Morwald-Benevides v. Benevides

Ontario Reports Ontario Superior Court of Justice Koke J. February 19, 2019 146 O.R. (3d) 472 | 2019 ONSC 1136

Case Summary

Family law — Practice — Amicus curiae — Mother choosing to represent herself at trial in highly contentious and complex family law case — Father's lawyer removed from record part way through trial — Trial judge not erring in appointing amici to assist with presentation of parties' cases — Parties not having ability to dismiss amici — Amici not required to follow parties' instructions — Appointment of amici not constituting de facto appointment of state-funded counsel for parties.

The applicant brought an application for custody of the parties' three children, an order prohibiting access to the respondent or in the alternative for supervised access, and an order for spousal and child support. The respondent lived in Bermuda, and the case generated complex issues, including interjurisdictional issues of both a procedural and substantive nature. The matter was highly contentious. The applicant decided to represent herself at trial. The trial judge described her behaviour on the first day of trial as bordering on hysterical. She collapsed in the courtroom and was rushed to hospital before noon, and her brother attended court on her behalf in the afternoon. The trial judge decided to appoint an amicus to assist with the presentation of the applicant's case. He appointed a lawyer who had previously acted for the applicant, who had discharged five lawyers. Part way through the trial, the respondent ran out of money and his lawyer was removed from the record. The trial judge appointed that lawyer as amicus to assist with the presentation of the respondent's case. The Attorney General of Ontario, an intervenor, brought a motion to set aside the amici orders.

Held, the motion should be dismissed.

The appointment of amici is a question of mixed fact and law, and the standard of review is palpable and overriding error.

The trial judge's decision to appoint the two amici was consistent with established legal principles. Clearly, he required assistance with the interjurisdictional legal issues which he would have to consider in deciding the case. He also required counsel who could involve themselves in such a way that the contentious evidence [page473] could be properly tested, who could control the applicant's behaviour and serve as a buffer between her and the respondent, who could communicate with the courts in Bermuda if necessary and who could provide assistance to him in stabilizing the proceedings. The appointment of amici did not constitute a de facto appointment of state-funded counsel for the parties. The parties could not dismiss the amici, and the amici were not obligated to follow the parties' instructions. The trial judge's decision to appoint amici was owed deference.

Ontario v. Criminal Lawyers' Association of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43; R. v. Stilla, [2013] O.J. No. 1732, 2013 ONSC 2197, 107 W.C.B. (2d) 95 (S.C.J.), consd

Other cases referred to

Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33; R. v. Imona-Russell, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43; R. v. LePage, [2006] O.J. No. 4486, 217 O.A.C. 82, 214 C.C.C. (3d) 105, 71 W.C.B. (2d) 748, 2006 CarswellOnt 6987 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 24(1)

MOTION to set aside orders appointing amici.

Baaba Forson and Nikita Rathwell, for Ministry of the Attorney General, as third party intervenor for moving party. Sandra J. Meyrick, as amicus for responding party.

KOKE J.: —

Introduction

[1] This is an appeal by the third party intervenor, the Ministry of the Attorney General, of a decision by the trial judge to appoint two amici during the course of the trial.

[2] The applicant mother, Melinda Morwald-Benevides, commenced her application herein on May 15, 2012, requesting an order for custody of the three children of the marriage, an order prohibiting access or in the alternative supervised access to the respondent father, and an order for spousal and child support.

[3] The interim stage was highly litigious and involved numerous court appearances. The case generated complex issues, including inter-jurisdictional issues of both a procedural and substantive nature. The father lived in Bermuda and mother's position was that the father should not have access in Bermuda because courts in that country have a poor record of compliance with the Hague Convention. In addition to logistical and scheduling issues, the father's residence in Bermuda also raised issues which required an understanding of the legal principles for grossing up child support because of different tax treatment of income in different [page474] jurisdictions, deductions for child support and for travel expenses to facilitate access. The father argued that the mother was alienating the children from him. The trial was originally scheduled for four days and commenced in the Ontario Court of Justice on April 11, 2014. The trial ended up being conducted on the installment plan, lasting 23 days and was finally completed in late June 2015.

[4] The mother decided to represent herself at trial. She brought a motion at the commencement of trial for an adjournment on the basis of medical grounds, tendering two letters from her physician. Her motion for an adjournment was denied.

[5] The trial judge described the mother's behavior on the first day of trial as bordering on the hysterical. Just before noon she collapsed in the courtroom and was rushed to hospital by ambulance. In the afternoon her brother attended at court on her behalf. The trial judge then decided to appoint an amicus to assist with the presentation of the mother's case. He appointed as amicus a lawyer who had previously acted for the mother and was familiar with the mother and with the issues (the "April 11, 2014 amicus order"). His endorsement stated that he appointed "a counsel to assist the court in relation to the interest of the applicant". His formal order provided that amicus was "to assist the Court in making decisions that relate to the best interests of the children".

[6] Eventually, the father ran out of money and part way through the trial his lawyer brought a motion to be removed from the record, which was granted.

