NEWMARKET COURT FILE NO.: FC-15-48668-03
DATE: 20180511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Annette Pipitone
Applicant
– and –
Franco D’Amelio
Respondent
Self-Represented
Alexandra Abramian, Counsel for the Respondent
HEARD: February 20-23 and 26-28, March 1, 2 and 5-8, 2018
RULING
MACPHERSON J.:
INTRODUCTION
[1] Annette Pipitone (the “Applicant”), and Franco D’Amelio (the “Respondent”) were married on October 11, 1969.
[2] At the time of the marriage the Applicant was 15 years old and the Respondent was 21 years old.
[3] On October 3, 1984 the parties executed a separation agreement (the “Agreement”). The Agreement addressed all issues including the division of family property and a release of spousal support. There were no children of the marriage.
[4] The parties divorced in 1985 with the decree absolute being issued on July 16, 1985. The divorce order incorporated provisions of the separation agreement that dealt with the division of property, the matrimonial home and the release of spousal support.
[5] On July 2, 2015, 30 years following their divorce, the Applicant commenced a Motion to Vary the divorce order and, or, to set aside the separation agreement.
[6] In addition, the Applicant brought an application for damages arising from alleged physical and sexual assaults prior to and during the marriage.
[7] For the reasons set out below, both claims are dismissed.
LITIGATION HISTORY
[8] On July 2, 2015, the Applicant filed a Motion to Change the final order of Justice Ferguson dated April 9, 1985 seeking 28 prayers for relief including setting aside the Agreement and requesting property claims, spousal support and damages for sexual and physical abuse.
[9] On March 22, 2016 Justice Douglas heard a summary judgment motion and dismissed all claims with respect to property. Justice Douglas also indicated that the request for damages was not properly before the court in a motion to change application.
[10] Further, in terms of the claim for spousal support, Justice Douglas indicated in his decision that the Applicant need not establish a material change in circumstances as there had not been an adjudication of the issue of support, and that if the Agreement was set aside, the claim for spousal support would proceed by way of Application ab initio.
[11] On June 2, 2016, following the decision on the Summary Judgment motion, the Applicant filed an Application requesting 26 prayers for relief.
Claims Withdrawn
[12] The Applicant’s claim against the estate of her former mother-in-law (the Respondent’s mother) was withdrawn prior to trial. The Applicant’s claim to set aside the 1985 Divorce was also withdrawn prior to the trial.
Issues Remaining
[13] Two claims remained to be determined at trial:
The Applicant’s request to set aside the Agreement, or provisions within the agreement regarding the waiver of spousal support and requesting an order for retroactive spousal support; and
Damages arising from alleged sexual and physical assaults, mental abuse and cruelty: a) prior to the parties’ marriage, and b) during the parties’ marriage.
Self-Representation
[14] At the commencement of Day 10 of the trial Ms. Segal, who was agent for the Applicant, withdrew from her representation. The Applicant indicated her agreement to the withdrawal. The Applicant was asked if she intended to retain alternate counsel. The Applicant advised the court that she was not going to do so and intended to represent herself for the balance of the trial. When asked if she was ready to proceed, she indicated that she was and she called her next witness.
ISSUE # 1 - REQUEST TO SET ASIDE THE SEPARATION AGREEMENT
Facts
[15] On October 3, 1984 the parties executed the Agreement. The Agreement, at paragraph 3(b), states that the separation occurred in or about the summer of 1976. The date of separation is disputed by the Applicant who claims the date of separation was in 1984 when the parties actually ceased cohabiting.
[16] The Agreement addressed the division of family property and also included a release of spousal support stating at paragraph 8:
The wife and the husband each acknowledge that neither requires support for themselves and that they have fully and carefully considered their present situations, future prospects and the risks in life both financial and otherwise and they agree neither will claim support or maintenance from the other regardless of the circumstances and if such claim is made this agreement shall be a complete defence thereto.
[17] Paragraph 18 of the Agreement contained the following provision:
- Independent Legal Advice and Disclosure - The wife and the husband each acknowledge that:
a) each has made full disclosure to the other of her or his financial and capital means and circumstances;
b) each believes this Agreement is reasonable and fair and its provisions are entirely adequate to discharge the present and future responsibilities of the parties and will not result in circumstances unconscionable to either party;
c) each has had independent legal advice;
d) each understands her or his respective rights and obligations under this Agreement; and
e) each is signing this Agreement voluntarily.
[18] Both parties executed the Agreement. The Applicant’s signature was witnessed by counsel, Moira Bartram, and the Respondent’s signature was witnessed by counsel, Donald Citron.
Applicant’s Testimony
[19] The Applicant testified that she has no memory of the details surrounding the signing of the Agreement almost 34 years ago on October 3, 1984. The Applicant agreed that the signature on the Agreement was hers. She testified that she assumes she read the Agreement before signing. All that she remembers is that she took the Agreement to a lawyer to sign it. The Agreement indicates the lawyer was counsel, Ms. Bartram.
