Family Matters: Intentional Infliction of Mental Distress – McLean v. Danicic (2009)

This case involved a common law relationship of five years. During the last year of the relationship, and moreover during the breakdown of the relationship, Ms. McLean developed health problems that made her dependent on her partner, namely Mr. Danicic. Ms. McLean decided to claim spousal support. During the course of their litigation, Mr. Danicic attempted to threaten and embarrass his ex-common law spouse if she proceeded with her claim against him. One of the many disheartening and threatening actions of Mr. Danicic included threatening to disseminate nude photos of Ms. McLean and himself to Ms. McLean’s family.

Based on Mr. Danicic’s vindictive actions, Justice Harvison Young did award damages for the tort of intentional infliction of mental distress. A tort is considered a civil wrong for which an action for damages could be brought. Mr. Danicic was seen to be overly hostile, threatening, and embarrassing to his ex-common law spouse. Ms. McLean was said to be extremely distressed and suffered acute anxiety and fearfulness due to the malicious and assaulting conduct exhibited by the aggressor spouse.

This decision seems to be irreconcilable with the 2009 decision of Lo v. Lo. In Lo, the Court affirmed the Supreme Court of Canada Frame v. Smith decision that the tort of intentional infliction of mental suffering has no place in family law as it would act as a weapon for spouses who have been emotionally hurt to injure the other and reinforce vindictive behaviour and the spin-off effects on children could be harmful.

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  1. In this case, Justice Harvison Young applied the tort of intentional infliction of mental distress in the family law context, which has never been extended in family law situations. However, in Frame v. Smith, the Supreme Court made it clear that this tort has no place in family law. Lo v. Lo confirms this Supreme Court decision.

    It looks like neither the Frame nor Lo case was brought to the Court’s attention. This is not surprising because one of the parties was unrepresented. Whatever the reason, this case goes against a Supreme Court of Canada decision.

    Introducing this tort in matrimonial matters could open the floodgates for litigation as this may encourage spouses who encountered emotional trauma as a result of their relationship to claim exemplary damages. However, I think if such a tort was introduced in matrimonial matters, this can be beneficially used for parental alienation claims in order to get damages. The Lo and Frame decision seem to loathe the idea of such a tort being introduced in a family law context, specifically between spouses. However, I do not believe that a Court has been asked to deal with a new tort of parental alienation.

    A child encounters parental alienation when they form a strong dislike towards one parent through the influence of the negative comments made by the other parent. Such unjustified hatred to the other parent makes access to the child in a divorce or separation context difficult to attain.

    If the tort of intentional infliction of mental distress were not introduced in the family law context then I wonder whether the Frame case and the Lo case could be distinguished in a situation where the claimant of the tort was the child against the parent that alienated him or her from the other parent. I do not believe that the above mentioned decisions would be applicable in this situation as the claim would not be made in the family law context. Thus, it could be possible for a novel claim of this type to be made by a child when they reach the age of majority. This tort would allow the child upon reaching the age of majority to claim exemplary damages for such mental distress for being deprived of seeing their other parent. I think it is only a matter of time until such a case will be brought to the Court.

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