ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D1230/12
DATE: 2013-03-18

BETWEEN:

Michelle Elizabeth Costantini
Applicant

– and –

Phillip Daniel Costantini
Respondent

James D. Higginson –
Counsel for the Applicant

HEARD: January 21st and March 14th, 2013

The Honourable mr. justice pazaratz

1. On July 12, 2012 the wife filed an Application requesting the following relief:

a. A divorce based on the period of separation.

b. Damages from the Respondent husband in the sum of $50,000.00 for assault and battery.

c. Punitive damages in the sum of $50,000.00.

d. Damages for intentional infliction of mental suffering.

e. Costs.

2. The Respondent was personally served with the Application on July 26, 2012. He eventually contacted a lawyer who had some discussions with Applicant’s counsel with a view to trying to settle the case. However those discussions broke down and the Respondent has not filed an Answer. The Applicant set this matter down for an uncontested hearing which was heard on January 21and March 14, 2013.

3. At the outset of the hearing counsel advised that the Applicant was seeking a total of $50,000.00 in general damages. Punitive damages were no longer being pursued.

BACKGROUND

4. The Applicant gave the following background information:

a. She is 45 years old.

b. The Respondent is 46.

c. They started living together in June 2007.

d. They were married on September 5, 2008.

e. They separated on February 15, 2011.

f. Each party was previously married.

g. The Applicant has two children of her former relationship, a 20-year-old son Kyle and a 17-year-old daughter Kaitlin.

5. For the past 21 years the Applicant has been a registered nurse, currently working in the critical care unit of St. Joseph’s Hospital in Hamilton.

6. She testified that after the parties married, the Respondent started to become possessive and controlling. With the passage of time he was more prone to become angry over little things. She described upsetting and curious behaviour by the Respondent, such as ripping up their wedding pictures; tearing off the heads of stuffed animals; or turning off the power to her children’s bedrooms so they could not do their homework.

FEBRUARY 15, 2011 INCIDENT

7. Tensions escalated to the point where on February 15, 2011 the parties had a very upsetting argument which the Applicant described as follows:

a. The Applicant was upstairs in the bedroom reading. The Respondent came upstairs, advised he was going to a mall and asked if the Applicant needed anything.

b. When the Applicant stated she needed running shoes for work the Respondent became upset, and insisted she didn’t need new running shoes. He called her vulgar names including “cunt”.

c. The Respondent called police alleging the Applicant had been harassing him. After he hung up the police called back, and spoke to the Applicant.

d. Soon after, police officers attended. After talking to the parties, police suggested the Respondent should leave to keep the peace.

e. The Respondent voluntarily moved out that evening. A few days later he arranged for his belongings to be removed.

f. They never reconciled.

AUGUST 4, 2011 INCIDENT

8. The Applicant described the events of August 4, 2011 as follows:

a. At approximately 7:30 p.m. the Respondent telephoned the Applicant at home asking if he could come over. This was unusual because the parties had very little contact with one another following their February 15, 2011 separation.

b. The Applicant explained to the Respondent it was not a good time because she was just getting her children ready to leave on a vacation with their father. She said the Respondent got angry and hung up.

c. Soon after the children left with their father, the Respondent called back and asked “did your fucking boyfriend leave already?” The Applicant was disturbed that the Respondent called so soon after her former husband drove away from her home. She thought she had previously seen the Respondent’s vehicle on her street, and wondered whether he had been watching her house.

d. During that second telephone call the Respondent again became angry, called the Applicant vulgar names and finally hung up.

e. With the children away on vacation the Applicant was alone in the house. She armed the house security system before going to bed around 9:30 p.m.

f. At approximately 12:30 a.m. August 5, 2011 she was awakened by the security alarm being triggered in the downstairs of the former matrimonial home. She went to the top of the stairs and saw the Respondent standing inside the front door trying to disarm the security system. She said he was angry and stated “you fucking changed the code.”

g. When the Applicant went down the stairs to turn off the alarm the Respondent cornered her. He was agitated, swore at her and made vulgar allegations. He called her a “cunt”, said she “had fucking Cubans in the bedroom” and asked “did you have fun fucking Cubans?”

