Court File and Parties

COURT FILE NO.: FC1068/22 DATE: November 20, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

Re: Lubna Aldahleh, Applicant And: Zakaria Abdelrahman Mohammad Zayed, Respondent

BEFORE: SAH J.

APPEARANCES: Applicant: Self-represented Respondent: Abeer Abosharia and Bayly Guslits For the Office of the Children’s Lawyer: Rasim (Sam) Misheal For the Ministry of the Attorney General: Spencer Nestico-Semianiw For Legal Aid Ontario: Stanley Jenkins Anthony Macri (on November 20, 2023)

HEARD: November 17 and 20, 2023 – in hybrid mode

Endorsement

Overview

[1] On the first day of trial, the Office of the Children’s Lawyer (“OCL”) moved for the appointment of amicus curiae. I granted leave for the motion to be heard as required under the trial scheduling endorsement form.

[2] Both the applicant and the respondent oppose the appointment and request the motion be dismissed.

[3] Legal Aid Ontario (“LAO”) and the Ministry of the Attorney General made submissions on the role of amicus and proposed terms should the Court decide to appoint amicus.

Legal Principles Considered

[4] The precedent governing the appointment of amicus is the decision of the Supreme Court in Ontario v. Criminal Lawyers' Assn. of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43 ("CLA").

[5] The leading case on the issue of the appointment of amicus curiae in the context of a family law proceeding is Morwald-Benevides v. Benevides, 2019 ONCA 1023. The Court cites that the following principles apply for the appointment of amicus curiae:

[27] First, the assistance of amicus must be essential to the adequate discharge of the judicial functions in the case. 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. 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 self-represented party 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.

[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.

[30] Fourth, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances. This is in part a recognition of the financial exigencies, which is ultimately a political question under our separation of powers doctrine.

[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.

[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.

[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. [Citations omitted]

Evidence and Analysis

[6] International child abduction cases involve high stakes for all parties. In Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, “Hague” and “non-Hague” cases, there are serious risks if a party is not successful.

[7] The focus of this case is determining whether Ontario has jurisdiction to deal with the case, or whether an order should be made for the return of the three children to Kuwait.

[8] Issues to be determined include an assessment of risk of serious harm in the event that a return order is made.

[9] In the context of private family law cases wherein stakes are high, such as this one, amicus may be warranted.

[10] I must exercise my discretion to determine if the assistance of amicus is essential to the adequate discharge of the judicial functions in this case.

[11] This requires me to consider if amicus is necessary to sufficiently determine the outcome of this case.

[12] To consider this, I must turn to the issues for trial, which have been summarized in the trial scheduling endorsement form. They include:

1. Are the children habitually resident in Ontario per s. 22(1)(a) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA"), at the time the application was commenced?
2. If not, does s. 22(1)(b) apply, allowing the Court to exercise its jurisdiction? To the extent relevant, does s. 41 of the CLRA factor into this analysis?
3. If not, does s. 23 of the CLRA apply on the basis that the children would suffer harm if removed from Ontario?
4. If not, should the Court apply its parens patriae jurisdiction per s. 69 of the CLRA, in respect of the children?
5. If the answers to 1, 2, 3, and 4 are ‘no’, have the children been wrongfully removed to, or are being wrongfully retained in, Ontario?
6. Should the Court order that the children be returned to Kuwait under s. 40 of the CLRA?
7. If applicable, do ss. 42 and 43 of the CLRA apply to this case?

[13] In addition to giving evidence on her own behalf, the applicant relies on two witnesses and an expert on Jordanian law.

[14] In addition to giving evidence himself, the respondent relies on the evidence of one additional witness and two expert witnesses in Kuwaiti law and Jordanian law.

[15] The OCL clinician will be giving evidence and intends to call an expert of his own to give an opinion on Islamic law – Jordanian and Kuwaiti law.

[16] This is an extremely document heavy case, including criminal and family court judgement from Kuwait, local and foreign child welfare agency records, police records, school records, and healthcare records, to name a few. Many of these documents have been translated. Translators are required for the oral presentation of this case.

