the appeal, and invited the parties to schedule a
    hearing if they wished to make submissions about the appointments.

[16]

In his endorsement, Koke J. provided three reasons for selecting
    Mr. Thomson and Ms. Oldham as
amici
on
    appeal: their experience, their familiarity with the factual matrix underlying
    the appeal, and their independence from the Attorney Generals office.
He
    also noted that the named parties no longer needed to respond to the appeal,
    and expressed concern that absent an
amicus

appointment, the
    court would not have the benefit of responding submissions on
an
appeal raising significant and complex
    jurisdictional and constitutional questions.

[17]

Koke J. then commented on the process for setting remuneration
    rates for the
amici
. He emphasized that, according to
Criminal
    Lawyers' Association
, the
amici
and the Attorney General should
    meet to set rates and modes of payment. While judges could only play a
    persuasive role in setting the rate of remuneration, they retained authority to
    impose a stay of proceedings
in the event that
    an amicable resolution was not forthcoming (at para. 20). Koke J. also held
    that
Criminal Lawyers Association
"implied" that "the rate of compensation be
    reasonable" (at para. 22). He noted a variety of factors relevant to
    determining reasonableness; the legal aid rate was only a reference point
    because "the court should not be placed in the same category as an
    impecunious party" (at paras. 23-24). In complex jurisprudential cases,
    the rate must not be so low as to prevent the court from selecting the most
    appropriate candidates (at para. 24). Given that the Attorney General was both
    the moving party and being called upon to fund
amici
responding to the motion, Koke J. warned that the
    failure to set a reasonable rate could undermine public confidence in the
    administration of justice (at para. 25).

(h)

The Attorney General moved to set aside the a
micus
orders

[18]

The Attorney General moved before Koke J. to have the
amicus
orders for the appeal set aside. In its motion record, the Attorney General
    identified three senior members of the bar with appellate experience  Sandra
    Meyrick, Anthony Macri and Charlotte Murray  who were willing to act as
amici
at legal aid rates.

(a)

Written Correspondence between the Attorney General,
amici
& Koke J.

[19]

The Attorney General offered Mr. Thomson and Ms. Oldham compensation at
    legal aid rates. The
amici
,
    however,
were only prepared to act at higher, though discounted,
    rates. Mr. Thomson informed Koke J. of the impasse
and requested that the court mediate the issue. Koke J. felt that he
    could not mediate the issue without the parties consent
. Instead, he
    advised that he would impose a stay of the appeal unless the fee issue was resolved
    by April 27, 2016. He also expressed concern that the Attorney General was in a
    conflict of interest with respect to the fee issue, and indicated that he would
    "not accept a situation where one party to a dispute seeks to unfairly
    gain an advantage, or where the quality of the submissions before me in what is
    a very significant case may be
compromised."

[20]

The Attorney General asked Koke J. to appoint different
amici
who would accept rates agreeable to the Attorney General. Koke J. refused,
    stating in his response that the Attorney General was obliged to "attempt
    to negotiate a mutually acceptable rate in good faith, and that Fish J., writing
    for the minority in
Criminal Lawyers' Association
, foresaw the very
    circumstances that had now arisen before him, prompting the majority to require
    negotiation of the fee. The Attorney General then requested an opportunity to
    make submissions at an oral hearing on why a stay would not be appropriate. The
    next day, the

Attorney
    General and
amici
appeared before Koke J. to argue the motion.

THE DECISION TO ORDER A STAY

[21]

Koke J. dismissed the motion to set aside the
amicus
appointments
    and imposed a stay of the Attorney General's appeal. The stay would endure
    until such time as the Attorney General and
amici
had negotiated a
    mutually acceptable rate of compensation (or until the court otherwise ordered
    the stay lifted).

[22]

Koke J. repeated his initial reasons for selecting the particular
    counsel as
amici
. He also acknowledged the
amici
s
further argument that the Attorney
    General would realize considerable cost savings, despite higher hourly rates,
    because the
amici
: (i) were local counsel who would not incur travel
    expenses; (ii) already had the transcripts, valued at thousands of dollars; and
    (iii) were already familiar with the facts.

[23]

The Attorney General did not argue that the rate
amici
requested was unreasonable. Rather, it submitted that it had no obligation to
    negotiate with
amici
and had a list of suitable alternative counsel
    who would work for the legal aid rate (at paras. 28-29).

