Court File and Parties

COURT FILE NO.: FS-15-51 DATE: 20160530 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Melinda Morwald-Benevides, Applicant AND: Jeffrey Mark Benevides, Respondent

BEFORE: E.J. Koke

COUNSEL: William Manuel and Chantal Blom, for Ministry of the Attorney General, as Intervenor, for Moving Party D. Andrew Thomson, as Amicus Bonnie C. Oldham, as Amicus

HEARD: April 29, 2016

Endorsement

motion to set aside the appointment of Amici on an appeal

Introduction

[1] This is a motion by the Attorney General of Ontario (the “AG”) to set aside the appointment by this court of two amici. The motion raises issues that impact on the constitutional relationship between the judiciary and other branches of government in our constitutional democracy.

[2] The motion is brought in the context of an appeal by the AG of a trial decision of the Ontario Court of Justice. During the course of the trial the trial judge made two orders appointing amicus curiae. Following the appointments, the AG brought an intervenor motion objecting to the appointments. The trial judge denied the motions and the AG has now appealed this decision to this court.

[3] Upon receipt and review of the Notice of Appeal, I concluded that the parties to the original proceeding before the Ontario Court had neither the interest nor the resources to respond to the appeal. In order to ensure that I had the benefit of full written and oral responding submissions, I appointed the same two amici who had been appointed to respond to the intervenor motion to assist the court with the appeal.

[4] In my decision appointing the amici I noted that my appointment was made without notice and without the benefit of submissions from either the AG or the two amici, and accordingly I invited representations concerning the appointments.

[5] The AG responded by bringing this motion for an order setting aside the appointment of the amici.

[6] For the reasons which follow, I am denying the relief requested in the motion and am ordering that the appeal be stayed. The stay can be lifted when the AG and the amici have negotiated a mutually acceptable rate of compensation for the amici, or pursuant to further order of this court.

Background

The Decision of the Trial Judge

[7] The original trial in the Ontario Court of Justice herein was a family law proceeding involving issues of support, custody and access of children. It took place over a 23 day period, commencing on April 11, 2014 and concluding in late June, 2015.

[8] 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 be 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.

[9] 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 exercising access in Canada.

[10] 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.

[11] 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.

[12] 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.

[13] 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 a micus 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.

[14] 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.

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

[16] Following submissions by counsel for the AG and by amicus counsel the trial judge confirmed his earlier ruling. This ruling is now the subject of the appeal herein.

Grounds for the Appeal of the Decision of the Trial Judge by the AG

[17] 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.

Reasons for the appointment of Amici to act on this Appeal

[18] In my reasons for appointing the two amici I noted that the issues raised by the AG in the appeal were significant, from both a policy and legal perspective. They involved jurisdictional and constitutional questions and I expected that the decision would likely have an impact on a developing area of the law.

[19] I noted as well that at this stage of the proceedings, with the trial completed, the named parties no longer had a need to respond to the AG’s appeal; nor did I expect that they had the financial resources to do so. It appeared to me that unless the court appointed counsel, the court would not have the benefit of responding submissions.

[20] I provided the following reasons for selecting these particular two individuals to act as amicus curiae:

(a) Both counsel had the benefit of many years of experience as practicing lawyers; they are also highly regarded among their peers for their hard work and professionalism.

(b) They were 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 were independent of the office of the AG, and therefore represented a credible buffer between the court and the AG.

[21] I authorized the two amici to file responding materials to the motion, and instructed and authorized them to make full and complete oral submissions at the hearing of the appeal.

Remuneration for the Amici

[22] With respect to remuneration for the amici, I noted in my decision that initially the AG refused to pay the amici to attend and make submissions at the intervenor motion in the Provincial Court. 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.

[23] I also noted that in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R.3 (“Criminal Lawyers”) the majority on the Supreme 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.