[7] Following his order to permit the father's lawyer to be removed from the record the trial judge appointed a second amicus, to assist with the presentation of the father's case. The trial judge appointed as amicus the lawyer who had just been removed as lawyer of record for the father (the "June 11, 2014 amicus order"). His endorsement stated that he was making an amicus order in favour of Mr. Benevides "in the usual form".

[8] After the appointment of the amici the Attorney General of Ontario (the "Attorney General") brought an intervenor motion before the trial judge to set aside the amici orders.

[9] The Attorney General agreed that the trial could proceed and the motion would be argued at a later date. The two counsel would be paid at the legal aid rate, without prejudice to the Attorney General's motion to set the orders aside and subsequent appeals in relation thereto.

[10] The motion by the Attorney General was heard on September 3, 2014. On September 29, 2015, the trial judge released [page475] comprehensive reasons in support of his order denying the motion. This is an appeal from that decision.

Standard of Review

[11] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, the Supreme Court of Canada outlined the relevant considerations in determining the standard of review for questions of mixed fact and law. While the court makes specific reference to negligence, the ruling applies generally to all questions of mixed fact and law. The court stated as follows, at paras. 36-37:

To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact". Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

. . . In our view, it is settled law that the determination of whether or not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed fact and law. This question is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law.

[12] In R. v. Imona-Russell, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43, also referred to as Ontario v. Criminal Lawyers Association of Ontario, the Supreme Court of Canada outlined the test a trial judge must apply when deciding whether to appoint amici. The court stated as follows, at paras. 47-48:

Thus, orders for the appointment of amici do not cross the prohibited line into the province's responsibility for the administration of justice, provided certain conditions are met. First, the assistance of amici must be essential to the judge discharging her judicial functions in the case at hand. Second, as my colleague Fish J. observes, much as is the case for other elements of inherent jurisdiction, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances (para. 115). Routine appointment of amici because the defendant is without a lawyer would risk crossing the line between meeting the judge's need for assistance and the province's role in the administration of justice. [page476]

So long as these conditions are respected, the appointment of amicus avoids the concern that it improperly trenches on the province's role in the administration of justice.

[13] Based on these considerations, it is my view that the appointment of amici is largely fact specific while also based on a specific legal standard. This is therefore a question of mixed fact and law. Also, in my view when a judge appoints an amicus the legal issue is especially difficult to extract from the factual determination so this determination falls on the more deferential end of the spectrum. As stated, unless the trial judge made an error as to the applicable legal standard, the standard of review is palpable and overriding error.

[14] The only case that I was able to find that directly acknowledges the applicable standard when appointing an amicus is a criminal appeal from Pierce J.: R. v. Stilla, [2013] O.J. No. 1732, 2013 ONSC 2197, 107 W.C.B. (2d) 95 (S.C.J.). Pierce J. finds, at paras. 6-9, that the trial judge's decision to appoint an amicus is a decision of mixed fact and law that is owed deference. While this decision predates the Supreme Court of Canada's ruling in Imona-Russell by a few months, I believe that it is still applicable and conforms to the Supreme Court's analysis on amicus orders.

Background and Context of Proceedings

[15] In addressing the reasons why he chose to appoint the first amici the trial judge begins by providing comprehensive information about the background and context of the proceedings, both of which he felt were relevant in making his decision. He writes in the following paragraphs of his decision [paras. 45; 48-50; 55-62]:

This was a lengthy proceeding. The application was filed on 15 May 2012. The interim stage was fractious. There were several contested motions and two appeals of motion decisions. For example, there were eleven (11) court appearances just to deal with issues of interim access. There were several settlement conferences, more than usual, with aggressive judicial intervention, in an effort to settle the case. In reviewing the continuing record at the trial management conference stage, and information gleaned at the trial management conference, it was evident that the evidence would be highly polarized and conflictual. Vigorous advocacy would be required to sort out the facts from the hardened positions of the parties. The trial lasted 23 days, finishing in late June 2015. The decision on the trial proper is on reserve.

The mother alleged domestic violence against herself, often in the presence of the children. She also alleged violence directly to the children. Her position was no access to the father or as a fall-back supervised access only. The mother was strident as to her position as to no access in Bermuda. [page477]

The father alleged parental alienation, that the mother had conditioned the children against him. During the pre-trial stage and after a review of the continuing record, which counsel agreed would be filed in the trial proper, it became apparent to me there were clinical issues with the parents and children; and that a psychological assessment was indicated, which I eventually ordered after several days of trial.

Most of the pre-trial and during trial access by the father was highly contentious and required legal representation and judicial intervention to resolve. For example, when the father arrived in Canada for one block of time of access, he was faced with a last minute motion to stop the access. For most of the access, last minute terms and conditions were being sought by the mother before access could proceed. This type of conduct inflamed this proceeding. He was coming to Canada under considerable financial expenses and had to fight for the access to even go ahead. Further when he was in Canada during the blocks of time for the trial, there was constant skirmishing over the particulars of access while the trial was going on.

The first scheduled day of the trial was 11 April 2014. The first series of dates were scheduled months earlier. At the outset of the trial, the case was almost two years old.