[17] The case is both factually and legally complex. It is important for all probative and relevant evidence to be presented, and this evidence must be presented in accordance with proper procedural and evidentiary rules.

[18] The applicant was initially represented by counsel. Effective August 2023, she has been self-represented.

[19] As a self-represented litigant, she brought a motion to adjourn the trial and a motion that I be recused as trial judge. Her motions were dismissed.

[20] While the applicant was able to file material and present her case on the two motions and the motion currently before the Court, as discussed further below she has not done so in respect of the trial.

[21] This trial management conference took four hours to complete.

[22] While the assistance of translators certainly contributed to the length of the conference, considerable time was spent identifying the precise and discreet issues for trial. The parties did not agree on the issues for trial. The Court attempted to ascertain the applicant’s position and articulate the issues in line with the legislation.

[23] Considerable time was spent discussing how and when trial affidavits should be filed, and how and when documents and proposed exhibits should be uploaded to CaseLines.

[24] During the trial management conference, the applicant posed many questions of the Court. The Court provided some general direction on trial process and directed the applicant to the Superior Court of Justice website, where she could obtain helpful information about the conduct of a trial.

[25] The applicant was encouraged, as she has been on other occasions by the case management judge, to consider obtaining counsel to assist with this very complex case. She has not done so.

[26] I cannot find that the applicant is contumelious, as described by the Court of Appeal in Morwald-Benevides, or that she has refused to participate in the case. The applicant has been present and respectful at all court appearance before me.

[27] The applicant claims that she is patient, of “full mental health”, able to use the Internet, that she has knowledge of CaseLines, and can file documents.

[28] She submits that she can defend herself. As a newcomer to Canada with English as a second language, she claims to have thrived. She submits she has a good credit rating in Canada, was able to successfully obtain her full G driver’s license on her first attempt after arriving in Canada three months prior, and she was able to file her immigration documents herself.

[29] However, as outlined below, she has been adamant about conducting the case in a manner that risks injustice to the parties and the children.

[30] The applicant has requested that this case be transferred to the case management judge whose schedule did not permit him to hear the trial on the fixed date set.

[31] Alternatively, the applicant has requested that this case be transferred to the Supreme Court of Canada, with a jury. She has requested the involvement of the Human Rights Commission and the Ministry of Immigration, Refugees and Citizenship Canada.

[32] The applicant has not always followed the direction of the Court. For example, she was directed to attend the trial in person. She refused to do so for several reasons without first seeking permission from the Court.

[33] The applicant is alleging fraud on the part of her previous counsel. She has and continues to allege that this Court is racist, biased, and discriminatory.

[34] The applicant has filed complaints against all lawyers involved in this case, the Court itself, and court staff.

[35] She has continuously denied that this is an international child abduction case, notwithstanding her reliance on rule 37.2(8) of the Family Law Rules, and the fact that this was pled as such by the respondent and, therefore, identified as such in May 2023 by the case management judge.

[36] The applicant could disrupt the orderly conduct of these proceedings by focusing on evidence not relevant to the issues for determination. The evidence she may proffer and her submissions may not be relevant to the complex and important points of law or fact.

[37] Despite the Court’s attempt to assist the self-represented applicant, there is a risk that her conduct in this case may result in an outcome that is unjust, unfair and improper.

[38] The Court has a duty to ensure a fair trial for all parties. The rules require that cases such as this one be dealt with promptly, and in the most timely and efficient manner.

[39] The prompt disposition of this case requires an efficient and focused hearing.

[40] The trial of this action has been estimated to take six days. Evidence in chief for all parties was to be submitted by way of affidavit evidence. Despite orders made by the Court in the trial scheduling endorsement form, which required the applicant to file her three trial affidavits by a certain date, she has not done so.

[41] This currently leaves the Court with no evidence in chief from the applicant. The OCL submits, and this has not been disputed by the parties, that the applicant's evidence relates to allegations of domestic violence. All probative and relevant evidence needs to be put before the Court so that a decision can be made prioritising the children's welfare.