[24]

Koke J. rejected the Attorney Generals submission and re-iterated his
    interpretation of
Criminal Lawyers' Association
.
He held that
    the Attorney General had an obligation to negotiate with
amici
to set
    remuneration above the legal aid rate (at para. 39). In so holding, Koke J.
    interpreted the majority in
Criminal Lawyers' Association
, at paras.
    75-76, to have established a procedure whereby the parties negotiate the rate
    of compensation. In his view, the crux of the majoritys dispute with the minority
    was that, failing a compromise, the majority would issue a stay until the
amicus
could be found whereas the minority would set the rate of compensation (at
    para. 37). In his view, the legal aid rate was not fair and reasonable in all
    cases (at para. 43), and a judge should not be restricted to those counsel
    willing to work at legal aid rates (at para. 42).

[25]

Koke J. stated that he had no evidence that the Attorney General's
    suggested lawyers were qualified to act on the appeal (at para. 49) and did not
    view vetting the list as falling within his role (at para. 51). Koke J. refused
    to set aside the appointment of the two
amici
who were familiar with
    the positions of both parties, and instead appoint one
amicus
(at
    para. 56). Finally, he noted that the wife's position on appeal supported the
    Attorney General, doing little to alleviate the need for
amici
.

ISSUES

(1)

Whether the appeal judge erred
    in finding that the Attorney General had an obligation to negotiate a fair and
    reasonable fee agreement with the appointed
amici
.

(2)

Whether the appeal judge erred
    in staying the Crown's appeal.

(3)

Whether the appeal judge erred
    in holding that two
amici
, as opposed to a single
amicus
,
    were required to provide responding submissions.

ANALYSIS

[26]

Although there are three discrete issues before this court arising from
    the order and reasons of the appeal judge, whether he had the jurisdiction to
    make the orders that he did turns on the interpretation and application of the
    Supreme Courts decision in
Criminal Lawyers Association
.

[27]

The
Criminal Lawyers
appeal arose out of three criminal trials,
    where in each case, the trial judge appointed
amicus
to assist accused
    who had discharged their lawyers. The trial judges made the appointments to
    either maintain the orderly conduct of the proceedings or to avoid significant
    delay in already complex, lengthy cases. In each case, the
amicus
refused to accept legal aid rates, and the trial judge fixed a higher rate,
    ordering the Attorney General to pay.

[28]

The Supreme Court split on whether a court could set remuneration rates for
amicus

and order the Attorney General to pay. While the
    minority held that superior courts have that power, the majority disagreed.
    Karakatsanis J. summarized the position of the majority as follows, at para. 15:

The jurisdiction to appoint an
amicus
does not
    necessarily imply or require the authority to set a specific rate of
    compensation.  The ability to order the government to make payments out of
    public funds must be grounded in law and a courts inherent or implied
    jurisdiction is limited by the separate roles established by our constitutional
    structure.  Absent authority flowing from a constitutional challenge or a
    statutory provision, exercising such power would not respect the institutional
    roles and capacities of the legislature, the executive (including the Attorney
    General), and the judiciary, or the principle that the legislature and the
    executive are accountable to the public for the spending of public funds.

[29]

She then explained the constitutional framework for the roles of the
    legislature, the superior courts with inherent jurisdiction and the Attorney General
    in the administration of justice. Within that framework, courts with inherent
    jurisdiction are not permitted 
to enter the
    field of political matters such as the allocation of public funds, absent a
Charter
challenge or concern for judicial independence
.
    For that reason, 
it is generally accepted that courts
    of inherent jurisdiction do not have the power to appoint court personnel
.
    (para. 41)

[30]

Although courts cannot appoint administrative staff, they possess
    inherent jurisdiction to appoint amicus in criminal trials. That jurisdiction
    is grounded
in [a courts] authority to control
    its own process and function as a court of law
. (para. 46) However,
    there are conditions to that jurisdiction (paras. 47-48):

Thus, orders for the appointment of
amici
do not cross
    the prohibited line into the provinces responsibility for the administration
    of justice, provided certain conditions are met.  First, the assistance of
amici
must be essential to the judge discharging her judicial functions in the case
    at hand.  Second, as my colleague Fish J. observes, much as is the case
    for other elements of inherent jurisdiction, the authority to appoint
amici
should be used sparingly and with caution, in response to specific and
    exceptional circumstances (para. 115).  Routine appointment of
amici
because the defendant is without a lawyer would risk crossing the line between
    meeting the judges need for assistance and the provinces role in the
    administration of justice  so long as these conditions are respected, the
    appointment of
amici
avoids the concern that it improperly trenches on
    the provinces role in the administration of justice.

[31]

The majority held that the authority to set rates of compensation for
amicus
falls outside the inherent jurisdiction of superior courts. Indeed,
the spectre of trial judges fixing and managing the
    fees of
amici
imperils the
    integrity of the judicial process
. (para. 64) A court is entitled to
    specify the general qualifications required by amicus for the particular
    circumstances, while the Attorney General is obliged to pay what is
    constitutionally
adequate to serve the needs of
    the courts
. (para. 65) While a court may set rates where its authority
    is either based on a statute (e.g. s. 694.1(1) of the
Criminal Code
), or
    as a constitutional remedy under s. 24(1) of the Charter, it cannot use its
    inherent jurisdiction to order the expenditure of funds, which would exceed its
    role within the constitutional framework.