h. As he was making these statements he became angrier, and started pounding his fist into his own hand. The Applicant described him as being so agitated that as he was shouting irrationally his spit was hitting her in the face.

i. After warning her “you’ll pay for this” the Respondent grabbed her by the neck and started squeezing her neck with both hands.

j. He then banged her head twice against the wall.

k. As the Respondent made other terrifying statements such as “you deserve to die”, the Applicant remembered that the front door of the house was still ajar, so she reached out and opened it, screaming into the street in the middle of the night for help.

l. The Respondent grabbed the back of the Applicant’s clothing, pulled her away from the door, and threw her down, slamming her face against a ceramic floor several times.

m. The Applicant testified that the Respondent’s level of rage and his physical superiority [he is close to 6 feet tall while she is approximately 5’3” tall] left her powerless to resist his aggression.

n. The Applicant testified that as she kept asking him “please just stop”, the Respondent simply got angrier.

o. Ultimately, when the Applicant’s voice grew hoarse from screaming, she begged him for water. He let go, and agreed to get her a drink of water.

p. The Applicant testified she kept asking the Respondent to leave but he refused to do so. He said “I’m not done with putting you in your hole yet”.

q. The Applicant said the Respondent then sat in a chair in the family room, and made her sit on an adjacent couch. She said she was in visible distress and terrified, but tried to comply with his demands because she feared the Respondent would continue to hurt her.

r. The Applicant testified the Respondent’s mood and behaviour then suddenly changed. He looked at her, smiled and started laughing. He casually recalled enjoyable things they used to do together. He then said he was tired, got up and left the house.

CRIMINAL CHARGES

9. After the Respondent left the residence, the Applicant called police. The Respondent was charged with assault and making death threats. The threatening charges related to the fact that during all the assault the Respondent threatened to harm the Applicant’s children. He also threatened that if he ever saw the Applicant’s wheelchair-bound mother at the top of the staircase he would push her down the stairs.

10. The Respondent was subsequently charged with two counts of breaching terms of his interim judicial release, by contacting the Applicant through e-mail. This led to a brief period of incarceration. Eventually the Respondent pleaded guilty, and in February 2012 he was placed on probation for three years. The Applicant has had no contact with him since.

APPLICANT’S INJURIES

11. The Applicant testified that the day after the assault she went to St. Joseph’s Hospital in relation to physical injuries which included:

a. A large bump on the back of the head.

b. Bruising on her knee, neck, and elsewhere on her body.

c. Soft tissue injuries on the right side of her neck.

d. Headaches.

e. Aches and pains all over her body.

f. A very sore throat.

g. A hoarse voice.

12. She was prescribed pain medications, an antidepressant, and sleeping pills.

13. Beyond that – and of more significance to the Applicant – she testified that she experienced significant and ongoing psychological or emotional distress as a result of the Respondent’s assaultive behaviour, including:

a. Ongoing depression.

b. Insomnia.

c. Pervasive fear. Fear of being alone in the house. Fear that the Respondent might come to her workplace or elsewhere. Fear of going out in public. Fear of socializing with friends or co-workers. Fear when she is driving that the Respondent will pull up beside her in a car.

d. She isolates herself in her home, leaving the security alarm on at all times.

e. She hasn’t dated since the incident.

f. She ended up selling the former matrimonial home [where the assault took place] and moving to a new home [which also has alarm system] at an undisclosed location.

g. If the telephone rings she immediately becomes fearful that it might be the Respondent calling.

h. She said her emotional health worsened after the Respondent e-mailed her (leading to the breach charges).

14. (The Applicant also testified she was upset by a series of packages which arrived at the home addressed to the Respondent, sent by his employer. Although she perceived the arrival of the packages as suspicious, the evidence did not clearly establish any involvement or wrongdoing by the Respondent in relation to these packages – which were never opened.)

