Case Summary: The use of Amicus Curiae in Family Law
Written by Pamela Cross, LLB, LLD
This case summary is a bit different from most that we post here, because it is about an important procedural matter rather than about the legal issues between the two parties to the case.
As you all know from your work, the number of people engaged in family court proceedings who do not have a lawyer is very high. This creates difficulties in all cases, but especially so in those involving family violence because of the power imbalance between the two people and the fear that one has of the other.
In this case, there was a history of family violence, and neither the mother nor the father had a lawyer. The issue for the court was whether it should appoint one for them.
When such an appointment is made, the lawyer is known as an amicus curiae or friend of the court. This kind of appointment is much more common in criminal than in family court.
The responsibility of the amicus is to assist the court with its decision-making by making sure that all relevant evidence and arguments are properly presented to the court. Their role is limited, and they do not represent the person they are supporting.
As the Supreme Court of Canada noted in a 2013 case involving the appointment of an amicus in a criminal trial, the power to make such an appointment must be exercised “sparingly and with caution, in response to specific and exceptional circumstance.” The SCC also stated that the power should only be used when the assistance is essential for the judge to be able to discharge their judicial functions.
A 2019 case confirmed that these same principles apply in the family law context and also noted that the circumstances “would virtually never justify the appointment of two [amicae]. . .”
In this case, Justice Stevenson acknowledged that the legal issues were not complex, and the appointment of amicus was requested because of the history of intimate partner violence:
“The risk of real injustice arises from the anticipated inability of the parties to cross-examine each other without the trial deteriorating into an unsavory confrontation or one in which a party may be intimidated and unable to respond effectively. This would not only harm one or both parties, it would also harm the fair administration of justice by interfering with the court’s role of ensuring an even ‘playing field’ and potentially damaging the integrity of the court’s process. . .
“The courtroom must be seen as a fair and safe environment . . . No party should have to undergo cross-examination by an abuser without appropriate safeguards. . . .Nor should they be expected to share the same lawyer, albeit in a role of a friend of the court, because of the bias inherent in the same lawyer appearing to act for both parties. . . “
In his decision, Justice Stevenson ordered that each party would have their own amicus. Because the amicus does not represent the party, there is no relationship of solicitor-client privilege, so the order imposed a confidentiality requirement on each amicus.
The order further stated:
- The role of the two amicae was limited to conducting the cross-examination of the two parties and did not extend to advising or assisting either party in any other matters
- The amicae were not to take instructions from either party, but “shall consider their views and preferences on any relevant matter”
- They were to have full access to all materials filed with the court and the court file on Case Center
- The Ministry of the Attorney General was to provide funding for the two amicae, who would be paid at Legal Aid Ontario rates
- Legal Aid Ontario was to provide the court with a list of lawyers who could possibly fill the role of amicus, with the court to make the selection.
This case confirms that there is a role of amicus in family court, and makes it clear that the presence of family violence may be sufficient for such an appointment to be made, even if the legal issues themselves are not especially complicated.