[32]

The final issue addressed by the majority was the specific process to be
    followed after a courts appointment of
amicus
. The majority stated
    that where
amicus
appointed by the court refuses to accept the
    compensation offered by the Attorney General, the courts inability to have the
amicus
of its choice does not deprive the court of its nature as a
    court of law. (para. 70) Karakatsanis J. noted that in Ontario, the Attorney General
    typically finds for the judges consideration a number of other appropriate
    lawyers willing to assist the court.

[33]

The majority then explained, at paras. 75-76, the process to be followed
    where there is an impasse:

In those exceptional cases where
Charter

rights
    are not at stake but the judge must have help to do justice and appoints an
amicus
,
    the person appointed and the Attorney General should meet to set rates and mode
    of payment. The judge may be consulted, but should not make orders regarding
    payment that the Attorney General would have no choice but to obey.

In the final analysis, if the assistance of an
amicus

is truly essential and the matter cannot be amicably resolved between the
amicus
and the Attorney General, the judges only recourse may be to exercise her
    inherent jurisdiction to impose a stay until the
amicus
can be found. 
    If the trial cannot proceed, the court can give reasons for the stay, so that
    the responsibility for the delay is clear.

[34]

In contrast, the minority took the position that a court has the ultimate
    power to impose a rate of compensation on the Attorney General. It recommended
    a consensual approach where the
amicus
and the Attorney General
    would meet and agree on the rate of remuneration and the administration of the
    budget. Both parties would negotiate in good faith, the Attorney General to
    promote the administration of justice, and
amicus
to fulfill the
    professions public service role, with negotiations to be completed as quickly
    as practicable. But if agreement cannot be reached, then the trial judge does
    not impose a stay, but rather, fixes the rate of remuneration. The Attorney General
    would then choose to either pay that rate or, as a party to the proceeding,
    choose to stay the proceedings.

APPLICATION TO THIS APPEAL

[35]

Unlike
Criminal Lawyers Association
, this appeal involves the
    appointment of
amicus
in a civil, family law case. In
Criminal
    Lawyers Association
, the Supreme Court analyzed the role and jurisdiction
    of the court over
amicus

appointments and compensation in a
    criminal law context. Having said that, much of the discussion and analysis of
    the inherent jurisdiction of the court to appoint
amicus
 and the
    limits of that jurisdiction when it comes to fixing remuneration rates  may be
    equally applicable in the civil context. On the other hand, the ultimate remedy
    of a stay, whether imposed by the court as held by the majority of the Supreme
    Court, or by the Attorney General as suggested by the minority, would normally
    not be appropriate in a civil case where the Attorney General is not a party.

[36]

On this appeal, the issue is not the propriety of the
amicus

appointments at trial, which is the subject of the appeal before Koke J.
    when it goes ahead. The only issues for this court to resolve are the remuneration
    of
amicus
before the Superior Court, what is to happen when
    remuneration is not agreed, and whether one or two
amici

were required
    to provide responding submissions. I agree with both the trial judge and the
    appeal judge that the decision in
Criminal Lawyers Association
governs
    the approach and decision regarding these issues in the context of this appeal,
    which involves the Attorney General as a party.

[37]

In oral argument before this court, counsel for the Attorney General did
    not dispute the necessity of the appointment of
amicus

by the
    appeal judge to respond to the Attorney Generals appeal.
[1]
However, counsel maintained that one
amicus

would have been adequate
    to provide responding submissions, and that the
amicus

should
    have been selected from the list offered by the Attorney General. The appeal
    judge, as outlined above, rejected these submissions and imposed a stay
    conditional on mutual agreement on remuneration rates. I now turn to
    considering the merits of that order.

1)

Did
    the appeal judge err in holding that the Attorney General had an obligation to
    negotiate rates with amicus?

[38]

In my view, a careful reading of the majority decision in
Criminal
    Lawyers Association

makes it clear that the court imposed no
    obligation on the Attorney General to negotiate rates with
amicus
.

[39]

The majority recognized the power of a court to appoint
amicus
in appropriate circumstances. It acknowledged, however, that the court-appointed
amicus
may not be prepared to accept the compensation initially offered
    by the Attorney General, as occurred in this case. The majority judgment provides
    three guidelines relevant to such a situation  none of which impose an
    obligation on the Attorney General to negotiate rates with
amicus
.