[24] I expressed my hope that the payment issues which arose in the context of the original intervenor motion could be avoided on this appeal. I encouraged the AG and the two amici to use their best efforts to agree on a fair rate of compensation. I also advised that I was prepared to provide them with guidance on this issue if they so requested, and I provided them with the following comments and observations:

a. It was implied by the Supreme Court in the Criminal Lawyers’ case that the rate of compensation be reasonable.

b. 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.

c. It is appropriate to take into consideration that the amicus is performing a public service paid for with public funds, and counsel could expect to be paid a rate which was less than his or her usual hourly rate. For cases which are more challenging or complex, or might 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.

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

Grounds for the Motion

[25] The AG has cited the following grounds for its motion:

a. The amici who have been appointed by the court expect to be paid more than the legal aid rate. The AG has established a policy that it will pay no more than the legal aid rate to an amici. The AG has identified three qualified lawyers who are independent of the Crown and willing to act as amicus at rates agreeable to the Crown;

b. The court does not require two lawyers to assist it. One qualified lawyer will be able to provide the Court with the assistance it requires given the narrow issues on appeal and limited appeal record;

c. The applicant mother has retained counsel and will be seeking leave to intervene on the Crown’s appeal;

Analysis

1. The Funding Issue

Position of the Parties

[26] The amici submit that it is incumbent on the office of the AG to negotiate a fee with them which is fair and reasonable. They acknowledge that there are public interest considerations which should be taken into account and they are prepared to accept an hourly rate which is substantially lower than their normal rate. Mr. Thomson’s usual hourly rate is $350 per hour and he is prepared to accept a rate of $250.00 per hour. Ms. Oldham’s usual hourly rate is $345.00. She is prepared to reduce this amount to $200 an hour.

[27] The amici point out that because of their earlier involvement at the trial, the AG will realize considerable savings if they are retained. They are already acquainted with the factual matrix of the trial and have previously argued the issue of whether they should be retained as amici before the trial judge. Furthermore, they both practice in Parry Sound (as compared to the three potential amici identified by the AG who practice in the Toronto area) and therefore the AG will not have to incur travel and accommodation expenses. Also, they are in possession of the transcripts of the entire trial proceedings, transcripts which will cost other counsel many thousands of dollars.

[28] The AG does not argue that the rate requested by the amici is unfair or unreasonable. It submits instead that the AG has a strict policy that it will pay no more than the legal aid rate to an amicus. It can provide to the court a list of lawyers who are prepared to act as amicus for legal aid rates (the “list”) and has provided the names of three lawyers from this list who it submits have the necessary qualifications to assist in this case.

[29] The AG has not entered into negotiations with the amici. It argues that it has no legal obligation to do so, even in circumstances where the amicus has already been appointed by the court.

[30] According to the AG, if an amici who has been appointed by a judge is not prepared to accept the legal aid rate then the court is compelled to choose a different amicus who is prepared to work for this rate.

Requirement to Negotiate

[31] The Criminal Lawyers’ Case was decided by a 5-4 margin. Karakatsanis J. wrote the majority decision and Fish J. wrote for the minority.

[32] The question which the Supreme Court was asked to answer in the Criminal Lawyers’ case was whether a courts’ inherent or implied jurisdiction extended to fixing the rates of compensation for amici curiae.

[33] The majority answered this question in the negative and the minority in the affirmative.

[34] Although they answered the main question differently, in my view both the majority and the minority contemplated that some form of negotiations should take place between the AG and the amicus in determining the rate to be paid to the amicus.

[35] At paragraph 75 and 76 of the decision Karakatsanis J. stated for the majority:

75 In those exceptional cases where Charter rights are not at stake but the judge must have help to do justice and appoints an amicus, the person appointed and the Attorney General should meet to set rates and mode of payment.

76 In the final analysis, if the assistance of an amicus is truly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge's only recourse may be to exercise her inherent jurisdiction to impose a stay until the amicus can be found. If the trial cannot proceed, the court can give reasons for the stay, so that the responsibility for the delay is clear.