15. At the January 21, 2013 commencement of the trial the Applicant testified that even though it had been a year and a half since the August 2011 incident, “not a day goes by that I don’t see this whole event (again). It keeps going over and over in my mind.” When her evidence resumed on March 14, 2013 she testified her emotional upset remained the same: “It just consumes my whole life” and “any little noise brings it back”.

16. She said prior to the assault she used to be a very social, outgoing, happy person, and her emotional health was good.

17. The Applicant testified her 17-year-old daughter [who had witnessed to the February 15, 2011 argument which led to separation] is also now preoccupied with fear that the Respondent will come and harm them. The daughter doesn’t like to be left alone in the house, and always wants to be driven to school.

18. The Respondent testified she had to seek professional assistance to deal with the physical and emotional problems she experienced.

DR. SARAH KINZIE

19. The Applicant’s family physician Dr. Sarah Kinzie provided a report dated June 28, 2012 which included the following information:

a. Dr. Kinzie saw the Applicant several times during the previous year both in relation to the specific incident in August 2011 and more generally with respect to the marital breakdown.

b. The doctor confirmed and described the various injuries and symptoms outlined by the Applicant in her testimony. None of the physical injuries were permanent or long-term.

c. Treatment included rest; icing; elevation; anti-inflammatory drugs; medications to assist with sleep disturbance, anxiety and pain.

d. The Applicant struggled with significant anxiety and panic attacks.

e. She has experienced features commonly associated with post-traumatic stress disorder such as flashbacks and sleep disturbance, although she has not formally been given a diagnosis of PTSD.

f. She has suffered from low mood and depressive symptoms consistent with a major depressive episode.

g. She had significant pain related to the assault itself.

h. Dr. Kinzie concluded that as of June 2012 the Applicant’s prognosis was described as “hard to assess, due to the continued stress related to ongoing legal proceedings.” The doctor said at that point there had not been significant improvement in her symptoms, and “it is likely that she has a lengthy course ahead.”

IRENE GLAVAC PETRIC (SOCIAL WORKER)

20. The Applicant testified she has been seeing a social worker in her doctor’s office, Irene Glavac Petric. She produced a one page report from the social worker dated February 2, 2013 which included the following:

a. When she first met the Applicant on August 8, 2011, the Applicant “was in shock and felt her life changed forever” as a result of the unexpected assault.

b. The Applicant has attended with the social worker regularly, initially weekly and then biweekly. The purpose of the sessions was to help the Applicant deal with the psychological impact of intimate partner violence.

c. Ms. Petric said the Applicant became vigilant about safety for herself and for her children.

d. The Applicant has reported ongoing flashbacks and difficulty sleeping, using prescribed medication for aid in sleeping.

e. The Applicant reported feeling isolated socially, except for going to work. She had depleted energy and a lack of motivation and concentration, requiring medication for mood.

f. Although the Applicant listed the matrimonial home for sale, she had nowhere else to live until the house was sold. Until she finally changed residences “she relived the attack on a daily basis… Every day, she was reminded of the attack.”

g. The social worker concluded: “she continues to experience what appeared to be ongoing psychological effects as a result of her abuse.”

THE LAW

21. Tort actions for spousal violence have become more commonplace in Canada during the past 30 years, at least in part because of increased public awareness and universal condemnation of such behaviour.

22. But given the continuing prevalence of domestic violence in the community, only a tiny fraction of potential tort claims are ever advanced:

a. Many litigants may be unaware the tort option exists.

b. Family law lawyers tend to be more attuned to dealing with claims based on statute rather than tort.

c. Some lawyers and clients may be reluctant to pursue such a claim fearing it will aggravate an already difficult situation.

d. Family finances are often so limited, there’s little point in adding yet another potential monetary claim to the mix.

e. There may even be systemic discouragement. Over the years our family court system has worked hard to get away from blame and recrimination – by discouraging “inflammatory” affidavits in favour of case management; by telling conflicted parents to focus more on the future than the past; by promoting conciliation and collaborative dispute resolution; by granting “no fault” divorces. We may have promoted a misconception: that fault never matters.

23. During family law proceedings spouses may claim for damages for tortious behaviour that took place during the relationship. Booth v. Booth (1995) 1995 8948 (ON CA), 80 O.A.C. 399 (Ont. C.A.).