[40]

First, the majority clearly stated that a court does not have the
    ability to force agreement between the parties by specifying a rate in order to
    secure the
amicus
counsel of its choice.

[41]

Second, the majority approved of the practice in Ontario where the
    Attorney General finds a number of qualified counsel who are willing to act as
amicus
at the rate offered by the Attorney General. The majority also discussed other
    programs the Attorney General could institute to either enhance the legal aid
    plan or to establish a separate regime for
amicus
.

[42]

Third, the majority held that if the
amicus
and the Attorney General
    are not able to agree on remuneration, and where the assistance of
amicus
is truly essential, then the courts only recourse is to impose a stay until
    [an appropriate] amicus can be found. (para. 75)  in other words, until
    another counsel can be found to act as
amicus
where it is truly
    essential to have
amicus
to assist the court.

[43]

At no point did the majority impose an obligation on the Attorney General
    to negotiate remuneration rates with court-appointed
amicus
. The
    majority did suggest that when a judge requires help and appoints
amicus
,
    the
amicus
and the Attorney General should meet to discuss rates and a
    mode of payment (para. 75). Unlike the minority, the majority does not state
    that the Attorney General should negotiate rates with the
amicus
in
    good faith. This is a significant, and in my view, clearly a deliberate
    departure from the approach taken by the minority.

[44]

In this case, although the Attorney General did not meet with the
    counsel who were appointed as
amicus
, there was correspondence about
    rates.
Amicus

counsel and the Attorney General were unable to reach
    an agreement. In my view, the Attorney General was not required to negotiate
    further with the appointed
amicus
, having fulfilled the expectation of
    the majority decision in
Criminal Lawyers Association
.

2)

Did
    the appeal judge err by ordering a stay of proceedings?

[45]

Criminal Lawyers Association

makes the remedy of a stay
    available to a judge in one set of circumstances: where the assistance of
amicus
is truly essential, the appointed
amicus
and the Attorney General
    cannot agree on a rate of remuneration, and there is no other recourse but to
    stay the proceedings until another appropriate
amicus
can be found.

[46]

The respondents submissions suggest that
Criminal Lawyers
    Association
recognized a
second
set of circumstances where a stay
    can be imposed: when the Attorney General refuses to negotiate with the
court
s
    choice of amicus, even when other appropriate

amici

are
    available.

[47]

I would reject those submissions. In this case, the circumstances
    necessary for a stay did not prevail. Although the appeal judges preferred
    counsel were not available because they would not work for legal aid rates, the
    majority decision in
Criminal Lawyers
makes clear that a court is not
    necessarily entitled to
amicus
of its choice where other appropriate
    counsel have been made available by the Attorney General.

[48]

For the purpose of the appeal to the Superior Court, the Attorney General
    provided three senior counsel with appellate experience from the family law bar
    in Ontario for the appeal judges consideration, in accordance with the
    practice that was acknowledged and approved by the majority in
Criminal
    Lawyers Association
In these circumstances, there was no basis for the
    court to order a stay.

3)

Did
    the appeal judge err by requiring two amicus to respond to the appeal?

[49]

In the special circumstances of this case, the trial judge required two
amici
, one on behalf of each unrepresented party, to maintain a proper
    adversarial process that would challenge the evidence presented by each side
    and allow the trial judge to decide the issues between them on the merits.
    However, that logic did not extend to the appeal of the
amicus
orders
    by the Attorney General. That appeal would not be concerned with the merits
    between the parties, but with the constitutional and policy issues surrounding
    the power to appoint
amicus
in a civil case at the expense of the
    Attorney General.

[50]

Applying the truly essential test, I can see no basis for the decision
    that two
amici
were essential to assist the appeal judge with the
    legal issues to be raised on the appeal. Similarly, while this court
    appreciates very much the assistance of the two
amici
who acted as responding
    counsel before this court, their submissions on the issues to be decided before
    the Superior Court were not in opposition in any way. Rather, they supported
    each other.

CONCLUSION

[51]

For the reasons given, I would set aside the stay, and remit the matter
    back to the appeal judge to consider the three
amicus
counsel proposed
    by the Attorney General who are prepared to act for legal aid rates, and
    appoint one to assist the court on the appeal.

[52]

The Attorney General requested that the matter be remitted to a different
    judge of the Superior Court, but did not provide supporting reasons. I see no
    basis for such an order.

[53]

As stated, the court is grateful for the assistance of
amicus
on this appeal.

Released: S.E.P. September 12, 2017

K. Feldman
    J.A.

I agree.
    E.E. Gillese J.A.

I agree.
    S.E. Pepall J.A.





[1]

All parties were co-operative in having the same two amicus
    assist this court on the appeal. For that purpose only, the two amicus counsel
    agreed to accept legal aid rates.