[20] The Applicant subsequently remembered the Respondent saying if she did not sign the agreement, he would sell the matrimonial home. The matrimonial home was registered in the name of the Applicant only and both parties were residing in the home. The Applicant also recalled an amendment to Schedule A of the Agreement where the parties initialled that she would receive the TV set because the Respondent had broken one a few years prior.
[21] The Applicant acknowledged that a certificate of independent legal advice was part of the Agreement. However, she has no memory of obtaining same. Ms. Bartram also accepted the Petition for Divorce (the “Divorce Petition”) on behalf of the Applicant. The Divorce Petition was dated November 23, 1984. It references that the parties ceased to cohabit in the summer of 1976. The Applicant has no memory of giving Ms. Bartram instructions to accept the Divorce Petition.
Respondent’s Testimony
[22] The Respondent testified that about a year before the Agreement was signed, he knew that their cohabitation was no longer possible. This resulted in discussions about the possibility of ending the cohabitation. The Respondent testified that the Applicant initiated the discussion. The discussions were quite protracted, lasting 3 or 4 months. Eventually, he says, the parties had an agreement in principle and they agreed to a format.
[23] The Respondent further testified that the Applicant and he sat down and wrote out the contents of what would be the Agreement on a piece of paper. The Applicant would receive the home and most of the furniture. The Respondent would keep a list of items as set out in a schedule to the Agreement as well as his pension. There was to be no support payable by either party.
[24] The Respondent also stated that he contacted counsel, Mr. Citron, and brought the handwritten document to him. Mr. Citron reviewed the terms, gave some legal advice, and he drafted the Agreement according to the terms outlined. The agreement provided the Applicant with title to the matrimonial home and she released any interest in RRSPs, pensions or savings accounts. However, there was one significant change. Under section 6 of the Agreement the following subsection was added:
6.3 The said payment by the wife to the husband pursuant to sub-paragraph (2) hereof shall be as follows:
(a) If the wife shall remarry at any time following a Decree Absolute of divorce, the sum of $40,000.00 without interest, such sum to be paid within three months of the date of such remarriage; or
(b) If at any time following a Decree Absolute of divorce the wife shall sell the said property, the sum of $40,000.00 without interest, such sum to be paid within one month of the closing of the said sale; or
(c) If the wife shall die within five years of the date of this Agreement, the sum of $40,000.00 without interest, such sum to be paid by the executors or administrators of the estate of the wife within six months of the grant of Letters Probate or Letters of Administration of the estate of the wife.
[25] The Respondent submits that he brought the draft Agreement back to the Applicant to review. At first she objected to the added subsection but, eventually, she agreed to the addition.
[26] The Applicant brought the Agreement to her own lawyer for review. She returned with a signed copy. The Respondent testified that when the Applicant came back from her lawyer’s office, Schedule A had one change, being the television set that was to go to the Respondent. The Respondent initialled the change.
Law
[27] At the time the parties entered into their Agreement, on October 3, 1984, their rights were governed by the Family Law Reform Act, R.S.O. 1980, c.152. Section 18(4) of the Family Law Reform Act provides that the court may set aside a provision for support in a domestic contract and may determine and order support:
a) Where the provision for support or the waiver of the right to support results in circumstances that are unconscionable;
b) Where the provision for support is to a spouse who qualifies for an allowance for support out of public money; or
c) Where there has been a default in the payment of support under the contract or agreement.
[28] Section 56(4) of the current Family Law Act, R.S.O. 1190, c. F.3, provides:
A court may, on application, set aside a domestic contract or a provision in it,
a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
b) if a party did not understand the nature or consequences of the domestic contract; or
c) otherwise in accordance with the law of contract.
[29] Sections 60(1) and (2) of the Family Law Act read:
60 (1) A domestic contract validly made before the day this Act comes into force shall be deemed to be a domestic contract for the purposes of this Act.
60 (2) If a domestic contract was entered into before the day this Act comes into force and the contract or any part would have been valid if entered into on or after that day, the contract or part is not invalid for the reason only that it was entered into before that day.
[30] Counsel for the Respondent argues that Section 18(4) of the Family Law Reform Act is the governing legislation.
[31] I agree that the governing legislation is the Family Law Reform Act as it was the legislation in force at the time the Agreement was executed. Section 56(4) of the Family Law Act is not retroactive on the principle that statutes are presumed to apply to future acts. Accordingly, under that legislation, the Agreement may be set aside: “where the provision for support or the waiver of the right to support results in circumstances that are unconscionable”.
Was the waiver of support in the Agreement unconscionable?
[32] Both parties acknowledged, under paragraph 18(b) of the Agreement, that each believed the Agreement was reasonable and fair and its provisions were entirely adequate to discharge the present and future responsibilities of the parties and would not result in circumstances unconscionable to either party;
[33] In terms of family assets, the Applicant received the matrimonial home, the car and most of the furniture. It is noteworthy that under the Family Law Reform Act, pensions were not family assets and, accordingly, were not included when dividing property. Pensions were a relevant consideration when looking at support. The Applicant, therefore, received the greater share of the family assets.
