Civil Damages and Divorce: Suing for Mental and Emotional Distress

Can I sue my ex for mental or emotional distress?


In the absence of extreme behaviour — most likely not.

Going through a separation is an extremely stressful time, and this can bring out the worst in people.  A spouse may do or say things that cause emotional distress and mental suffering to the other, from the reason for the break-up to their behaviour afterwards.  But courts generally do not order damages for "mental and emotional distress" in separations.  In this post, our intern and a University of Ottawa law student, Xinya Wang, review the law in this area.

Why won't the courts award damages?

One of the main concerns with extending the tort of intentional infliction of mental suffering into the family law context is the potential negative impact on the children. According to the Supreme Court of Canada in Frame v Smith, the tort can be misused as “an ideal weapon” for separating spouses whose “initial, although hopefully short-lived objective, is to injure one another.” Especially in the custody and access context, the tort is unlikely to encourage “conduct conducive to the maintenance and development of a relationship between both parents and their children.”

In this case, the former wife did everything she could to prevent her former husband from accessing their children. This included relocating to different cities, changing the children’s surname and religion, forbidding telephone conversations, and intercepting letters. The husband brought a civil action against his former wife, for mental suffering arising from her interference with his legal right of access to his children. In the judgment, Justice Gérard La Forest precluded the tort from extending into the custody context where “the spin-off effects on the children could only be harmful.”

The Requirement of Medical Evidence

Another reason why courts may refuse to award damages for mental distress is insufficient medical evidence to show a “visible and provable illness.” However, with the Supreme Court of Canada’s recent ground-breaking decision in Saadati v Moorhead, it is possible that courts will now revise its position on mental distress in the context of family law.

In Saadati, the Court clarified that plaintiffs are not required to demonstrate a “recognizable psychiatric illness” if the mental injury is “serious and prolonged and rise above the ordinary annoyances, anxieties, and fears.” The mental injury does not need to be diagnosable; according to Justice Russell Brown, “what matters is the substance—meaning, [the] symptoms—and not the label.”

Following Saadati, family law cases involving mental distress have yet to make it to the courts. But once they do, it will be interesting to see how courts interpret and apply the revised rule.

    When have courts awarded damages?

    For family law issues, courts will usually refuse to award damages for mental and/or emotional distress.  Canadian jurisprudence discourages spouses from pursuing civil claims against each other. However, in cases of extreme or unconscionable behaviour, courts have acknowledged that damages may be warranted.

    Although successful claims without physically assaultive behaviour are less common, courts may still award damages if all the elements are met. To receive damages for mental distress, the plaintiff must show:

    1. flagrant or outrageous conduct;
    2. that is calculated to produce harm; and
    3. that results in a visible and provable illness

    In the 2009 decision of McLean v Danicic, Darko Danicic pursued a “relentless campaign of harassment” against his former common law spouse, Traci McLean. Danicic’s actions included physical threats and frightening letters and packages sent to McLean’s home. As a result, Justice Harrison Young awarded McLean $15,000 in general damages, under the tort of intentional infliction of mental suffering and emotional distress.

    Do you think someone in your life would benefit from the information in this post?  Please share it using the link below.