The events of the week before the trial influenced my decision to appoint amicus curiae for the mother. She brought two motions to adjourn the trial. She was represented by counsel. The first was a recusal motion that if I granted, would have had the effect of adjourning the trial. I dismissed the motion.

The second motion was to adjourn the trial on the basis of child support arrears not being paid. She brought this motion just before trial although the arrears had been outstanding for quite some time. The timing of that motion concerned me. I dismissed the motion. If I had granted the motion, the effect would have been an indeterminate delay of the trial. The mother was not prepared to commit to specific future trial dates, taking the position she had no idea when the arrears would be paid.

Days before trial, the mother immediately appealed both decisions to the Superior Court. She also requested the Superior Court stay both motion decisions, and to stay the trial pending the completion of the appeal process. The Superior Court dismissed her motion to stay the decisions and to have the appeals heard before the trial commenced.

During the lengthy pre-trial stage, the mother on several occasions sought to adjourn motions and conferences. Before the trial even commenced, a pattern had developed by the mother of seeking to delay the proceedings. Before the trial commenced, it was apparent to me, the mother did not want the trial to proceed.

The trial opened with the mother self-represented. She was represented by counsel on the two pre-trial motions and appeal, but that was a limited retainer, not a retainer for trial. In the previous almost two years, the mother had dismissed five lawyers. The mother brought a motion at the commencement of trial for an adjournment on the basis of medical grounds. She tendered two medical letters from her family physician. [page478]

In the first hour of the trial, it was apparent to me the mother's behaviour was bordering on hysterical. She was emotional and hyper and had a difficult time focusing. Fueling this, her mother was in the courtroom and was emotionally distraught.

Later in the morning, the mother collapsed in the courtroom. The clerk called an ambulance and she was rushed to hospital. She did not re-attend court that day. Court was recessed to 2:00 p.m. In the afternoon, her brother attended at court on her behalf.

Legal Principles which Govern the Appointment of an Amicus

[16] In formulating his reasons for appointing the amici, the trial judge undertook a comprehensive review of the case law as it applies to the appointment and role of amici, focusing firstly on the traditional or historical approach and moving from there to the evolution of the law as it has been formulated in more recent cases such as R. v. LePage, [2006] O.J. No. 4486, 2006 CarswellOnt 6987 (C.A.) and the Supreme Court of Canada decision in Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43 (also referred to as R. v. Imona-Russell and hereinafter referred to as the "Criminal Lawyers" case).

[17] The trial judge acknowledged that although the Supreme Court in the Criminal Lawyers case was sharply divided on the issue of trial judges' jurisdiction to set compensation rates, it was not divided on the issue of trial judges' jurisdiction to make amicus orders in the first place. In his view, the court was unanimous in setting out the features of amicus and providing guidelines and concerns for trial judges and provincial appellate courts. He referred to the following paragraphs in the Criminal Lawyers decision as outlining what the court determined constituted the features of amicus.

[18] Karakatsanis J. (for the majority) [at paras. 44; 46-48]:

While courts of inherent jurisdiction have no power to appoint the women and men who staff the courts and assist judges in discharging their work, there is ample authority for judges appointing amici curiae where this is necessary to permit a particular proceeding to be successfully and justly adjudicated.

A court's inherent jurisdiction to appoint an amicus in criminal trials is grounded in its authority to control its own process and function as a court of law. Much like the jurisdiction to exercise control over counsel when necessary to protect the court's process that was recognized in R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 18, the ability to appoint amici is linked to the court's authority to "request its officers, particularly the lawyers to whom the court afforded exclusive rights of audience, to assist its deliberations" (B. M. Dickens, "A Canadian Development: Non-Party Intervention" (1977), 40 Mod. L. Rev. 666, at p. 671). [page479]

Thus, orders for the appointment of amici do not cross the prohibited line into the province's responsibility for the administration of justice, provided certain conditions are met. First, the assistance of amici must be essential to the judge discharging her judicial functions in the case at hand. Second, as my colleague Fish J. observes, much as is the case for other elements of inherent jurisdiction, the authority to appoint amici should be used sparingly and with caution, in response to specific and exceptional circumstances (para. 115). Routine appointment of amici because the defendant is without a lawyer would risk crossing the line between meeting the judge's need for assistance and the province's role in the administration of justice.

So long as these conditions are respected, the appointment of amicus avoids the concern that it improperly trenches on the province's role in the administration of justice.

[19] Fish J. (for the minority) [at paras. 87-88; 108-110; 114-121]:

Accordingly, courts may appoint an amicus only when they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions. And once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings.

It is uncontested in this case that trial judges have jurisdiction to appoint an amicus curiae and to determine the role of the amicus in the proceedings before them. It is uncontested as well that the Attorney General who has conduct of the prosecution -- in this case the Attorney General of Ontario -- is then obliged to remunerate the amicus appropriately.

Exceptionally, trial judges may appoint an amicus curiae to ensure the orderly conduct of proceedings and the availability of relevant submissions. They should not be required to decide contested, uncertain, complex and important points of law or of fact without the benefit of thorough submissions.