[36] Fish J. suggested the following more detailed procedure at paras. 132 – 135 in the minority decision:

132 Once a trial judge names and defines the role of an amicus curiae -- with or without the assistance of the parties -- a consensual approach ought to be favoured. This approach would invite the Attorney General and the amicus to meet and agree on the rate of remuneration and on the administration of the budget.

133 Both parties should negotiate in good faith and with due regard for their respective obligations to the judicial process: Attorneys General should consider their duty to promote the sound administration of justice and amici curiae should keep in mind both the element of public service inherent in their role and the "privilege of belonging to a profession that is not simply a business": Ontario v. Figueroa (2003), 64 O.R. (3d) 321 (C.A.), at para. 28.

134 The provincial Attorney General and the amicus should be given a limited time to negotiate based upon the state of proceedings and the urgency of the appointment. In general, negotiations should be given as little time as is practicable. Any dispute regarding remuneration should be resolved expeditiously, in a manner that does not delay, much less derail, the proceedings. Moreover, the amicus should not be permitted to hold proceedings hostage by extending negotiations in order to secure more generous compensation.

[37] As I see it, the main difference between the two approaches is that the minority was of the view that if a stalemate was reached between the AG and the court appointed amicus, then the court should decide the rate of compensation, whereas the majority favoured an approach whereby the action was stayed, “until the amicus can be found”. However, both approaches contemplated that some form of negotiations should take place between the parties before such steps were taken by the court.

[38] In this case, the AG refuses to negotiate with the 2 amici. It argues that paragraphs 75 and 76 of the Criminal Lawyers’ case should be interpreted to mean that a judge must select a candidate from the list if the amicus appointed by the court refuses to work for the legal aid rate.

[39] In my view, the AG’s policy of fixing the rate for all appointments at the legal aid rate ignores the direction from the Supreme Court that the AG must engage in negotiations with the amicus.

The Need for a Flexible Approach

[40] The mandate to negotiate implies that the AG should adopt a flexible policy in setting rates for amici. There is no need to negotiate if the rate has been pre-determined.

[41] There are many factors which a judge may wish to consider in selecting an amicus. These include factors such as the nature and complexity of the issues to be decided by the court, the anticipated length of the trial, the benefit of appointing counsel with prior involvement in the case, scheduling and conflict issues, the qualifications or particular expertise of the amicus, the needs of children and the risks to them if an appointment is not made expeditiously, and the judge’s prior dealings with counsel.

[42] In my view, if a judge is to give consideration to the above factors in selecting an amicus, the choice of amicus cannot be limited by a policy which necessarily requires the judge to restrict his or her selection to an amicus who is prepared to work for legal aid rates.

[43] In many cases the legal aid rate may very well constitute a fair and acceptable rate. For example, in circumstances where a court appointed amicus is expected to perform essentially the same services as a defence counsel who is funded by legal aid there may be good policy reasons for insisting that the amicus accept the same rate of pay as a defence counsel. This was the argument made by the AG in the Criminal Lawyers’ case. However, this does not mean that a legal aid rate is fair and reasonable in all cases in which a court deems it necessary to appoint an amicus.

[44] The role of the amici who have been appointed to assist with this appeal is fundamentally different than the role of the counsel who were the subject of the Criminal Lawyers’ appeal. The amici in the Criminal Lawyers’ case had been directed to assume a role akin to that of counsel for a party. In contrast, the amici in this case have been appointed to provide assistance directly to the court in relation to certain disputed legal issues. They will likely have little or no communication with the named parties. They have not been asked to participate as trial counsel, but to provide submissions in relation to an appeal. The reason they have been selected is because the court has deemed that they are uniquely qualified to assist the court due to their experience, qualifications and prior involvement in the case.

[45] There may often be very sound juridical and practical reasons why a court selects a particular lawyer to act as amicus in a given case. In my view, if these reasons are clearly articulated by the court, as I have attempted to do in this case, then the AG should attempt to negotiate a mutually acceptable rate with the proposed amicus, even if this rate exceeds the legal aid rate. Refusing to do so unnecessarily impedes the court in the exercise of its judicial role.

