Court File and Parties

COURT FILE NO.: FC-17-1480

DATE: 2022/09/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: G.S., Applicant

AND

S.B., Respondent

BEFORE: Justice Engelking

COUNSEL: Applicant, Self-Represented Jennifer Jolly and Mary Cybulski, for the Respondent

HEARD: September 20, 2022

ENDORSEMENT on motion

[1] This matter commenced by application brought by Mr. S. in July of 2017. It has been outstanding for five years.

[2] Mr. S. has had four lawyers over the course of the proceedings as follows: Cheryl Hess to 2020, followed by a brief period of self-representation; Laura Pilon in 2021; Anne Vespry briefly, also in 2021; and Samah Rahman in 2021 to January 5, 2022.

[3] It was originally scheduled for trial in January of 2022. Mr. S. dismissed his counsel on January 5, 2022 and sought an adjournment of the trial. On motion, it was adjourned by Justice Summers to the May 2022 trial sittings, pre-emptory to Mr. S.

[4] At the commencement of the May sittings, Mr. S. was ill with COVID-19, and it could not be called in for trial during the first week of the sittings. It was then not reached within the May sittings.

[5] The trial was then scheduled to proceed commencing August 2, 2022, for six days.

[6] The trial commenced on August 2, 2022, however, on the evening of August 1, 2022, Mr. S. served on Ms. B. an “affidavit” of 876 pages. This was contrary to the Trial Management Conference Order of Justice Audet dated July 11, 2022, which provided that Mr. S. was to serve and file affidavit evidence upon which he intended to rely by July 21, 2022. It also contained content which was either not proper evidence or inadmissible evidence.

[7] The majority of the first three days of trial were taken up dealing with evidentiary issues resulting from this document. These included: commentary contained within the document by Mr. S., the inclusion of 15 audio or video recordings, and/or copies of their transcripts, within the body of the document which required a voir dire on their admissibility, and many, many statements by Mr. S. relating to the evidence of his expert, Dr. Dino Zuccarini, upon whom he was intending to rely. A voir dire was also required and held on whether Dr. Zuccarini’s report was admissible and whether he would be permitted to testify.

[8] My decision on the admissibility of the video and audio recordings was delivered to the parties orally on August 4, 2022. I then indicated that Mr. S. was to be sworn and to adopt the portions of his document which remained admissible, and that cross-examination of Mr. S. could commence. Immediately thereafter, Mr. S. had a medical crisis and attended the Queensway-Carleton Hospital by ambulance. The trial was adjourned to the next morning.

[9] On August 5, 2022, the trial was adjourned to the September 2022 trial sittings at the request of Mr. S. based on his medical situation at the time. Mr. S. submitted that the trial should be adjourned until the November trial sittings to permit him to retain counsel. I made it clear in my endorsement that the reason for the adjournment of the trial was for Mr. S. to attend his medical issue, and not for the purpose of him retaining counsel, as he has had since January of 2022 to do so. I also indicated that I would be releasing a written decision to the parties in respect of Dr. Zuccarini’s proposed evidence.

[10] In my August 5, 2022, endorsement, I noted the following:

3. Dr. Cynthia MacLoghlin confirmed that Mr. S. attended the hospital on August 4, 2022, and stated: “This patient is having undo stress from the ongoing court case, causing extreme elevation of his blood pressure which has potential to significantly affect his health. He was assessed in the ER today for that reason. A continuance in order to get his blood pressure under better control as well as to organize legal support for himself would be extremely beneficial.”

4. Notwithstanding this letter, Mr. S. appeared on Zoom this morning, indicating that he was in the parking lot of the hospital as he was experiencing significant symptoms and would be reattending.

5. Given Mr. S.’s medical situation, I indicated that I would adjourn the trial to the September trial sittings for him to attend to his health needs and to, as Dr. MacLoghlin indicated, “get his blood pressure under better control”, but that I would do so on terms.

6. I clarified with Mr. S. that the purpose of the adjournment was for him to attend to his health. Mr. S. argued that it should be for a longer period and also be for the purpose of him retaining counsel. However, this trial, which was originally scheduled for January of 2022, was adjourned to May of 2022 at the request of Mr. S. for that purpose. The trial was then not reached in May of 2022, so Mr. S. has, essentially, had eight months to retain counsel. I am not adjourning for that purpose.

