What can a McKenzie Friend do?

A McKenzie Friend can do numerous things to assist you, such as:

1. Give you support
2. Help you stay calm through the process
3. Take notes for you
4. Hand you your documents as needed
5. Sit beside you in court

As a self-represented litigant, having even seemingly small tasks like these done for you can make the process seem a lot less intimidating; instead of having to worry about sorting through your papers or taking notes, you can focus on the court process itself. Even just having someone that you know sit beside you can be a comfort in a stressful situation. 

What can a McKenzie Friend not do?

It is important to keep in mind that there are some things that your McKenzie Friend is not allowed to do:

1. Address the court
2. Give legal advice

Do not forget that while your McKenzie Friend is there to support you, they are not legal representation. They cannot perform the same tasks that a lawyer would, however they are still a great resource to assist you. 

 

Do McKenzie Friends cost money?

McKenzie Friends do not cost money, since it is simply someone that you are choosing to assist you and act as a support person in court. In England, for example, this is not the case, and while you can bring a person you know at no cost, there are many McKenzie Friend businesses who actually offer this service at a cost. 

There is no way to know what is going to happen in the future, and if McKenzie Friend businesses will be allowed to start in Canada; for now, though, a McKenzie Friend will continue simply being a person that you bring to court for support, rather than a person you hire. 

 

Who can be my McKenzie Friend?

There are many options for who you choose to be your McKenzie Friend, including, but not limited to:

1. Friends
2. Family
3. Therapist
4. Counsellor
5. Community worker

Now, when it comes to friends and family, it is important to be mindful of the implications of this. For example, will their personal relationship to you impact how they act as your McKenzie Friend? Even with no ill intention, make sure you consider how they will be able to handle being in court, hearing about the case, etc. 

When you are choosing who to bring, make sure it is someone who will be able to keep a calm presence with you in court; the purpose for them being with you is to take some pressure off of your shoulders, not to add more. Now, of course, you do not need to choose someone who will take notes for you and help hand you documents, but if so, make sure you choose someone who is capable of doing so. You want to choose someone who is going to make the process easier for you, not someone who is going to cause you more stress. Of course, it might be hard to tell ahead of time who is going to be a good match, so try to have a meaningful discussion with them first, explaining to them what the process would entail, what they would need to do, how many days you will be in court, etc. Do not worry if the person declines, this role is not a match for everyone; it is a lot of responsibility to take on, so keep in mind this is mind when asking someone. Give them all of the information needed so that they can make an informed decision based on what they think they will be able to do. 

Who cannot be my McKenzie Friend?

There are no specific rules as to who can not be a McKenzie Friend, although there are some people who, generally, a judge would be less likely to approve of. For example, a lawyer or paralegal; one of the things your McKenzie Friend cannot do is give you legal advice, which a lawyer or paralegal could very well do. It is not that the judge would not trust that your lawyer/paralegal McKenzie Friend would stick to the rules, but there is a considerable risk that they would want to give you legal advice. 

If you choose someone with a legal background to be your McKenzie Friend, you will very likely have to defend this choice to a judge, who will have the option to decline the request; be prepared to explain exactly why this person is your McKenzie Friend, that they will not be giving you legal advice, etc.

What is the process of bringing a McKenzie Friend to court? Do they have to be approved?

There is no guarantee that your McKenzie Friend will be allowed to sit with you in court, because it will need to be approved first. There is a due process for everything, including this; do not just assume that your support person will be allowed to sit with you. Keep in mind that when you make the request, you do not need to call them your McKenzie Friend if you do not want to. Instead, you can just ask to have someone sit with you and leave it at that. All in all, the judge has the last say in whether or not your McKenzie Friend will be allowed, your person will only be allowed if it is reasonable. For example, does your person know or have a personal relationship with the other side? Is the person aggressive or argumentative? Do they have a legal background?

You should trust the judge to make a reasonable choice, so you need to make sure that you are also making a reasonable choice, and be prepared to defend it. 

