Court File and Parties

CITATION: Dekany v. Parenteau, 2014 ONSC 49

DIVISIONAL COURT FILE NO.: DC-13-0513-00

DATE: 2014-01-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Katlin Dekany, Appellant

AND:

Mark David Parenteau, Respondent

BEFORE: Matlow, Taliano, Wilton-Siegel JJ.

COUNSEL: Mark A. Klaiman, Counsel for the Appellant

Mark David Parenteau, Self-Represented Respondent

HEARD: September 19, 2013, at Oshawa

ENDORSEMENT

TALIANO J:

[1] This is an appeal by the appellant, Katlin Dekany, from the judgment of Shaughnessy J. dated December 7, 2012 which awarded her $47,500 against her former husband, the respondent, Mark Parenteau.

[2] The parties were married on January 31, 1987 and separated on August 30, 2009. They had two children who are now over the age of 18.

[3] The respondent commenced divorce proceedings which led to a trial judgment on December 3, 2010. This “first trial” was conducted over eight days in the Superior Court and led to a spousal support order of $1,400 per month, to be reduced to $1,000 per month on November 1, 2014 based on the imputation of income of $20,000 per annum to the appellant commencing that date. The appellant appealed the judgment to the Divisional Court which dismissed her appeal. Her appeal to the Court of Appeal was also dismissed.

[4] However, the first trial judge had severed the claims advanced by the appellant for damages arising from alleged spousal abuse and directed that her damage claims be tried separately. This order was not appealed by the respondent although its correctness may be open to question.

[5] The second trial came before Shaughnessy J. on October 16, 17 and 18, 2012. Judgment was delivered orally on December 7, 2012. The appellant was awarded a judgment of $47,500 made up of $20,000 for general damages, $2,500 for aggravated and punitive damages, $10,000 for future psychotherapy treatments and $15,000, all inclusive, for costs.

[6] The appellant seeks an order setting the judgment aside and asks that the matter be remitted for a new trial on the issue of the assessment of the appellant’s damages or, in the alternative, an order assessing general damages at $100,000, punitive damages at $25,000, the cost of psychotherapy treatments at $15,000, past lost income of $93,000, future lost income of $43,000 and costs at $42,800 for a total award of $276,000.

[7] The grounds for the appeal may be summarized briefly as follows. The trial judge erred in:

• his assessment of the appellant’s general, future, punitive and aggravated damages

• not accepting the evidence of a psychiatric expert who testified on behalf of the appellant

• disproportionately attributing the appellant’s emotional and psychological condition to other stress factors in her life

• relying upon the decision made by the trial judge in the first trial

[8] The Supreme Court of Canada addressed the standard of review for a judicial appeal in Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235. In brief, on a pure question of law, the basic rule is that of correctness. The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”. Questions of mixed fact and law are subject to the palpable and overriding error standard unless it is clear that the trial judge made some error of law or principle that can be identified independent of the judge’s application of the law to the facts of the case. In these circumstances, the error of law is extricable from the questions of mixed fact and law in issue and must be separated out and reviewed on a standard of correctness. Assessment of damages is a question of fact, and thus it must be established that the trial judge made a palpable and overriding error. (see Young v. Bella, 2006 SCC 3, [2006] S.C.J. No. 2 at paragraph 64)

[9] The trial judge rendered a lengthy judgment in which he reviewed the events that led to the separation of the parties. He found that the respondent had abused the appellant and that the abuse commenced shortly after the marriage. There were three separate incidents that preceded the fourth incident which occurred in 1988 as a result of which the respondent was charged with assault. There were no more incidents until 2001 when another incident occurred that also led to a common assault charge against the respondent. The final incident that occurred in October 2008 led to a charge of assault causing bodily harm and the respondent’s incarceration for 15 days. The last assault caused physical injuries that the trial judge reviewed in his judgment. However, he also found that the plaintiff had been emotionally abused by the respondent over a number of years which had made her emotionally vulnerable. Then, superimposed on this vulnerability was the assault of October 2008 which “further aggravated her emotional vulnerability”. (see page 264 of the Reasons)

[10] The trial judge concluded that the physical incidents between 1998 and 2001 caused only minor injury to the appellant that did not require medical intervention. However, the incident in 2008 caused a laceration to the appellant’s scalp and soft tissue injuries, some of which were allegedly symptomatic at the time of trial. The psychological or emotional injuries sustained by the appellant were described by the trial judge as being more difficult to assess.

