Canadian Lawyer

Appellate judges go out of their way to lay out what conditions justify use of a friend of the court FOCUS ON FAMILY LAW Use of amicus curiae clarified by appeal court www.lawtimesnews.com 19 IN A RECENT Ontario Court of Appeal decision, the appellate judges took the oppor- tunity to lay down the law around the proper use of amicus curiae, or friend of the court. Jason Howie, of Jason Howie PC, says it's especially interesting — in a case full of inter- esting aspects — that the court noted in Mor- wald Benevides v. Benevides that the appeal was "technically moot." "That is a signal, in my mind, that the Court of Appeal felt it had to set some law down," he says. Court of Appeal judges Peter Lauwers, Katherine van Rensburg and Lois Roberts, who were unanimous in their ruling, ad- dressed the issue of the appeal being tech- nically moot because "the trial has been completed with both amicus participating; nothing substantive between the parties to the family law case remains to be resolved." However, the appellate judges wanted to address the trial judge's "several errors," not- ing "it would be rare in a family law case to appoint one amicus, and the circumstances would virtually never justify the appointment of two." The ruling goes on to say that had the appeal not been moot because the case was resolved, it would have been allowed for the reasons discussed. "When you unpack it, the court says essen- tially the way the judge went about this whole approach was not appropriate," says Daniel Melamed, a partner at Torkin Manes LLP. "It was a statement to the bar and to the judg- es — don't do this. They wanted a message sent — don't ask for this unless it's truly an amicus case." Howie says the case looks like "a trial judge's nightmare" with multiple previous lawyers — a red flag, he adds — an initial schedule of four days that turned into 23 days and a hysterical party who fainted in court and re- quired an ambulance — not to mention the is- sues of fact themselves, which were complex. "How do you calculate child support when the income is from a foreign source?" he asks. The trial judge appointed an amicus on be- half of each party to assist the court when the wife discharged her latest lawyer and, later in the trial, the husband couldn't pay his law- yer's fees and also became unrepresented. The judge appointed both parties' former counsel as amicus. The Attorney General of Ontar- io challenged the amicus appointments but agreed the trial could proceed and the motion could be heard at a later time. The challenge was ultimately rejected by the trial judge, which prompted the AG to appeal that ruling. The Superior Court of Justice then appointed the same lawyers who had served as amicus at trial, determining their assistance was re- quired to resolve the issues raised on appeal. The appeal was again ultimately dismissed, but the Court of Appeal agreed to hear the case and ruled the trial judge had erred in his appointment of amicus in the case. The ap- peal court then took the opportunity to flesh out the proper use of amicus curiae. Melamed says the trial judge likely wanted to be fair by ensuring both parties had an am- icus, but that is not the appropriate reason to appoint one. As the appeal court addressed, "maintaining a level playing field is not a valid consideration in appointing amicus." Amicus is to assist the court and they're "supposed to be effectively neutral and the lawyers weren't, in the sense they were advo- cates for their clients. That's not what amicus does — they're supposed to neutrally pro- vide the court with direction and assistance," "What is missing in this analysis, in my view, is the possible perception of the represented party that the scales are being tilted in favour of the unrepresented because the trial judge is taking an 'active approach.'" Jason Howie, Jason Howie PC FEATURE

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