In what has variously been described as a ‘ground breaking case’, and a ‘first in Canada’, a judge of the Ontario Court of Justice has made amicus curiae orders appointing counsel to represent both parents in a highly-charged family law case, and to assist the court on a variety of issues, including the best interests of the children. After the orders had been made, the Attorney General for Ontario sought leave to intervene, arguing that the orders should not have been made and that the judge had misapprehended the law of amicus curiae..
Justice Keast was faced with a high-conflict custody and access dispute. Both parties had been through multiple lawyers each and, at the time the orders were made, were self-represented. It was clear that neither party would be able to represent themselves at the then-upcoming trial, which was scheduled for 23 days. The issues at the trial were complex. The father resided in Bermuda, and there were issues regarding abduction of the children, and exercising access in Bermuda. The mother had alleged extensive abuse to both her and the children. The mother had taken numerous steps to prevent the trial from proceeding, had dismissed five previous lawyers and refused to be in the same courtroom as the father out of fear. On the first day of trial, she became ‘borderline hysterical’, collapsed in the courtroom and had to be rushed to hospital by ambulance.
In very general terms, an amicus (latin for ‘friend of the court’) is a person, or a group, who are appointed by the court to assist in providing information to the court regarding the subject matter of the litigation , but are not party to the case. He found that the appointment of amicus was within the discretion of a trial judge, but that the power to appoint has a very high threshold. He found that they should only be appointed ‘in response to specific and exceptional circumstances’. He found that while the role of amicus is to provide assistance to the trial judge, they can be appointed in a role that mirrors that of personal counsel to a party. However, caution must be exercised in such circumstances to ensure that their role remains in assisting the court.
Justice Keast held:
The issues in this case were varied and most complex, as already pointed out. Even an emotionally stable person could not have effectively managed them. I would have been left in a significant deficit position to adjudicate on the best interests of the children.
I needed assistance in a significant way. This case was not remotely close to the garden variety case as mentioned by the Supreme Court of Canada, wherein an amicus order should not be routinely made. 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 could make findings of facts and credibility – which would then allow me to effectively adjudicate on the best interest test.
I am satisfied the high threshold require to make an amicus curiae order has been met. This case constitutes exceptional circumstances
If you are involved in a high-conflict custody or access case, or require any family law assistance, contact the experienced family law team at Devry Smith Frank LLP.