What are the benefits of bringing a McKenzie Friend to court?

There are many benefits to bringing a McKenzie Friend with you to court. As we’ve discussed earlier, they can keep you organized and bring you some sense of comfort and familiarity in the courtroom. Your McKenzie Friend can do a lot of things, or do nothing, it is completely at your discretion and dependent on your needs. If they are just there to be a familiar presence, that is more than okay; on the other side of the spectrum, if they are there to listen, take notes, help keep your documents organized, listen to the case, that is also great! It is up to you what you need your McKenzie Friend to do; discuss this with them beforehand, though, so they know what to expect and can prepare accordingly. 

As a self-represented litigant, it is possible that you may feel very stressed out during court proceedings, but also after the proceedings. Having someone that can take notes during, and remind you of things that happened is a great asset. This person can listen to the entire case and take notes, and give you feedback afterwards. Sometimes when you are stressed, it is hard to be able to fully pay attention and take detailed notes, and you might miss something important that is said. 

All in all, a McKenzie friend will have as many benefits as you want them to! Do not overthink this; sit down with them before and explain to them what areas you need support in, and let them tell you what they think they would be good at. From here, decide together what they will do in court to best support you. This entire concept is supposed to benefit you, so do your best and take your time to make sure that it is executed this way. 

Are McKenzie Friends regulated/do they have guidelines to follow?

In Canada, there are no official guidelines for McKenzie Friends to follow. The concept of a McKenzie Friend is relatively new in Canada. However, for example, British Columbia has official guidelines to follow for a support person joining you in court. 

Now, even though Ontario does not have official guidelines, here is a summary of the ones in BC. It is a good idea to have an idea of how McKenzie Friends/support people are expected to conduct themselves in another Canadian province, as it can give you some insight as to how they would likely be expected to conduct themselves in Ontario if Ontario had guidelines:

What can a support person in B.C. do?

1. Do any task that the judge approves of
2. Give emotional support
3. Quietly suggest things to you
4. Take notes
5. Help organize your documents

What can a support person in B.C. not do?

1. Address the court
2. Speak on behalf of you
   1. They can speak on your behalf only with the advance permission of the judge in exceptional circumstances

Who cannot be a support person in B.C.?

1. Could be a witness in the hearing or trial
2. Is paid by you for their services as a support person

Ontario, if they develop official guidelines for McKenzie Friends/support people, will probably not have the exact same guidelines as B.C., but may include some of the same things; referencing this can give you a general idea as to how to go about this process and what you will be expected to do. 

However, as we have said, there are general things to keep in mind, such as the fact that a judge does not have to accept your support person, and that a McKenzie Friend cannot give legal advice or address the court.

 

What are McKenzie Friends like in other countries? Does the future of McKenzie Friends in Canada look like this?

There is no way to tell what the future of McKenzie Friends looks like in Canada, as it is still a fairly new concept. However, we can look at what McKenzie Friends are like in other countries just for general information, and to see the possibilities of what it could look like in Canada. 

In England, McKenzie Friends are allowed to receive payment for their services, and there are many businesses that offer this service. They are similar to Canada in the sense of the things that they can and cannot do. 

Singapore also has something like this called the Lay Assistant Scheme. They are people (most of them have some sort of legal knowledge) that help people that are not represented by lawyers with similar tasks as Canadian McKenzie Friends, such as admin tasks. 

 

Do I have other options besides a McKenzie Friend as someone who wants assistance with my legal affairs?

Soon, some family law services will be provided by paralegals; a license for this is being developed in Ontario. After completing education to receive this license, paralegals will be able to help with things like filing deadlines, name changes, uncontested divorces, etc. This is great because it will be cheaper than a lawyer, and still be a way to get legal help. They will not be able to represent you in court, but can help you with the general process. Unfortunately, there is not much more information about this as it is all still in development. 

 

Are there any past cases in Ontario that have included McKenzie Friends?