24. Indeed, it is preferable that all potential claims arising from the breakdown of a relationship – including tort claims – be dealt with at the same time. A consolidated action has the advantage of saving litigation costs and court time; ensuring consistency in the outcomes; and allowing a tort judgment to be factored into the overall financial result. A.(I.) v. S.(R.H.) (2000) 2000 22558 (ON SC), 5 R.F.L. (5th) 1 (Ont. S.C.J.); Cunningham v. Cunningham 2013 ONSC 282 (Ont. S.C.J.).

25. The conduct in question must rise to the level of tort and may not simply be evidence of a dysfunctional relationship. Hill v. Kilbrei 2005 MBCA 81, [2005] 11 W.W.R. 1.

26. Tort claims based on physical violence perpetrated by a spouse will almost invariably include a mental health or “emotional impact” component. Claims based solely on “intentional infliction of mental suffering” have been less prevalent – and less successful – perhaps a reflection that mental suffering is hardly a unique circumstance among separating spouses.

27. Behaviours that are conducted in “humiliating or undignified circumstances” may attract an award of aggravated damages (on top of general damages). Hill v. Kilbrei (supra) at paragraph 38, citing Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226 (S.C.C.) at paragraph 263.

28. A number of recent decisions have reviewed the essential elements of a tort claim, and in some cases significant damages have been awarded.

29. In Shaw v. Brunelle 2012 ONSC 590 (Ont. S.C.J.) Blishen J. dealt with the wife’s claims for damages resulting from an assault. The wife suffered a serious fracture to her right wrist, requiring surgery. At a criminal trial the husband had been found not guilty of assault causing bodily, because the parties had different versions of what had transpired, and the standard of proof at the criminal trial would have been proof beyond reasonable doubt.

30. Justice Blishen discussed the nature of the wife’s claim:

45 A person who "intentionally causes a harmful or offensive contact with another person is liable for battery": see Linden and Feldthusen, Canada Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), p. 44, "A battery may occur even when no harm is intended. The only intention required is that of making contact."

46 In Canadian Tort Law, the authors provide the following definition of assault at pp. 46-47:

Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault provides protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. The underlying policy of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law.

Assault should be distinguished from battery, although the two are often blurred together and called "assault". This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.

Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault.

[Emphasis added.]

47 In this case both parties blurred the torts of assault and battery and used the term "assault" throughout. I do not find this a significant problem. The essence of Ms. Brunelle's argument is that Mr. Shaw intentionally physically ejected her from the home, causing her to break her right wrist. Therefore, "battery" is the more accurate description of what is alleged.

31. After finding the husband had committed the intentional tort of battery thereby causing the wife’s injuries, Justice Blishen referred to several appellate decisions in relation to assessment of damages: At paragraph 100 she stated:

The Supreme Court of Canada in discussing the issue of general damages and the cap on those damages makes the following comments in Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229 (S.C.C.), as follows:

... The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution....

32. At paragraph 109:

In Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226 (S.C.C.), the Supreme Court of Canada indicated aggravated damages are not awarded in addition to general damages but general damages are assessed "taking into account any aggravating features of the case and to that extent increasing the amount awarded." Further, in a more recent decision of the Ontario Court of Appeal in Weingerl v. Seo (2005), 2005 21356 (ON CA), 199 O.A.C. 172, 256 D.L.R. (4th) 1 (Ont. C.A.), the Court noted the following at paras. 69-70:

69. General non-pecuniary damage should be assessed after taking into account any aggravating features of the defendant's conduct. The court may separately identify the aggravated damages, however, in principle they are not to be assessed separately. The purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of the defendant's conduct which aggravate the plaintiff's suffering. In cases of negligence, aggravating factors can also be taken into account where the defendant's conduct recklessly disregards the plaintiff's rights.

70. The following are aggravating factors which should be taken into account to determine whether the non-pecuniary damages should be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim.

