Court Cases & Orders

How Family Law Can Give Rise to Civil Claims for Malicious Prosecution

meeting of professionals
Written by Russell Alexander / (905) 655-6335

How Family Law Can Give Rise to Civil Claims for Malicious Prosecution

Family law disputes can be difficult and complicated on their own.  But in some circumstances, the wrangling and proverbial mud-slinging between former partners can spark other kinds of litigation – such as the laying of criminal charges if one of them physically assaults the other.   Less commonly, separate civil claims can arise indirectly from a former couple’s family law dispute as well.

The decision in Bobel v. Humecka and Patten provides a good illustration of this second category.  The case involved a man and a woman who had lived together common-law for a time; when they split, things got rather acrimonious between them.  The man sued the woman for a litany of legal claims, most of which related to family law issues.  However, he also sued her and her new partner under the civil law, by accusing them of malicious prosecution.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

Specifically, he wanted to hold them both liable for the fact that the police opted to prosecute him, even though the criminal charges were ultimately dismissed.  He accused the woman of making false allegations (after being coached by her new boyfriend), and of filing a false report with the police which resulted in criminal charged being laid.   He claimed this was done to him both deliberately, and with malice.

In response to these civil allegations of malicious prosecution, the woman brought a motion to the court asking to have them struck from the man’s Statement of Claim entirely, on the basis that they lacked any legal basis and were abusive of the court’s processes.

The court examined the requirements for a claim of malicious prosecution. In order to succeed, the man had to prove – on the facts – that the prosecution was:

  • Initiated by the woman,
  • Terminated in his favour,
  • Commenced or continued without reasonable and probable cause, and
  • Motivated by malice or for a primary reason other than carrying the law into effect.

Clearly the charges had been initiated by the woman, so the first criterion was met.  The fact that they were later dismissed, supported the second one.

As for the third and fourth criteria:  The man claimed that the woman had put the criminal wheels in motion specifically to cause injury to him, as a means of keeping him from the home they once shared. The court noted that while simply stating that the intent to “cause injury” would not meet the test, in this case the allegation about the woman’s motive was sufficient to meet the threshold.

With that said, the court also noted that that there were several specific assertions in the man’s malicious prosecution allegations that should not be allowed to stand.  Specifically, his Statement of Claim made references to:

  • The woman’s new partner’s “previous experiences in court”, which the court found was inserted merely to humiliate and denigrate the new partner and cast him in a bad light.
  • That the woman and her new partner used “narcotics, specifically cocaine”, and that they “indulged… on a regular basis.” This too was irrelevant to the causes of action, and were intended to humiliate. The court added that there was no situation in which those allegations, even if proven true, would have an impact on the mans’ claim.
  • Several allegations that the woman, while in a relationship with him, had an affair with the new partner while he was still married to someone else. Likewise, the court held that the words were irrelevant to the pleadings, and even if proven would have no effect on the outcome, including damages.

In the end, the court noted that at this stage it was not the court’s role to determine whether the man’s stated cause of action would succeed, but simply to determine whether it was pleaded correctly.   It did allow the man’s malicious prosecution allegations to go forward to trial as part of the broader family litigation, but only after tinkering with some of the wording and striking out some unnecessary or scandalous paragraphs in his Statement of Claim.

For the full text of the decision, see:

Bobel v. Humecka and Patten, 2019 ONSC 1876


Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.