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Posts from the ‘Damages’ Category

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

An unusual case arising from a man’s lawsuit over a baby he didn’t want has now been heard by the Ontario Court of Appeal.

As I reported here, the facts involved a man and woman who had a brief romantic fling in 2014, lasting less than two months. After going on a few dates, they had unprotected sex on several occasions. Although it was not strictly proven before the court, the man recalled his understanding, from various things the woman said, that she was taking birth control pills and did not intend to conceive a child.

But a few weeks after their short relationship ended, the man, in his early 40s, found out that the woman, in her early 30s, was pregnant. She went on to give birth, at which time it was confirmed that the man was the father.

The man, who was a budding doctor, sued the woman in civil court for over $4 million, claiming her fraudulent misrepresentation had deprived him of the choice of when and with whom to share the responsibility of parenthood. The court framed his cause of action in these words:

Although it was not presented in this way, the claim can be viewed as a tort claim for involuntary parenthood made by one parent against the other. It is clear that the alleged damages do not relate to a physical or recognized psychiatric illness. In essence, the damages consist of the [man’s] emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings, all of which are said to flow from the birth of a child he did not want. Although the claim is not for the direct costs associated with raising the child, all of the damages claimed by the [man] are the result of consequences flowing from the unwanted birth of a child, albeit unwanted only by the father.

(And it’s important to note that the man was suing for emotional harm of the non-pathological variety only; he was not suing for physical harm or for monetary damages, such as for any undesired child support obligations he may have. On that latter point, a separate Family Law suit, disputing his obligation to pay child support based on the woman’s alleged fraud and deceit, was also underway and would be heard separately).

The lower court, in striking out the man’s claim, held that his allegations disclosed no reasonable, legally-recognized cause of action, because a claim for fraudulent misrepresentation – which is a tort in Canadian law – was aimed at compensating the man for any financial damages, not emotional ones. In other words, the man was trying to claim for the types of damages that were simply not actionable through a fraud claim.

In its recent decision, the Ontario Court of Appeal agreed, adding that the woman’s alleged lie as to her being on birth control – even if it was proved that she told it – was not enough to form the basis of the man’s claim for emotional injury. Plus, any harm the man suffered was not tantamount to a “personal injury” in the traditional legal sense.

Do you think the original decision – now affirmed on appeal – was correctly decided? What are your thoughts?

For the full text of the decision, see:

PP v DD, 2017 ONCA 180 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

 

 

 

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

I have written previously about a relatively new cause of action in Canada called “intrusion into seclusion.” It is essentially a privacy-based tort claim that a person can assert by establishing damages from an unauthorized intrusion into his or her private affairs by someone else.

Recently, this new type of tort has been successfully claimed in the Family Law context by a wife against her estranged husband, in a case called Patel v Sheth.

The couple had been married for about 3 years when they separated for the first time, with the wife moving out of the matrimonial home. Shortly after they made an effort to reconcile, but matters became increasingly acrimonious and they separated for a final time about 8 months later.

At one point during their reconciliation attempt, when the wife was taking steps to gradually move back into the home, the husband surreptitiously installed a video camera in the bedroom, hiding it in a BMW keychain placed on an armoire. The camera faced the bathroom.   Given its placement, the camera would have caught the wife in the act of getting undressed.

The wife found the camera in the bedroom after their final separation, when she was moving furniture around.

As part of their later divorce proceedings, the wife added a $50,000 claim in damages against the husband, for his having intruded on and breached her privacy by installing the hidden camera in such a highly personal area of the home.   She asserted that she was offended and embarrassed.

In explanation, the husband claimed he installed the camera ostensibly for his own protection, since at one point the wife had falsely accused him of assault. Claiming that he never downloaded any of the images it may have recorded, he asserted that the wife suffered no damages.

In considering this scenario, the court concluded that even though the cameras did not capture any explicit images, the potential to do so was real. The privacy intrusion took place in the context of a domestic relationship, and in the court’s view it was also an “extremely aggravating” factor that the husband had initially lied about the camera under oath during discovery, and even tried to blame the wife.  (He later admitted to that lie at trial).