Courts are empowered in some instances by specific statutory provisions, such as s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46, to appoint counsel for particular purposes. They may also order the appointment of defence counsel pursuant to a Rowbotham application as a remedy under s. 24(1) of the Charter.

The appointment of amici curiae derives, however, from different sources and should be kept conceptually distinct.

I think it useful nonetheless to provide some guidance regarding the circumstances in which an amicus appointment is appropriate. An amicus curiae may play many roles but it is important to recognize at the outset that an amicus is not a defence counsel. Once clothed with all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a "friend of the court".

The discretion of trial judges to appoint an amicus is not unrestricted. The power to appoint should be exercised sparingly and with caution, and appointments should be in response to specific and exceptional circumstances. Trial judges must not externalize their duty to ensure a fair trial for unrepresented [page480] accused by shifting the responsibility to amici curiae who, albeit under a different name, assume a role nearly identical to that of defence counsel.

An accused is entitled to forego the benefit of counsel and elect instead to proceed unrepresented. An amicus should not be appointed to impose counsel on an unwilling accused or permit an accused to circumvent the established procedure for obtaining government-funded counsel. In the vast majority of cases, as long as a trial judge provides guidance to an unrepresented accused, a fair and orderly trial can be ensured without the assistance of an amicus. Such is the case even if the accused's defence is not then quite as effective as it would have been had the accused retained competent defence counsel.

If appointed, an amicus may be asked to play a wide variety of roles: R. v. Cairenius, 232 C.C.C. (3d) 13 (Ont. S.C.), at paras. 52-59, per Durno J. There is, as Rosenberg J.A. pointed out in R. v. Samra, 41 O.R. (3d) 434 (C.A.), at p. 444, "no precise definition of the role of amicus curiae capable of covering all possible situations in which the court may find it advantageous to have the advice of counsel who is not acting for the parties".

Regardless of what responsibilities the amicus is given, however, his defining characteristic remains his duty to the court and to ensuring the proper administration of justice. An amicus's sole "client" is the court, and an amicus's purpose is to provide the court with a perspective it feels it is lacking -- all that an amicus does is in the public interest for the benefit of the court in the correct disposal of the case: R. v. Lee, 125 C.C.C. (3d) 363 (N.W.T.S.C.), at para. 12.

While the amicus may, in some circumstances, be called upon to "act" for an accused by adopting and defending the accused's position, his role is fundamentally distinct from that of a defence counsel who represents an accused person either pursuant to a legal aid certificate or under a Rowbotham order. Furthering the best interests of the accused may be an incidental result, but is not the purpose, of an amicus appointment.

As Durno J. explained in Cairenius, at para. 62:

. . . amicus is generally not counsel for the accused/ applicant, there is no solicitor-client relationship, and amicus does not take instructions from a client. The general role of amicus is to assist the court. Amicus, [page492] as a friend of the court, has an obligation to bring facts or points of law to the court's attention that might be contrary to the interests of the applicant. This is contrary to the traditional role of defence counsel described in Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.) at 227-8, and cited with approval by Rosenberg J.A. in Samra. . . .

Where a trial judge appoints an amicus, these distinctions between an amicus and court-appointed defence counsel should be made clear both to the amicus and to the accused. The blurring of the line between the two roles in the present cases causes me some concern; however, as pointed out, that is not the issue before us.

[20] After completing his review of the law of the appointment and role of amicus, the trial judge set out his own summary of the features of amicus curiae in para. 43 of his decision, a summary [page481] he describes as extracted primarily from the Supreme Court of Canada and Provincial and Federal appellate courts:

(a) The ultimate and primary purpose is to provide assistance to trial judges on issues of law or facts, wherein the trial judge is of the view that an effective, fair and just decision cannot be made without such assistance.

(b) Such orders are made to ensure a fair trial process, the orderly conduct of proceedings and to ensure the proper administration of justice.

(c) It is usually driven by the initiative of the judge, but may also occur at the request of one or more of the parties.

(d) There are many scenarios to which amicus may apply. The class of scenarios is not closed. There is no "one size fits all" standard.

(e) The power to appoint has a high threshold. Such should be exercised sparingly and with caution. Appointments should be made in response to specific and exceptional circumstances. A judge must not externalize his or her duty to ensure a fair trial of unrepresented accused by shifting the responsibility to amicus curiae, who under a different name assume a role nearly identical to that of defence counsel.

(f) The judge decides the terms and conditions of the role, which may vary widely.

(g) Caution is to be exercised if an appointment mirrors the role of a defence counsel. The primary purpose must still be to assist the court, though there may be an incidental beneficial result for a party. In such a case, clear directions must be given to the party and amicus.

(h) There is no solicitor-client privilege between an amicus and a party.

(i) Only the judge can dismiss an amicus, not the party.

(j) An amicus may override so-called instructions or directions from a party. An amicus may operate if the party does not co-operate or remains mute or chooses not to attend court.