7. Mr. S. submitted that the court will be in the same situation in September if he is required to proceed at that time, as it is the court proceeding which is causing him stress and exacerbating his health issues. He submits that without the assistance of counsel, he will likely not be able to proceed at that time.

8. As I have indicated, Mr. S. has had since at least January of 2022 to retain counsel. The trial cannot be put off until he has successfully done so. The court will assess the situation in September and consider next steps based on the presentation of Mr. S. at that time.

[11] The Respondent, Ms. B., has now brought a motion for the appointment of an amicus curiae for Mr. S. to assist the court in this matter. Mr. S. did not attend court at the hearing of the motion, but he did file an affidavit in response to the motion sworn on September 18, 2022, in which it is apparent he opposes it. Additionally, on the morning of the motion, he provided the court with two medical opinions on which he purports to rely, that of Dr. MacLoghlin dated August 4, 2022, and referred to in my August 5, 2022, endorsement, and a letter from Dr. Zuccarini dated April 25, 2022, along with a copy of Dr. Zuccarini’s sworn on July 22, 2022, which I ruled inadmissible for the trial in my decision of August 5, 2022, which the parties have inadvertently not received until today.

[12] Ms. Ion, for the Ministry of the Attorney General, takes no position on the motion. The AG submits, however, that the Court must appropriately limit the role of the amicus, if appointed, and take care to address the issue of privilege. It also submits that the order, if made, should reflect that the ultimate responsibility for compensation of the amicus, if ordered, rests with Legal Aid Ontario.

[13] Mr. Jenkins, for Legal Aid Ontario, similarly takes no position on the motion, and indicates that LAO will source lawyers willing and able to act as amicus, if appointed.

[14] The leading case on the issue of the appointment of amicus curaie in the context of a family law proceeding is Morwald-Benevides v. Benevides, 2019 ONCA 1023. In it, the Ontario Court of Appeal has found that the following principles apply for the appointment of amicas curiae:

[27] First, the assistance of amicus must be essential to the adequate discharge of the judicial functions in the case: CLA, at para. 47. The stakes must be high enough to warrant amicus. This is a circumstantial determination within the trial judge's discretion.

[28] Second, a party has the right to self-represent: CLA, at para. 51. However, the trial judge is responsible for ensuring that the trial progresses reasonably. There are situations in which the appointment of amicus might be warranted, such as when the [page312] self-represented party 2019 ONCA 1023 Morwald-Benevides v. Benevides is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice: see, e.g., R. v. Imona-Russel (2019), 145 O.R. (3d) 197, [2019] O.J. No. 1607, 2019 ONCA 252; Zomparelli v. Conforti, [2018] O.J. No. 543, 2018 ONSC 610 (S.C.J.).

[29] Third, relatedly, while amicus may assist in the presentation of evidence, amicus cannot control a party's litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus: Imona-RusseI, at para. 67

[30] Fourth, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances: CLA, at para. 47. And see O. (C.C.) v. V. (J.J.), [2019] A.J. No. 992, 2019 ABCA 292, 91 Alta. L.R. (6th) 237, at para. 50. This is in part a recognition of the financial exigencies, which is ultimately a political question under our separation of powers doctrine, as CLA noted at paras. 27-31, 83.

[33] Fifth, the trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party's case would not be presented quite as effectively as it would be by counsel: Imona-Russel,at para. 69.

[38] Sixth, it will sometimes, though very rarely, be necessary for amicus to assume duties approaching the role of counsel to a party in a family case. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question. If such an appointment is to be made and the scope of amicus's duties mirror the duties of traditional counsel, care must be taken to address the issue of privilege, as in Imona Russel, at para. 89.

[39] Finally, the order appointing amicus must be clear, detailed and precise in specifying the scope of amicus's duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits

[15] With respect to the first principle articulated in Morwald-Benevides, I have no difficulty finding that the assistance of amicus has become essential for the adequate discharge of my judicial function in this case. The stakes are high, in that they require a determination of what decision-making and parenting time dispositions are in the best interests of J. These determinations have been put off since January of 2022 and cannot continue to be put off indefinitely.