[11] The event that led to the incident in 2008 was fueled by the fact that the appellant had left a teaching career and turned her attention to day trading in stocks and options. In 2007 and 2008, she lost all of the family’s wealth of approximately $400,000. Nevertheless, she still demanded access to the respondent’s business line of credit of $40,000 to cover an additional loss of $30,000. This request was made by the appellant after returning from a trip with friends to Banff and was the final straw for the respondent. Yet, despite the abuse which the appellant claimed to have suffered over the whole term of the marriage, she did not want a separation nor a divorce and was as distraught over the idea as she was about her own dissipation of all of the family’s wealth.

[12] The trial judge found that the appellant’s mental state, which Dr. Karen Abrams diagnosed as a major depressive disorder (chronic) and post traumatic stress disorder, resulted from the physical and emotional abuse suffered at the hands of her husband and other contributing stress factors in her life. Those other stress factors were the breakup of her marriage, the ensuing domestic litigation, financial losses incurred by the appellant and the assault of 2008. In addition, there was evidence that the appellant was disturbed by the children moving out of the family home, the lack of family support and issues with menopause.

[13] In assessing Dr. Abrams’ evidence, the trial judge noted that the doctor only saw the appellant once on July 17, 2012, that the consultation had been arranged for trial purposes and the opinion formulated was based on the “self reporting” of the appellant.

[14] Dr. Abrams acknowledged that it was difficult to say to what extent the appellant’s emotional difficulties were caused by the alleged abuse and how much was attributable to the numerous other stress factors in her life, although she attributed the post-traumatic stress condition entirely to the 2008 assault.

[15] Although the trial judge was obliged to consider all of the evidence before him, he was not required to accept all of the evidence of the appellant’s medical expert merely because there was no contrary expert testimony tendered on behalf of the respondent.

[16] The appellant was entitled to recover general damages for pain and suffering but only to the extent that they were caused or aggravated by the respondent’s abusive conduct. She was not entitled to any recovery for the consequences of the unrelated factors in her life or even from the consequences of being in a marriage that had become dysfunctional.

[17] The trial judge’s assessment of general damages in the sum of $20,000 correctly reflects his appreciation of this principle and is within the range of similar cases relied upon by the parties. (see in particular Valenti v. Valenti where $10,000 was awarded for a violent and humiliating assault and Constantini v. Constantini, 2013 ONSC 1626 where general and aggravated damages were assessed at $15,000) Accordingly, in my view the trial judge’s assessment of general damages was fair and reasonable and there is no proper basis for us to interfere.

[18] With respect to the trial judge’s assessment of punitive and aggravated damages, the trial judge’s assessment is consistent with other damage awards contained in the authorities cited. (see Valenti, supra, where punitive damages were assessed at $2,500) Secondly, it should be remembered that the respondent had been punished for his spousal abuse by the criminal justice system on three occasions and he was ultimately incarcerated for 15 days. Punitive damages are the means by which the court expresses its outrage at egregious conduct of the defendant. However, in McIntyre et al. v. Grigg et al, 83 O.R. (3d) 161, Blair J.A. stated where tortious acts have already been sanctioned by the imposition of a sentence, it is inappropriate to award punitive damages in a civil law suit. To do so is to punish twice for the same offence, unless the criminal sanction does not fully sanction the tortfeasor’s behaviour. (paragraph 79). In the circumstances of the present case, the award of any amount for punitive or aggravated damages was questionable, although the respondent did not appeal the award.

[19] In addition, there were mitigating circumstances in this case. The appellant’s behaviour in causing the loss of the family’s wealth “unwound” the respondent, which may remove his conduct from the type of intentional and deliberate behaviour required to attract punitive damages. Although his loss of control was inexcusable, he had not only paid for his misbehaviour by being imprisoned, he was financially ruined. The imposition of any further penalty even in the sum of $2,500, could be viewed as being unnecessary and certainly does not warrant upward revision.

