NEWMARKET COURT FILE NO.: FC-01-11826 DATE: 20160615 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANNY ZOMPARELLI, Applicant AND: ROSE ZOMPARELLI (CONFORTI), Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: The Applicant is Self-Represented The Respondent is Self-Represented D. Snider for the Ontario Legal Aid Plan

HEARD: June 2, 3, 4, 5, November 16, 2015, May 24, 26, 27 and June 3, 2016

ENDORSEMENT

Background

[1] On June 3, 2016 the parties appeared before me with regard to the respondent’s request that the trial be adjourned so that she could obtain counsel in this matter. As well Ms. Snider represented the Ontario Legal Aid Plan at this court appearance.

[2] The applicant, Mr. Zomparelli has brought this Motion to Change his child and spousal support. It was called to trail during the May 2015 trial sittings. We were unable to finish the trial within the four days estimated in the trial management conference endorsement. This matter was adjourned to the November 2015 sittings. In November, the parties consented to a further adjournment of the matter which was requested because Ms. Conforti was ill. A statement was made from the counsel table during the last portion of the trial that Ms. Conforti had suffered a breakdown and had to be hospitalized.

[3] Mr. Zomparelli finished his evidence during the first portion of the trial. Ms. Conforti, the respondent to the Motion to Change, completed several days of evidence. Throughout the first portion of the trial I had to call security on Ms. Conforti on one occasion and she proved to be a difficult litigant, unwilling to accept instructions or assistance from the bench. She was however, able to place evidence before the court in a constructive manner. In particular she placed evidence before the court from a career counsellor respecting her chances of further employment.

[4] Unfortunately things had deteriorated by the time the trial resumed on May 24, 2016. Ms. Conforti stated on the first day of trial that she had discovered a “magnitude of evidence” which was extremely complex and she said that she required time to prepare for presentation of this evidence. She refused to tell me what that evidence was. The trial was put over until Thursday, May 26, 2016 in order that at 9:30 a.m. in order that she could prepare her case.

[5] Ms. Conforti did not show up Thursday morning. She was contacted on her cell phone by Mr. Zomparelli and showed up close to the lunch break. However instead of presenting evidence on that date she brought a motion from the counsel table to have Mr. Zomparelli along with his partner (who was a witness at the prior portion of the trial) and Mr. Zomparelli’s father (who was also a witness but whose evidence was agreed to be struck from the record) committed to jail pursuant to a Form 32 Warrant under the Family Law Rules [1]. She claimed that there had been contempt of court by all three parties and that they had also lied on the witness stand. It appears that Ms. Conforti was relying upon the transcript of the previous court appearances but did not provide a court copy of those transcripts. She had not served any Notice of Motion on any of the three parties that she sought to have incarcerated.

[6] I dismissed the motion based upon a lack of service of the motion. When we appeared the next day, Friday, May 27, 2016, Ms. Conforti asked me to recuse myself as the trial judge because I failed to recognize the importance of the issues that she had raised the day before. She described my concerns about a lack of service as a “procedural technicality.” After I refused this request Ms. Conforti was able to spend about an hour leading evidence of transfers of land to Mr. Zomparelli as well as mortgages taken out by his partner and him. However after the morning break, Ms. Conforti then asked for an adjournment of the trial. She said that she was close to a breakdown and was emotionally unable to continue with the trial. She also said that because of the complexity of the evidence she required legal counsel. I granted that adjournment subject to reappearing on Friday, June 3, 2016 in order to update the court on her progress at obtaining counsel.

[7] When I gave Ms. Conforti what was a favourable ruling on the adjournment request (and over the objections of Mr. Zomparelli), Ms. Conforti asked me again to recuse myself. She then made several other oral motions from the counsel table. She asked for more spousal support from Mr. Zomparelli on a temporary basis. She said that he was only paying $500 per month and based upon the evidence raised at trial so far this was inadequate. She further requested that because of the complexities of this matter and because courts in Newmarket are not able to handle complex matters, the matter be traversed to Toronto. I refused both of those motions firstly because leave is required of the Case Management justice before bringing any motions, and secondly again due to lack of service of any Notice of Motion or other notice to Mr. Zomparelli of her intention to request that relief. I further refused the motion to recuse because it would unfair and not in the interests of justice to make both parties recommence this trial especially in light of Ms. Conforti’s inability to present evidence to the court.

Amicus Curiae

[8] It has become apparent to me as this trial has progressed that Ms. Conforti is becoming increasingly unable to manage the presentation of her case in this trial. It is also apparent to me that if representation of some sort is not found for Ms. Conforti this trial will not be completed. Because of her request for an adjournment this trial will now extend over 18 months if it successfully recommences during the November 2016 Sittings. If Ms. Conforti is in the same state of mind as she is at present, the trial will also not be completed during the November 2016 sittings. This is harmful to the administration of justice and contrary to Rule 2 of the Family Law Rules which provides which dictates that courts are to deal with cases “justly” which includes the requirement that a case should be heard within a reasonable amount of time.