Furthermore, the husband’s explanation for installing the camera made no sense: If he was concerned about further assault allegations being levelled at him, there were many other rooms in the house where physical violence could conceivably take place. Yet he did not bother to plant hidden cameras anywhere but the bedroom.

The court ultimately held that the wife was entitled to damages of $15,000, observing that although she was shocked and embarrassed, there was no medical evidence filed to support any significant effect on her health. The court also held that this was not a case for additional punitive damages to be awarded.

For the full text of the decision, see:

Patel v Sheth, 2016 ONSC 6964 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

“Revenge Porn” Case Goes Back to the Drawing Board

“Revenge Porn” Case Goes Back to the Drawing Board

A year ago I reported on a case in which a young woman had been awarded over $100,000 in damages from her former boyfriend, who had engaged in “revenge porn” after their break-up. Without her consent, he had posted explicit images of her online, and shared them with members of their mutual social circle, much to her extreme humiliation.

Because he had declined to participate in the lawsuit by filing any sort of defence, the woman was able to obtain a default court judgment in his absence, in which the ex-boyfriend was found liable under the civil law for the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy. He was held responsible to pay for her damages as assessed, with the breakdown being $50,000 for general damages, $25,000 for aggravated damages, and $25,000 for punitive damages, plus costs.

However, as a result of a recent decision by the Ontario Divisional Court, her lawsuit – which was launched four years ago – has now been put back to square one, and the now 24-year-old woman is awaiting a statement of defense from the man, so that a full trial can proceed with his participation.

The reversal is essentially based on procedure, not merit, so time will tell whether she is vindicated in the end.
In terms of the legal process, the matter has gone forward-then-back because the original order, by Justice Stinson, was later struck out by a second judge, Justice Dow, in order to give the man a chance to participate.

The woman asked unsuccessfully for permission to appeal that ruling, claiming that Justice Dow had noted that the ex-boyfriend was deliberately ignoring the lawsuit, but then went on to improperly consider other factors and give him a second chance anyway. Permission to appeal was denied in the most recent decision by Justice Kitely in January 2017, since she found no legal error in Justice Dow’s reasoning.

So, three judges’ rulings later, the matter has been sent back to essentially “start over” before a new judge.

But the significance of the case still lingers, because the original decision by Justice Stinson from a year ago was very legally noteworthy at the time, not only for implicit recognition of the invasion-of-privacy claim from this sort of on-line behaviour, but also due to the hefty damages liability imposed on the ex-boyfriend.

What are your thoughts on this case?

For the full text of the decision, see:

Jane Doe 464533 v N.D., 2017 ONSC 127 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Woman Liable to Neighbour for Almost $70,000 in Damages Because of Facebook Posts

peeping-neighbor

Woman Liable to Neighbour for Almost $70,000 in Damages Because of Facebook Posts

Thinking about posting something mean about your no-good Ex on Facebook? Read this first.
In a recent B.C. Supreme Court decision called Pritchard v. Van Nes, a woman was found liable to pay her neighbor $50,000 in damages for defamation, plus another $15,000 in punitive damages – all because of some Facebook posts that she and her Facebook “friends” had written about him.

She was held liable in nuisance for another $2,500.

The civil decision has very broad – and potentially very serious – ramifications in all areas of the law, including Family Law.

The woman’s defamatory Facebook post had been spurred by a dispute she had with her neighbor over some ordinary things: parking, loud noises and parties, a family dog, and the woman’s fish pond and waterfall.

Prompted by the neighbour’s complaints, the woman took to Facebook to air her grievance about him, calling him a “nutter” and a “creep”, and implying that he was filming her and her children “24/7”. Other comments hinted that was unfit in his job as teacher, and that he was a pedophile. The woman’s friends added comments to her Facebook page in supportive response, and also shared the post with others. One friend even shared the woman’s initial comments on the neighbour’s own Facebook profile, and then contacted his school principal by e-mail.

