Suing for Pain and Suffering in a Separation
Damages for pain and suffering were awarded in a recent case called McLean v. Danicic and McDermott. Yes "pain and suffering". She was awarded $15,000.00.
Do you know any divorce or separation that did not involve a lot of pain and suffering? Does that mean everyone will be able to sue for damages?
The simple answer is "no". It will be the rare case.
The judge succinctly described the test used to determine if damages are to be awarded:
The tort of intentional infliction of mental suffering involves the following three elements (i) flagrant or outrageous conduct; (ii) calculated to produce harm; and (3) resulting in a visible and provable illness
In this case, the common law wife, Traci McLean, successfully sued her former partner Darko Danicic as a result of his behaviour toward her. The judge found that he sent her threatening and frightening letters and packages intended to intimidate her. Ms McLean apparently suffered much distress and suffering resulting in the need for medical attention for acute anxiety. Accordingly, all three elements of the test were met and she was deserving of damages.
The judge quoted another judge to indicate the purpose of the award:
This award is intended to “indicate society’s outrage at this conduct and to compensate the wife for the loss she has suffered,” to use the words of Métivier J.
In my experience, everyone who goes through a separation experiences pain and suffering to some degree. Whether you are the one leaving the relationship or the one being told it is over, it still hurts.
We strongly encourage you to work with a Divorce Coach to deal with the inherently emotional journey of your separation and divorce.
The difference in this case is that the judge said that Ms McLean suffered as a result of the "flagrant and outrageous behaviour" of her partner which was intended to cause her harm. Furthermore, she suffered a visible and proven illness (acute anxiety) as a result of his behaviour.
So, all three elements of the test have to be met before you will be able to successfully sue your ex for his or her behaviour. Run-of- the-mill acts that cause pain won't suffice to allow you to sue your spouse.
Instead, you will just have to continue to do what most people do. Complain to your friends and family, work with your divorce coach.... and suck it up buttercup.
This case is a travesty of justice. This woman is a complete lying gold digger. They fail to mention that she was never cross examined and the poor guy was not even allowed to speak in his defense, nor present a mountain of evidence which would clearly show that this woman is a lunatic. An "undefended trial" in Canada? I'm disgusted.
Read the judges endorsement, a twelve year old could find giant holes in what this idiot claims.....PLEASE!!!!
http://www.canlii.org/en/on/onsc/doc/2009/2009canlii28892/2009canlii28892.html
I hope someone helps this man be vindicated from this severe and unjust perversion of justice
Mr. Danicic and friends have spent a great deal of time leaving comments, where they can, on sites and blogs that published this story, in continued attempts to make Ms. McLean look like the "bad guy" all without a shred of decent supportive evidence on his part.
"Overwhelming evidence" is exactly that. Why would anyone believe additional stories from a man, who could lie straight-faced in the Superior Court that his fiancee and common-law spouse of five years had only ever been his tenant? This is of course in the face of 5 years of photographs, cards, love letters, spousal dental and prescription claims by Mr. Danicic on Ms. McLean's insurance, video taped evidence and couples counselling records...
The court only ordered the undefended trial after years of indulgences and extra time given to Mr. Danicic, while he remained in serious breach of multiple court orders, refused to move the process forward and resiled from a settlement agreed upon in 2007. Mr. Danicic also had months of warning about the impending decision on granting an undefended trial with many opportunities to remedy his breaches of court, but he did nothing. Finally, the courts had no other choice but to strike his pleadings as they'd warned and proceed.
Mr. Danicic lost everything because HE was greedy. With combined equity in the properties of $600,000+, Ms McLean only ever asked for her estimated equity of $75,000 back (and that is essentially what she personally received from this case in the end). Mr. Danicic tried to keep everything that they had built together, for himself, and thought he could lie to the judicial system and eradicate her valid claims.
PRIMARILY, Mr. Danicic lost it all to pay a bunch of court costs that he himself inflated astronomically, due to his own lies, bad behaviour and belief that he could outsmart our Canadian legal system.
Had he done the right thing by settling things equitably in the beginning, out of court as Ms. McLean attempted to do, Mr. Danicic would still retain the family home and the cottage, in addition to a great deal of personal equity and power... and they'd both have the last five years of their lives back.
He gambled big in an attempt to hurt her, and he lost. He has done himself a grand disservice and now cries foul, when it was his own hubris that directly led him to this.
The Canadian courts were not prepared for the road he took them down, but in the end, found their way through his twisted tales to the truth and stood up against bullying, intimidation and power plays in our court system. Bravo!
This guy sounnds like my ex. I spent the afternoon at US law library that had these damages actions. I am suing my ex now for dmaages. To many men do this in Ont. and to many women cave. It has to stop. It is terrorism really. To many men think this way of demeaning women is still ok. No, it is not.
Can you sue for pain and suffering in a relationship that has lasted for more than 20 years. He was in the military and now retired. I have supported and encouraged him throughout the years. And always made me believe that we would be together and eventually get married. But now I'm hearing he's marrying someone else. What can i do?
ANSWER:I am sorry to hear of your deep hurt and disappointment. It is very difficult to sue for pain and suffering. There has to be medical proof that you are suffering from a physical or mental disease caused by your partner's behaviour. I have only heard of this one case in which the one party was successful.
