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