(k) Once an amicus order is made, the Attorney General is obligated to compensate the amicus. Although amicus may often be paid by the legal aid fund, that is not always necessarily so. There should be a negotiation process between the Attorney General and an intended amicus as to compensation. The judge may play a role in this process that is persuasive only. If the judge is not satisfied as to the compensation issue, the judge ought to consider the issuing of a stay of proceeding until the compensation issue can be resolved.

[21] With the exception of para. 43(k), counsel for both the appellant and the respondent agreed that the features set out in the trial judge's summary fairly summarize the present state of the law pertaining to the appointment and role of amicus.

Position of the Appellant (Referred to as the "Attorney General")

[22] For the purposes of this appeal, the Attorney General accepts that the jurisdiction of judges of the Ontario Court of Justice extends to appointing an amicus in family law matters, [page482] where the appointment is essential to the judge discharging the court's judicial duties.

[23] In the circumstances of this case, however, the Attorney General submits that the appointment of the amici was a de facto appointment of counsel for the parties. In support of its position that such a de facto appointment is impermissible the Attorney General refers to the dicta of Karakatsanis J. in the Criminal Lawyers case where she states, at paras. 49 and 50:

Further, I agree with my colleague Fish J. that "[o]nce clothed with all the duties and responsibilities of defence counsel, the amicus can no longer properly be called a 'friend of the court'" (para. 114). Amici and court-appointed defence counsel play fundamentally different roles (see D. Berg, "The Limits of Friendship: the Amicus Curiae in Criminal Trial Courts" (2012), 59 Crim. L.Q. 67, at pp. 72-74).

. . . However, to the extent that the terms for the appointment of amici mirror the responsibilities of defence counsel, they blur the lines between those two roles, and are fraught with complexity and bristle with danger.

[24] The Attorney General argues that in this case the amicus appointments mirrored the responsibilities of counsel for a party to a proceeding and therefore had the potential to give rise to a number of concerns with respect to the administration of justice. These concerns are referred to in paras. 50-55 of the Criminal Lawyers case and include:

(a) the appointment may conflict with the accused's constitutional right to represent him or herself;

(b) the appointment can defeat a judicial decision to refuse to grant state-funded counsel following a Charter application involving the right to a fair trial under the Charter;

(c) the blurring of the lines between amicus and counsel for a litigant creates a potential conflict should the amicus' obligations to the court require legal submissions that are not favourable to the litigant or are contrary to the wishes of the litigant; and

(d) the use of amicus to assist a litigant might result in the trial judge indirectly providing the litigant with strategic advice, something that he cannot do directly.

[25] The Attorney General agrees that courts have jurisdiction to order the government to provide state-funded counsel under s. 24(1) of the Canadian Charter of Rights and Freedoms as a remedy for an actual or anticipated Charter breach.

[26] However, the Attorney General points out that the orders appointing counsel in the present case were made in the absence [page483] of any allegation of a potential violation of the s. 7 Charter rights of the parties to the litigation. Furthermore, in the absence of state involvement, custody and access disputes between parents do not trigger s. 7 of the Charter and consequently do not give rise to the same obligations on the government to provide parents with state-funded counsel.

[27] The Attorney General acknowledges that the decision by the trial judge to appoint amici was made in response to specific concerns which he faced in the proceeding. These concerns included

(a) the impact of Bermuda law on the custody and financial issues;

(b) the choice by the mother to represent herself in the proceedings;

(c) the contentious nature of the proceedings, including the mother's allegations of prior abuse by the father and her inability to be present in the courtroom at the same time as the father;

(d) the availability of the evidence which was necessary for him to determine the best interests of the children.

[28] The Attorney General argues that by the de facto appointment of state-funded counsel to represent the parties the trial judge in this case impermissibly interfered with the Attorney General's jurisdiction over the provision of state-funded counsel. It submits that the aforementioned concerns could have been addressed using alternative means, such as

(a) appointing an amicus with the limit scope of advising the court on how Bermuda tax law impacted the assessment of child support payments and law on the Hague conventions;

(b) permitting one or both parties to participate in the proceedings through a video feed, thereby eliminating direct contact between them.

(c) relying on the report and recommendations from the Office of the Children's Lawyer to determine what was in the best interests of the children.

Position of the Respondent

[29] The responding position was argued by court appointed amicus.

[30] The respondent amicus submits that the trial judge's appointment of the two amici at trial were not de facto [page484] appointments of counsel for the parties. The appointments and the roles to which the amici were assigned were consistent with the legal principles regarding the appointment of amici as established by the Supreme Court in the Criminal Lawyers decision and other leading appellate decisions.

[31] A discussion of how the respondent amicus applied these legal principles to the appointments of the amici in this case will be further discussed below.

Issues

[32] A review of the trial judge's reasons makes it clear that he did not purport to appoint counsel for the parties based on an actual or anticipated Charter breach, or in response to certain statutory provisions. There is no need therefore for me to review or consider the application of available Charter remedies as a justification for the orders made by the trial judge. As pointed out by Fish J. in the Criminal Lawyers case, "The appointment of amici curiae derives . . . from different sources and should be kept conceptually distinct:" see para. 110.

