Court File and Parties

CITATION: Robichaud v. Locilento, 2016 ONSC 2352

COURT FILE NO.: 07-CV-339934 PD1

DATE: 20160406

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Milena Robichaud, Moving Party

– AND –

Angelo Locilento, Grace Locilento, Philip Locilento, Marco Locilento and Andrew Lee, litigation administrator for the Estate of Mark Maisine, Responding Parties

BEFORE: Justice E.M. Morgan

COUNSEL: Vahe Anagyan, for the Moving Party

Edward Tonello, for the Respondents, Angelo Locilento, Grace Locilento, Philip Locilento, and Marco Locilento

HEARD: April 6, 2016

ENDORSEMENT

[1] Ms. Robichaud is the mother of Angelina Grace Robichaud-Locilento, who is now 12 years old. Angelina’s father was Anthony Locilento, who died in a snowmobile accident in 2006. Anthony’s parents, Angelo and Grace Locilento, have joint custody of Angelina with Ms. Robichaud.

[2] In 2007, Anthony’s parents and siblings commenced a wrongful death action against the Estate of Mark Maisine, who was the driver of the other snowmobile. Angelo Locilento acted as litigation guardian for his granddaughter, Angelina.

[3] The evidence in the record is that Ms. Robichaud and Anthony each had a difficult life during their time together. Anthony struggled, on and off, with drug addiction, and Ms. Robichaud was, on an off, a sex trade worker. It is a matter of some dispute how long they actually cohabitated; Ms. Robichaud says it was two years, while Angelo Locilento says it was more like three months.

[4] I will add that counsel for Ms. Robichaud advises that his client has made great strides in turning her life around. He indicates that she has gone to college and is now a licensed mortgage professional. Although there is still a live dispute between her and the Lucilento family about her lifestyle choices, none of that is relevant here. What is relevant here are matters that transpired in 2006-07.

[5] I will also add that the evidence in the record also shows that Anthony and Grace Locilento are generous grandparents. They have paid for private schooling for Angelina, have bought a condominium where Ms. Robichaud and Angelina live, and provide monetary support for Angelina. When the wrongful death litigation with the Mark Maisine estate settled, Angelina received a settlement in the overall amount of $302,964.08. As litigation guardian, Angelo Locilento took the financially responsible approach of arranging for the payout to Angelina to be in the form of a structured settlement which she will receive when she is no longer a minor. That settlement has been approved by the court.

[6] The court file for the wrongful death litigation was sealed by court order. Ms. Robichaud brings this motion seeking to unseal it so that she can have access to its contents.

[7] The Estate of Mark Maisine takes no position on whether the file should remain sealed, and no one appeared on the Estate’s behalf in this motion despite being served with the motion materials. The Locilento family wishes for the file to remain sealed. They take the position that the information in the file is confidential, that the court had good reason for sealing it in the first place, and that Ms. Robichaud lacks standing to apply to open that file.

[8] Counsel for Ms. Robichaud submits that as the natural mother of Angelina, Ms. Robichaud deserves to have access to the file pertaining to the settlement her daughter has received. He contends that the wrongful death litigation was engineered by Angelo Locilento and his lawyer, Barry Percival, to exclude Ms. Robichaud. He further submits that Ms. Robichaud should have been included as a Family Law Act plaintiff against the Estate of Mark Maisine, and that, in addition, as mother she should have been Angelina’s litigation guardian instead of Angelina’s grandfather. Having been manipulated out of that lawsuit, she would now like to know the details of the litigation in order to better understand and evaluate the settlement her daughter received.

[9] The responding record filed by counsel for the Locilento family demonstrates that Ms. Robichaud is mistaken. She was not manipulated by them or excluded from the litigation by them. Quite the opposite appears to be true. The record contains a lengthy series of letters written by Mr. Percival imploring Ms. Robichaud to join the litigation as guardian for Angelina. Ms. Robichaud at first refused to join with the Locilentos in this litigation, and then consulted her own lawyer, Valois Ambrosino, for advice as to how to proceed. Mr. Ambrosino introduced himself to Mr. Percival as Ms. Robichaud’s lawyer, and then promptly went silent. Mr. Percival wrote numerous letters to Mr. Ambrosino during 2006-07, all of which invited Ms. Robichaud to participate in the litigation as guardian for her daughter.

[10] Mr. Ambrosino appears never to have given Mr. Percival a response to his entreaties, despite Mr. Percival writing to him all through the first half of 2007. At the same time, Mr. Percival corresponded with Angelo Locilento, advising him that someone would have to be litigation guardian for Angelina, and that it should either be the Public Guardian and Trustee or Angelo Lucilento himself. In the end, when no response was forthcoming from Mr. Ambrosino for month after month, Mr. Locilento reluctantly applied to be appointed litigation guardian for his granddaughter.