[20] With respect to the trial judge’s rejection of the appellant’s claim for past, current and future loss of income, the evidence supports the trial judge’s disposition. The trial judge found that the appellant had voluntarily withdrawn from teaching and tutoring in 2007 in favour of her disastrous day trading activities for reasons that were related to her performance and were unrelated to any physical or emotional abuse. He noted that there was no evidence that she would have been able to obtain teaching or tutoring employment even if the 2008 assault had not occurred. In other words, the trial judge concluded that the appellant had not established any loss of future income resulting from the 2008 assault because the evidence demonstrates that she would not have obtained employment even if she had tried as a result of her inadequate performance as a teacher and tutor before the 2008 assault. While not explicit, it is clear that the trial judge concluded that the applicant required retraining in another area in order to obtain future employment, which the applicant was in the course of completing

[21] While these findings may not be sufficient on their own to support the conclusion that the appellant suffered no loss of past or future income as a result of the 2008 assault, the trial judge also found as a fact that the appellant has been and would be able to pursue other forms of employment related to her qualifications with such retraining notwithstanding the 2008 assault. In making this finding, he concluded that the evidence did not support Dr. Abrams’ opinion that psychotherapy was a precondition to the appellant returning to work. This conclusion is supported by his observations which he was uniquely qualified to make, that the appellant was not “defenceless, downtrodden and overwhelmed” by the abuse. The trial judge noted that the appellant was not prepared to leave the marriage despite the abuse and was distraught when the respondent filed for a divorce. Although she had been under the care of her own physician during the relevant period, she was never referred for psychiatric treatment or counselling and declined to take the prescription for emotional difficulties that had been prescribed.

[22] Accordingly, there was ample evidence to support his dismissal of the appellant’s lost income claims.

[23] Counsel for the appellant also argued that the trial judge examined the reasons of Justice Kaufman during the course of the trial and improperly relied upon findings made at the first trial that the appellant was able to work. I have examined the record and have concluded that this submission has no merit for the following reasons.

[24] First, I have already discussed the findings of the trial judge which supported his own independent conclusion that the respondent’s conduct had not disabled the appellant from working. These findings were independent of the findings made by the first trial judge.

[25] Second, it must be recalled that the appellant had advanced overlapping claims. She sought compensatory and non-compensatory support to assist her with economic disadvantages or losses sustained as a consequence of the breakdown of the marriage and/or her husband’s conduct. Based on her injuries she was awarded support of $1,400 per month in the first trial. (See page 45 of the trial judge’s reasons found at Tab 3 of the Appellant’s Appeal Book and Compendium) However, the appellant’s claims for damages in the second action were also sought to compensate the appellant for financial losses alleged to have been caused by the respondent’s very same conduct. The trial judge was therefore both entitled and required to satisfy himself that any award he was making in the second trial did not duplicate an award that the appellant had already received in the first trial. As was stated in Ramey v. Wilder Mobility Ltd. 920040, 131 A.C.W.S. (3d) 1065 (ONSC):

…in a concurrent liability situation it is important to ensure that the plaintiff is not over compensated for his losses by receiving overlapping awards of damages for both breach of contract and for negligence. Moreover, it would be anomalous to award a different level of damages for what is essentially the same wrong.

[26] With respect to the award of $10,000 as damages for the cost of future psychotherapy, the appellant submits that the award of an amount for the future cost of psychotherapy treatments, although less than the amount estimated by Dr. Abrams, is inconsistent with the trial judge's denial of the appellant's lost income claim.

[27] I disagree. The trial judge had the benefit of the testimony and demeanour of the parties as well as expert testimony, which he was entitled to accept or reject in whole or in part. As mentioned, the trial judge rejected the opinion of Dr. Abrams that psychotherapy was a precondition to the appellant returning to work. On the contrary he found as a fact during the course of his judgment that the appellant had the skills to have been able to obtain a doctorate in genetics and biochemistry as well as a teaching certificate. He noted her ability to overcome language difficulties in Canada in pursuing her ambitions. The trial judge was in a superior position to observe the appellant and to assess her ability to work with or without first having psychotherapy in the context of all of the evidence that had been presented. This court lacks the advantage the trial judge had and we decline to interfere with this aspect of his judgment.

[28] Given this finding, there is no basis for the appellant’s argument that the trial judge erred in failing to award an amount for future psycho-therapy expenses equal to the amount estimated by Dr. Abrams. To the contrary, it is arguable that the appellant failed to establish a satisfactory evidentiary basis for any award for future psycho-therapy expenses. The Court is not, however, required to address this issue in the absence of an appeal by the respondent of this element of the trial judge’s decision.

[29] Finally with respect to costs, the trial judge was entitled to temper a costs award to reflect that success had been divided, that the appellant’s own conduct had impoverished the family, that the respondent’s income was modest and the overriding requirement of reasonableness. These factors support the award he made.

[30] For these reasons, this appeal is dismissed.

[31] The parties may make written submissions with respect to costs by exchanging them and filing them at the office of this Court at Newmarket within one month of the date of release of these reasons, failing which no award of costs will be made.

Taliano J.

Matlow J.

Wilton-Siegel J.

Date: January 9, 2014