This was the preliminary question for the court in a 2013 Ontario decision Leung v. Shanks and crosses into the realm of tort law rather than family. 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.
Background
The husband and wife began their relationship in 2006 and began living together as a common-law couple in 2007. They attended a fertility clinic where a woman named Shanks worked as a nurse. During the three years the couple received fertility treatments, the husband began an affair with Shanks.
The day following the wife becoming pregnant, the husband disclosed his ongoing affair. The wife experienced a miscarriage shortly thereafter. Subsequently, the wife then sued Shanks, the clinic, and the doctor she was under for various causes of action. Specifically, she claimed Shanks:
- Took advantage of the trust inherent in the nurse-patient relationship to pursue an intimate relationship with the husband.
- Misused the wife’s personal information, leading to an invasion of her privacy.
- Conspired to injure the wife by engaging in a secret affair while the wife received fertility treatments.
- Intentionally or negligently inflicted mental distress on the wife.
- Breached her duty of care as a professional nurse by engaging in a relationship with the husband.
- General damages for breach of contract, breach of privacy, intrusion upon seclusion, and pain and suffering.
The Court’s Decision: Procedural, Not Substantive
It is crucial to note that the court’s decision was a preliminary one. This was not a trial or even a motion for summary judgement but rather a motion to determine if the wife’s claim should be struck as “scandalous, frivolous, or vexatious.”
The court allowed the wife’s claim to proceed, reasoning that her allegations were serious enough that a trial court should decide if Shanks’ conduct was “extreme, flagrant, or outrageous” and if it intentionally caused harm to the wife.
What Has Changed Since 2013?
While the foundational principles of this case remain intact, several legal developments in Canadian law are worth noting:
- Intentional Infliction of Mental Distress: The Supreme Court of Canada in Saadati v. Moorhead (2017 SCC 28) clarified that plaintiffs do not need expert medical evidence to prove a recognized psychiatric injury.
- High Threshold for Liability: Ontario courts maintain a high standard for proving intentional infliction of mental distress, emphasizing that conduct must be “extreme and outrageous.”
- Privacy Claims: The tort of intrusion upon seclusion, recognized in Jones v. Tsige (2012 ONCA 32), has been further developed, but it requires highly offensive conduct beyond mere infidelity.
What This Means for Similar Cases
While Leung v. Shanks demonstrates that a lawsuit against an affair partner may survive a preliminary screening, it remains exceptionally difficult to succeed in such claims at trial. Courts continue to protect individuals’ autonomy in personal relationships, and claims of emotional harm must meet a very high threshold. Consider that a standard cheating situation, where one does not do something such as abuse the nurse-client relationship, is far different from the situation in Leung v. Shanks.
If you are facing a situation involving infidelity or emotional distress within a relationship, seeking legal advice from an experienced family law lawyer is crucial.
This blog has been updated from a previously posted FamilyLLB.com blog from 2014.