[34] In terms of the waiving spousal support, the parties did not have children. At the time the Agreement was executed, both parties were working at their respective careers. The Respondent worked at Ontario Hydro and the Applicant worked at McMillan Binch as a legal secretary. Specifically, the Applicant testified that she worked from 1972–1982, full time at 40 hours a week. She was a typist/dividend clerk, first at Guaranteed Trust as a typist and later at Canadian Pacific. In 1982 she started working at a law firm as a secretary. She stayed there until 1987 and then started working at McMillan Binch where she worked until 1990. Although the Applicant was receiving less income, she received the unencumbered matrimonial home.
[35] The Applicant testified that one of the reasons the Agreement was unfair was because the house was already in her name and, therefore, not subject to division. This is a fundamental flaw in her understanding of equalization of net family properties.
[36] For these reasons I find that the waiver of spousal support by the Applicant and the waiver of any interest in the matrimonial home by the Respondent at the time the Agreement was executed was not unconscionable.
[37] In the event Section 56(4) of the Family Law Act is the relevant legislation when considering setting aside the Agreement, for the reasons that follow, I would not set aside the Agreement nor any provision contained within it.
[38] Under section 56(4) of the Family Law Act, a separation agreement can be set aside if:
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).
[39] In determining whether to set aside a domestic contract or a provision in it, there is a two stage analysis:
Whether a party can demonstrate that one or more of the circumstances set out in section 56(4) of the Family Law Act have been engaged.
Whether it is appropriate for the court to exercise its discretion in favour of setting aside the domestic contract.[^1]
Was there a failure to disclose significant assets?
[40] There was no evidence adduced at trial to support the Applicant’s claim that there were significant assets undisclosed. The parties had a joint bank account at the time the Agreement was entered and the Applicant had her own account. There was no evidence to suggest that she was unaware of the amount of money in the Respondent’s joint bank account. A pension was not considered a matrimonial asset under the legislation. There were no RRSPs, and no investments of any significance.
[41] There may have been, at best, a modest investment although I do accept the evidence of the Respondent that the modest investment reflected in his income tax returns from 1980 through 1984 are interest earned on his pension invested by Ontario Hydro, not any significant undisclosed asset.
[42] The only significant asset was the matrimonial home and the Applicant received that unencumbered. The parties purchased the matrimonial home in 1978 for $97,000. At the time of purchase a mortgage was registered as fist charge against the property in the amount of $50,000. The mortgage was paid off in 1983 by funds accumulated by the Applicant. The mortgage amount outstanding at the time of discharge was $39,310.99. At the time the Agreement was executed, the matrimonial home was unencumbered.
Did the Applicant understand the nature of the Agreement?
[43] I cannot accept the evidence of the Applicant that she did not understand the nature of the Agreement. She worked as a legal secretary. She had counsel at the time the Agreement was entered into. She negotiated at least one term of the Agreement.
[44] In addition, paragraph 6(3)(a) of the Agreement stated that the Applicant was to pay to the Respondent the sum of $40,000 if certain conditions were met. One such condition was if she remarried. On June 9, 1990, at least seven years after the agreement was entered into, the Applicant married her second husband, Mr. Tony Pipitone. Sometime after the marriage the Applicant called the Respondent to state that she was married and she was going to honour the Agreement by giving the Respondent back the $40,000 outlined in the Agreement.
[45] The Applicant and Respondent met at a local restaurant. The Applicant provided the Respondent with a cheque for $40,000. The Respondent testified that he offered her $10,000 as a wedding gift but the Applicant refused it.
[46] The Respondent executed a release indicating the receipt of $40,000 in full satisfaction of clause 6(3)(a) of the Agreement. Accordingly, I conclude that the Applicant understood the nature of the agreement.
Can the Agreement be set aside under the laws of contract?
[47] The Agreement cannot be set aside under the law of contract. As stated, the parties had counsel, understood the nature of the Agreement and, the terms were not unfair. In the documents filed with the court to support her spousal claims against her second husband, Mr. Pipitone, the Applicant described her relationship with the Respondent as all good. She recounted in affidavits that following her first marriage she was happy and vivacious. She stated that after the divorce from the Respondent, she owned her own home, had a good paying job, had financial security, and was happy and confident.
Conclusion
[48] Based on all of the evidence, I conclude that the parties intended to divide all of their assets, and live separate lives. Indeed, the parties did just that. The agreement was not unfair and there were no significant assets there were undisclosed.
[49] The Applicant subsequently re-married as did the Respondent. The Applicant married her second husband, Mr. Tony Pipitone, on June 9, 1990. They separated in January 1999. On June 26, 2000, following a trial on the corollary issues related to her second marriage, Justice Quinn awarded the Applicant spousal support from her second husband in the amount of $1,000 per month. On October 29, 2004 the spousal support entitlement was terminated on a contested basis
[50] The Respondent married his second wife, Mrs. Teresa D’Amelio, in February 1996 and they continue to be married.
[51] Both parties lead lives very separate and apart from each other. They lived their lives and organized their affairs on the assumption that everything had been divided and resolved. This understanding survived for decades.
[52] It would be unfair to permit either party to re-open the terms of the Agreement. The request by the Applicant to set aside the Agreement and make an order for spousal support is denied.