[33] In my view, the sole focus of the Attorney General's appeal pertains to the reasons for the appointments, and whether the scope of duties and responsibilities assigned to the amici are consistent with the governing case law.

Analysis

I. Trial judge's reasons for appointing amicus to assist with presenting the mother's case (the April 11, 2014 amicus order)

[34] The trial judge concluded that given the circumstances which he faced in adjudicating the issues in this trial he required assistance from amici. He noted that he was making the decision to appoint amici with the realization that such appointments should not be made lightly. At para. 70, he states:

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.

[35] At para. 74 of his decision, he noted:

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

[36] The issues and circumstances which led the trial judge to the conclusion that he required the assistance of amicus included the following: [page485]

(a) The fact that the father resided in Bermuda raised a number of unusual and complex legal issues. At para. 71 of his decision, he identifies these issues as follows:

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.

(b) There were logistical issues resulting from the mother's alleged fear of the father. She did not want to be in a courtroom with him or give evidence with him in the courtroom. In the words of the trial judge [at para. 68],

. . . Being alone in the courtroom with the father was beyond what she could bear. I needed to calm her down so I could effectively deal with the evidence and issues and ultimately the best interests of the children. She needed a buffer. Amicus curiae was the solution.

(c) The trial judge considered that it might be necessary to require that evidence be transmitted in some form from Bermuda. He noted that there were potential logistical issues involving Bermuda evidence and the setting up of a video feed from either a courtroom or other facility in Bermuda (see para. 53 of the trial judge's decision).

(d) The trial judge believed it would be necessary to order a psychological assessment. He knew that the mother would be strongly opposed to such an assessment and would not appreciate the legal principles in settling the terms of an order or the requirements in the order by a psychologist (see para. 72 of the trial judge's decision).

(e) The trial judge described the mother as emotional and hyper and having difficulty focusing. He did not believe that she was capable of representing herself, given her emotional instability. The mother's behaviour both before and during the trial had caused the trial to become destabilized, and he explained that the primary reason for his decision to appoint amicus was to stabilize the proceedings. In his words [at para. 69],

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. [page486]

[37] The trial judge considered adjourning the trial but decided against it. In his words [at paras. 64; 76-77]:

I was not prepared to adjourn the trial based on the two medical letters. I requested the attendance of the physician on the next day of the trial. The physician was extensively questioned. The physician recommended an adjournment of the trial based on alleged medical and mental/emotional reasons. I dismissed the motion to adjourn the trial. The medical evidence was vague. I questioned whether or not the mother's medical and emotional circumstances were any different than other litigants who come into the courtrooms. Further, the doctor was unable to give a timeline when the mother would be fit enough to go through a trial.

It was suggested that I could have adjourned the trial to allow the mother to apply for legal aid. This was not an appropriate course of action; for the mother would have finally achieved what she had been seeking all along, which was an adjournment of the trial. Such course of action would have cause lengthy delay. If she did qualify for legal aid, I would have to wait until she selected counsel before setting further trial dates. Since she already dismissed five lawyers, she would have great difficulty finding new counsel, considering the small size of the bar. Since she wanted the trial to be adjourned in the first place, this would have given her a ready-made excuse to continue the delay.

And if she did not qualify for legal aid, then what was I to do? I knew Mr. Thomson was prepared to accept legal aid, at least in the first instance, subject to further discussions with the Attorney General. He was prepared to stay involved even if those further fee discussions were not successful. With amicus curiae now involved, the trial could proceed.

II. Scope of the first amici's duties

[38] The formal order appointing amicus to assist the court with the mother's case simply states that the amicus "is to assist the court in making decisions that relate to the best interests of the children".

[39] The trial judge's formal order appointing the first amicus contained the following terms:

THIS COURT ORDERS THAT:

1. The Attorney General shall provide funding for amicus in accordance with this order;

2. Amicus Curiae agree to abide by Legal Aid Ontario's policies and procedures, including authorization for disbursements, monitoring and review of accounts, billing practices, and payment rules;

3. The Attorney General shall promptly provide Legal Aid Ontario with a copy of this order in order to identify counsel to accept the amicus appointment;

4. Amicus Curiae is being appointed to assist this court, as follows: [page487]

a) To assist the Court in making decisions that relate to the best interests of the children.

5. Amicus agrees to promptly advise Legal Aid Ontario if this court subsequently alters the scope of this appointment;

6. Legal Aid Ontario shall manage funding of amicus in accordance with this order and Legal Aid Ontario's policies and procedures applicable on the date of this order, including authorization for disbursements, monitoring and review of accounts, billing practices, and payment rules;

7. The Attorney General and Legal Aid Ontario shall promptly return to court to address necessary variations or in the event of non-compliance with this Order. The Amicus agrees to return to Court in the case on non-compliance only after going through the Legal Aid procedures as set out in paragraph 2 above.

