Canadian Lawyer

a private dispute, which prompted the appeal court to reiterate that the role of an amicus arises in those "exceptional circumstances" in which the court requires assistance, and he says the court did an "admirable job defining the role of an amicus and further setting out the test so narrowly that it will be extremely uncommon that one will ever be appointed." The decision says "the relevant principles from CLA must be applied to family law lit- igation with necessary modifications" and goes on to lay out the non-exhaustive list of exceptional circumstances and consider- ations to be made. The list includes not in- fringing on the right of a party to self-rep- resent; noting that the trial judge should exercise their discretion to appoint "sparingly and with caution" and "rarely"; and tasking the trial judge with ensuring that the amicus does not slide over to the role of counsel by way of "mission creep." Another test is "the stakes must be high enough" and Howie calls it a positive develop- ment that "the court recognized that the lives of three children can 'raise the stakes high enough,' just as much as a potential jail sen- tence — or at least the court recognized that the argument can be made." "Dealing with children is not simply a pri- vate dispute, which can be trumped by crimi- nal law," he adds. But Howie takes issue with one aspect of the ruling, which he calls troubling — how the court expects the trial judge to deal with the self-represented. He says the Court of Appeal spent some time explaining what the function of the trial judge is with regard to self-repre- sented litigants, where the ruling reiterated the "active approach" that is expected of the trial judge. "What is missing in this analysis, in my view, is the possible perception of the repre- sented party that the scales are being tilted in favour of the unrepresented because the trial judge is taking an 'active approach,' such as 'accommodating' the self-represent- ed parties' 'unfamiliarity with the trial pro- cess,'" Howie says. He also notes that the ruling seems to say — "perhaps inadvertently and perhaps not" — that the Court of Appeal endorses what it calls the "common practice" of having the trial judge "walk a self-represented party through the essential documents, giving the party ev- ery opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents . . ." "Unintended consequences are a funny thing," Howie says. "It seems to me that the more the court bends over to assist self-rep- resented litigants, the more self-represent- ed parties the court will face — and in that group, there are more than enough people who can certainly afford to pay for a lawyer but will not. It will prove to be a self-fulfill- ing prophecy." www.lawtimesnews.com 21 "Just because they're unrepresented or partway through the trial they're going to be misrepresented, and it might feel uncomfortable or hard for you as the judge, that's not really the point of amicus." Daniel Melamed, Torkin Manes LLP

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