SUPERIOR COURT OF JUSTICE

Parry Sound Registry No. FS-15-51

DATE: 2015·XI·23

BETWEEN:

MELINDA MORWALD-BENEVIDES,

Applicant,

— AND —

JEFFERY MARK BENEVIDES,

Respondent.

Before Justice Edward J. Koke

Heard on 23 November 2015

Endorsement inscribed on 23 November 2015

Chantelle A. Blom and Jeremy Glick ................ for the Ministry of the Attorney General for Ontario

D. Andrew Thomson ..................................................... amicus curiae counsel on behalf of applicant

Bonnie C. Oldham ............................................................. amicus curiae counsel for the respondent

For previous proceedings, see:

Ontario is proper jurisdiction for determination of child support: Morwald-Benevides v. Benevides, 2014 ONSC 699, 44 R.F.L. (7th) 432, [2014] O.J. No. 444, 2014 Cars­well­Ont 1128 (Ont. S.C.), per Justice J. Stephen O’Neill; and

appointment of amici curiae to represent the litigant parents: Morwald-Benevides v. Benevides, 2015 ONCJ 532, 127 O.R. (3d) 165, 389 D.L.R. (4th) 348, [2015] O.J. No. 5064, 2015 Cars­well­Ont 14834 (Ont. C.J.), per Justice John D. Keast.

JUSTICE E.J. KOKE (endorsement):—

1: INTRODUCTION

[1] During the course of the trial in this family law application, the trial judge made two orders appointing counsel as amicus curiae. The Attorney General (“AG”) objected to the appointments and brought an unsuccessful intervenor motion to set aside the appointments. The AG brings this motion appealing the decisions of the trial judge to appoint the amici.

[2] For the reasons that follow, this court appoints amici to assist with respect to this appeal.

2: BACKGROUND

[3] The trial herein took place over a 23-day period, commencing on 11 April 2014 and concluding in late June 2015.

[4] The trial judge reported that the proceeding was highly fractious and involved complex legal and jurisdictional issues. The father is a resident and citizen of Bermuda. One issue dealt with access of the father in Bermuda, with the mother taking the position that the children would he abducted if the father was permitted visits in that country. The mother filed materials to indicate that courts in Bermuda have a poor compliance with the Hague convention. The mother also alleged domestic violence and the father alleged parental alienation.

[5] Child support issues were also complicated and included issues pertaining to gross-up because of the different tax treatment of the father’s income in Bermuda and the high cost of the father’s exercising access in Canada.

[6] There were also logistical issues. The mother alleged that she was fearful of the father and did not want to be in the same courtroom with him or give evidence with him in the courtroom. The court was asked to explore the possibility of integrating the courts in Bermuda with the Ontario Court of Justice in Parry Sound, with a view to strengthening compliance with the Hague Convention.

[7] Prior to trial, the mother had dismissed 5 lawyers. The trial judge reported that before the trial even commenced, a pattern had developed by the mother of seeking to delay the proceedings and he concluded that the mother did not want to proceed to trial.

[8] The trial opened with the mother self-represented. According to the trial judge, on the first morning of trial, the mother’s behavior bordered on the hysterical. She later collapsed in the courtroom and was taken to the hospital by ambulance.

[9] The trial judge decided to appoint amicus curiae to represent the mother during the trial. His reasons for doing so are summarized as follows at paragraph [70]-[74] of his decision:

[70] 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.

[71] Aside from the complexities of findings of facts and credibility, this case had complex legal issues. As a matter of law, what is required to terminate access to a parent or to direct permanent supervision of access? What are the legal requirements for parental alienation? What is the law of Bermuda as such relates to an application in the Bermuda courts under the Hague Convention? What are the legal principles for grossing up child support because of different tax treatments of income in different jurisdictions? What are the legal principles for the deductions from child support of travel expenses to facilitate access? The mother would not have been able to assist me, even if she was emotionally stable.

[72] I knew at the time I made the amicus order that it was likely I would be ordering a psychological assessment. The mother was strongly against this and would not appreciate the legal principles in settling the terms of an order or the requirements in the order by a psychologist.

[73] With the father represented and the mother now unrepresented, there would be a significant imbalance wherein the father’s evidence would not be properly tested, whereas the mother’s would; leaving me in a deficit position on the material facts and legal issues.

[74] I am satisfied that the high threshold required to make an amicus curiae order has been met. This case constitutes exceptional circumstances.

[10] The decision by the trial judge to appoint a second amicus to act on behalf of the father was in response to a motion by the father’s counsel to be removed from the record. His reasons for appointing the father’s lawyer to act as amicus curiae are set out as follows in paragraphs [81]-[87] of his reasons:

[81] It appeared that she had a sound basis for being removed from the record, given the substantial increase in the expected trial time, which she could not have reasonably expected to know when discussing fee arrangements with her client.

[82] Letting her off the record would greatly destabilize the trial especially with her client being a foreign resident. It was doubtful that he could carry on litigation of this magnitude from a foreign country. Given what I learned about his finances, it was doubtful that he would be able to retain another counsel.

[83] Not letting Ms. Oldham off the record would have forced her to proceed on a pro bono basis. Conducting a matter of this magnitude on a pro bono basis would not have been fair and would have added another layer of tension to an already difficult trial. Given the role Ms. Oldham plays in the local administration of justice, I was not prepared to do this.

[84] Adjourning to ascertain whether the father qualified for legal aid was not an option. I was confident he would not qualify. His income was too high, he owned property in Bermuda and he had no legal status in Canada.

