There continue to be developments in the caselaw on self represented parties.
While judges have a special duty to ensure that a self represented party has every reasonable opportunity to present their case, this doesn’t mean that a judge is responsible for their case, or that measures must be taken in order to correct the imbalance between a represented party and an unrepresented one.
Neither the court, nor the unrepresented party themselves, are entitled to the appointment of a lawyer as an amicus curiae. An amicus curiae is a lawyer who is a ‘friend of the court’. Their role is to assist the court: they do not represent the self represented party, and they cannot be discharged by the self represented party.
Only in exceptional circumstances would it be appropriate for a trial judge to appoint an amicus curiae. In the 2019 family law case of Morwald-Benevides v. Benevides 2019 ONCA 1023, the Ontario Court of Appeal reviewed the state of the law regarding a trial judge appointing an amicus curiae for a self represented party. The court found that the trial judge erred in appointing two different amicus curiae for the parties, both of whom were self represented at various points in the trial. An amicus is not to be used as a tool to level the playing field where the other party has chosen to be represented by a lawyer. Appointing an amicus to represent adversarial interests, or to implement litigation strategy in a private family case, would generally not be appropriate. The standard of fairness gives litigants the right to a fair trial, not necessarily a perfect trial.
In a more recent family law case, Molka v. Molka 2021 ONSC 6990, the Applicant brought a Motion prior to the start of her family law trial requesting that the court appoint her an amicus curiae. Her reasons included that the opposing party was represented by a lawyer, she didn’t understand how to present her case, and she couldn’t find a lawyer who would agree to represent her on a legal aid certificate. The Motion was dismissed by the trial judge because he found her to be capable of asking the court for the specific relief she was seeking, noting that she introduced evidence from 5 separate witnesses to support her case.
In another case decided subsequent to Morwald-Benevides, a trial decision was reversed by the Divisional Court on the basis that the trial judge had not taken adequate steps to ensure that a self represented party received a fair trial.
Girao v. Cunningham, 2020 ONCA 260 was a civil case involving liability for a motor vehicle accident. In their decision, the Divisional Court endorsed the Statement of Principles for Self Represented Litigants and Accused Persons developed in 2006 by the Canadian Judicial Council. In the Statement, while there are duties on a trial judge to ensure fairness, these duties do not override the role of a judge to be impartial, and appear to be impartial.
In Girao, there were multiple aspects of unfairness to the self represented party which were not mitigated by the trial judge, including the fact that there were multiple defence counsel, the case presented complex evidentiary issues, and the self represented Applicant was not English speaking but was participating in the trial through the use of an interpreter.
In my view, it is preferable for a self represented party to retain a lawyer for limited scope services rather than be relying on the judge to either appoint an amicus curiae, or to intervene when and where appropriate to ensure fairness. The Family Law Rules allow parties to retain lawyers for limited scope services. At a trial, this limited scope service could include assistance with procedural rules, leading evidence or making submissions on specific issues, or cross examining a witness.