71. At paragraph 113 she concluded:

113 Aggravated and punitive damages are fundamentally different. As explained by the Supreme Court of Canada in Norberg v. Wynrib, supra, general damages are assessed taking into account any aggravating features of the case and must be distinguished from punitive or exemplary damages. The Court states at para. 54: "The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort." The Court goes on to indicate: "Although aggravated damages will frequently cover conduct which could be also the subject of punitive damages, as I noted, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate."

114 I have already considered the aggravating factors in this case in assessing general damages. Although reprehensible, I do not find Mr. Shaw's conduct, though extreme, to warrant an award of punitive damages in order to punish him and deter him and others from committing a similar act. Therefore, I will not order punitive damages.

34. Justice Blishen awarded the wife $65,000.00 as “general and aggravated damages”; $25,000.00 as “loss of competitive advantage”; and a further amount still to be calculated for “future care costs.” Among the court’s considerations:

a. The 59 year old wife had been a school teacher who took early retirement to marry the husband.

b. She suffered a severe spiral fracture to right wrist after the husband threw her out of house onto a walkway.

c. The wife required surgery to her dominant right wrist, was in cast for six weeks, and required extensive physiotherapy.

d. She was left with a long scar and suffered from chronic pain.

e. She suffered significant depression and psychological damage as a result of the husband’s conduct.

f. The injury would have an impact on her future employability. She couldn’t work as a supply teacher. She could only work minimal hours.

35. In Bird v. Kohl 2012 BCSC 1424 the parties married in August 2007 and separated in August 2008. After separation the husband brutally assaulted wife, causing a fracture, concussion, lacerations and scarring. He served 27 months in prison. The wife was awarded a total of $155,000.00 in damages, broken down: $75,000.00 for pain and suffering; $15,000.00 for aggravated damages; $40,000.00 for lost wages; $25,000.00 for loss of earning capacity. Her claim for spousal support was denied.

36. An early high watermark for spousal assault was established in Megeval v. Megeval 1997 3721 (BC SC), [1997] B.C.J. No. 2454 (B.C.S.C.) in which the court awarded $45,000.00 in general and aggravated damages (and an additional $5,000.00 for punitive damages) for on-going abuse, including one assault which left the wife with a permanent wrist injury, affecting her employability.

37. But most recently-reported cases involve lesser injuries – and lesser awards.

38. For example, at the other end of the continuum, only $2,500.00 was awarded in general damages in Gould v. Sandau 2005 BCCA 190 where a husband twisted and broke his wife’s hand. The trial judge explained the award was much less than in cases like Megeval because in Gould there had been no significant history of spousal abuse, and no permanent disability resulted.

39. Other recent decisions fall into the $5,000.00 to $20,000.00 range for general damages.

40. In Van Dusen v. Van Dusen 2010 ONSC 220 (Ont. S.C.J.) the wife sought $20,000.00 in combined damages for a physical assault committed on the date of separation. The husband had tormented wife throughout marriage (including in front of their children). The assault caused physical injuries; bruising which resolved in approximately two weeks; and emotional upset. The husband had demeaned the wife in front of their children, and he struck a child who tried to intervene. The husband was charged. The wife was awarded $15,000.00 for general and aggravated damages, but no punitive damages.

41. In McLean v. Danicic 2009 28892 (ON SC), 69 R.F.L. (6th) 367 (Ont. S.C.J.) Justice Harvison Young awarded $15,000.00 compensatory and aggravated damages to a wife primarily in relation to the husband’s conduct after separation – even though the tort of intentional infliction of mental suffering had never been pleaded by the wife. Noting that the allegations of fact in the wife’s statement of claim provided the basis for finding the necessary elements of the tort, Justice Harvison Young concluded:

85 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 (Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (Ont. C.A.)). Mr. Danicic has pursued a relentless campaign of harassment against the Applicant.

42. In White v. White 2003 BCSC 522 the parties had been married for 33 years. The wife displayed a pattern of physical and verbal abuse toward the husband. He reacted by breaking things and kicking walls. On two occasions the husband assaulted his wife, causing injuries. The second beating involved the husband dragging the wife by hair (bruising her legs and abdomen) and tearing loose two strands of hair. The assault was described as savage and out of proportion to behaviour that preceded it. The wife claimed she had emotional disorder as a result, and was awarded $10,000.00 for non-pecuniary general damages relating to the two assaults.