[53] A significant quantity of evidence was offered on the date of separation. Although nothing turns on it, I accept that the parties lived separate and apart under the same roof from 1976 through to 1984 when they stopped cohabitation for the following reasons. In the Agreement the parties acknowledged living separate and apart since 1976. The Petition for Divorce stated the parties were parties living separate and apart since 1976. The parties were, for the most part, living separate lives with separate bank accounts, and sleeping in separate bedrooms. While they did attend some family functions together after 1976, I accept that by and large the parties were leading separate lives and the appropriate date of separation was the summer of 1976.
ISSUES # 2 - TORT FOR SEXUAL AND PHYSICAL ASSAULTS AND BREACH OF FIDUCIARY DUTY
[54] The Applicant alleges that prior to her marriage to the Respondent and during her marriage to the Respondent she suffered from sexual and physical assaults, mental abuse and cruelty perpetrated on her by the Respondent. She further asserts that she suffered damages as a direct result of the abuse.
[55] The Applicant is requesting damages arising from these alleged sexual and physical assaults, mental abuse and cruelty:
(a) prior to the parties’ marriage, and
(b) during the parties’ marriage.
[56] The Respondent denies sexual or physical abuse, mental abuse or cruelty.
The Applicant’s Testimony
[57] The first ‘incident’ of abuse the Applicant details occurred around Easter 1968. The Respondent lived next door. The Applicant went to the Respondent’s home because the Respondent’s mother made special Easter baking and the Applicant went over to pick them up. The Respondent’s mother was present and went upstairs. The Respondent came to her and pulled her against the wall and started to French kiss her. The Applicant testified that she was frozen and did not French kiss him back. She did not know what to do. She did not say anything to him. She recalls the Respondent then French kissed her in the bathroom and, when she exited the home through the side door to leave, she felt the world shifted or changed. She was just shy of turning 14.
[58] The second ‘incident’ she remembers was also at the Respondent’s parents’ home. The Applicant testified that she was helping wax the floors upstairs. When she would go to the basement, the Respondent would bring her in the bathroom and touch her breasts over and under her bra. She testified that it was shocking to her. All she remembers is being frozen in place.
[59] The Applicant testified that this happened a handful of times. Every time his mother left, the Respondent would rub himself against her and touch her breasts. She does not remember saying anything. She recalls that she never touched the Respondent.
[60] Following these encounters, the Applicant testified that the Respondent would pick her up from school. She testified that in 1968 he picked her up in his car several times. She testified that she had a vague recollection about the details but does recall that he would kiss her and touch her. She did not recall their conversations. She remembers that he would ejaculate on a Kleenex following sexual contact with her in his car. The Applicant estimates this would occur, on average, three times a week. The circumstances were the same or similar.
[61] The Applicant stated that she never initiated any sexual encounters or any contact.
[62] The Applicant further testified that the Respondent once tried to touch her between her legs but she started to freak out because her mother said never let that happen and that was the only time in the car he tried to touch her between her legs. The Applicant could not recall how long the encounters would take, but it would not be long because she had to go home from school. She testified that the Respondent would drop her off a block from the house so that her mother would not know.
[63] The Applicant testified that in the spring of 1969 the Respondent and his family moved and, so, they were no longer neighbours. She indicated that she was happy when he moved away. She testified that she did not see him again until he suddenly arrived with his mother at their home. She remembers a serious discussion ensuing where he professed his love for her and wanted to marry her. The Applicant’s mother initially said come back when the Applicant is 16. At that point she was just shy of turning 15. At the end of the meeting she did not know what would happen but, the parties were married on October 11, 1969.
[64] Following the wedding, there was a reception at a hall. She vaguely remembers being at the hall. She testified that they slept at the Skyline Hotel on their wedding night. The memory she has is that the Respondent raped her. She says they went to Montreal for the Honeymoon but that memory is blocked.
[65] The Applicant’s next memory is living at his parent’s house with the Respondent. She testified that his parents were there and his brothers were present in the home while she and Respondent lived there. She remembers trying to avoid him by staying at the edge of the bed. There were two occasions that he raped her.
[66] The Applicant testified that the first time the Respondent physically assaulted her was two months after the wedding, in or about December 1969. She testified that she had a book to read for school, “To Kill a Mockingbird”, and she was to watch the movie for school as it was being aired on TV. She testified that she told the Respondent that she had to watch the movie and changed the station. The Respondent put it back on the sports channel. She said she went to change it again and the Respondent slapped her across the face. She testified that she ran out of the house. She remembers hiding nearby and he came looking for her. When it was too cold she went back home. After her return home the Respondent’s mother screamed at her, pushed her up against the wall and slapped her across the face.
[67] The Applicant submits that she called her mother very upset. Her mother attended the house a short time later. A couple of weeks later, around January 1970, the parties moved into their own apartment.
[68] The Applicant gave testimony that in January 1970 the Respondent beat her a few timesand that the police attended the apartment at least two or three times. She does not remember if she or someone else called the police. She believes that a man in the apartment building called the police. She remembers the beatings as a cluster as opposed to individual events. She testified that the Respondent would pull her by the hair, kick her, punch her, slap her, and choke her. She testified that the Respondent once pushed her head into the floor tiles, and once kicked her between the legs. The Applicant testified that she did not have any injuries that required hospitalization. She stated that she had bruises on her back, shoulders, and face from time to time.
