Court File and Parties
Newmarket Court File No.: FC-01-11826 Date: 2016-09-13 Ontario Superior Court of Justice
Between: Daniel Zomparelli, Applicant – and – Rose Zomparelli (Conforti), Respondent
Counsel: Unrepresented (for Applicant) Unrepresented (for Respondent)
Heard: September 2, 2016
Before: McDermot, J.
Endorsement
[1] On June 15, 2016, I issued an endorsement which addressed the need for the appointment of an amicus curiae to assist the court and the Respondent in the completion of this trial. I spoke in this endorsement of the conduct during trial of the Respondent, which has resulted in this trial being adjourned on several occasions and, during the last phase of this trial, in an apparent inability by the Respondent to complete her evidence. The endorsement was issued as a result of the Respondent’s request to adjourn the trial because she said that she was at risk of a “breakdown” and needed a lawyer to complete the trial. On that last day of the sittings, I ordered that, if the Respondent did not obtain counsel within four weeks of that date, an amicus would be requested. The endorsement was intended to confirm this decision and the reasons for it.
[2] This was a motion brought by the Respondent to have my endorsement of June 15, 2016 removed from the record. The Respondent says that the endorsement contains numerous errors and as such should be struck. She also effectively requests that my decision requesting appointment of an amicus in this matter be set aside.
[3] The Applicant disagrees with Ms. Conforti. He says that he believes that the appointment of an amicus will assist the court. He filed no material and spoke briefly over the protests of Ms. Conforti.
[4] The Respondent essentially says that my findings and conclusions set out in my endorsement of June 15, 2016 are in error. She says that if anyone is guilty of litigation misconduct, it is Mr. Zomparelli. Ms. Conforti says that he misrepresented facts to the court and is guilty of non-disclosure. In fact, that is largely the reason why Ms. Conforti asked that Mr. Zomparelli and his partner be committed to gaol for at least one day on the Thursday that this matter was returned to trial during the May, 2016 sittings.
[5] Ms. Conforti also relied upon a number of transcripts of the trial to prove that my conclusions were wrong. She was selective in the obtaining of these transcripts and they do not provide a fulsome review of all of the evidence and statements made at trial. I am not intent upon obtaining and reviewing all of the transcripts from this trial to prove that I am right. I acknowledge my own fallibilities in the review of the evidence; all that I can rely upon is my memory and notes taken at trial. However, the findings that I made in my endorsement at trial are the facts as best as I can see them.
[6] Ms. Conforti takes great exception to the reference in my June 15 endorsement to mental health issues that she may suffer from. I made it clear to Ms. Conforti that I make no finding that she suffers from any mental health condition; I can only go by appearances and I am not a therapist. Ms. Conforti has filed correspondence from her own therapist indicating that she suffers from no mental health conditions other than situational anxiety caused by the trial and, according to her, Mr. Zomparelli.
[7] The fact remains, however, that this trial began in May, 2015, well over a year ago. It was not completed and had to be adjourned to the November, 2015 sittings. That stage of this trial was adjourned, according to the correspondence from Dr. Gorman, because “the emotional burden upon her was becoming too great and she was beginning to show symptoms of chronic situational stress”. That confirms that the second portion of the trial was adjourned because of Ms. Conforti’s mental state.
[8] During the third phase of the trial, in May, 2016, Ms. Conforti suddenly asked, on the last day of trial, to adjourn the trial because she said that she was close to a “breakdown” and that she needed legal representation to continue. I agreed with this assessment. On June 3, 2016, I advised the parties that if Ms. Conforti did not obtain counsel within the month, the court would be requesting the appointment of an amicus.
[9] Ms. Conforti took great exception to my suggestion that she did not actually retain a lawyer for trial. She insisted that she did. She said that, if necessary, that should be the subject matter of a full hearing with evidence. I note that she filed a handwritten Notice of Change in Representation (Tab 4 of Vol 29 of the Continuing Record) which purports to place Axcess Law Firm on the record for her; however, a representative of Axcess Law Firm, Stephanie Kepman, advised the trial coordinator in Barrie that “we have not signed a retainer with her, nor have we agreed to represent her” and that “this has been expressed to her by myself, Stephanie Eva Kepman.” Notwithstanding Ms. Conforti’s vigorous submissions that she had a lawyer helping her, she was not willing to address this at the motion, and stated that this was irrelevant to her motion.
[10] What is relevant is jurisdiction to grant the order requested. Ms. Conforti has filed a number of cases that I have reviewed. Other than the Onex Corporation case, these cases are all considerations of correcting errors or omissions in an endorsement or judgment under either Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or Rule 25(19) of the Family Law Rules, O. Reg. 114/99. None of the cases consider a request such as that made by the Applicant which is to withdraw the whole of the endorsement and rescind the order that I made.
[11] As well, other than the Suresh and Martinez cases, none of these cases are family law cases under the Family Law Rules which govern this matter. Rule 25(19) is the only jurisdiction that I have to reconsider my own endorsement, and that Rule allows me to “change an order” that “contains a mistake”. This rule is meant to correct clerical errors in an order and is not meant as a route whereby a party can appeal an unfavourable order: see Gray v. Rizzi, 2010 ONSC 2858. It certainly does not give me jurisdiction to set aside my own order even if a mistake was made.
[12] Ms. Conforti says that an appeal is not practicable insofar as to take this to the Court of Appeal would be expensive and unrealistic in the middle of a trial. However, if I have made findings of fact concerning this issue without there being any sort of evidentiary basis resulting in an unfair result to Ms. Conforti, an appeal of my decision upon completion of trial would be warranted and should be prosecuted. Rulings, such as that made on June 15, 2016, would be part of the record considered by the Court of Appeal. Generally there is no right of appeal of rulings made as part of the trial process in the course of a trial, but these rulings may very well be grounds for appeal of the end result.
[13] Furthermore, even if the rule allowed me to rescind my order and my endorsement, I would not. The intention of the endorsement was to set out my perception of the trial process, which has been protracted and difficult largely because of the litigation conduct of Ms. Conforti. Her motions for contempt, her adjournment requests, her numerous requests that I recuse myself, her attempt to have the matter moved to Toronto where judges can understand things better and this motion are all examples of distractions which have derailed the trial. I repeat that we either need a solicitor on record for Ms. Conforti, failing which the assistance of an amicus is necessary.
[14] The Respondent’s motion is dismissed.
[15] This matter is adjourned to October 4, 2016 at 9:30 a.m. for the consideration by the case management judge, Kaufman J., as to the appointment of an amicus curiae. This endorsement to be served by court staff on the Ministry of the Attorney General and Legal Aid, who, along with the parties to this proceeding, have an interest in this issue.
[16] Costs of this motion are to the Applicant in the cause.
McDermot, J. Date: September 13, 2016
Cited Cases and Legislation
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