43. Wandich v. Viele (2002) 2002 49549 (ON SC), 24 R.F.L. (5th) 427 (Ont. S.C.J.) involved seven to nine assaults entailing threatening, choking, some bruising, and a nose bleed – but no permanent injuries. $5,000.00 was awarded to the victim.

44. In Smigelski v. Kowalsky 1999 ABQB 478, [1999] A.J. No. 723 (Alta. Q.B.) the female partner complained of physical and verbal abuse before and during unmarried cohabitation. She kept a diary of 8 years of assaults including pushing; hitting; kicking; choking; hair pulling; throwing to the floor; banging her head on walls; threats; and vulgar, humiliating and demeaning name calling. This caused depression and thoughts of suicide. She sought $50,000.00 in general damages. Noting that domestic assault damages awards ranged from $4,000.00 to $20,000.00, the trial judge awarded $15,000.00 general damages for physical and mental abuse.

45. In Dhaliwal v. Dhaliwal [1997] O.J. No. 5964 (Ont. Gen. Div.) the parties were married 14 years. The husband was physically and verbally abusive to the wife and daughter. The wife suffered from depression (receiving treatment and medication), insomnia and low self-esteem. She was awarded $5,000.00 for aggravated damages and $5,000.00 for punitive damages.

46. In Valenti v. Valenti 1996 8082 (ON SC), [1996] O.J. No. 522 (Ont. Gen. Div.) the husband punched his wife in the face and head, and forced her head into the walls of the hallway. She was kicked and forced into a vehicle, where he struck her in the face. She was terrified and tried to leave the vehicle. Her eyes were swollen shut, and she suffered post-traumatic stress disorder. The trial judge awarded $10,000.00 in general damages and $2,500.00 for punitive damages. (An additional award was given to a son, for having witnessed incidents of assault over the course of the marriage).

47. Dealing with facts more similar to the case at bar, in Rezel v. Rezel (2007) 37 R.F.L. (6th) (Ont. S.C.J.) Justice Harvison Young awarded $7,500.00 in general damages to a wife after her husband assaulted her on two occasions. Both the husband and wife had children from previous marriages. They married in 1993, but the marriage was marked by incidents of violence and they separated in 1998. Both were in their early 60s.

48. The wife complained that early in their marriage the husband would lose his temper, chase her, pull her hair, and slap or kick her. She told him she found this degrading. Ms. Rezel recalled two incidents in particular. One time Mr. Rezel “socked” her in the mouth and left her with a black eye. She had to miss work for several days. The second incident occurred in the presence of their pastor, who was at their home to provide marriage counselling. On that occasion Mr. Rezel became enraged and threw a chair (the pastor stated the chair was not thrown at anybody in particular). As a result of the second incident the locks on the house were changed and Mr. Rezel did not live in the home again.

49. Justice Harvison Young concluded at paragraph 32:

The marriage was a turbulent one, but I do not find that there was a lengthy history of physical violence. Rather, the level of unhappiness and discord between the couple escalated and, towards the end of the relationship, erupted into physical expressions of anger on Mr. Rezel’s part on two occasions. While unacceptable, and constituting clear instances of assault, these incidents did not result in lasting injury to Ms. Rezel.

50. In addition to Shaw v. Brunelle (supra), Mr. Higginson referred to four other cases which in his submission supported the Applicant’s claim for general damages in the $50,000.00 range:

51. In Kenny v. Mastromatteo [2008] O.J. No. 2485 (Ont S.C.J.) an adult daughter received $20,000.00 and an adult son received $10,000.00, as general damages in relation to assaults committed by their mother:

a. The mother’s assault on the daughter included: tackling her against the wall of an apartment, bouncing her head off the wall, and pushing her down over top of a walker. She suffered pain to her arm, head, neck, shoulders and hip. A pre-existing back problem was aggravated, and she lost work as a film and TV extra. She also suffered nervous shock which required psychiatric treatment.

b. The mother’s assault on the son included: throwing a coffee cup which struck him in the forehead causing a gash that bled profusely. He required four stitches (leaving a scar) and his eye was swollen shut. He suffered “psychological impact”.

