Legal Representation of Children in Canada

5. Amicus Curiae

The traditional role of amicus curiae (also known as a “friend of the court”) is to assist the court with its decision-making by ensuring that all relevant evidence and arguments are properly presented to the court. In most jurisdictions, the court’s ability to appoint amicus curiae is legislated. Such is the case is Manitoba, New Brunswick and Newfoundland and Labrador,Footnote 183 whereas in other jurisdictions, such as Alberta, British Columbia and the Yukon, the ability to appoint amicus curiae is part of the court’s inherent jurisdiction.

In some cases, the court may appoint amicus curiae in a case that involves children, so as to help the court in determining what is in the best interests of the children. For example, in G. (C.M.) v. S. (D.W.),Footnote 184 a Superior Court judge first made an Order requesting the involvement of the OCL pursuant to s. 89(3.1) of Ontario’s Courts of Justice Act. The OCL declined to become involved on the grounds that the court was not asking for the child’s position on the matters in contention to be put forward, but rather was seeking assistance to create a proper evidentiary record to assist with the required decision-making. As a result of the OCL’s refusal to represent the child in these circumstances, the court appointed amicus curiae, noting that the questions in issue (whether it was in the child’s best interests to be vaccinated) were of general public importance and would have an impact beyond the immediate parties.

Traditionally, amicus curiae’s role is not to advocate on behalf of a particular party. However, recent cases have evolved the role of amicus curiae in family law proceedings.Footnote 185 Despite the fact that, to date, there are no known cases where amicus curiae has been appointed specifically to advocate on behalf of a non-party child, it remains to be seen whether the law will develop in this direction.

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