On December 24, 2019, the Ontario Court of Appeal released its decision in the family law appeal Morwald-Benevides v Benevides, 2019 ONCA 1023, (Lauwers, van Rensburg and Roberts JJ.A.). This is an important decision clarifying the appointment of amicus curiae in private family law cases. A summary of the case can be found below.
Principles for the Appointment of Amicus in Private Family Law Cases
Notably, the Court set out a non-exhaustive list of principles for amicus appointments in these types of matters:
- The assistance of amicus must be essential to the adequate discharge of the judicial functions in the case. The stakes must be high enough to warrant amicus. This is a circumstantial determination within the trial judge’s discretion.
- A party has the right to self-represent. However, the trial judge is responsible for ensuring that the trial progresses reasonably.
- While amicusmay assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus.
- The authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances. 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.
- 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 party’s case would not be presented quite as effectively as it would be by counsel.
- It will sometimes, though very rarely, be necessary for amicusto 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.
The order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s The activities of amicusmust be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits.
The trial judge, a judge of the Ontario Court of Justice, made orders appointing counsel to represent Melinda Morwald-Benevides and Jeffery Benevides in their contentious family law dispute.
Morwald-Benevides brought an application for an order for custody of the couple’s three children, an order prohibiting access, or in the alternative, providing for supervised access to Benevides, and an order for spousal and child support. The difficult litigation –which involved allegations of abuse and alienation of the children-- was complicated by the fact that the respondent lived in Bermuda. In addition to logistical and scheduling issues, Benevides’ residence raised issues for grossing-up child support because of the 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 applicant also expressed concern over Bermuda’s record of compliance with the Hague Convention, and feared that her former spouse would not return the children to her after an access visit.
After dismissing five counsel, including Andrew Thomson, Morwald–Benevides decided to represent herself at trial. On the first day of trial, however, after Morwald-Benevides collapsed in the courtroom and had to be rushed to the hospital, the trial judge decided that the assistance of amicus was necessary. Describing Morwald-Benevides’ behaviour as “bordering on hysterical”, he felt not only that she was incapable of representing herself, but that he was unable to manage her in the courtroom on his own. Finding himself in a “crisis situation”, he appointed Thomson, who was familiar with his former client and with the issues of the case, as amicus, in order to “stabilize the proceeding”.
Midway through the trial, which stretched beyond its four-day estimate to a twenty-three day affair lasting over a year, the judge made a second amicus order appointing Bonnie Oldham as amicus for Benevides, immediately after permitting her to get off the record as his counsel for non-payment of fees.
The trial judge dismissed the Crown’s motion to set aside the amicus orders. The Crown then appealed to the Superior Court of Justice.
The appeal judge dismissed the Crown’s motion to set aside the amicus appointments and stayed the Crown’s appeal. The Court of Appeal set aside the appointments and remitted the matter to the appeal judge, who then appointed Sandra Meyrick as a single amicus. He went on to dismiss the Crown’s appeal of the trial judge’s decision appointing amicus.
By the time the Court of Appeal heard the Crown’s appeal from that decision, the appeal had become moot. The trial was completed with both amicus participating, and nothing substantive remained to be resolved.
The court nonetheless took the opportunity to provide guidance to trial courts about the appointment of amicus in private family law cases.
Writing for the Court of Appeal, Justice Lauwers set out a non-exhaustive list of principles or factors that have emerged in the jurisprudence with respect to the appointment of amicus curiae in private family law cases.
Lauwers J.A. noted first that the assistance of amicus must be “essential to the adequate discharge of the judicial functions in the case”. The stakes must be high enough to warrant amicus, a circumstantial determination within the trial judge’s discretion.
While a party has the right to self-represent, the trial judge is responsible for ensuring that the trial progresses reasonably. As Lauwers J.A. explained, there are situations in which the appointment of amicus might be warranted, such as when a self-represented party is “ungovernable or contumelious”, when he refuses to participate or disrupts the proceedings, or when he is “hopelessly incompetent” to conduct the case personally. Lauwers J.A. noted, however, that while amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus.
Justice Lauwers emphasized that the authority to appoint amicus should be used “sparingly and with caution”, in response to “specific and exceptional circumstances”. That one or both parties are self-represented is not, in itself, a sufficient reason to appoint amicus. 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 party’s case would not be presented quite as effectively as it would by counsel. Lauwers J.A. noted that only in rare cases would the assistance provided by the trial judge to an unrepresented party be insufficient to ensure trial fairness. Only then might the appointment of amicus be considered. In those rare cases, the specific duties of amicus may vary. The general role of amicus is to assist the court; if, however, the scope of amicus’s duties mirrors those of traditional counsel, care must be taken to address the issue of privilege.
Finally, Justice Lauwers emphasized that the order appointing amicus must be “clear, detailed and precise” in specifying the scope of amicus’s duties, and the activities of amicus must be closely monitored by the trial judge to ensure that amicus remains within the defined limits.
Having outlined the principles governing the appointment of amicus in private family law cases, Lauwers J.A. went on to consider the trial judge’s determination that the assistance of amicus was necessary in the circumstances of this case.
In Justice Lauwers’ view, the trial judge made a number of errors in arriving at this conclusion.
First, the trial judge erred by appointing Thomson, which immediately injected an adversarial element that was inconsistent with the impartial role of amicus. His later appointment of a second amicus was also in error, as a single amicus could have addressed the court’s questions about the complications stemming from Benevides’ residence in Bermuda. As Lauwers J.A. explained, a single amicus should almost always be able to satisfy the basic requirements of the court. Specifically, in the family law context, it is inappropriate to appoint two counsel as amicus to represent adversarial interests, as opposed to a single state-funded friend of the court. Justice Lauwers again emphasized that the fact that one party is represented does not justify the appointment of amicus for the other.
Lauwers J.A. also held that 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. The trial judge failed to do so in this case.
Finally, the trial judge prepared no litigation plan to guide the activities of amicus. As he noted earlier, Lauwers J.A. explained that an amicus appointment order should be as precise and detailed as possible in setting out the parameters of amicus’s role. The amicus appointment orders made in this case were improperly open-ended.
Therefore, had the appeal not been moot, it would have been allowed
 Morwald-Benevides v Benevides, 2019 ONCA 1023.
 Ibid at para 27.
 Ibid at para 28.
 Ibid at para 29.
 Ibid at para 30.
 Ibid at para 33.
 Ibid at para 33.
 Ibid at para 38.
 Ibid at para 39.