52. In D.G. v. R.M. 2012 SKQB 296, [2012] S.J. No. 464 (Sask Q.B.), in awarding $35,000.00 general damages for sexual and physical abuse, Zarzecnzny J. described the challenge of quantifying awards in spousal abuse cases:

26 What these cases and others illustrate is that both an objective and subjective analysis must be applied to the individual plaintiff. Objectively, one must consider the nature and severity of the physical and sexual assaults themselves. Subjectively, the court must consider the available evidence of the impact that the physical as well as psychological and emotional injuries inflicted upon this plaintiff have had upon her. There is no formulaic approach that can be taken. The determination of appropriate damages is very much complicated when the case involves domestic violence between spouses or physical and sexual assaults by persons in a fiduciary relationship to the victim. In these cases the emotional and psychological impact are exacerbated by the nature, and often loss, of the relationship.

53. The facts in D.G. v. R.M. were horrific:

a. The husband came home from a night of drinking and woke the wife to tell her was angry with a friend and intended to go to his house to beat him up.

b. He became angry when the wife attempted to dissuade him, called her degrading names, and announced he was going to have the kind of sex she had been denying him throughout their relationship.

c. He began choking her, forced her to take off her clothes, and sexually and physically assaulted her over a two to three hour period.

d. He forced her to submit to non-consensual anal intercourse and to perform oral sex on him.

e. He threatened to shave her private parts.

f. He repeatedly struck and kicked her.

g. At various times during the assault he threatened further violence against her, their child, and members of her family.

h. The wife eventually escaped and called police. The husband was charged and convicted, and served two years in jail.

i. The wife suffered facial bruising and a haematoma; bruising to her arm and thigh, and bite marks on her breast.

j. Many years later, the victim was still experiencing serious emotional impact from the incident. She felt humiliated; degraded; lost trust in people generally; was frightened to go out in public; and lost her outgoing and positive personality.

54. In N.C. v. W.R.B. [1999] O.J. No. 3633 (Ont S.C.J.), a female spouse was awarded $65,000.00 general damages, $25,000.00 aggravated damages, and $1,017.00 in special damages, in relation to multiple instances of sexual, physical, verbal and emotional abuse. The quantum of damages assessment considered:

a. The victim suffered physical and verbal abuse on a daily basis and sexual assaults four to five times per week during the six and a half year unmarried relationship.

b. The Respondent regularly grabbed her by the neck, pushed her around, slammed her against walls, dragged her by the hair and threw her down stairs. He hit her with his hands, fists and various objects. He threw things at her and punched her.

c. She was powerless to leave the relationship due to the systematic erosion of her self-esteem.

d. The male partner was eventually charged with sexual assault, assault, and uttering threats. He was sentenced to six months imprisonment (on weekends) and three years probation.

e. Numerous assessment reports were filed with the court setting out victim’s post-traumatic stress disorder; her depression; anxiety and nightmares.

f. Sexual assault was described as “an extreme violation of the intimate privacy and integrity of the victim and involves serious and long term injuries.”

55. At paragraph 12 Beaulieu J. discussed aggravated damages:

“…By awarding aggravated damages, the court recognises the immeasurable impact of the injuries suffered by the victim which are exacerbated by the way these injuries were inflicted. The court can only hope that by awarding aggravated damages, the victim can take solace in the fact that the wrongdoer is required to compensate her for the personal suffering she endured. I am satisfied that the compensatory damages can be fixed at an amount which takes into account exemplary considerations. Consequently, no exemplary or punitive damages are to be awarded.”

