Andrew Thomson

This is the first known case in Canada wherein a trial judge in a family law proceeding appointed amicus curiae to represent both litigant parents and to assist the court on issues impacting the best interests of children.

The Attorney General brought a motion to set aside the amicus orders, arguing the court lacked jurisdiction and misapprehended the law of amicus curiae.

The trial judge appointed amicus for the mother due to her emotional instability, pattern of dismissing counsel, and inability to self-represent in a complex, high-conflict family law matter.

The trial judge subsequently appointed amicus for the father when his counsel sought to withdraw due to unpaid accounts and inability to continue.

The court dismissed the Attorney General's motion, finding the trial judge had jurisdiction to make the orders in the exceptional and unusual circumstances of the case.

The appellant father appealed a motion judge’s order granting the respondent mother sole temporary custody of the parties’ eight‑year‑old child after the mother relocated with the child from Kingston to Parry Sound.

The father argued the motion judge erred by finding he consented to or acquiesced in the relocation and by failing to treat the matter as a mobility case.

The court refused to admit fresh evidence, holding it failed the Palmer test because it could have been adduced earlier and would not have affected the result.

The court found no palpable and overriding error in the motion judge’s factual findings and concluded the decision appropriately focused on the child’s best interests and the disruption that a return to Kingston would cause.

The appeal was dismissed.