[69] The Applicant further testified that in January 1970 there were sexual encounters that would lead to the beatings. The Applicant submits that she has been physically assaulted 15–20 times throughout the marriage from 1969 through 1984.
[70] The Applicant submits that the assaults were generally in private although there were two occasions where she was assaulted in front of others.
[71] The Applicant testified the first public assault happened in 1977 when the Respondent punched her in the face while they and another couple were having dinner at the home of their good friends, Nick and Anna Fazio. They were all having dinner and the Applicant said something to the Respondent that he did not like. He stood up and punched her in the face. She testified that there was blood although she did not remember where. She recalled that she fled the house and that no one came to speak to her and that the guests continued to eat dinner.
[72] The second public assault happened in front of her mother when she was struck. She stated that this caused her mother to pick up a frying pan to hit the Respondent.
[73] The Applicant testified that she was also assaulted in 1983. She testified that the Respondent broke her finger. She also testified that she was assaulted in 1984, which was the last assault.
The Respondent’s Testimony
[74] The Respondent tells a very different tale. He denies ever having physically or sexually assaulted the Applicant. He indicates that when he first met the Applicant he was working at Douglas Aircraft as a tool and dye maker in early 1969. In terms of physical contact prior to the marriage, he testified that the parties would enjoy stolen kisses from time to time but would mostly hug and sit together on the sofa with family about. There was no other type of intimacy. The allegations made by the Applicant were described by him as a lie. He always put the Applicant on a pedestal and, because of their Italian traditions and culture, he would not do anything that would dishonour his or her family or the people they loved.
[75] In terms of the wedding, the Respondent described the wedding night where he stated that they did not stay at a hotel but rather, slept at his parent’s home. He testified that following the wedding it was late, they were tired and they were going to Montreal by train the following morning for their honey moon. He testified there were no sexual relations that night.
[76] The Respondent testified that the next morning they left for Montreal and stayed for four or five days. He testified that while in Montreal, the Applicant became upset because his mother opened the wedding gift box. He testified that they were not communicating well. As the honeymoon progressed she was again upset because he could not afford to purchase her a new pair of shoes she wanted. The Respondent testified that if the Applicant did not receive what she wanted she would be upset and it would be persistent.
[77] The Respondent testified that on the third night in Montreal they still did not have intimate relations. On the fourth day they tried. They were unsuccessful. He testified that they did not try again during the honeymoon.
[78] The Respondent testified that they lived in the home of his parents for two months after the wedding. He did not recall having any intimate relations there. He testified that it was not the same relationship as before the marriage. The Applicant had anger and he could do nothing to please her.
[79] He remembered the incident when the Applicant wanted to watch ‘To Kill a Mockingbird’. As he described it, in their house, after dinner, his parents watched an Italian program and they were watching one on the evening in question. The Applicant said she wanted to watch the movie for school and asked him to change the station. He refused to do so. He described the Applicant as being incensed and she slapped him across the face and then ran out of the house.
[80] The Respondent testified that he ran after her and he tried to talk to her. She called him all kind of names. Eventually, after three or four hours of talking, they walked home.
[81] The Respondent testified that February 1970 was the first time they had sexual relations. They had moved out of his parents’ home and into their own apartment. In the first two months in the apartment he described their relationship as a ‘simmering conflict’. There was always a petty discussion about one thing or another.
[82] The Respondent testified that the Applicant became pregnant in late 1973. Throughout the trial this was a significant point of contention with the Applicant indicating she was pregnant several years later. The Respondent indicates that they were both happy with the pregnancy. In March or April 1974 the Applicant insisted on a Florida vacation before the birth. The Respondent testified that the parties took the bus to Florida and stayed with family friends. One day they decided to go to the beach for a long walk. The day was hot and the Applicant was tired and wanted to get a sand buggy to bring her home. The Respondent disagreed for financial reasons and they walked back. When they got back the Applicant was spotting and went to the hospital. Ultimately, she lost the baby.
[83] Following the loss of the baby, the Respondent testified that the relationship was bad. The Applicant blamed him for the loss of the baby. He was called all sorts of names including monster, baby killer. This was a daily, repeated attack that lasted until he went to Deep River, Ontario for a position with Ontario Hydro in the fall of 1974.
Analysis
[84] The evidence of the Applicant and the Respondent is completely contradictory. The Applicant describes a history of sexual and physical assaults and the Respondent states that they never happened. I accept the evidence of the Respondent for the following reasons.
Additional Evidence and Testimony
[85] The Applicant’s mother, Ms. Maria Mancini, testified that she never witnessed any abuse. She contradicted the testimony of the Applicant that she witnessed the Respondent hit the Applicant on one of the two public occasions.
[86] Ms. Coscarelli, formerly Mrs. Fazio, testified that she and the Applicant were best friends from grade 9 until after the Agreement was signed. This friendship lasted many years. The Respondent was the best man at her wedding to Mr. Fazio and the Applicant was her Maid of Honour. The parties are the godparents of her daughter, Suzie, born August 19, 1970. They were part of a group of three couples that spent almost every weekend together. They would spend time together, attend dinner parties, go to the cottage, go to beach and that continued for years.