56. Aggravated damages were also discussed in a Supreme Court of Canada libel case, Hill v. Church of Scientology of Toronto 1995 59 (SCC), [1995] 2 S.C.R. 1130:

186 There will of necessity be some overlapping of the factors to be considered when aggravated damages are assessed. This can be seen from a further reference to the Gatley text, at pp. 593-594, where this appears:

1452. Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are thus all matters which the plaintiff may rely on as aggravating the damages. "Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper failings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation." "In awarding 'aggravated damages' the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous, rather than a more moderate award to provide an adequate solatium ... that is because the injury to the plaintiff is actually greater, as the result of the conduct exciting the indignation, demands a more generous solatium."

ANALYSIS

57. I have no difficulty concluding the Applicant’s claim in tort should succeed. The Respondent’s aggressive and intimidating behaviour was outrageous. He chose to say and do things with the specific intention of causing physical pain and injury, and significant emotional upset. The Applicant suffered physical and emotional injuries, precisely as the Respondent intended.

58. As stated, the Applicant did not pursue a claim for punitive damages. There was no wage loss or out of pocket expense claim.

59. In assessing general damages, I have considered:

a. The Respondent’s physically aggressive behaviour on August 4, 2011 in the context of the earlier verbal abuse on February 15, 2011.

b. These two incidents were relatively isolated (although there had been lesser problems earlier in the relationship).

c. The most egregious event on August 4, 2011 was not a spontaneous event, or a sudden lapse of judgment. The parties had already been separated for about six months. The Respondent telephoned and appeared to be in the vicinity of the Applicant’s residence early in the evening. Three or four hours later he entered the Applicant’s home in the middle of the night, when he would have known she was alone and likely asleep. He certainly knew he no longer lived there, was not wanted, and shouldn’t be there. It was a pre-meditated break-in.

d. The Respondent’s behaviour when he entered the home (and set off the alarm) was needlessly aggressive. The Applicant did nothing wrong; nothing to provoke or aggravate the situation.

e. The assault entailed more than a single physical action. The Respondent engaged in a terrifying, aggressive application of force which included grabbing, squeezing by the neck, pulling away from a door, banging the Applicant’s head against a wall, and then slamming her face against a ceramic floor. He took advantage of his physical superiority. He took advantage of the Applicant’s vulnerability. He violated her right to a sense of safety, while asleep in her own home, in the middle of the night.

f. He tormented her with threats and degrading insults.

g. The Respondent has not behaved inappropriately toward the Applicant since then. Apart from two e-mails (dealt with through the criminal courts) he has had no further contact with her since the assault.

h. The Applicant suffered painful injuries. Fortunately none were permanent, or long-lasting.

i. The Applicant has suffered pervasive and continuing emotional upset as a result of the Respondent’s intentionally hurtful behaviour. Her fear, even within her own home, is understandable given the manner in which she was targeted and victimized – in her own home. Her life – her world – has changed.

j. Her stress has been compounded by dealing with the fallout on her teenage daughter, also a victim of the Respondent’s abuse.

60. I have a significant amount of sympathy for the Applicant – a blameless victim of a serious assault within a relationship of trust. I have no difficulty concluding she is entitled to compensation. The perplexing issue is quantum.

61. The Applicant’s request for $50,000.00 general damages would equate her situation to some of the aforementioned “high award” cases like Shaw v. Shaw, Bird v. Kohl, Megeval v. Megeval, and N.C. v. W.R.B. - cases which involved significantly more egregious (and protracted or repeated) misconduct, with more serious (permanent) injuries.

62. While no two cases (or victims) are identical, I find that the Applicant’s experiences and injuries are more similar to those described in cases like Rezel v. Rezel and Valenti v. Valenti.

63. As a result, attempting to maintain some consistency with other domestic assault cases – and taking into account the aggravating factors -- I find that $15,000.00 is an appropriate general damages award.

THE ORDER

64. A Divorce order shall issue.

65. The Respondent shall pay to the Applicant general and aggravated damages in relation to assault fixed in the sum of $15,000.00.

66. Applicant’s counsel may provide written submissions regarding costs, to be filed within 30 days.

Pazaratz, J.

Released: March 18, 2013

COURT FILE NO.: D1230/12

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Elizabeth Constantini

Applicant

-and –

Phillip Daniel Constantini

REASONS FOR JUDGMENT

Pazaratz J,

Released: March 18, 2013