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.