[87] Ms. Coscarelli never saw any bruises/injuries on the Applicant although, over the years, she would have seen the Applicant in bathing suits/shorts. She testified that she did not believe the Applicant was abused. She testified that there was never an occasion where the Respondent, while at a dinner party at her home, stood up and punched the Applicant.
[88] Mr. Fazio testified that he was a close friend of the parties and never witnessed any assaults, never saw any bruising and never saw any marks. He testified that the Applicant was never struck in the face at a dinner party at his home as alleged by the Applicant.
[89] There were two other participants at the dinner party, Mrs. D’Amelio and Mr. Angiola. Mrs. D’Amelio is the current wife of the Respondent. She testified that there was never a time that the Applicant was struck at a dinner party.
[90] Mr. Angiola is Mrs. D’Amelio’s first husband. He testified that the incident described by the Applicant did occur. Mr. Angiola testified that he, as well as the balance of the dinner party guests, continued eating. He did not recall if anyone got up and went after her.
[91] It was very clear from the evidence that there is animosity between Mr. Angiola and the Respondent. Neither he nor Mrs. D’Amelio is impartial and I have not afforded any weight to their testimony in regards to the alleged assault at the dinner party.
[92] Based on the evidence of Mr. Fazio and Ms. Coscarelli, who struck me as impartial and believable, I do not conclude that the assault at the dinner party, as described, occurred. Further, it is improbable that following an incident as described by the Applicant, that the guests would continue their meal, no one saying a word to anyone, and everyone going on about the evening.
[93] Ms. Simonetta is the goddaughter of the Applicant and the Respondent. She is the daughter of Ms. Coscarelli. Ms. Simonetta testified that she went to see the Applicant when she heard she was spreading rumours that the Respondent had sexually abused her and her sister when they were little girls. Ms. Simonetta was adamant that it did not occur. She advised the Applicant that it was not true. In her testimony, she stated that the Applicant refused to believe what Ms. Simonetta was telling her.
Applicant’s Second Marriage
[94] The Applicant’s statements and actions following the separation from Mr. D’Amelio also contradict her testimony.
[95] On June 9, 1990 the Applicant married her second husband, Mr. Pipitone. They separated in 1999. The Applicant commenced divorce proceedings that resulted in a trial in June 2000. The Petition for Divorce requested damages for breach of marriage contract; spousal support; and requested damages of $105,000. The Applicant supported her claims stating that she had to leave her job; that she was depressed and could not return to work; that she suffered economic disadvantage; that he owed her a duty of good faith; and that he emotionally abused her.
[96] Mr. Pipitone was ordered to pay spousal support to the Applicant with a two year review period. The litigation continued on and off from 1999 until 2009. The litigation went to the Court of Appeal on two occasions and one attempt to proceed to the Supreme Court of Canada, although leave was denied.
[97] Throughout her litigation with her second husband, Mr. Pipitone, the Applicant stated in sworn documents that Mr. Pipitone was the source of all of her problems. She stated that she was disabled solely from her marriage and the marriage breakdown with Mr. Pipitone. She claimed an economic disadvantage following the breakdown of the relationship with Mr. Pipitone and sought spousal support and damages for mental distress, nervous shock, anxiety, frustration, inconvenience and injury to feelings. She described Mr. Pipitone as physically and emotionally abusive for nine long years.
[98] In her testimony at this trial, the Applicant retreated from that position completely indicating Mr. Pipitone slapped her once, half heatedly, and once pushed her with a blanket. Yet in medical reports filed, particularly by Dr. Finkelstein, the Applicant blamed Mr. Pipitone for all of her issues. Her explanation at trial was that she had not opened the door yet regarding the Respondent. When asked why the statements were inconsistent the Applicant responded that she had to tell herself that she was happy and confident to attract a mate. She now states that she should have said that she pretended to be happy.
[99] Further, in describing her relationship with the Respondent while going through her court proceedings with Mr. Pipitone, the Applicant provided sworn statements that she had a good relationship with the Respondent. She referenced him to Dr. Wheeler as “the boy next door”. Ms. Pipitone, in describing her situation following the breakdown of her first marriage, stated in court documents related to the litigation with Mr. Pipitone, that she had no illness or disability. She also stated that she had an accustomed standard of living which was good. She described herself as happy, vivacious and confident when she met Mr. Pipitone.
Applicant’s Request for an Annulment of First Marriage
[100] A number of further inconsistencies are found in the documents supporting the Applicant’s request for an annulment of her marriage to the Respondent. In 1988 the Applicant applied to the Catholic Marriage Tribunal for an annulment of her marriage. On June 29, 1988 the Catholic Marriage Tribunal issued a Declaration of Nullity of her marriage to the Respondent.