[85] The decision to appoint amicus for the father was influenced by the reasons to appoint amicus for the mother. The two are connected. I could not consider the father’s situation independent of the mother. Without counsel for the father, there would have been an imbalance in testing the evidence in the way I required. A lopsided situation, whether it is from the mother’s perspective or the father’s, would not have been of assistance to me. Although the father was being benefited, there is a nexus between that benefit and the assistance I required.

[86] So I focused on my needs, already articulated which have not changed. Though the father did not have the emotional volatility of the mother, he could not have self-represented on a complex case such as this. I needed the adversarial system in order to properly test the evidence, not only from the perspective of the mother, but also from the perspective of the father. Further I needed a counsel for the father to deal with the courts in Bermuda.

[87] The decision to appoint amicus for the father was for the purpose of stabilizing the proceeding, preventing delay and ensuring a fair trial process.

[11] In the intervenor motion, the AG argued that the court had exceeded its jurisdiction in granting the orders.

[12] Following submissions by counsel for the AG and by amicus counsel, the trial judge confirmed his earlier ruling appointing the two amici for the duration of the trial. This ruling is now the subject of this appeal.

3: GROUNDS FOR THIS APPEAL

[13] The grounds for the appeal as set out in the notice of appeal can be summarized as follows:

(a)

The two amici were appointed for the primary purpose of acting as counsel for the parties. This constituted an improper exercise of the court’s jurisdiction.

(b)

The corresponding orders that the AG fund amici whose purpose was primarily to act as counsel for the parties improperly infringed upon the AG’s role in the administration of justice.

4: APPOINTMENT OF AMICUS COUNSEL TO ACT ON THIS APPEAL

[14] The issues that are raised by the AG in this appeal are significant, from both a policy and legal perspective. They involve complex jurisdictional and constitutional questions and I expect that the decision of the court will have an impact on a developing area of the law.

[15] At this stage of the proceedings, with the trial completed, the named parties no longer have a need to respond to this appeal; nor do they have the financial resources to do so. It would appear that, unless the court appoints counsel, the court will not have the benefit of responding submissions.

[16] In my view, the court requires full and complete responding submissions from learned and experienced counsel in order to make an effective, just and fair decision in this appeal. I find that the circumstances are such that counsel should be appointed by the court to respond to the motion.

[17] I have decided to request the two amici who were appointed to assist during the trial to continue to act as amici on this appeal. My reasons for appointing them include the following:

(a)

Both counsel come before the court with the benefit of many years of experience as practicing lawyers; they are highly regarded among their peers for their hard work and professionalism.

(b)

They are already familiar with the factual matrix underlying the motion, as well as many of the legal issues; there are efficiencies to be realized in retaining the same counsel.

(c)

They are independent of the office of the AG, and therefore represent a credible buffer between the court and the AG.

[18] I am directing the amici to file responding materials to the motion, and they are instructed and authorized to make full and complete oral submissions at the hearing of the appeal.

5: REMUNERATION FOR AMICI

[19] Initially, the AG refused to pay the amici to attend and make submissions at the intervenor motion. In response to this refusal, the two amici offered to appear on the motion on a pro bono basis, which they did. The judge then requested them to bill the AG in any event and eventually the motion accounts were paid.

[20] In Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, 447 N.R. 111, 308 O.A.C. 347, 363 D.L.R. (4th) 17, 291 C.R.R. (2d) 265, 300 C.C.C. (3d) 137, 4 C.R. (7th) 1, [2013] S.C.J. No. 43, 2013 Cars­well­Ont 10507, the Supreme Court held that the rates of pay for amici are to be determined by the provinces. The court ruled that the person appointed and the Attorney General should meet to set rates and modes of payment. Although the judge may be consulted, and can play a persuasive role in setting the rate of remuneration for an amicus, the court should not make binding orders regarding payment. If the rate of compensation cannot be amicably resolved between the amicus and the AG, then the judge’s only recourse may be to exercise his jurisdiction to impose a stay.

[21] Hopefully, the payment issues that arose in the context of the original intervenor motion can be avoided on this appeal. I encourage the AG and the two amici to use their best efforts to agree on a fair rate of compensation. I am prepared to provide them with guidance on this issue if they so request. At this time, I take liberty of making the following comments on the payment issue.

[22] In my view, it was implied by the court in the Criminal Lawyers’ case that the rate of compensation be reasonable.

[23] In determining a reasonable rate, the importance of the assignment being undertaken, the legal complexity of the work, the skill and experience of counsel and counsel’s usual hourly rate are all relevant considerations.

[24] It is appropriate to take into consideration that the amicus is performing a public service paid for with public funds and counsel can be expected to be paid a rate that is less than his or her usual hourly rate. In some cases, it may also be appropriate to take into account the legal aid rate but, as a rule, the court should not be placed in the same category as an impecunious party. For cases that are more challenging or complex, or may be expected to have broader policy implications or contribute to the further development of the jurisprudence, the rate should not be so low as to effectively impede the ability of the court to select the most appropriate candidates to assume the role of amici; to do so could have the effect of infringing on the jurisdiction of the court to appoint counsel.

[25] In this case, the AG is the moving party on the motion. The AG is also being called upon to fund the amici who will be responding to its motion. In these circumstances, there is a risk that the failure of the AG to agree to a reasonable rate of compensation for the amici can have the effect of undermining public confidence in the overall administration of justice.

6: CONCLUDING REMARKS

[26] This decision to appoint amici is made by the court on its own initiative, with a view to ensuring that the appeal proceeds in a timely and orderly manner. Although the court has confirmed with the two amici that they are prepared to serve in this capacity, the court has not had the benefit of submissions from either the AG or the two amici. In the event that counsel wish to make representations to me concerning these appointments, they can do so by contacting the trial co-ordinator within the next 30 days and scheduling a hearing.