Even though the woman removed her original inflammatory posts about 24 hours later, she obviously could not remove the copies that had been replicated through various Facebook “shares”.

The neighbour sued for defamation and nuisance, and when the woman did not file a response, he succeeded in obtaining a court judgment in default, granting him almost $70,000 in damages.

In attaching civil liability to the woman for her Facebook-based conduct, the B.C. court made some interesting – and arguably concerning – conclusions about the responsibility that a Facebook poster or other social media user might have, even for posts that are later shared by others without the original poster’s knowledge or express permission.

Specifically, the court drew the following conclusions:

• The woman was liable for her own defamatory comments made via her Facebook profile.

• She was also liable for the republication of comments by her Facebook “friends”, and for the e-mail to the man’s school principal.

• Finally, she was also liable for any new defamatory comments made by her Facebook friends about the man, in response to her initial Facebook post.

The court’s extension of the woman’s liability for the conduct of her Facebook friends – over whom she has no direct control – is a legally noteworthy aspect of the court’s decision. It was based on the court’s conclusion that the woman had “constructive knowledge” that the posts were likely to be re-posted and repeated by her friends on Facebook. The court also pointed to the woman’s failure to rebut any of the new negative comments that the friends posted.

The decision raises important issues of how to impose responsibility for defamation in a world dominated by social media, and calls into question the appropriate limits of responsibility where rapid (and sometimes careless) online dissemination of information is common.

The decision is also highly pertinent to Family Law situations, where the urge to vent one’s negative separation/divorce/custody stories on Facebook and other media platforms is compelling – and often it seems – both irresistible and irreversible.

Was this stretching the law of defamation in new directions? Probably. Should the law be stretched this far? Let us know your thoughts.

For the full text of the decision, see:

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

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For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

A recent Ontario case gives rise to a unique legal question: Can one parent sue the other for unwittingly being forced into parenthood?

The man, a 42-year old medical doctor and the woman, a 37-year old medical practitioner, met through a mutual friend and started dating. After their second date they had sex in the woman’s apartment, but not before the man asked the woman if she had any condoms. She said she did not, but indicated that she was “on the pill”. Afterwards the man stayed the night and left the next morning.

What followed was a series of eight or nine subsequent dates, and they had sex each time. The subject of condoms came up again during one of those occasions, but the woman did not say or do anything to suggest that her prior statement of being “on the pill” was no longer true, or that it had never been true in the first place.

After about 10 dates they mutually agreed by phone to cease the sexual aspect of their connection and revert to a “just friends” platonic relationship.

Soon after, the man was shocked to receive a text from the woman, advising that she was 10 weeks pregnant with his baby. After she gave birth, the woman refused to allow the man to see the infant, despite his stated willingness to provide financial support and establish a relationship with the child.

Eventually, after they agreed to a child support arrangement, the man then took a legally-unusual step: He sued the woman for $4 million in damages “because he [had] been non-pathologically emotionally harmed by his unplanned fatherhood.”

In particular, the man claimed that he had been tricked into having recreational sex with the woman, had relied on her “on-the-pill” statement in deciding whether to engage in sexual activity, and had been emotionally harmed by being deprived of the choice to fall in love, marry, enjoy married life, and then — when he and his wife thought “the time was right” – to have a baby. Although he made it clear he was not trying to dodge his child support obligations, he claimed he had been harmed because he was just at the beginning of his medical career and was not at the stage where he wanted to have a baby with “some random woman”.

As the court explained the man’s position:

[The man] is not against being a father, but his passionate argument is that by [the woman’s] fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

However, in examining this novel claim, the court found that the man had framed his cause of action incorrectly, by relying on the tort of fraudulent misrepresentation. That tort was used to compensate for damages for economic loss, i.e. restore the injured party to the financial position he or she was in previously.

