“The considerations for appointing amicus in a family law case (other than a child protection case) were recently articulated by the Ontario Court of Appeal in Morwald-Benevides v. Benevides, 2019 ONCA 1023. The Court applied the principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 to the family law context. The Court said the following:
(a)The appointment of amicus is “exceptional” or “rare”. Trial judges routinely resolve family law disputes without counsel on one or even both sides. Self-representation, on its own, is an insufficient reason to appoint amicus;
(b) Trial judges must consider whether they can personally provide sufficient guidance to an unrepresented party, in the circumstances of the case, to permit a fair and orderly trial;
(c) The Court should also consider the availability of alternatives to appointing amicus. These might include the availability of legal aid or appointing the Children’s Lawyer in a case involving a child. But the Court may also balance against these potential alternatives, how invoking them might create more delay;
(d) Amicus may be appointed in rare or exceptional circumstances, when a judge requires assistance to ensure “the orderly conduct of proceedings”, and “the availability of relevant submissions”;
(e) A party has a right to self-represent. Nevertheless, amicus might be warranted where the self-represented party is “ungovernable or contumelious”, where the party refuses to participate or disrupts trial proceedings, or where the party is adamant about conducting the case personally but is “hopelessly incompetent to do so, risking real injustice”;
(f) 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;
(g) Amicus may assist in the presentation of evidence, but cannot control a party’s litigation strategy;
(h) “Very rarely”, amicus may mirror the duties of traditional counsel;
(i) However it is defined, the role of amicus must be clear, detailed and precise. During the trial, the Court must monitor the amicus, to ensure that he or she stays on course and remains within the limits of the role;
(j) The role may change or be refined as circumstances change during trial;
(k) Once appointed, the amicus is bound by a duty of loyalty and integrity to the Court, not to any of the parties to the proceedings; and
(l) A party may not discharge amicus; only the Court may do so.”