[101] The Applicant provided a summons to the Archdiocese of Toronto to attend Court for the trial. Father Clough attended, as part of the summons, and brought documents with him. The documents included a letter from the Catholic Marriage Tribunal dated August 8, 1988; the Declaration of Nullity of the Marriage dated August 11, 1988; Declaration by the Defender of the Bond dated June 30, 1988; and the Definitive Sentence in the First Instance dated June 29, 1988.
[102] Although Father Clough was her witness, the Applicant opposed the admissibility of the annulment documents as hearsay. The Respondent requested their admissibility as a business record. A business record includes a record made in the course of every kind of business whether for profit or otherwise. As part of its business, the Catholic Church receives and considers applications for annulment. The record shows who attended, the date they attended and a recording of what was said in support of the annulment is made and subsequently transcribed into a record. There is a significant and formal process as outlined by Father Clough involved in the process.
[103] I accepted the majority of the documents as business records with two portions excluded as they recorded conclusions and provided opinion. In terms of the annulment itself, Father Clough testified that the Respondent was contacted but declined to participate in the annulment process. The annulment was commenced by the Applicant who, together with her sister, Rosalie, and two other witnesses, provided testimony to the Tribunal. The Applicant made a number of comments to the Tribunal that are inconsistent with her current testimony.
[104] In the annulment process, the Applicant said she was anxious to get away from her troubled home situation and welcomed the proposal of marriage from the Respondent. She stated that her mother and step-father argued constantly with the fighting involving more than just arguing. She stated that her wedding was not consummated until five days after the wedding. She stated that because of her age she did not know anything about sex and she was fearful but that the Respondent was respectful and loving towards her. These documents are consistent with the evidence of the Respondent and are inconsistent with the evidence the Applicant provided to the Court.
Experts
Dr. Barnes
[105] Dr. Barnes is a psychologist who was qualified as an expert on the assessment and treatment of individuals with trauma related issues. Dr. Barnes reviewed four issues:
Whether the Applicant was able to discover the wrongful nature of the acts perpetuated against her by the Respondent prior to 2014; and if not, why not.
The psychological impact of the alleged abuse on the Applicant and its link to her current psychological disabilities.
The impact these disabilities have had on the Applicant’s ability to earn an income.
The impact of these disabilities on the Applicant’s well-being and daily activities.
[106] In her report, Dr. Barnes states that she formed her conclusions on the basis that the experiences outlined to her by the Applicant were “adequately accurate”.
[107] The documents that she reviewed were listed in the appendix of her report. This included statements made by the Applicant about her history. Dr. Barnes was able to form an opinion of historical sexual abuse based on the information that was provided, the documents provided, and the testing results interpreted.
[108] Dr. Barnes indicated that she made certain assumptions. While the assaults had not been established she assumed, for her report, that they did occur, as reported, to determine if there was a basis of PTSD and depressive symptoms.
[109] Dr. Barnes concluded that the Applicant’s version was consistent with the documents provided and with her presentation. She acknowledged that the information was lacking in corroborating the sexual abuse allegations. She acknowledged that she would be concerned if there was evidence inconsistent with the Applicant’s story.
[110] In cross-examination it became clear that Dr. Barnes was not provided the fullness of available documentary evidence available nor the context in which it was created.
[111] The Applicant described to Dr. Barnes her marriage with Mr. Pipitone in glowing terms, for the most part. She did not describe that Mr. Pipitone was emotionally and physical abusive to her as outlined in her affidavits during their 12 yearlong litigation. The Applicant did not disclose to Dr. Barnes that she put forward a claim for damages indicating that Mr. Pipitone was abusive. Dr. Barnes was not aware that 4 years later the Applicant made another claim of damages against Mr. Pipitone alleging that the post-litigation actions of Mr. Pipitone had exacerbated her mental health situation.
[112] Dr. Barnes was unaware that the Applicant swore in court documents, when litigating with Mr. Pipitone, that she was a confident woman with a good job after the separation from the Respondent; that she swore in documents that she lost her job because of the stress of the litigation with Mr. Pipitone; or that she continued to litigate with Mr. Pipitone until 2012.
[113] Dr. Barns was unaware that Ms. Pipitone, during the annulment process, advised that she did not consummate the marriage for 5 days which was inconsistent with her testimony and information provided to Dr. Barnes that she was raped on her wedding night. Dr. Barnes conceded that was a very important detail and she would have asked the Applicant about that. The separation that was described at page 18 of Dr. Barnes’s report is inconsistent with the report she gave to the archdiocese, which was that she and the Respondent were living separate and apart and simply agreed to separate. Under cross examination Dr. Barnes conceded that had she known about the inconsistencies that might have had an impact on her conclusion.
Dr. Klassen
[114] Dr. Klassen completed an Independent Medical Evaluation of the Applicant on July 21, 2017.
[115] Prior to Dr. Klassen providing a diagnosis he did outline issues in the assessment process that could, if even to a modest extent, compromise the accuracy of the opinion. In particular: a) the limited availability of collateral information and the inability to interview individuals close to the Applicant; b) the significant period of time that has elapsed between the alleged traumatic events which may have interfered with recall; c) the number of times the Applicant has been asked to recall the events can, for some at times, produce some reshaping of memories; d) that many psychiatric and psychological disorders experience a waxing and waning course, sometimes with symptoms exacerbated during therapy, litigation; and e) concerns about the Applicant’s self-report.
