Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210224 DOCKET: C66536

Fairburn A.C.J.O., Doherty and Thorburn JJ.A.

BETWEEN

Annette Pipitone Applicant (Appellant)

and

Franco D’Amelio Respondent (Respondent)

Counsel: Annette Pipitone, acting in person Brigitta Tseitlin, for the respondent

Heard: February 18, 2021 by video conference

On appeal from the order of Justice George A. MacPherson of the Superior Court of Justice, dated May 11, 2018, with reasons reported at 2018 ONSC 2970, and from the costs order, dated September 13, 2018, with reasons at 2018 ONSC 5185.

Reasons for Decision

[1] The appellant and respondent were married on October 11, 1969. They executed a separation agreement on October 3, 1984 and subsequently divorced in 1985. The appellant later remarried and then divorced a second time.

[2] On July 2, 2015, the appellant brought a motion to vary the divorce order from her marriage to the respondent and to set aside the separation agreement as it relates to the waiver of spousal support, thereby seeking retroactive spousal support. She also brought an application for damages arising from alleged physical and sexual assault, mental abuse, and cruelty she is said to have endured prior to the marriage and during the course of the marriage.

[3] This is an appeal from the dismissal of both claims.

[4] The appellant’s objections can be grouped under three broad headings.

The Appellant’s Self-Represented Status

[5] First, the appellant argues that, in light of her self-represented status at the motion, the motion judge failed in his obligation to provide her with the assistance she was owed.

[6] While the appellant initially had a lawyer assisting her at the motion, counsel withdrew from the record on the tenth day of the motion, after which the appellant did not retain another lawyer. The appellant indicated her agreement to the withdrawal. The motion judge asked the appellant if she intended to retain new counsel. She did not intend to do so. He asked if she was prepared to proceed with the motion, and she confirmed that she was.

[7] The appellant points to a number of factors that are said to support her claim of inadequate assistance from the motion judge. For instance, she argues that the motion judge should have informed her of the right to refuse her counsel’s withdrawal from the record, and he should have warned her about the consequences of that withdrawal.

[8] We see no basis upon which the appellant could have opposed counsel’s withdrawal from the record. Nor do we see any basis for the claim that the motion judge failed to provide the appellant with assistance throughout the proceeding. To the contrary, the record reveals the motion judge took repeated steps to assist the appellant in navigating her way through the matter. By way of example, he helped her with basic evidentiary issues, explained how to enter exhibits, allowed her to record the proceedings, and explained the stages of examination-in-chief and cross-examination. In addition, the motion judge provided the appellant with an informational guide for self-represented litigants, and he encouraged her to read it. In our view, the appellant was provided with more than adequate assistance from the motion judge.

The Allegations of Abuse

[9] Second, the appellant argues that the motion judge erred by rejecting her evidence about the allegations of abuse. She raises numerous complaints in this regard, most of which reflect an attempt to relitigate the credibility assessments that lay within the domain of the motion judge. Deference is owed to those assessments.

[10] In our view, the motion judge made clear and detailed credibility findings, all of which were rooted in the full evidentiary record before him. In assessing the appellant’s credibility, the motion judge considered the evidence of other witnesses who were familiar with the parties at the time the alleged conduct took place, including the appellant’s mother. As the motion judge noted, some of that evidence contradicted the appellant’s version of events. In making his credibility assessments, the motion judge also considered certain statements that the appellant made in the proceedings relating to the divorce from her second husband, including where she had described the respondent as “the boy next door”.

[11] In our view, the motion judge came to credibility conclusions that were rooted in the evidence. We defer to those conclusions.

The Historical Records

[12] Third, the appellant argues that the motion judge erred by excluding certain historical records from the proceedings, ones that she claims would have corroborated her version of events. We see no error in the motion judge’s decision to exclude the records as inadmissible hearsay. While there is a Catholic Children’s Aid Society record, that may have been admissible to rebut the respondent’s implicit allegation of recent fabrication, considered in context, even if that record had been admitted for that purpose, it would not have had any impact on the manifold reasons given by the motion judge for rejecting the appellant’s credibility in this case.

Fresh Evidence and Costs Below

[13] The appellant brings a fresh evidence application on appeal, asking this court to admit the excluded records. For the reasons already given, the fresh evidence application is dismissed because the records were not admissible. Even if the one record was admissible, it would not have affected the result.

[14] The appellant also challenges the costs award from trial. It is indeed a heavy award, being $192,631. However, the motion judge gave detailed reasons for that award, allowing only for partial indemnity costs. In light of the length of the trial and the document-laden record, this was not an unreasonable amount. We see no error in the motion judge’s decision on costs. The principle of deference applies.

Disposition

[15] The appeal is dismissed. The fresh evidence application is also dismissed.

[16] Written costs submissions were received prior to the hearing of the appeal. Having regard to those submissions and the respondent’s success on appeal, we order that the appellant pay to the respondent his legal costs in the amount of $10,000, inclusive of disbursements and HST.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“J.A. Thorburn J.A.”