Suing for Pain and Suffering in a Separation

Woman crying and contemplating suing after a divorce. She is experiencing pain and suffering after 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 of 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 a 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.

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Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.

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