Can You Get Damages for Mental Suffering in Family Law?

Family law is a rather unique branch of Ontario civil litigation:  Among other things, it has its own specialized Rules of procedure, government-provided mandatory information programs, and a dedicated entity in the form of the Office of the Children’s Lawyer to look out for the interests of children, mainly in custody and access disputes or child protection matters.

But while there are unique features and differences when compared to the regular civil system, there are similarities as well.  But the question arose fairly recently in a case called McLean v. Danicic, 2009 CarswellOnt 3289 (Ont. S.C.J.), as to whether damages for mental suffering and emotional distress should be part of Ontario family law system.

In that case, the common-law husband had engaged in harassing and bullying behavior towards the wife, which conduct was designed to intimidate her into abandoning her meritorious family law case against him.  (However, despite this psychological abuse he never perpetrated what is known as “assaultive behavior”, which is defined by legislation to include assault, battery, sexual assault or confinement).

Even though there had been no physical assault per se, the court found that the wife was entitled to $15,000 in damages for the intentional infliction of mental suffering and emotional distress, and another $228,500 in legal costs that she was forced to spend in their matrimonial dispute.

Admittedly, such damages are likely reserved for extreme and unique cases; however the case is a good reminder to family litigants that attempts to strong-arm or intimidate an Ex in the course of pursuing family and matrimonial claims can result in harsh financial sanctions from the court.  It also underlines the point that abusive conduct is not always physical; even bullying, harassment and psychological manipulation can result in an award of damages if the effect is to threaten and intimidate the other person.

Is your Ex harassing or intimidating you, and you think you might deserve damages?  Contact us for a free consultation.

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