[116] He did not accept that there was forgetfulness and the idea of the consciousness raising in 2014 was not compelling to him.
[117] Dr. Klassen diagnosed the Applicant as appearing to suffer from a persistent depressive disorder, likely also suffering from significant personality difficulties which could also be reframed as “complex” post-traumatic stress disorder (PTSD). Dr. Klassen noted that most psychiatric and psychological disorders are the products of multiple causation.
[118] Dr. Klassen testified that in 1999 the picture that was set out by the Applicant to Dr. Finkelstein is similar to how she presents now. The picture that emerges is that the Applicant feels like she had a raw deal and she is going to punish people for the raw deal. Dr. Klassen opined that if the Applicant is singularly focused on that to the exclusion of other positive things she will be unhappy.
[119] Dr. Klassen noted that there is an impact of sleep apnea on mental health issues. The Applicant suffers from sleep apnea. Dr. Klassen indicated concern with the Paulhous Deception Scale testing as the Applicant’s results were quite high with symptom exaggeration and, so, in interpretation, one would be cautious about any self-report.
[120] Finally, Dr. Klassen indicated that psychiatrists are not finders of fact. He will often complete a report on the basis of the facts presented. He noted that the Applicant was demonstrating a pretty dramatic reversal of position. He described the Applicant’s self-report as an outlier. To explain, he stated at one point in time, under oath, she attributes all issues to Mr. Pipitone and at another point in time completely attributes all issues to the Respondent and none to Mr. Pipitone at all.
[121] I prefer the evidence of Dr. Klassen over the evidence of Dr. Barnes as he was privy to a more complete historical record. That record demonstrated significant inconsistencies and Dr. Klassen had concerns, as do I, that there were tactical reasons for Ms. Pipitone’s self-report.
Conclusion
[122] The Applicant’s evidence is problematic. Her evidence was inconsistent with the evidence she provided in her trial with Mr. Pipitone and inconsistent with the information she provided for the annulment. Her story has changed, not just a handful of details, but the entire narrative. In her 12 year litigation with Mr. Pipitone she was very consistent in her allegations, pointing the finger of blame at Mr. Pipitone and not the Respondent. The Applicant now describes the Respondent as abusive and waters down the allegations she made against her second husband, Mr. Pipitone, now that the narrative does not suit.
[123] On the other hand, the Respondent’s testimony is consistent with the evidence in the documents filed following the breakdown of the Applicant’s second marriage, the annulment records and the testimony of many of the witnesses. He comes across as straightforward.
[124] For these reasons I have determined that the Applicant’s evidence lacked credibility and, as such, I prefer the evidence of the Respondent in areas where the evidence of the two are in conflict.
[125] Following their divorce the Applicant and Respondent maintained some initial contact. The Applicant testified that the Respondent gave her advice about her purchasing a car; they went to a funeral together; she went to the Respondent’s new home to see it right shortly after he bought it. In cross-examination, when asked why, she testified that she was trying to be friendly and have no problems.
[126] I am not convinced, on a balance of probabilities, after carefully considering all of the evidence, that there were incidents of physical or sexual assaults perpetrated by the Respondent on the Applicant.
[127] If I am wrong, and there were some incidents of abuse, I am not convinced that the Respondent is the cause of the Applicant’s difficulties as it relates to causation and damages.
[128] The Applicant’s mother, Ms. Mancini, testified that the Applicant was happy after the divorce from the Respondent. Indeed, she had a job and was doing fine. Ms. Mancini testified that the Applicant was confident but unhappy because she was divorced. Ms. Mancini testified that after the Applicant’s divorce from her second husband, Mr. Pipitone, she was no longer happy like before and she has stayed unhappy. This is consistent with the Applicant’s sworn documents in the litigation with her second husband.
[129] I have concluded that the Applicant was not a victim of physical or sexual assault at the hands of the Respondent, I can only conclude that there are other factors, as referenced by Dr. Klassen, that are the source of the Applicant’s mental health challenges.
ORDER
[130] The Applicant’s request to set aside the Agreement regarding the waiver of spousal support and requesting an order for retroactive spousal support is dismissed.
[131] The Applicant’s request for damages arising from alleged sexual and physical assaults, mental abuse and cruelty: a) prior to the parties’ marriage and b) during the parties’ marriage is dismissed.
COSTS
[132] If the parties cannot agree on the issue of costs, I shall consider the request for costs. Under Rule 24 of the Family Law Rules, there is a presumption that a successful party is entitled to costs. As the Applicant’s claims were dismissed, the Respondent shall serve on the Applicant and file in the Continuing Record his written submissions, limited to ten pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Applicant shall serve on the Respondent and file in the Continuing Record her written submissions, limited to ten pages, exclusive of the Bill of Costs and Offers to Settle within 15 days thereafter. The Respondent’s Reply, if necessary, shall be within 5 days of the delivery of the Applicant’s written submission and limited to two pages. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.
G.A. MacPherson J.
Released: May 11, 2018
[^1]: Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303, and LeVan v. LeVan, [2008] ONCA 388.