Where a spouse treats the other very badly, many practitioners have maintained that there must be a legal reckoning. In cases of assault, threatening and intentional infliction of mental suffering, I have claimed damages. The relationship of husband and wife should not relieve either side from responsibilities for what amounts to cruel and criminal actions.
In MacKay v. Buelow (1995), 11 R.F.L. (4th) 403, 24 C.C.L.T. (2d) 184, Mr. Justice Binks of the Ontario Court, General Division, in Ottawa awarded damages to a wife for:
- invasion of privacy
- trespass to the person
- intentional infliction of mental suffering and emotional distress.
The total damages awarded were $55,000.00 plus a further $44,000.00 for five years of psychotherapy and $6,248.00 for out of pocket expenses.
The behaviour complained of included such matters as:
- threats to kill the wife and the child;
- telephoning continuously;
- secretly videotaping the wife.
In Valenti v. Valenti, unreported, digested at 9 O.F.L.R. 183,  O.J. No. 522, D.R.S. 96-05755, Justice Metivier of the Ontario Court, General Division dealt with an assault on the wife for which the husband was criminally convicted and received a jail sentence of five months. The husband had struck the wife many times causing multiple bruises. The wife was awarded $10,000.00 general damages, $2,500.00 aggravated damages and $2,500.00 for punitive damages, notwithstanding the criminal conviction.
While the courts in recent years have attempted to shy away from carefully measuring the behaviour of separating spouses, it is equally clear that if the behaviour is outrageous enough, financial relief will be granted.
An article in The Toronto Star (8 July 1996) referred to the case of man being ordered to pay interim spousal support even though his wife stabbed him in the chest while he slept. His wife was charged with attempted murder but found not criminally responsible because of mental illness, according to The Star.
The Divorce Act requires the court to ignore spousal misconduct when making a support order. On the other hand, the Family Law Act (Ontario) permits the court to consider spousal misconduct only with respect to quantum where there has been "a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship." [section 33 (10)]
I looked up the names on Quick Law but did not receive anything back. Still, I wonder what could be a more obvious "gross repudiation of the relationship" than trying to kill your spouse. The husband's lawyer is quoted in The Star article as alleging that the attempted murder was but a "culmination of a course of conduct directed towards" his client. If anyone has anything written by the motions judge, I would appreciate receiving a copy.