Sandra J. Meyrick

In a highly contentious family law matter involving child custody and support, the trial judge appointed two amicus curiae—one for the self-represented mother and one for the father after his counsel withdrew due to non-payment of fees.

The Crown appealed the amicus appointments.

Although the appeal became moot when the trial concluded with both amicus participating, the Court of Appeal issued a comprehensive judgment establishing principles governing amicus appointments in private family law cases.

The court held that the trial judge erred in principle by appointing the mother's former counsel as amicus (injecting adversarial elements inconsistent with amicus's impartial role) and by appointing a second amicus (contrary to principle in family law contexts).

The court emphasized that amicus appointments should be rare, essential to adequate discharge of judicial functions, and subject to clear, detailed orders specifying the scope of duties.

This appeal concerned the trial judge's decision to appoint two amici curiae in a highly contentious and complex family law trial involving interjurisdictional issues.

The applicant mother was self-represented and exhibited emotional instability, while the respondent father's counsel was removed due to lack of funds.

The Attorney General of Ontario, as intervenor, moved to set aside the amici orders, arguing they constituted a de facto appointment of state-funded counsel.

The trial judge dismissed that motion, and this court upheld that decision.

The court found the appointment of amici was essential for the judge to discharge judicial functions, stabilize proceedings, and ensure a fair trial, consistent with established legal principles.

The amici's roles were distinct from traditional counsel, as they could not be dismissed by the parties and were not obligated to follow their instructions, primarily serving the court's needs.

The applicant father sought joint custody and increased access, while the respondent mother sought sole custody, opposed increased access, and requested a change of the children's surname, retroactive child support, and special expenses.

The court granted joint custody, maintained the current access schedule for one year with leave to reapply for increased access, ordered the children's surname to be hyphenated (Cuthbert-Nolis), and partially granted retroactive child support and special expenses based on imputed income for a period of the father's intentional unemployment.

The court found both parents' credibility suspect due to mutual animosity and exaggeration.

The respondent amicus brought a motion for leave to include the trial judge's final decision as fresh evidence in the appeal record, and for leave to serve the respondent with appeal documents by email.

The Ministry of the Attorney General, appealing the trial judge's earlier refusal to set aside the amicus appointments, opposed the fresh evidence request.

The court granted the uncontested request for email service.

However, applying the Sengmueller test, the court dismissed the request to admit the trial decision as fresh evidence, finding it would not likely be conclusive of an issue in the appeal.

The applicant mother was arrested and removed from her home following an altercation with the respondent father, who claimed she assaulted him.

The mother brought an urgent motion to dispense with a case conference, seeking exclusive possession of her solely-owned home and temporary sole custody of their one-year-old child.

The court found that the circumstances, including the mother's removal from her home and separation from her child based on an uncorroborated complaint, justified dispensing with the case conference.

The court granted the mother exclusive possession of the home, finding the father's constructive trust claim unsubstantiated, and awarded her temporary sole custody of the child with a detailed access schedule for the father.