Admittedly, the man had likely established all the other necessary elements of fraudulent misrepresentation (i.e. a false statement, knowledge that the statement is false, an intent to deceive, and the statement inducing the man to act). But what he could not prove was that he suffered economic damages. Aside from having to pay child support (which the man was not resisting), he had no financial losses from the woman’s pregnancy or childbirth. He was not married to her, was not obliged to marry her, never lived with her, and never established any long-term relationship. He did not contract any STDs, and would not experience any disruption of his career as a doctor. The court pointed out that:

… compensation for fraudulent misrepresentation … is designed to restore the injured party to the financial position he or she would have been had the wrongdoing not occurred. [The man] obviously cannot be restored to the emotional state of non-fatherhood and so his claim for non-pathological emotional harm makes no sense for the conventional use of the tort of fraudulent misrepresentation.

In other words, the man was trying to use the tort of fraudulent misrepresentation – which usually compensates for financial damages – to further his asserted claim for emotional harm. The court concluded that this made his action “a novel one” because it would “expand the scope of fraudulent misrepresentation and take it into new territory.” The court ultimately concluded that this was both unnecessary and undesirable on legal policy grounds.

The court struck out the man’s lawsuit as disclosing no reasonable, legally-recognized cause of action, and refused to allow him permission to amend it to state the tort claims differently.

For the full text of the decision, see:

PP v DD, 2016 ONSC 258 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Tempted to Post Some Revenge Porn? Read This.

revenge

Tempted to Post Some Revenge Porn? Read This.

For those embittered Ex’s who are tempted to wreak revenge on their former partners after a break-up, take note: the Ontario Courts have just expanded the realm of tort law to cover certain breaches and invasions of privacy. In one very recent case, it cost a disgruntled ex-boyfriend $100,000 in general, aggravated and punitive damages.

In Jane Doe 464533 v. N.D., a woman’s ex-boyfriend had posted an intimate video of her online at a pornography website after their break-up, without her knowledge or consent. He also showed it to members of their mutual social circle. The court described the back-story this way:

The factual background may be summarized fairly briefly. The parties went to high school together in a small Ontario city, where they started dating while they were both in Grade 12. Although they broke off that formal relationship, they continued to see each other romantically throughout the summer and the fall of 2011. By the fall of 2011, the plaintiff and the defendant were both 18 years old.

In September 2011, the plaintiff was living in another city while attending university. Despite the fact that they had broken up in July 2011 and were no longer “boyfriend and girlfriend”, she and the defendant communicated regularly by Internet, texting, and telephone and continued to see each other when she returned to visit her parents’ home.

In August 2011, the defendant began asking the plaintiff to make a sexually explicit video of herself to send to him. For some time, she refused to do so, but the defendant kept asking her repeatedly. He sent her several intimate pictures and videos of himself, and told her that she owed him a video of herself in return. She did not want to do so, but she ultimately recorded an intimate video of herself in November 2011. Before she sent it to the defendant she texted him, telling him she was still unsure. He convinced her to relent, and reassured her that no one else would see the video. Despite her misgivings, due to pressure from the defendant, she “caved in” and sent the video to him.

In early December 2011, the plaintiff learned that the defendant had posted the video she sent him on an Internet pornography website under the “user submissions” section of the website. As posted by the defendant, the video was titled “college girl pleasures herself for ex boyfriends (sic) delight.” She further learned that the defendant had been showing it to some of the young men with whom they had attended high school. She later learned that the video had been posted online on the same day she had sent it to him, and that its existence had become known among some of her friends.

After finding out about the video, the woman was “devastated, humiliated, and distraught”; she became severely depressed. She experienced panic attacks and had to see a school counsellor for over 1.5 years to deal with the emotional fallout. The court also noted the effects on the woman were long-lasting:

Even today, more than four years after the incident, she is emotionally fragile and worried about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships. She continues to be distraught about the incident and afraid that these feelings will haunt her for a long time to come.

The court also noted that although the video was actually on-line for only about three weeks, there was no way of knowing how many off-line copies had been made and were still in existence.

The woman successfully sued the ex-boyfriend for breach of confidence, intentional infliction of mental distress, and invasion of privacy (and obtained default judgment against him since he had not filed a defence). Her damages were set at $100,000, including $25,000 in punitive damages to reflect the ex-boyfriend’s high-handed, reckless and arrogant disregard of the woman’s rights, as well as the fact that he had not apologized or shown remorse.