[42] While this may be mitigated by having the applicant provide her evidence orally, this in my view would prolong the trial and might result in trial getting derailed because of lack of focus.

[43] It is acknowledged that amicus cannot control the applicant’s litigation strategy. It is further acknowledged that amicus does not represent the applicant, and that the applicant may not discharge amicus.

[44] However, amicus can assist in the presentation of evidence. Currently, there is a significant absence of the applicant’s evidence.

[45] I find that this is one of those exceptional circumstances where the appointment of amicus is required to ensure procedural fairness, to assist the Court in the discharge of its judicial duties in a high stakes case.

[46] To adjourn the trial to permit her to apply for a legal aid certificate would unduly delay this matter. Even if the applicant were to explore this option at this time, it would not result in the most efficient and timely disposition of this case. There is no guarantee that the solicitor-client relationship will continue throughout the duration of the trial.

[47] Counsel for the respondent submits that the OCL is able to advocate for the position of the children’s evidence and could fill in gaps in the applicant’s evidence. The OCL quite rightly notes that their role is to present the children’s views and preferences, not to take sides, and certainly not to fill gaps in the applicant’s evidence.

[48] I find that there are no other modalities of participation available in this case. No submissions were made in relation to other options and/or how this option factors into potential delay.

[49] Counsel for the respondent also has concerns that, if the applicant’s strategy is maintained, specifically that this is not an international child abduction case, this would not change with the appointment of amicus.

[50] While this may be true, it would not prevent amicus from assisting in the presentation of evidence relating to the issues before the Court. The Court is most concerned with evidence as it relates to issues, and not so much with individual litigation strategy.

[51] I do not take the view that the Court can provide sufficient guidance to the unrepresented applicant in the circumstances of this case.

[52] Attempts were made at the trial management conference to narrow and focus the issues. The applicant appears discontent with the Court identifying issues for trial under rule 1(7.2)(n).

[53] The court directed the parties to file their trial affidavits by a certain date. The applicant disapproved of the Court providing her with less time than the respondent, without acknowledging the evidentiary burden in relation to each issue before the Court and without consideration for the Court’s obligation to promote the primary objectives of the Court by active case management, including setting timetables or otherwise controlling the progress of the case.

[54] The applicant, perhaps because of her lived experiences abroad, is critical of the OCL, the Court and court staff. She mistrusts all participants.

[55] In her material, she has suggested that the Court will hide her voice because she is trying to protect her children.

[56] She has not demonstrated an openness to accepting the guidance this Court is required to offer self-represented litigants.

[57] Throughout the three motions and the trial management conference, the applicant has demonstrated difficulty focusing on the legal issues. When advised of the legal tests to be applied, the applicant had a propensity to raise her concerns and beliefs about the court process, in a respectful manner, and also made submissions about her religious beliefs.

[58] The last four court attendances lead me to conclude that the Court’s proactive assistance with the applicant in this case could result in prolonging the trial, shifting the focus of the Court, and the Court may be faced with resistance by the applicant without the case progressing in a meaningful manner. This will challenge the Court’s ability to decide the issues on their merits.

[59] Given the complexity of this case and the staged issues analysis, it will be insufficient for the Court in this case to walk the applicant through pertinent documents, request her position and evidence, and give her an opportunity to explain her position, line by line.

[60] Amicus is not being considered to level the field, because the respondent has counsel. Amicus is not being considered solely because the applicant is self-represented. She has highlighted her education, qualifications, and professional experiences in her material. She is an architectural engineer licensed in both Kuwait and Jordan. The applicant believes that she can defend and represent herself, and she is entitled to.

[61] However, in a high stakes case that requires prompt disposition, the Court needs to focus on the legal issues before it. The applicant is presenting as feeling under siege. This has and can continue to detract from the administration of justice.

[62] This case constitutes exceptional circumstances warranting the appointment of amicus curiae. This does not take away the applicant’s right to present her case as she wishes.