[16] In his affidavit in response to the motion, Mr. S. has sought that the matter be adjourned to January 2023 to permit him to retain counsel. He relies on the letter of Dr. MacLoghlin dated August 4, 2022, wherein she stated: “A continuance in order to get his blood pressure under better control as well as to organize legal support for himself would be extremely beneficial.” (Emphasis added).

[17] Mr. S. also relies on the letter of Dr. Zuccarini dated April 25, 2022, in which Dr. Zuccarini stated: “Upon evaluation, Mr. [S.] will not be able to self-represent in court at this time due to his severe PTSD, anxiety symptoms, and his ongoing struggles with ADHD.” As indicated, I have already ruled Dr. Zuccarini’s affidavit sworn on July 22, 2022, inadmissible and will not be considering it on this motion.

[18] Notwithstanding my endorsement of August 5, 2022, in which I indicated: “The court will assess the situation in September and consider next steps based on the presentation of Mr. S. at that time”, Mr. S. has not provided any updated medical opinion. His submission (provided improperly by email to the Court dated September 20, 2022) is that nothing has changed, and it is, therefore, not required. Mr. S. indicated in his email: “I have not been hospitalized again since August because I have not put myself in a situation to warrant such hospitalization that would also generate another letter.” In other words, he has chosen not to participate in the proceedings, so as not to find himself in the same situation as occurred on August 4 and 5, 2022.

[19] Mr. S. submits that he cannot participate without counsel. Although Mr. S. indicates that he anticipates no difficulty in finding counsel for January of 2023, he has provided no evidence which would support that being the case. If the Court was to adjourn this matter to January of 2023, it could very well find itself in the same situation at that time. Ms. B. correctly submits, moreover, that the time between now and January is essentially the same amount of time he had to obtain counsel between January and May of 2022, which he did not do. Additionally, Mr. S. has already had four lawyers, and whether he would maintain counsel, even if able to successfully retain counsel, is another question.

[20] Meanwhile, Ms. B. cannot be put in the situation of requiring her counsel to repeatedly prepare for trial. It is not fair to her, and it is prohibitively expensive. Additionally, Ms. B. is employed, and every time trial is scheduled and then not commenced, or commenced and not completed, she is required to take time off work. It is not sustainable for her to continue to do so and still maintain her employment.

[21] The only way, it seems, that the Court can ensure that this trial will proceed, once the continuation commences in earnest, is by having amicus appointed.

[22] Regarding the second principle, the Court has respected Mr. S.’s right to self-represent, which he has (reluctantly) done to date. However, he now simply refuses to participate absent counsel, which he has failed for nine months to retain. As the Court of Appeal has found in Morwald-Benevides, this is itself a circumstance which warrants the appointment of amicus curaie. Even, however, if he wished to continue to self-represent, this is a situation in which I would find that Mr. S. is, in the words of Morwald-Benevides, “hopelessly incompetent to do so, risking real injustice”.

[23] Regarding the third principle, Mr. S. clearly needs assistance in getting his evidence before the Court. After three days of trial, Mr. S. has yet to even adopt the admissible evidence in his affidavit and accompanying document dated August 1, 2022. I anticipate that he will require similar assistance in having the other side’s evidence properly tested. Amicus curaie can provide that assistance without controlling Mr. S.’s litigation strategy. It can also do so without Mr. S. participating directly in the proceeding if he so chooses. Given the history of the case to date, it is also of significance that amicus curaie cannot be discharged by Mr. S.

[24] In relation to the fourth principle, although to be used sparingly and with caution, I find this to be a case with specific and exceptional circumstances which merit the appointment of amicus. This case is not unlike that of W.A.C. v. C.A.F., 2021 ONSC 5140, wherein Justice Finlayson appointed amicus. In that case, Justice Finlayson noted at paragraph 1 that the case had been before the court for 5 years. He noted in paragraph 27 the prior proceedings in the case, which included 5 appointments of the OCL with no investigation or report ever having been completed, 3 settlement comments, 5 appearances on contempt motions, 6 attempts at trial management or scheduling conferences, and two motions in relation to the sealing of the file.

