This blog is the first in a multi-part series on the distinctive role of the litigation guardian at common law.
One of the most important but underappreciated roles in the civil justice system is that of the litigation guardian. Under Rule 7.01 of the Rules of Civil Procedure, “[u]nless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.”[1] But where does the concept of a litigation guardian come from, and what does the role require today?
One of the longstanding features of the Western legal tradition is that the law should protect those who are incapable of protecting themselves.[2] Ever since the days of the Roman praetor and his juris consults, courts have required minors and other parties to be accompanied by a tutor or curator. The former was tasked with representing a child up to the age of puberty.[3] The latter, chosen by the minor, could act until the child reached the age of 25. While a tutor was responsible for protecting a child’s person and property, a curator’s duties extended to a child’s property and litigation.[4] The curator’s power could either be “general” or “special”: they could be granted a general power over a child’s estate or appointed for a specific transaction with limited authority.[5]
The origins of the litigation guardian can also be traced to the canon law of the Church. For example, the Church claimed a general jurisdiction over miserabiles personae, those who by vulnerability or incapacity could not protect themselves. In family proceedings, children frequently came under the jurisdiction of the Church when dealing with annulments and domestic relations. Ecclesiastical courts also had exclusive jurisdiction over probate, and often appointed guardians to ensure that minors received their legitime under a will or on an intestacy.[6]
In England, these Roman and canonical concepts were slowly transformed into the notion of the common law guardian. Not unlike the Church, the King served as parens patriae (“parent of the nation”) of all non-sui juris persons, including children and incapable adults. In this role, the King could issue letters patent to appoint a person to act as guardian of a child or incapable person. This law was initially “disjointed,” recognizing at least ten kinds of guardians under narrowly defined circumstances. Moreover, the Roman distinction between tutor and curator was often blurred.[7] Despite these deficiencies, the role of the common law guardian persisted alongside the jurisdiction of the ecclesiastical courts. The protective function of the King later passed to the Court of Chancery, but the role of guardian remained and continued to be refined.[8]
By an early English statute, children were permitted to participate in court proceedings with the assistance of a special guardian.[9] Historically, a person acting for a plaintiff in a suit was referred to as prochein ami (“next friend”), while one acting for a defendant was the guardian ad litem.[10] This distinction was later dropped, and the terms became interchangeable. Today the role is commonly known as “litigation guardian,” representing “the modern equivalent to the Roman special curatore and the English common law guardian” but limited to representing a party under disability in court.[11]
In Part 2, we will explore how this role became part of the law in Ontario and discuss some of its distinctive features. Stay tuned!
[1] Rules of Civil Procedure, RRO 1990, Reg 194, r 7.01.
[2] Martin D Begleiter, “The Guardian Ad Litem in Estate Proceedings” (1984) 20 Williamette L Rev 643 [Begleiter, “The Guardian At Litem”] at 645.
[3] Richard H Helmholz, “Roman Law of Guardianship in England, 1300-1600” (1978) 52:2 Tulane L Rev 223 [Helmolz, “Roman Law of Guardianship”] at 229.
[4] Ibid at 229.
[5] Begleiter, “The Guardian At Litem” at 645.
[6] Helholz, “Roman Law of Guardianship” at 225-27.
[7] Begleiter, “The Guardian At Litem” at 646.
[8] Ibid at 646.
[9] Ibid at 646.
[10] Ibid at 646, note 26.
[11] Ibid at 646.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.