Delay

[63] In Hague and non-Hague cases, the potential for delay flowing from the appointment of amicus curiae is a significant factor for the Court to consider.

[64] The issue of delay was raised by the respondent who referenced r. 37.2(2) and (3), to remind the Court that it is required to dispense with this matter in an efficient and timely manner.

[65] The Court was informed of the policies in place in finding counsel willing and able to proceed with the trial.

[66] LAO and the Ministry of the Attorney General have a clear understanding that the trial is set and ready to go and that the Court expects an amicus who is ready and willing to proceed within the next two to three weeks.

[67] According to Mr. Jenkins, LAO can identify at least one potential amicus candidate who would be ready and willing to proceed to trial within the next three weeks. One potential candidate would need two to three days to prepare for trial, such that a prolonged delay in the hearing of the trial would not follow. The Court relies on these representations.

[68] The matter was originally scheduled for trial in July. The Court has endeavoured to have the matter tried in an expeditious fashion since then.

[69] The administration of justice militates in favour of appointing amicus. The appointment of amicus increases the likelihood that this matter, even with a two to three-week delay, could proceed in an efficient and focused manner by facilitating the Court’s ability to discharge its judicial functions and render a decision promptly.

Role and Scope of Amicus Curiae

[70] The Court of Appeal in Morwald-Benevides requires the court to be as precise and detailed as possible in setting out the parameters of amicus’s role. See para. 55.

[71] The Court requested that the Ministry of the Attorney General and LAO make submissions regarding the scope and role of amicus if the Court were to appoint same. These submissions were requested in the interest of efficiency and to avoid multiple re-attendances.

[72] Mr. Jenkins submitted a list of terms and conditions to the Court and the parties.

[73] He went on to submit that if the Court chooses to appoint amicus, the applicant is encouraged to engage with them. He made clear that amicus would be adding to matters the applicant will address in court, but that the applicant will be in a position to continue to represent herself.

[74] The OCL is content with the proposed terms. The respondent took no position with respect to the terms.

[75] The applicant identified concerns about two subclauses, which I will discuss below as the Court also had concerns regarding the same subclauses.

[76] When asked about her position regarding the terms and conditions, the applicant submitted she has a right to self-represent and submit what she thinks is relevant. She is correct, and her right to do so is not taken away with the appointment of amicus.

[77] She advised the Court that she is prepared to question the experts and that she has evidence regarding their credibility. She may continue to do so despite the appointment of amicus.

[78] She did not want the trial to be adjourned for two to three weeks. This is different from the position she took last month when she sought to adjourn the trial for two to three months.

[79] She made submissions with respect to her Form 23C – Affidavit for Uncontested Trial, prepared based on the fact that the respondent failed to submit an answer within 60 days. The Court sees no link between this submission and the proposed terms and conditions.

[80] Two of the terms, 2(f) and 2(g), speak to amicus determining what steps are appropriate and which submissions are appropriate.

[81] The Court sought clarification as to whether these terms would preclude or prevent the applicant from making her own case, making her own submissions, or determining what steps are appropriate.

[82] LAO submitted that the proposed terms did not preclude the applicant from self-representing and advocating her position. The inclusion of these terms, for example, allows amicus to make submissions regarding experts and qualifications, legal procedural issues, and any other submissions a lay person may not be able to appreciate. Amicus would make any submissions the applicant may fail to advance.

[83] I am satisfied with this explanation but, for the sake of clarity, will amend the two subclauses.

[84] I am satisfied that the remainder of the terms and conditions provide sufficient details regarding the parameters of amicus’s role.

Amicus candidate

[85] Mr. Jenkins proposes that Anthony Macri be named as amicus.

[86] Mr. Macri attended court on November 20, 2023 and advised the Court of the following: he has been a lawyer for 25 years, 24 of which he has been practising family law.

[87] He served as counsel for the Children's Aid Society of Toronto for 11 years wherein he obtained extensive trial experience, including experience examining experts and lay witnesses.

