Shaw v. Shaw

On January 26, 2012, Blishen J. of the Ontario Superior Court of Justice released her decision for the Shaw v. Shaw matter.  This decision brings forward and deals with a claim of battery as well as claims for damages in a family law context.

Although the parties were able to resolve the majority of the family law issues, including spousal support and the division of the proceeds of sale of the matrimonial home, by partial Minutes of Settlement dated February 23, 2011, some issues remained unresolved.

The facts of this case are as follows.

The parties entered into a short term marriage on August 18, 2006 which broke down approximately one (1) year later on August 22, 2007, when the husband assaulted her and was subsequently criminally charged. This was the husband’s second marriage;  he was a widower.

As a result of the assault, the wife suffered a serious fracture to her right wrist, which required surgery and the insertion of screws and a metal plate.  In addition, the husband was ordered not to attend at the matrimonial home or have any contact with the wife.

In October 2007, the parties initiated their court proceedings which eventually resulted in this trial.  The parties were able to execute a partial Minutes of Settlement and various orders were made in relation to their matter, for example, the matrimonial home was to be sold to the husband, the wife was to receive $1,000.00 per month in spousal support (terminable on April 30, 2011) as well as $90,000.00 from the net proceeds of sale of the home.

The husband was found not guilty of assault causing harm to his wife.  The wife, however, continued to suffer pain and disability due to the fracture of her right wrist which required therapy, rehabilitation, and medical care.

Prior to delving into the claim for damages, Blishen J. dealt with the remaining property issues in dispute.  Namely, the husband alleged that certain items of his were missing from the matrimonial home, in which he was still residing, and further alleged that the wife took same.  The wife counterclaimed that she was not responsible for the missing items nor did she have them in her possession.   After hearing lengthy testimony from the husband, wife, the husband’s sister and the husband’s son, Blishen J. ordered the following:

  • The wife was to return to the husband various household items and contents to which he was entitled, namely the laptop computer, and former dining room light fixture;
  • The husband’s testimony in relation to the items he inherited from his late wife’s estates was plagued with weaknesses, and as a result, did not meet the balance of probabilities test; and
  • Both the husband’s and wife’s testimonies with regards to the items he inherited from his parent’s estate were plagued with weaknesses.  However, it was found that the missing items were, in fact, in the wife’s possession and were worth at least $10,000.00 on the date of separation.  Therefore, $10,000.00 was to be added to the equalization payment owed by the wife to the husband.

Following this, Blishen J. went on to address and determine the wife’s claim for damages due to the alleged assault by the husband on August 22, 2007.

Blishen J. was first asked to determine whether, on a balance of probabilities, the actions of the husband constituted a battery, more specifically whether he intended to cause harmful contact when he brushed against the wife and ejected her from the matrimonial home, causing her to land on the cement walkway and injure her right wrist.

After hearing testimony from the husband, wife, the husband’s son and the constable who interviewed the wife, Blishen J. determined that despite apparent weaknesses in both parties’ testimony, on a balance of probabilities, the wife was able to prove that the husband intentionally caused harmful contact thereby committing the tort of battery especially given the fact that her evidence was corroborated by the husband’s son and the constable.

Once it was determined that the husband’s actions did, in fact, constitute a battery, Blishen J. went on to determine the appropriate damages award for the wife.  When reviewing the injury and its effect, Blishen J. stated that due to the actions of the husband, the wife, who was right-hand dominant, suffered a badly broken right wrist for which she required surgery.  However, following the surgery, she continued to have diminished range of motion in her right wrist.  She complained of weakness and numbness in her fingers in her right hand and she suffered and continues to suffer significant pain and discomfort in her hand and wrist.

As a result of the wife’s persistent pain and discomfort in her right hand and wrist area which caused her difficulty when performing activities of daily living and which radiated from the wrist up to the shoulder, she was diagnosed with chronic regional pain syndrome.   She was told to attend pain clinic sessions of three and a half hours once a week for 10 weeks and then once per month until the end of 2010.  In 2011, she returned to the clinic approximately two or three times.

Plate removal was also noted as a possibility however, there were suggestions that same would not improve her condition and rather could worsen the hypersensitivity in her hand.

The wife suffered from sleep deprivation  and depression which caused suicidal tendencies.  As a result, she was diagnosed with major depressive disorder and post-traumatic stress syndrome/anxiety disorder.   The aforementioned was seriously affecting the wife’s quality of life as well as contributing towards the fact that she was unable to resume gainful employment.

It was further noted that the wife could minimally perform most of the tasks of daily living, but only with a great deal of pain due to her right wrist injury and as such, it was recommended that she should obtain assistance for housekeeping and home maintenance.

Given the above, Blishen J. found that the impact of the injury on the wife has been significant and life altering.

When considering her claim for general and aggravated damages, Blishen J. stated that aggravated damages are not awarded in addition to general damages, but general damages are assessed by “taking into account any aggravating features of the case and to that extent increasing the amount awarded.”

In addition, Blishen J. quoted Ontario case law and explained that the purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of the defendant’s conduct which aggravate the plaintiff’s suffering.

Based on the facts that the wife was violently ejected from the home, in the middle of day, in front of the husband’s son which resulted in both physical and psychological damage to the wife, Blishen J. awarded the wife general and aggravated damages in the amount of $65,000.00.

Blishen J. did not award punitive damages due to the fact that although reprehensible, the husband’s conduct did not warrant an award of punitive damages in order to punish him and deter him and others from committing a similar act.

The next aspect of the damages award considered was future loss of income and/or loss of competitive advantage and Blishen J. stated that due to the severity of the injury sustained, the wife has and will suffer economic loss due to her inability to compete for gainful employment as her marketability as an employee has been substantially affected by her injury.

Therefore, Blishen J. determined that without having suffered a wrist injury, the wife would have been able to earn at least $10,000.00 to $15,000.00 annually.  Given her age, which at the time of trial was 63 years old, and so she could have continued to be employed until the age of retirement, namely 65 years, damages for loss of competitive advantage were awarded in the amount of $25,000.00.

When discussing whether to award future care costs, Blishen J. stated that the wife would need aides for homemaking, housekeeping assistance, the services of a handyperson, and lawn maintenance and snow removal.  However, Blishen J. refrained from assigning an actual value to same and rather stated that final figures were to be provided by an actuary and then submitted prior to signing the Judgement.

Interest was also considered and was ordered to be calculated as per s. 128 of the Courts of Justice Act from the date of the injury to the date of the release of the judgment.

Lastly, Blishen J. stated that in the event that both parties were unable to agree on costs, submissions were to be provided by the husband within 60 days and the wife within 30 days.  Each party was given an additional 14 days to provide a reply.

 

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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