[9] Mr. Zomparelli at one point during the case stated that this was a fairly simple matter involving only his income, his ability to pay and Ms. Conforti’s need and ability to earn income. Being a Motion to Change where entitlement to spousal and child support was already established in 2007 by Justice Wood after a lengthy trial, he would appear to be correct. Unfortunately, for Ms. Conforti the case is, for her, much more complex. When I attempted to assist her when giving evidence she took great exception to this during the first portion of the trial; she said I was attempting to limit her the scope of her evidence and wished to give evidence as she saw fit. She introduced the May, 2016 portion of the trial as having evidence that was extremely complex with a “magnitude” of evidence, a word which she used on numerous occasions. She has still not been able to place this evidence before the court and will not accept the fact that this is simply a Motion to Change involving a change in circumstances and ability to pay, need and self-sufficiency. Or, if the issues are more complex than they appear, Ms. Conforti has been unable to explain to me how they are as complicated as she says they are.

[10] There are other hints of mental health issues concerning Ms. Conforti. She is unable to place evidence before the court in a coherent manner and unable to understand that the real issues are not placing Mr. Zomparelli and his partner and family members in jail but the issue of income and ability to pay. She told the court during this portion of the trial that she was close to suffering from a breakdown. She said at one point in time that she had earlier suffered a breakdown and had been hospitalized and this was the reason that the trial had to be adjourned in November 2015.

[11] From hearing submissions from Ms. Conforti and from her reaction to my rulings it is apparent to me that without assistance this trial will not be completed. It is apparent to me as well that Ms. Conforti needs assistance in presenting evidence in this matter in a coherent manner so that the relevant issues are placed before the court.

[12] This does not say that Ms. Conforti’s case has no merit. It is apparent to me that she has a case to make and has evidence to be placed before the court that is both relevant and which assists the court. The difficulty is that Ms. Conforti will not accept direction as to what evidence is relevant or not and choses to focus on supposed wrong doing by Mr. Zomparelli rather than addressing the financial issues before the court. As far as I know she has not filed updated financial information about herself with the court to provide financial information or evidence as to changes which have occurred since the adjournment of this trial in May 2015.

[13] On the return of this matter on June 3, 2016, Ms. Conforti stated that she had some success in retaining counsel. She had met with several lawyers. She advised that she would be in a position to have counsel appointed within four weeks of that date. If she obtains counsel there is no issue as that individual can assist her in the conduct of this trial and bring some order to proceedings. However if she cannot, the court requires assistance as things are deteriorating on the part of Ms. Conforti. It has to be noted that the court was able to hear about an hour of evidence during five days of trial time allotted to this matter during the week of May 23, 2016.

[14] Accordingly on June 3, 2016 I advised the parties that I would be considering and requesting the appointment of an amicus curiae if Ms. Conforti was not able to obtain counsel within the time that she said that she could. An amicus is appointed to provide assistance to trial judge where “the trial judge is of the view that an effective, fair and just decision cannot be made with such assistance”: Morewald-Benevides v. Benevides, 2015 ONCJ 532 at para. 43. Although the appointment must be made “sparingly and with caution”, the primary purpose is to “assist the court”. An amicus does not act as counsel for the party but assists that party in leading evidence or placing their case before the court. There is no solicitor-client privilege between an amicus and the party being assisted and the amicus may override the instructions or directions from a party in the interest of justice.

[15] In R. v. Imona-Russell, 2013 SCC 43, 2013 S.C.C. 43, in the criminal context, a court “may appoint an amicus only where they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions.” Once appointed, “the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings.” [para. 87 cited in Morewald-Benevides at para. 42].

[16] In my view we have crossed the threshold into an area where assistance to the court is essential in order to complete this trial. It is also essential that this trial be completed in the November 2016 Sittings and if this does not occur this will impair both the rights of the parties to speedy justice and the administration of justice in general. Therefore, if Ms. Conforti is unable to obtain counsel within four weeks of June 3, 2016 which was the last court appearance there will be a request placed before the Case Management justice that an amicus be appointed. That request will be on notice to the Ministry of the Attorney General and the Ontario Legal Aid Plan both of which have an interest in this issue because, together, they bear the costs of an amicus. Ms. Snider on behalf of the Ontario Legal Aid Plan advised the court that the motion should be on notice to the Ministry of the Attorney General and that Legal Aid may object due to Ms. Conforti’s ability to pay for a lawyer.

[17] It is my understanding that the amicus will be chosen from a legal aid panel of lawyers kept for this purpose.

Order

[18] There will be an order to go as follows:

1. If no lawyer has gone on the record for Ms. Conforti on or before June 24, 2016, a request will be placed before the Case Management justice (now Kaufman, J. as Rogers, J. has retired) that an amicus curiae be appointed in respect of Ms. Conforti to assist the court in the conduct of this trial.
2. The request for the amicus shall be dealt with by Kaufman, J. on a date to be set by the Trial Co-Ordinator on notice to the Ministry of the Attorney General, the Ontario Legal Aid Plan and both parties. Notice of the date as well as this endorsement to be served by court administration.
3. If the lawyer for Ms. Conforti removes himself or herself from the record, the request for the amicus will be renewed, on notice as above.

McDERMOT J. Date: June 15, 2016

Footnotes

[1] O. Reg. 114/99