[25] In case at bar, there have been more than 20 endorsements of nine Superior Court Judges and one of the Divisional Court. Eighteen of these endorsements have been from 2020 to the present. The trial has been scheduled four times – January 2022, May 2022, August 2022 and September of 2022. Justice Finlayson at paragraph 27 of W.A.C., quoting paragraph 70 of his May 31, 2021, decision in the same case, noted:

[70] This family needs a resolution of their case on its merits, soon. E. needs a resolution. Court orders are not being followed. Beyond just this family, the interests of the administration of justice in the orderly processing of trials on their merits militates against granting another, year-long adjournment. Valuable trial time that could have been allocated to other families was lost last week. That cannot be allowed to happen again. Adjournments contribute to delays, scheduling issues, and use up scarce judicial resources. As it is, more judicial resources will be employed in this case to get it trial ready for next time.

[26] These comments are equally applicable in this case. This family needs a resolution of the case on its merits and J. needs a resolution.

[27] At paragraph 34 of W.A.C., Justice Finlayson stated: “At this point, over five years into this lawsuit and in the context of what has gone on during it, the Court is not prepared to take a ‘wait-and-see’ approach with the mother’s legal aid appeal. Plus, there would still remain the father’s argument, about the risk to the trial, if the mother succeeds on her appeal, and retains but then parts company with her new counsel, between now and the trial.”

[28] These comments too are equally applicable to this case. As I have indicated, although Mr. S. may succeed in retaining counsel in the future, he may part company with that counsel at any time, which would again present a risk to the conduct or completion of the trial.

[29] The fifth principle in Morwald-Benevides requires me to consider if I can personally provide sufficient guidance to Mr. S. in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus. I have attempted at every turn to assist Mr. S. in understanding Family Court Rules and processes, the law of evidence and the role of experts, including relating to the issues of qualification and admissibility. At the commencement of the trial, I provided Mr. S. with an electronic copy of a “Memorandum for Self-Represented Litigants” for his assistance and understanding of the trial process.

[30] Mr. S. has additionally been accommodated by being granted leave to present his evidence-in-chief in written form, given breaks as necessary and permitted to record the proceedings to assist with his recall. Despite all these efforts and accommodations, I have not yet succeeded in having Mr. S. even adopt his own evidence. The trial has been anything but orderly. Even if Mr. S. was prepared to proceed as a self-represented litigant, which he clearly is not (in fact, he refuses to do so), I do not consider that I can provide sufficient guidance to him for the trial to be conducted in a fair and orderly fashion without the assistance of an amicus. This is, in my view, one of the rare cases contemplated by the Court of Appeal at paragraph 37 of Morwald-Benevides.

[31] The sixth principle in Morwald-Benevides ensures that care be taken to deal with the issue of privilege. Although the scope of amicus' duties may mirror the duties of traditional counsel in some cases, the amicus is not counsel for the party; his or her role is to assist the Court. Although I find that no privilege automatically attaches to this role as between the amicus and Mr. S., I also anticipate, as in R. v. Imona-Russel (2019), 145 O. R. (3d) 197, [2019] O.J. no. 1607, 2019 ONCA 252, at paragraph 89, that Ms. B.’s counsel would not seek confidential information from the amicus “irrespective of the trial judge’s order.”

[32] Finally, the seventh principle requires that the order appointing amicus must be “clear, detailed and precise in specifying the scope of amicus's duties.” I propose that the duties be as follows:

(a) The amicus shall review the trial material already prepared and discuss Mr. S.’s case with him;

(b) The amicus shall be available in advance of and during the trial to assist in getting Mr. S.’s perspective and evidence before the Court;

(c) The amicus shall not take instructions from Mr. S., but shall consider his views;

(d) The amicus may call evidence for Mr. S, exam Mr. S.’s witnesses and cross-exam Ms. B’s witnesses; and,

(e) The amicus may make submissions about all relevant issues, including about how the Court should weigh the evidence, what finding of fact it should make and on costs.

[33] The seventh principle in Morwald-Benevides also requires that “the activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays well within the defined limits.”