[11] Counsel for Ms. Robichaud indicated at the hearing that his client has just yesterday found a document prepared by Mr. Ambrosino in August 2007, which appears to be an affidavit of Ms. Robichaud agreeing to act as litigation guardian for Angelina in the wrongful death suit. This was never sent to Mr. Percival or to Angelo Lucilento, and even Ms. Robichaud appears to just be seeing it – or, rather, just remembering it – for the first time now. In any case, it is mysterious as to what Mr. Ambrosino was doing in respect of her situation back in 2007. There may be some explanation – Ms. Robichaud’s counsel has not had a chance to contact him about this – but on its face it looks like he might have simply dropped the ball in 2007 and left Ms. Robichaud without protecting her position in any way.

[12] Counsel for Ms. Robichaud also submits that Mr. Percival misadvised her from the outset with respect to her rights. He apparently told her that she has no Family Law Act claim resulting from Anthony Locilento’s death, as she did not cohabitate with him for a long enough time. According to counsel for Ms. Robichaud, that was poor advice. He characterizes this as part of the machinations that deprived Ms. Robichaud of the opportunity to participate in the litigation.

[13] I do not know whether Mr. Percival’s advice in this respect was good or bad. That would depend on some fact finding with respect to how long Ms. Robichaud and Anthony Locilento actually lived together. What I do know, however, is that the document prepared by Mr. Ambrosino on Ms. Robichaud’s behalf contained a style of cause that also included Ms. Robichaud as a personal plaintiff as well as a litigation guardian for Angelina. That suggests that Ms. Robichaud did get timely advice back in 2007 that she could participate in the wrongful death litigation as a Family Law Act plaintiff in her own right. Since she apparently didn’t like Mr. Percival’s advice, she went to her own independent counsel and got alternative advice. Her problem wasn’t that she wasn’t advised; rather, her problem seems to be that the advice was never acted upon for one reason or another.

[14] In Ivandaev v Ivandaeva, 2003 CanLII 43168,the Ontario Court of Appeal considered the issue of applications to re-open sealed files. The court pointed out that files are only sealed if there are very good reasons to do so, as the policy governing judicial process is generally one of openness. Since court files are sealed for good reason, they can only be unsealed for good reason.

[15] Under Rule 37.14(1)(a) of the Rules of Civil Procedure, a person applying to unseal a file must first establish that she has standing to do so. That turns on the applicant establishing herself as a person who would be affected by the sealing order. The Court in Ivandaev noted that that would be the case if their “proprietary or economic interests were affected by the order.” It would not be the case, however, if the applicant wanted to know the contents of the file for some other reason or for information sake alone.

[16] In my view, there is no reason for Ms. Robichaud to now have the file unsealed. It no doubt contains information that the Locilento family needs to keep confidential, and that was important enough to convince the court to seal when the wrongful death suit was ongoing. It is now too late for Ms. Robichaud to be Angelina’s litigation guardian or to otherwise participate in that litigation, and there is nothing to be gained by opening the file for her. She had a chance to fully participate and appears to have declined that opportunity several years ago. She could have brought her own action if she had been advised to do so, and could have been Angelina’s litigation guardian had she been so inclined. Having declined to do both at the time, she had no standing to receive notice of the sealing order at the time it was made and has no standing to unseal the file now.

[17] I do not know whether Ms. Robichaud has only now changed her mind about the wisdom of staying out of the wrongful death suit, or whether she was misled by her own lawyer at the time. If the latter is the case, her remedy lies as against the lawyer that misadvised her or that mishandled her file. I am advised by her counsel that the correspondence between Mr. Percival and Mr. Ambrosino only came to Ms. Robichaud’s attention very recently, and so this possibility may still be open. Her recourse, however, is not to inquire not about conduct of the wrongful death litigation by the Locilento family.

[18] I would accordingly dismiss this motion.

[19] As I said, Ms. Robichaud may have been ill-advised. She may also have been so consumed with her own life issues that she was unable to digest the advice that she was given. All of that remains to be considered in another forum, if she pursues that route. That does not undermine the fact that she is left in the dark about a financial settlement that her 12 year old daughter has received. Although she has no legal standing for the order that she seeks, one cannot blame her for wanting to understand the background to her daughter’s financial settlement.

[20] In view of that, I am inclined not to order costs against her. She has already suffered some difficult blows by not understanding, or not being properly advised about, the legal system. I do not want that system to add to her burden any more than it already has.

Morgan J.

Date: April 6, 2016