For the full text of the decision, see:

Jane Doe 464533 v. N.D., [2016] O.J. No. 382, 2016 ONSC 541

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

gift

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

During the course of their 6-year relationship, the man moved into the woman’s home, which she had owned for 10 years. He gave her $130,000, and contributed to her expenses. When the relationship ended due to the man’s infidelity, a dispute arose as to what they each intended the $130,000 payment to represent. Had they agreed that the man was buying half the woman’s home, as he asserted? Or was the money simply a gift, as the woman claimed? This was the main question for the court to decide.

Essentially, this was a “he said/she said” exercise: In assessing the facts and credibility of the party’s evidence – a task the court found “neither simple nor scientific” – the court found that it made no sense that someone with the man’s credentials would ostensibly advance $130,000 to purchase a share in the legal title in the woman’s home and yet fail to document it properly.

The court recounted the man’s self-described achievements this way:

The [man] … describes himself as a highly educated and sophisticated businessman, a recognized pioneer of financial planning in Canada and an offshore private banker.

Wright has a Bachelor of Arts, a Master’s in Business Administration, certifications as a Registered Financial Planner, Certified Planner, and Certified Fraud Examiner and has received a Canadian Forces decoration medal for service in the Canadian Navy. He has authored a book entitled “Demons in the Financial World and How to Spot Them” and was a lecturer at both Seneca College and Centennial College. He states that he has been working on his Ph.D., but that he had to recently withdraw from the course due to what he describes as post-traumatic stress disorder suffered as a result of issues pertaining to this lawsuit.

Yet the man’s version of events was incredible, and the documentation he produced as being all that remained of a massive computer failure was “at times riddled with implausible error”, according to the court. Further, in his dealings with third parties (for example bank employees from whom he was applying for a mortgage), he had self-servingly called his interest in the home “contingent”; conversely he did not declare any interest in the woman’s home in a later application for subsidized housing. In other words, the nature of his professed legal interests in the woman’s home seemed to shift to suit his own needs at any given time.

Similarly, the court pointed out that it did not make sense that the woman, who owns a successful design-services business and had an 11-year old daughter to support, would not want to document the same transaction.

This lack of documentation not only supported the woman’s version of events, but made even more sense in light of the more personal side of her story: She claimed the $130,000 was a gift representing a symbol of the man’s commitment to the relationship, since he had recently proposed to her after being unfaithful. (The man denied any infidelity, but the court found that the evidence showed otherwise). The court elaborated:

I accept the evidence of [the woman] that she did not tell her family and friends because she was embarrassed; embarrassed by the infidelity in February 2007, embarrassed that she forgave [the man] for it and accepted his proposal, embarrassed that he paid her a large sum of money as an apology and a symbol of commitment. I also accept the submissions of [the woman’s] counsel that if [the woman] was going to make up a story that the $130,000 was a gift she would also have made up the details surrounding her receipt of the money.

The court found the man had effectively used the money and a marriage promise to “secure” the woman in a relationship that he felt would be financially beneficial to him: He knew the woman’s parents had given her financial gifts in the past, and he had concluded that they were wealthy.

The court accordingly declared that the woman remained the sole owner of the home, and accepted her evidence that the $130,000 was a gift. It also dismissed the man’s claim for expenses during the time they lived together, and in fact ordered him to pay the woman $3,000 for damage he had caused to the property.

For the full text of the decision, see:

Wright v. Holmstrom, 2015 ONSC 1906

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

In a Failed Romance, Can You Sue for Negligence?

upset

In a Failed Romance, Can You Sue for Negligence?

In a case called Danovic v. Wagner, the Ontario court recently had to consider a rather novel argument: that one person in a failed romantic relationship might be “negligent” toward the other for their treatment (or mis-treatment, as the case may be), and therefore liable in damages.