[46] At paragraph 73 of the Criminal Lawyers’ case the Supreme Court suggests that the policy of the Province may include the creation of a roster or list of qualified counsel who are prepared to act at the rate offered by the Attorney General. In my view, this suggestion refers to the selection of amici who are referred to in the Criminal Lawyers’ case as amici appointed “to assist, but not act for the unrepresented accused”… in other words amici whose roles are the same as those who were the subject of the appeal in that case.

[47] In many cases a court should not have an objection to selecting a lawyer from such a list, particularly in those cases where the amicus is appointed to undertake a role similar to that of trial counsel. In fact, I can see that in many situations the existence of such a roster of available amici would be a convenient way to identify a suitable candidate.

[48] There are cases however where the court should not be expected to select an amicus from such a list. These include situations where the court has clearly expressed its preference for a particular amicus. There will also be situations where the list does not include lawyers who have the required qualifications, or it would be impractical for the court to appoint them.

[49] For example, I have reviewed the credentials of the three lawyers who have been identified by the AG as suitable to assist the court in this case. All three practice primarily in the area of family law. The issues in this appeal however are constitutional and jurisdictional and there is no evidence before me that they are qualified to act in relation to this appeal.

[50] What also adds to the difficulty of selecting one of these three amici is that all three practice law in the Greater Toronto Area, which is at least a five hour round trip from Parry Sound. I would be surprised if counsel who are paid legal aid rates would be prepared to travel such a considerable distance to act as amici.

[51] Finally, if I accept the position of the AG that it is incumbent on me to select amici from its list, presumably I would have to find a way to vet the list in order to locate a qualified candidate. I do not believe that judicial resources should be expended to carry out such a process, particularly in circumstances where the court has already selected a qualified amici who is prepared to negotiate a reasonable rate of remuneration.

Summary: The Funding Issue

[52] In the Criminal Lawyers’ case the Supreme Court held that it is within the jurisdiction of the Province to set the fees payable to amici. However, in deciding this jurisdictional issue, the court also contemplated that the fees which would be paid to an amicus would be the subject of negotiations between the AG and the amicus.

[53] The mandate by the Supreme Court in the Criminal Lawyers’ case that directs the parties to negotiate suggests that the policy established by the Province should be a flexible policy, which takes into consideration the unique circumstances of the case.

[54] It is my view that the existing policy, which restricts the choice of amicus to an amicus who is willing to work for legal aid rates, unduly weakens the courts’ appointment power.

2. The Appointment of More Than One Lawyer

[55] The AG objects to the appointment of two lawyers to assist the court, submitting that one lawyer is sufficient.

[56] As I pointed out above under the heading “The Decision of the Trial Judge”, the trial judge made two orders, at separate times, appointing amicus. He articulated different reasons for each appointment. During the intervenor motion the appointed counsel were requested by the court to make responding submissions with respect to their respective appointments. These same counsel have now been requested by the court to make responding submissions on their respective appointments in relation to this appeal. They are already acquainted with the underlying facts and circumstances in relation to their appointments.

[57] I see no compelling reason to set aside my order appointing two amici on this appeal and I decline to do so.

3. The Appointment by the Mother of a Lawyer

[58] The applicant submits that the mother has now retained counsel and will be seeking leave to intervene on the Crown’s appeal.

[59] A review of the file reveals that the mother has appealed the decision of the trial judge. One of the grounds for her appeal is that the appointment of amicus by the trial judge breached the principles of natural justice and interfered with her right to procedural fairness and her Charter rights.

[60] As I see it, the mother is taking a position that supports the position of the AG, namely that the appointments should not have been made. Assuming she receives leave to intervene, I do not believe her involvement will provide the required assistance to the court.

[61] In the circumstances, the motion also fails on this ground.

Decision

[62] For the above reasons, this motion brought by the AG fails. The court appointed amici and the office of the AG have failed to reach a fee arrangement in this case. Therefore I find it necessary to issue a stay in this proceeding.

E.J. Koke Date: May 30, 2016