



COURT OF APPEAL FOR ONTARIO

CITATION: Pipitone v. D'Amelio, 2021 ONCA
    115

DATE: 20210224

DOCKET: C66536

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

BETWEEN

Annette Pipitone

Applicant (Appellant)

and

Franco
    DAmelio

Respondent (Respondent)

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
    appellants objections can be grouped under three broad headings.

The Appellants
    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 counsels 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 counsels 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
    appellants 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 appellants mother. As the motion judge noted, some of
    that evidence contradicted the appellants 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 judges
    decision to exclude the records as inadmissible hearsay. While there is a Catholic
    Childrens Aid Society record, that may have been admissible to rebut the respondents
    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 appellants 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 judges 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 respondents 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.