As bad internet dates go, the facts of the case were quite noteworthy: The man, a university professor in his late 50s, had met the woman, who was unemployed and in her late 40s, on an internet dating site. They started communicating by email and phone; they met in person only four times over a 2- to 3-week period, and engaged in consensual sex each time. Despite the fact that the man made it clear he wanted a casual, non-committed, non-exclusive relationship, the woman was obviously expecting something more permanent and monogamous between them. Things became acrimonious, and when inevitably the man tried to break it off completely, the woman falsely claimed she was pregnant, embarked on a campaign of both direct and anonymous harassment and intimidation, and contacted the man’s girlfriend, relatives, friends, and employer with various complaints and allegations about him.

Ultimately, the woman (who had no lawyer and represented herself) sued the man in court for $100,000 in damages; among her various assertions was that he “lied and cheat on [her] to get someone for ‘his bedroom’”. She asked the court to “punish [the man] for his inhuman deeds” in order to teach him a lesson on “how to behave himself in the future.”

After trying to discern the legal basis for the claim, and after patiently examining the relevant correspondence between them along with other evidence, the court assessed the parties’ respective positions. In short, the court found that the woman’s many claims were ill-founded or lacked a legal basis.

However, it focused in particular on what appeared to be a claim for damages arising from the man’s alleged negligence in connection with their failed relationship. In considering what the court called this “apparently novel” claim, it ruled that the tort of negligence simply could not be extended to failed romantic relationships. Policy considerations precluded the court from finding the required duty of care between relationship partners, and legislatures have pointedly moved away from encouraging inquiries or finger-pointing on the issue of who may have been responsible for any relationship failure, with one key example being changes that established no-fault divorce laws in Canada. As the court put it:

In my view, having regard to such developments, the tort of negligence cannot be extended to failed intimate relationships, in the manner effectively suggested by the plaintiff, without significantly undermining such very deliberate and overt statements of modern legislative policy.

It is hard to imagine anything more counter-productive … than a tort deliberately aimed at providing former lovers, spouses and other intimate partners with a litigious forum in which to publicly air their emotional grievances; e.g., with a view to obtaining some kind of moral condemnation and vindication.

Nor does it seem likely that there would be any shortage of those interested in embracing such a litigious weapon, (bearing in mind that there would seem to be no logical reason for restricting its availability to those engaged in a short 2-3 week relationship, involving just four meetings in person).

Failed intimate relationships, with resulting emotional distress and suggestions of perceived reprehensible conduct leading to such failures, unfortunately have been with us from time immemorial.

Moreover, as Congreve noted more than three centuries ago, love may bring out the best in humanity, but its failure sadly also tends to bring out the worst. Had he been writing in more enlightened and gender-neutral times, his famous lines from The Mourning Bride no doubt would have been recast as an observation that “Heaven has no rage like love to hatred turned, Nor Hell a fury like a lover scorned”.

This case provides another lamentable example of that age-old phenomenon, playing itself out yet again.

This case demonstrates that no good and much harm would flow from recognizing a tort of negligence, expanded so as to apply to intimate relationships.

The man was successful in his motion to declare that the action was frivolous, vexatious or an abuse of process, and that it disclosed no reasonable cause of action against him. He also succeeded in establishing that it had been brought for the main (and improper) purpose of harassing him. The court said:

In short, everything before me indicates this litigation is simply the latest tool employed by the plaintiff in an effort to secure her principal goals of exacting vengeance and exerting coercion by destroying the defendant’s life, and making him miserable, because the parties’ 2-3 week relationship did not proceed or progress in the manner desired by the plaintiff, and because the defendant wants nothing more to do with her.

She openly threatened to use litigation in that deliberately abusive way, and she now has made good on that additional threat.

None of this can be condoned or permitted.

For the full text of the decision, see:

Danovic v. Wagner, 2014 ONSC 2664 (CanLII)

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Father accused of slashing his wife’s throat while on vacation in Jamaica awarded equal and unsupervised access to his two young children

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Father accused of slashing his wife’s throat while on vacation in Jamaica awarded equal and unsupervised access to his two young children

An Ontario Superior Court Justice recently ruled that a father accused of slashing his wife’s throat while on vacation in Jamaica should be awarded equal and unsupervised access to his two young children.