[88] He has recent experience litigating non-Hague cases and has experience acting as amicus.

[89] He had a long trial in Newmarket collapse, making him available within the next two to three weeks.

[90] He is available on the next scheduled trial sittings and can participate in the trial if it were fixed to start December 11, 2023.

[91] Based on his experience, the Court is confident Mr. Macri understands the role of amicus and will provide assistance to the Court.

Trial date

[92] The respondent requests that this Court consider starting this trial as soon as possible. The Court acknowledges his concern about delay. However, judicial resources are scarce and judicial continuity is required for a trial that will take six days or more.

[93] The court has two-week trial sittings fixed in December. The two-week sittings will ensure judicial continuity and the availability of a judge if the trial takes longer than six days.

[94] This trial is fixed to start December 11, 2023 at 10:00 a.m. The parties are not required to attend Trial Schedule court on December 5, 2023 at 9:30 a.m.

[95] The OCL advised he is not available on December 14, 2023 and amicus has a court commitment on December 19, 2023 at 9:30 a.m. Counsel are encouraged to address requests for accommodation with the trial judge.

Order

1. Mr. Anthony Macri shall be appointed amicus curiae to assist the Court in its role of ensuring the trial is orderly and fair to all parties. The applicant is entitled to represent herself and advocate her position.
2. Subject to the terms herein, amicus is hereby appointed to assist the Court in this proceeding, as follows: a. Amicus will not take instructions from the applicant but shall consider her views and preferences on any relevant matter. b. Amicus shall not take any instructions from, or otherwise consider the views and preferences of, any other party. c. For amicus to be effective, the applicant is encouraged to cooperate and engage with amicus. d. Amicus shall be added to CaseLines for this matter so that amicus has access to all documents filed with the court. e. Amicus shall assist the applicant in understanding the trial process and the procedural issues in the event and to the extent that the trial judge’s guidance proves insufficient. f. Amicus shall attend the hearing and make submissions that are relevant to and consistent with the views and preferences of the applicant. Amicus, and not the applicant, will determine what submissions are appropriate. The foregoing does not prevent or preclude the applicant from making her own submissions. g. Amicus shall be entitled to bring any motions, to make opening and closing submissions, to file and call evidence at the trial and to conduct cross-examinations of witnesses at their own discretion after attempting to take into account the applicant’s views. Amicus, and not the applicant, will determine what steps are appropriate. The foregoing does not prevent or preclude the applicant from determining what steps are appropriate.” h. Otherwise as directed or ordered by this Court.
3. The Ministry of the Attorney General shall provide funding for amicus in accordance with the terms of this order.
4. Amicus shall be paid at legal aid rates.
5. Amicus will abide by LAO’s policies and procedures, including authorization for disbursements, monitoring and review of accounts, billing practices, and payment rules.
6. LAO shall manage funding of amicus in accordance with this order, the Ministry of the Attorney General – Legal Aid Ontario Protocol for Management of Court-Ordered Publicly Funded Counsel, and LAO’s policies and procedures, including authorization for disbursements and travel, monitoring and review of accounts, billing practices, and payment rules.
7. Amicus will not have a solicitor-client relationship with any of the parties to this proceeding, however, amicus’ communications with the applicant for the purposes of carrying out the terms of this order will be treated as confidential.
8. Amicus is at liberty to seek directions from the Court, on notice to the parties, LAO and the Attorney General, as may be necessary to carry out their duties.
9. This order shall bind Anthony Macri as amicus.
10. Amicus and counsel for LAO and the Attorney General shall appear before this Court to address variations of this order, as may be necessary from time to time, or in the event of any non-compliance with this order.
11. This trial shall commence on December 11, 2023 at 10:00 a.m.
12. I am not seized.

Costs

[96] The OCL is not seeking their costs on this motion.

[97] There shall be no order as to costs.

“Justice K. Sah” The Honourable Madam Justice K. Sah

Released: November 20, 2023