Can You Get Damages for “Emotional Distress” in Family Law?
In Ontario at least, the answer to this question is “yes”, according to the 2009 court decision in McLean v. Danicic, in which a wife was awarded significant damages after her husband engaged in what the court called “a relentless campaign of harassment” against her after they separated. This included him sending her numerous harassing letters and intimidating photographs, and sending her a written threat that he would “personally put a bullet in her head”. His conduct had caused the wife to suffer considerable distress, acute anxiety, and fearfulness which required her to seek medical attention and take medication regularly.
Accordingly, as part of the separation and divorce process the wife asked the court to award her damages for pain and suffering or for harassment, claiming that the Ontario Family Law Act (the “FLA”) allowed for such an award in the right circumstances.
In considering the wife’s request, the Ontario Superior Court of Justice noted that historically there were only two specific situations in which such damages could be awarded under the FLA:
1) where a plaintiff loses a loved one because of the negligence or misconduct of the defendant, thereby losing the loved one’s services and/or companionship; and
2) where there is “assaultive behaviour” after a relationship breakdown.
The court further observed that in the second category of cases there is usually a criminal conviction for some sort of physical assault (and by definition a clear factual finding by a judge that the assault occurred).
Nonetheless – and even though it was not specifically requested by the wife – the court in McLean v. Danicic was willing to entertain a damages claim for harassment, more specifically in the form of the tort of “intentional infliction of mental suffering and emotional distress.” In order to prove such a tort, the following three elements must be present (as has been established in an earlier decision called Prinzo v. Baycrest Centre for Geriatric Care):
1) flagrant or outrageous conduct;
2) calculated to produce harm; and
3) resulting in a visible and provable illness.
Applying this test the wife was awarded $15,000 in damages, as a means of expressing “society’s outrage” at the husband’s conduct, and to compensate her for the losses she suffered. (The husband later appealed on an unrelated point, but was unsuccessful).
Despite the outcome in McLean v. Danicic, emotional distress damages will be awarded in every case, however. Two subsequent Ontario decisions from 2010 illustrate that the facts and circumstances will remain an important consideration in determining whether such damages are appropriate in any given situation.
In Druhan v. Druhan the court – after initially expressing doubt about its jurisdiction to award damages for mental distress at all – found no reason to award them in the case before it. According to that judgment, the mere fact that one of the parties to a family proceeding brings a motion, launches an appeal, responds to a motion with a cross-motion, or simply aggravates or distresses the other party, will not amount to “flagrant” or “outrageous” conduct under the relevant test.
Similarly in A.A. v. G.G., the court conceded that the mother’s conduct no doubt had a severe emotional impact on the father in the circumstances. However, it was unable to conclude that her conduct had resulted in the father suffering the required “provable illness”, since there was no medical evidence; indeed the court doubted whether the father had any illness at all.
Clearly, damages for emotional distress and mental suffering remain a distinct possibility in Ontario family law. But given the inherently volatile and distressing context of almost every family law proceeding, it will be interesting to see where the court will draw the line on culpable behaviour by separating and divorcing spouses.
The full text of these decisions can be found at:
McLean v. Danicic appeal on other grounds dismissed
Prinzo v. Baycrest Centre for Geriatric Care
Druhan v. Druhan
A.A. v. G.G