Despite having conducted a lengthily trial and listening to the parents testify, the Judge was unable to determine what had happened in Jamaica.

The mother has since appealed this decision.

The Divisional Court expressed concerns about the process and the circumstances in which the order was made and concluded that the underlying order was unsafe.  In ordering a stay of the trial Judge’s decision, the Divisional Court noted:

” …the decision appears to be, regrettably, unfortunately, a profound violation of the principles of natural justice …

 … I cannot conceive of how it could possibly be in the best interests of the children for them to be told out of the blue, without any warning, a day and a half before Christmas, that for the first time in four years they will be spending a week with their father without supervision.”

For the full text of the Divisional Court decision (staying the trial Judge’s decision), see:

Clayson v. Martin, 2014 ONSC 7506

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Can You Sue Your Ex’s Affair Partner for Damages?

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Can You Sue Your Ex’s Affair Partner for Damages?

This was the preliminary question for the court in a recent Ontario decision called Leung v. Shanks. The court was asked to do a threshold “screening” of the potential legal viability of a woman’s lawsuit against the mistress of her common-law husband, and against the fertility clinic where the mistress worked, and where the wife had been receiving treatments for several years.

The husband and wife had begun seeing each other 2006, and moved into together as a common-law couple in 2007. That same year, they started attending at a fertility clinic where a woman named Shanks worked as a nurse. At some point during the three years that the couple attended for fertility treatments, the husband became intimately involved with Shanks, and they began a secret affair.

Eventually, the wife finally became pregnant; the next day the husband disclosed the ongoing affair. The wife ended up having a miscarriage.

She sued Shanks, the clinic and the treating doctor for a number of things. In connection with Shanks specifically, the woman claimed that Shanks:

• took advantage of the trust inherent in the nurse-patient scenario, in order to advance an intimate relationship with the husband, to the detriment and harm of the wife;

• misused the wife’s personal information, to the point where there was an invasion of her privacy;

• engaged in a “conspiracy to injure” the wife, given that she and the husband engaged in a secret affair, which continued while the wife was receiving fertility treatments;

• intentionally or negligently inflicted mental distress on the wife;

• breached her duty of care to the wife, which she owed as a professional nurse, by engaging in sexual relations with the husband.

The wife also claimed general damages for breach of contract, breach of privacy, intrusion upon seclusion, and pain and suffering as a result of Shank’s conduct, and also sued the clinic and the supervising fertility doctor for various claims (given that they were Shanks’ employer, and therefore vicariously liable for her actions).

The parties appeared before the court on a motion to determine whether the woman’s 49-paragraph claim should be struck out, for being “scandalous, frivolous or vexatious”, or otherwise an abuse of the court’s process. (And it should be noted that this was not a trial, nor even a motion for summary judgment. Rather, it was a preliminary hearing to determine whether it was “plain and obvious” that the woman’s pleading disclosed no viable cause of action).

The court allowed the wife’s claim to proceed. Although it was true that Canadian courts have consistently refused to award compensation to a spouse for emotional hardship arising from the other spouse’s decision to end the relationship (whether or not it involves an extra-marital affair), in this case the court found that a trial court would be in the best position to determine if Shanks’ conduct rose to the level of “extreme, flagrant, or outrageous”, whether it was intended to produce harm to the woman, and whether she intended the consequences. The court said:

While the pleading specifically alleges that the traumatic break-up of her relationship with Stuart resulted in the deterioration of the Plaintiff’s mental/ physical condition and ultimate miscarriage, the consequences resulting out of the entirety of acts and events pleaded are sufficiently close in time, and sufficiently tied to the parties involved, to support that element of a reasonable cause of action in the tort of intentional infliction of mental distress.

The court allowed the matter to go forward to the next stage.

For the full text of the decision, see:

Leung v. Shanks, 2013 ONSC 4943

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