“In the delicate exercise of determining when amicus will be appointed and for what purposes, the relevant principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (“CLA”) must be applied to family law litigation with necessary modifications. The principles or factors that have emerged thus far in the cases are set out below, but the list is not exhaustive.
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.
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 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: see e.g. R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197; Zomparelli v. Conforti, 2018 ONSC 610.
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.
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 C.C.O. v. J.J.V., 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.
A trial judge should consider whether a Legal Aid certificate would be available and whether the matter should be adjourned to permit a party to apply for it. A trial judge should also consider whether other resources could be gathered together to suffice. For example, where the interests of children are involved, the judge may request the participation of the Office of the Children’s Lawyer under ss. 89(3.1) and 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. There are several modalities of participation available including, most recently, Voice of the Child reports. However, the consideration of any such services would need to be expedited to avoid delay, particularly in a case that involves children.
Self-represented parties are increasingly routine in family law cases. The system recognizes this fact and does provide some resources. That one or both parties are self-represented is not a sufficient reason to appoint amicus, in itself, nor is it sufficient based on the idea that since one party is represented, amicus is necessary to level the playing field. As is sometimes noted in criminal cases, a party is entitled to a fair trial, not a perfect trial: R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 101; R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 45.
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.
It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, “it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence”: Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37, repeated in Gionet v. Pingue, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30. The court added, at para. 31 of Gionet: “In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case”, citing Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36. See also Manitoba (Director of Child and Family Services) v. J.A., 2006 MBCA 44, at paras. 19-20.
A trial judge requires the necessary evidence on which to base a sound decision and getting the evidence can be difficult when a party is unrepresented, is unfamiliar with the process and the venue, or is tongue-tied for other reasons. Recognizing this reality, a common practice has developed in which trial judges walk a self-represented party through the essential documents, giving the party every opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents, and doing the same with respect to the other party’s pleading, financial statement, and pertinent documents, requesting the party’s responding position and evidence. Once the evidence of a party has been received, then the other party may cross-examine.
This active approach on the trial judge’s part can only work if the judge explains the purpose and nature of the exercise beforehand, and maintains a calm and impartial temperament throughout. The trial judge should not cross-examine a party. Doing so would cross the line into the adversarial representation of a party, which would give rise to possible bias allegations.
Importantly, it is only in rare cases that the assistance provided by the trial judge will be insufficient to ensure trial fairness. Only then might the appointment of amicus be considered.
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.
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.
Ideally the need for amicus can be identified and considered at the pre-trial case management conference, but sometimes the need only becomes evident at trial. A case management judge or a trial judge faced with a trial that might require the appointment of amicus should prepare an order detailing the expected role and work of amicus. Amicus could, for example, be asked to lead some evidence, cross-examine a witness, or make submissions on specific issues. The goal should be to use the services of amicus only where and to the extent necessary. The order would be a work in progress and would be open to change as circumstances demand, with changes made formally on the record.”
Morwald-Benevides v. Benevides, 2019 ONCA 1023 (CanLII) at 26-40