The case Blanks v. Roberts (2018) is a fairly recent case in Ontario that had one of the parties bring a McKenzie Friend to court. Roberts brought a list of accommodations to court that she claimed she was entitled to because of her disabilities, bringing a medical note to back-up her reasoning. She said that the McKenzie Friend was to help her take notes, organize her papers, give her support emotionally, and help her get to court. The judge accepted this accommodation, but noted that according to case-law, having a McKenzie Friend is usually only allowed for the most complex cases.

 

Another case is B2B Banks v. Hails (2018). Hails requested to have a McKenzie Friend with him. Hails’ reason for requesting a McKenzie Friend was because of his difficulty in being able to keep up with the proceedings. However, the judge did not allow for Hails to have his McKenzie Friend with him; he was not convinced. He noted that McKenzie Friends usually occur only in family law proceedings, and he was in court for enforcement proceedings due to him defaulting on a mortgage. The McKenzie Friend that Hails had requested, Michael Joseph Albert Gaboury, was potentially Lord Michael Joseph Albert Gaboury, the director of G.E. Holdings Canada Limited and in a “pure trust” agreement connected to the property; the judge did not trust that the typical tasks of a McKenzie Friend was all that Gaboury was there to do.

 

In the case  D.F. v. Wawanesa Mutual Insurance Company (2018), D.F. was helped by Michael Gillen. Gillen was not on the record, and was said to be there in the capacity of a McKenzie Friend. 

What do McKenzie Friends look like in other provinces?

We are also going to discuss how some other provinces deal with McKenzie Friends to give you more examples as to how a McKenzie Friend process could look like in court. Keep in mind that things that apply in other provinces will not always apply to Ontario, again, these are just examples to see the use of McKenzie Friends in court; also, not all of these cases concern family law, but unfortunately there are not many cases in Canada involving McKenzie Friends specifically. 

 

Alberta:

In Alberta, a support person is discussed in the Alberta Rules of Court. Rule 2.23 says that a person is allowed to help a person in court in any way that the Court determines is appropriate, including

1. Quietly suggesting things
2. Taking notes
3. Providing support
4. Addressing particular needs of a party

However, this person will not be able to give support if 

1. The assistance would contravene section 106(1) of the Legal Profession Act*
2. If the assistance would or may be disruptive
3. If the assistance would not meet the purpose and intention of these rules

Finally, they state that this rule does not affect the court’s discretion 

 

*The Legal Profession Act says that unless a person is an active member of the Society, they cannot:

1. Practice as a barrister or solicitor
2. Act as a barrister or solicitor in any court of civil or criminal jurisdiction
3. Start, carry on or defend any action or proceeding before a court or judge on behalf of anyone
4. Settle or negotiate in anyway for the settlement of any claim for loss or damage founded in tort

 

As an example, the 2019 case of Bretin v. Ross in Alberta included a McKenzie Friend. Bretin was able to have his wife sit with him as a McKenzie Friend during the trial, and the other party agreed to this as long as his wife would be a witness in the proceedings. 

 

In the 2020 application for permission to restore appeal of Croswell v. Koncur, the respondent, Koncur, had a McKenzie Friend with her. 

 

In the 2021 case of Wolk v. Wolk, K. Wolk was a McKenzie Friend for the applicant, J. Wolk. 

 

British Columbia:

We have already discussed British Columbia’s situation with McKenzie Friends; however, we are going to recap it here and offer some case examples. 

What can a support person in B.C. do?

1. Do any task that the judge approves of
2. Give emotional support
3. Quietly suggest things to you
4. Take notes
5. Help organize your documents

What can a support person in B.C. not do?

1. Address the court
2. Speak on behalf of you

1. They can speak on your behalf only with the advance permission of the judge in exceptional circumstances

Who cannot be a support person in B.C.?

1. Could be a witness in the hearing or trial
2. Is paid by you for their services as a support person

There is a case from 2015, Hansra v. Hansra where the respondent has a McKenzie Friend with them, and it was actually even officially called a McKenzie Friend as well, not simply a support person. 

