In the Court of Appeal decision in Pipitone v D’Amelio 2021 ONCA 2066, the court was tasked with reviewing the Motion judge’s decision on a multitude of issues from a Motion.
The parties were married on October 11, 1969 and subsequently divorced in 1985. 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.
Both of her claims were dismissed by the Motion judge. The Appellant wife appealed his Honours decision for three main reasons.
The most interesting claim made by the Appellant for analysis was that the Motion judge failed to properly advise her as a self-represented litigant.
The Appellant’s counsel withdrew on the 10th day of the Motion and the Appellant indicated that she was in agreement to the withdrawal. The judge asked if she intended to retain new counsel to which she advised she was not. The judge then asked if she was prepared nonetheless to proceed with the Motion, to which she answered in the affirmative. The Appellant now claims that the judge should have informed her that she had the right to refuse her counsel’s withdrawal and should have warned her about the consequences of such a withdrawal. The Court of Appeal found that there would have been no grounds to refuse the withdrawal. The Appellant also claimed that the motion judge failed to provide her with assistance throughout the proceeding. The Court of Appeal found that the judge had in fact gone above and beyond to assist the Appellant throughout by helping her navigate through basic evidentiary issues, explaining how to enter exhibits, allowing her to record the proceeding and explained the stages of examination in chief and cross examination He also provided her with an informational guide for self-represented litigants. All of the evidence was overwhelming that the judge satisfied his duty to assist the Appellant to the extent that it did not prejudice the Respondent.
Judges do have a duty to advise self-represented litigants to an extent, but they are not required to make concessions or favourable decisions just because someone is self-represented. Being self-represented is a choice that one makes for a variety of reasons and the courts do their very best to ensure that they are provided with ample assistance throughout. However, and most importantly, just because someone is self-represented, does not mean that they should receive any type of special treatment that could ultimately prejudice the other party and it appears that this was the expectation of the Appellant in this trial.
The Court of Appeal found that his Honour had provided the Appellant with more than adequate assistance, even suggesting that he had gone above what was required/ expected of him.
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