[34] For the above reasons, I find it necessary in this case to appoint amicus curaie. As Justice Finlayson stated in W.A.C. at paragraph 62:

[62] To be clear, I am not making an order prohibiting the mother from participating in the trial on her own, calling evidence on her own, or conducting her own cross-examinations. The amicus will be available to help the mother. For example, the mother may choose to avail herself of the amicus and then to supplement the amicus’ assistance, with her own work. By way of further example, if the mother disagrees with any decision that the amicus makes about an argument or the presentation of evidence, the mother will be free to call other evidence, ask other cross-examination questions, or make other arguments to supplement anything she feels the amicus has omitted or that she disagrees with. She is also free to make her own submissions. She may do as much or as little of this trial on her own, and the amicus will be there to assist.

[35] This is true of Mr. S. I too am not making an order limiting his participation in the trial. The tragic irony of this case is that Mr. S. is the applicant. He has, at this stage, chosen not to participate in his own application before the Court. He may choose to engage or not engage with the amicus. If he chooses not to, like the mother in W.A.C., he may not then “complain about a lack of assistance or a lack of understanding of the process, at the trial.” (Paragraph 61).

[36] I should note that Mr. S. has made some references to me recusing myself from continuing to hear the trial, however, he has not brought a proper motion for such an order. If he does so, I am prepared to hear it, but not before the amicus curaie is involved.

[37] Mr. Jenkins has indicated that the available options are for Legal Aid Ontario to provide the names of three lawyers willing to act as amicus to the court, and for the court to direct who will be appointed, or for Legal Aid Ontario to simply assign the matter to a lawyer willing to act as amicus. I would request that the former option be employed.

[38] There shall be a final order as follows:

(1) Amicus curaie is appointed in this matter. Legal Aid Ontario shall provide the Court with a list of three lawyers willing to act as amicus so that one may be identified to do so.

(2) The amicus shall be paid at legal aid rates.

(3) Only the Court may terminate the amicus or change the terms and conditions of the appointment.

(4) The amicus shall review the trial material already prepared and discuss Mr. S.’s case with him.

(5) The amicus shall be available in advance of and during the trial to assist in getting Mr. S.’s perspective and evidence before the Court.

(6) The amicus shall not take instructions from Mr. S. but shall consider his views.

(7) The amicus may call evidence for Mr. S, exam Mr. S.’s witnesses and cross-exam Ms. B’s witnesses.

(8) The amicus may make submissions about all relevant issues, including about how the Court should weigh the evidence, what finding of fact it should make and on the issue of costs.

(9) Counsel for Ms. B. shall assist by adding the amicus, once named, to Caselines.

(10) The Court requests that the amicus read the Court’s decisions of December 17, 2020, July 12, 2022, and August 5, 2022, the amended TSEF dated July 11, 2022, as well as the decision in support of this order.

(11) If the amicus requires any additional documentation, then counsel for Ms. B. shall provide it to him or her forthwith upon request.

(12) Mr. S. may make his own closing submissions if he wishes to, having reviewed the amicus’ submissions. Mr. S. is not bound in any way to make submissions that correspond to the amicus.

(13) If Mr. S. retains counsel for the continuation of the trial, the appointment of the amicus may be revisited by the court at that time.

(14) The trial shall continue at the earliest of a date to be scheduled by the Local Administrative Judge or the commencement of the November trial sittings.

(15) The terms of adjournment contained in my August 5, 2022, order remain in effect with an addition that Ms. B. may register J. in before or after school care, as necessary, during her parenting time pending the resumption of the trial.

(16) Ms. B. seeks further adjustments to the terms of adjournment, for which written submissions may be made as follows:

a. Ms. B. shall serve and file her submissions by the end of the business day on September 23, 2022;

b. Mr. S. shall serve and file his submissions by the end of the business day on September 27, 2022; and,

c. Ms. B. shall serve and file reply submissions, if any, by the end of the business day on September 28, 2022.

Engelking J.

Date: September 22, 2022

COURT FILE NO.: FC-17-1480

DATE: 2022/09/22

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: G.S., Applicant

AND

S.B., Respondent

BEFORE: Justice Engelking

COUNSEL: Applicant, Self-Represented Jennifer Jolly and Mary Cybulski, for the Respondent

ENDORSEMENT on motion

Engelking J.

Released: September 22, 2022