[40] At para. 75 of the trial judge's motion decision, the trial judge expands on the scope of the first amicus's duties as follows:

Once having made the order, it was made clear to the mother she could not dismiss Mr. Thomson, as she had done with five (5) other lawyers. She was also told that Mr. Thomson was not obligated to follow her instructions or directions. He would make the final decision how to conduct the case. He would attempt to elicit her co-operation, but could proceed without such. Also, he could proceed even if she did not attend court.

III. The trial judge's reasons for appointing Amicus to assist with presenting the father's case (the June 11, 2014 amicus order)

[41] Following his order to permit the father's counsel to be removed from the record, the trial judge was faced with the decision of whether he continue the trial with the father unrepresented. He was reluctant to do so, stating, at para. 82 of this decision:

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.

[42] The trial judge considered whether the father might be eligible for legal aid and concluded that he was confident that he would not qualify, noting that he had no legal status in Canada and that he owned property in Bermuda. He decided to appoint a second amici.

[43] The trial judge explained his reasons for appointing the second amicus in paras. 85-87 of his decision in the following words:

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 [page488] 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.

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.

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

(Emphasis added)

IV. Scope of the second amici's duties

[44] In his endorsement, the trial judge simply stated that he was appointing an amicus curiae in favour of Mr. Benevides in the usual form. The formal order which followed mirrored the order which was made following the appointment of the first amici, which included a provision that the amicus was being appointed to assist the court in making decision that related to the best interests of the children.

[45] In light of the trial judge's earlier comments concerning the role of the amicus in our legal system, and the parameters which he imposed in open court on the amicus appointed to assist the mother, I am satisfied that the second amicus was subject to the same parameters as those imposed on the first amicus, and included the same prohibitions, i.e., that the father could not dismiss the amicus. The amicus appointed to assist the father was to play an adversarial and informative role so that the evidence could be properly tested, and his primary responsibility was to assist the trial judge in making determinations which would be in the best interests of the three children in this case. He was also to provide assistance in the event it became necessary to involve the Bermuda courts.

V. Did the trial judge exceed his jurisdiction in appointing the amici

[46] The trial judge in this case faced numerous challenges. He was an experienced judge and although he was no doubt familiar with the usual legal issues which arise in contentious child custody, support and equalization cases, in this case he required an understanding of the interplay between Bermuda and Canadian family law and the application of the rules governing the signatories to [page489] the Geneva Convention. The mother insisted on representing herself which was her right. However, she was emotionally fragile and distraught and the trial judge's belief that she was incapable of providing helpful assistance to him or adequately representing her own or the interests of her three children was not unreasonable. She also required emotional support, or a "buffer" as he termed it between herself and the father, given her fear of him. Furthermore, she would never have agreed to undergo a psychological assessment which the trial judge felt he required in order to make his decision, without the support and encouragement of counsel.

[47] Clearly, the father's lawyer, Ms. Oldham (now Madame Justice Bonnie Oldham) would have been of valuable help to the trial judge in dealing with these unusual issues but the role she could play was necessarily limited. She represented one party in an adversarial setting. As stated by the trial judge, in para. 70 of his decision:

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.

(Emphasis added)

[48] With respect to the appointment of the second amicus, the judge stated that many of the reasons for appointing an amicus for the mother also applied to this second appointment for the father. He concluded that it was unlikely that the father would qualify for legal aid and being from Bermuda the father would experience challenges in navigating the Ontario legal system. The trial needed to be stabilized and he required the benefit of robust cross-examinations. He was also aware that he would require assistance from counsel for the father if it became necessary to involve the Bermuda courts, if the application of Bermuda law became an issue. At para. 86 of his decision he stated:

. . . 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.

Alternatives Proposed by Attorney General to Appointment of the Amici

[49] The Attorney General argued that alternatives measures could have been employed by the trial judge to deal with the issues he faced in this trial. [page490]

[50] One alternative was that the trial judge could have relied on the report from the OCL in determining the best interests of the children. In my view, this proposal was not satisfactory. Not only did the mother disagree with the recommendations of the report, but the trial judge was also entitled to the benefit of having such an important report tested through cross-examination.

[51] A second alternative proposed by the Attorney General was that the judge appoint an amicus with a limited scope of providing the court with assistance in understanding the interplay of Bermuda and Canadian law. Again, this would not have been satisfactory in the circumstances of this case. The trial judge described as his primary purpose in appointing amici as the necessity of bringing stability to the proceedings. The appointment of an amicus with the limited role ascribed to it by the Attorney General would not have assisted him.

[52] The third alternative proposed by the Attorney General was to provide a buffer between the parties by having one or both of the parties to participating by way of video feed. Again, this proposal would only have resulted in a partial solution to the challenges faced by the trial judge. Not only were there logistical issues involved here, but such an arrangement would not have provided the trial judge with assistance in relation to the legal issues.

[53] In considering these recommendations from the Attorney General I am reminded that the decision to appoint amici ultimately involves a matter of judicial discretion by the trial judge, and in my view, such discretion should only be interfered with if it was exercised on wrong principles or is clearly wrong.

Summary and Conclusions

[54] In my view, the decision by the trial judge to appoint the two amici was consistent with the established legal principles which support such appointments, principles which were agreed to by counsel and are referred to in para. 21, above.