Brian
Hello,
I've been studying this case and a few things don't add up.
"Tori Hill" seems to have a lot of insight, I wonder if you can clarify. You say that there was more than $600K in combined equity in both of the properties. Why then would the Judge grant vesting orders on BOTH of them as security to pay a $250K claim? Brian, can you make sense of this for me?
Also the "hours worked on the properties" by this woman, which seem to be main issue here, don't seem to be feasible.
I have read some other threads on this case, and something smells really rotten, I hope the court has not been duped by this woman.
I have a 16 year old son who currently lives with his father. About a year ago he lived with my sisiter due to financial situations that I was having and this was a decision that I made to let him temporarily live with her. She sent my son to live with his father without my permission and now I am unable to see or speak with my son. I told her that this would happen but she did it anyway. His father calls himself a Christian and because of his cult like belief he is not allowing me to see or speak with my son because we don't share the same values. Can I sue for suffering due to not seeing my child who I believe is being brain washed and also not being allowed to see his other siblings. Also can I sue for back child support that was not paid by his father for the first 11 years of his life?
In, Quebec its worse. The harrassing text messages and e-mails keep coming from my ex- about taking my children durig a nearly four year court case and lying to social workers about me, and the judges just shrugs his shoulders. This is indeed down right bullying and terrorism, but there are no laws to protect us single mothers.
On December 13, 2010, Darko Danicic, aka Darko Danic, accepted a plea bargain in Superior Criminal Court.
After denying his guilt and postponing trial for three years, he plead guilty just as jury selection was commencing.
He plead guilty to Criminal Harassment against Traci McLean in exchange for a lighter sentence and in order to have the additional 2 indictable charges of Extortion and Attempting to Obstruct Justice dropped.
He is serving a 2 year sentence of home arrest combined with probation and has his DNA registered in the Canadian Criminal database.
I am researching enforcement actions I may take to get the support my children deserve. I am disgusted at how easily these deadbeats get away with not paying support for their children. Especially in Ont. I have heard so many stories where the custodial parent caves & eventually struggles to support their kids themselves while the other parent goes about life as if they have no children to support! My ex for example moved to Winnepeg on my daughters 13th bday without a word to escape paying child support he came back to Ontario 4 mths later expecting to see his children with open arms. He left without telling them he left their belongings to be thrown out by the landlord of apartment where also fled without a word. He did not fight or even try in any way to have a relationship with his daughters. We have a court ordered support agreement & it is enforced by The FRO. But as so many others out there will give up soon because I Have to find out all the info....eg: find out where he lives find out where he works & report it to The FRO. With as much as he moves around after more than a year of doing this I started recieving payments of 50% of his income because FRO finally caught up with him & garnished his wages. I received 3 payments before he quit his job because he couldn't survive on 50% of his income. His crackhead girlfriend told me I ruined his life. I reminded her that The FRO has sent many notices & taken enforcement actions before his wages were garnished he did not communicate with them & make payment arrangements that he could afford! So after 3 payments (not voluntary) he quit his job & took off again to Winnepeg. Leaving his girlfriend blaming his communication problems on her & her requests not to have a relationship with his daughters. So he worked for 3 days in Winnepeg after calling me telling me I wont be receiving anymore child support because he quit his job in Ontario & had his last paycheck from that employer manually writen to him because his bank accounts were also garnished. So after 3 days (in Winnepeg)he decides to quit that job too & come back to Ontario to marry his girlfriend in Fort Erie. I AGAIN found out where he is & reported it to FRO who takes so long to even look at the info he may be gone from Fort Erie as soon as catch up with him!
WHY IS THERE NOT A SYSTEM IN PLACE WHERE THE SIN NUMBERS ARE FLAGGED THRU THE FRO. I'VE HAD MY WAGES GARNISHED BECAUSE OF DEFAULTED PAYMENT THRU BILL COLLECTORS. WITH ALL THE TECHNOLOGY OUT THERE ESPECIALLY GOVERNEMNT AGENCIES..IF I OWED THE GOVERNMENT MONEY THEY WOULD GET IT FROM ME BUT BECAUSE IT'S MY KIDS WHO ARE COUNTING ON THAT MONEY THEY DONT TAKE THOSE ACTIONS. WHY?????
SUPER UPSET SO MANY CHILDREN SUFFER BECAUSE THEY CAN'T ACCESS THAT SUPPORT! THIS WHY SO MANY CHILDREN LIVE IN POVERTY!! iTS DISGUSTING & SOMETHING NEEDS TO BE DONE!
BUT WHAT CAN I DO???
IF THERE IS ANYTHING WE CAN DO ABOUT THIS..WE SHOULD.. TELL ME HOW I WILL GET STARTED ASAP. THERE DOESNT SEEM TO BE ANY HELP FOR OUR CHILDREN! WHY?? WITH ALL THE OTHER GROUPS & FINACIAL SUPPORT WE GIVE TO SO MANY OTHER ISSUES THIS ONE DOESNT SEEM TO HAVE MUCH CREDIT OR SUPPORT!! WHY????