 

In the 2020 case of Durmuller v. Canada (Attorney General), it was mentioned that at the reference hearing, Durmuller had a McKenzie Friend, Edwin Knight, that was considered to be helpful not only to Durmuller but to the court as well. Knight helped Durmuller with preparation for the hearing, as well as during the hearing itself. 

 

Newfoundland and Labrador:

 

Newfoundland and Labrador sets out some general guidelines in their Court of Appeal Rules (the rules apply to civil proceedings in the Court of Appeal). Rule 22 talks about having the assistance of someone who is a non-solicitor. Here is the rule, exactly how it is written, so you can read for yourself and reference if needed.

Assistance of non-solicitor

22. (1) A party who is a natural person may be represented by a solicitor or by himself or herself, or by a person acting for the party as trustee or in a representative capacity.

             (2)  Upon application of a party, for the purpose of facilitating access to justice, the Court may, in exceptional circumstances and subject to such conditions as may be appropriate, permit a person who is not a solicitor

             (a)  to make submissions on behalf of a party who, by reason of physical or mental disability or other disabling circumstance, is not able adequately to make submissions on his or her own behalf;

             (b)  to sit with a party in the Court for the purpose of providing assistance, advice and support during the proceeding.

              (3)  A person granted permission under subsection (2) shall deliver to the Court a completed Form 17, undertaking in writing

             (a)  not to receive directly or indirectly any compensation for the assistance provided, except reimbursement for expenses actually incurred, unless the Court otherwise permits;

             (b)  that his or her interests are not in conflict with the interests of the applicant under subsection (2); and

             (c)  to observe and be bound by the obligations that apply to an officer of the Court particularly as set out in Form 17.

 

As you can see above, the Newfoundland and Labrador’s Court of Appeal will allow, for the “purpose of facilitating access to justice”, permit a person who is not a solicitor to make submissions (if they cannot due to a physical or mental disability, or disabling circumstances), sit with a party to give assistance, support, and advice. To do so, though, a Form 17 must be submit, and the support person (McKenzie Friend) can not receive any compensation (unless it is reimbursement for expenses incurred during the support), cannot have any conflict of interest with the application, and observe/be bound by obligations that apply to an officer of the Court. 

 

Now, as for a case example, we can look at Steve v. Rendell from 2016, which references the rules we have discussed above. In this case, the respondent, Rendell, had her son (a retired lawyer in another province), be her McKenzie Friend. This was accepted because of Rendell’s age, financial difficulty, health, distance, and had inadequate ability to make submissions on her own behalf; now, concerning the son being a retired lawyer, it was said that it is a pro bono act of representation, not a practice of law. He was simply helping out his mother, not carrying himself as a practicing barrister or earning money. 

Nova Scotia:

 

In Nova Scotia, there are no specific rules or guidelines relating to McKenzie Friends; however, this is not to say that McKenzie Friends cannot be brought to court. Rule 34.08 of their Civil Procedure Rules state that a judge can allow a person to assist (and, if necessary, speak on behalf of) an individual party at a trial or hearing. This is not very specific though to the role that a McKenzie Friend typically plays (helping with documents, note-taking, etc); the word “assist” is quite broad in this sense, so let’s look at a case in Nova Scotia involving a McKenzie Friend. 

 

The 2015 case of R v. Hillman deals with an application by Hillman, because he wanted to be represented by Christopher Enns. Enns was a lay person that was not legally trained. Since there are no rules in the Criminal Conduct of Canada about lay representation, Hillman said that since it was not specifically prohibited, it should be allowed (of course with the understanding that the Court could still prohibit it). The respondent argued that the Code does not allow accused people facing indictable matters to have lay representation. The Crown noted that there was, surprisingly, a lack of case law dealing with lay representation applications regarding indictable matters. All in all, this application was denied; s.800(2) and s.800(2.1) of the Criminal Code of Canada does not allow agents to represent in summary matters if the accused is liable to a penalty greater than 6 months; more things considered, Hillman’s McKenzie Friend was not allowed.