[55] Clearly, the trial judge required assistance with the inter-jurisdictional legal principles which he would have to consider in deciding the case. He also required counsel who could involve themselves in such a way that the contentious evidence could be properly tested, who could control the behaviour of the mother and serve as a buffer between her and the father, who could communicate with the courts in Bermuda if necessary, and who could provide assistance to him in stabilizing the proceedings.

[56] In summary, I am of the view that the two appointments were consistent with the directive of Karakatsanis J. that amici [page491] can be appointed if this is necessary to permit a particular proceeding to be successfully and justly adjudicated (see para. 44 of Criminal Lawyers decision) and with the comment of Fish J. that a court should appoint an amicus when such an appointment is necessary to ensure the orderly conduct of proceedings and availability of relevant submissions (see para. 87 of Criminal Lawyers decision).

[57] In my view, the trial judge made it clear that the amici were not to play the role of counsel. Amici could not be dismissed, as the mother had done with five previous counsel. The amici were not obligated to follow the instructions or direction of the parties and although they were required to elicit their co-operation, they could proceed without such cooperation from the parties if necessary. They were also instructed that they could proceed if the parties chose not to attend court.

[58] Furthermore, the trial judge also recognized that the power to appoint an amicus has a high threshold. He recognized that this case represented exceptional circumstances. As noted above, in para. 70, he stated that "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".

[59] The primary objection by the Attorney General to the appointment of the two amici was that the appointments were analogous to appointing amicus substantially in the role of defence counsel and as such, the trial judge exceeded his jurisdiction.

[60] In responding to this argument, the trial judge recognized that the appointment of an amicus cannot have as its primary purpose as a substitute for traditional counsel. He stated that if an order does mirror traditional counsel, then the primary purpose of such an order must still be the assistance required by the court (see para. 25 of the trial judge's reasons), and any benefit derived from the party is incidental thereto. In support of his position he quoted Fish J. in the Criminal Lawyers case, at paras. 119 and 120:

While the amicus may, in some circumstances, be called upon to "act" for an accused by adopting and defending the accused's position, his role is fundamentally distinct from that of a defence counsel who represents an accused person either pursuant to a legal aid certificate or under a Rowbotham order. Furthering the best interests of the accused may be an incidental result, but is not the purpose, of an amicus appointment.

As Durno J. explained in Cairenius, at para. 62:

. . . amicus is generally not counsel for the accused/applicant, there is no solicitor-client relationship, and amicus does not take instructions from a client. The general role of amicus is to assist the court. Amicus, [page492] as a friend of the court, has an obligation to bring facts or points of law to the court's attention that might be contrary to the interests of the applicant. This is contrary to the traditional role of defence counsel described in Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.) at 227-8, and cited with approval by Rosenberg J.A. in Samra.

[61] The trial judge then went on to describe how the Attorney General in its arguments in the motion over-emphasized the similarities of the amicus appointments with traditional counsel and under-emphasized the material differences in the case which was being tried before him, as well as the significant impact those differences had on the case.

[62] As an example, he pointed out how the inability by the mother to dismiss the amicus had a significant impact on the emotional volatility of the mother. She had already dismissed five counsel, which the trial judge found had created chaos in the case, but once the right to terminate was taken away, the proceeding stabilized and the mother calmed down significantly.

[63] The trial judge also noted that removing from the mother's control the ability to give instructions and directions had a material impact on the flow of the trial. The amicus, not the mother, made the final decisions. He noted that the mother and the amicus developed a good working relationship and she was overall co-operative with the amicus and the judge. This co-operative relationship allowed the amicus to fully utilize his cross-examination skills, which were required to properly test the father's evidence.

[64] According to the trial judge, these two distinctions from traditional counsel had a pivotal impact in focusing on the issues. Had the amicus been traditional counsel, this would not have happened. The distinct tools of amicus made the difference between an out-of-control trial and one that was under control.

[65] The trial judge referred to two occasions when the amicus did not follow the so-called instructions of the mother. First, when the trial judge indicated that he wanted a psychological assessment, the mother instructed the amicus to resist. The amicus refused. The trial judge concluded that since the initiative for the assessment came from him, the amicus considered his overriding duty was to the court.

[66] Second, when he was considering whether it was necessary to appoint a second amicus for the father, the mother instructed the amicus to resist this initiative. The amicus refused.

[67] In conclusion, I am of the view that the trial judge applied the proper principles when he made his decisions to appoint the two amici. He required assistance and guidance from learned counsel in order to come to an understanding of the law, [page493] and given the personalities involved he required assistance to ensure that the trial could proceed in an orderly fashion.

[68] It may very well be that there are judges who would have attempted to struggle through this trial without the assistance of amicus. Clearly, they would have faced enormous challenges in doing so, both in dealing with the personalities and in coming to terms with the evidence. In this case, the decision of the trial judge to appoint amici stabilized the trial and ensured that the trial could proceed in an orderly manner. The decision by the trial judge to appoint amici was not made lightly, and is owed deference. I am therefore dismissing the appeal.

Motion dismissed.

End of Document