Court File and Parties

COURT FILE NO.: CV-11-438563 DATE: 20160621 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tom Mitchell Plaintiff – and – Rhonda Michelle Starkman Defendant

Counsel: Tom Mitchell, in person Rhonda Michelle Starkman, in person

HEARD: June 20, 2016

E.M. Morgan, J.

I. The post-divorce tort claim

[1] In this action, the Plaintiff seeks compensation in tort for harms he claims were done to him by his former spouse, the Defendant.

[2] The parties were married in 2002 and separated in 2007. They are now divorced. During the first year or so of their separation they continued to live in the same house, with the Plaintiff living in the basement and the Defendant living upstairs.

[3] During 2008, a number of angry encounters took place in which one or the other of the parties called the police alleging that the other was out of control. On December 21, 2008, one such event resulted in the Plaintiff being charged with a domestic assault.

[4] The incident began with an argument over a winter coat that the Plaintiff says the Defendant wanted to borrow, and progressed to a very heated exchange with some element of physical altercation, although the precise nature of the physical contact is contentious. It culminated in the arrest of the Plaintiff later that day.

[5] On December 3, 2009, the assault charge went to trial in the Ontario Court of Justice. The Plaintiff was acquitted. The Plaintiff now claims damages for malicious prosecution flowing from the domestic assault charge.

II. The parties’ volatile relationship

[6] In 2010, approximately three years after the parties’ separation and a year after the criminal case, the Plaintiff sent an intemperate, accusatory letter to the Defendant’s family members, including her mother, aunt and uncle, and her first husband. The letter, much like his testimony at trial, expressed the Plaintiff’s bitterness at the conduct of the Defendant over the years. It concluded with a telling paragraph that resonates until today:

I gave my all, and my life’s savings, only for Rhonda to tell me that I wasn’t good enough, and to betray my marriage commitment for a succession of nobodies. I cannot forget, and there will be no forgiveness.

[7] The final sentence of the Plaintiff’s letter provides a neat summary of what the present trial is about. The Plaintiff can neither forget nor forgive the many slights he says that his ex-spouse visited upon him during the course of their marriage. As far as I can tell, the claim has precious little to do with the prosecution for domestic assault, except that this is part of the litany of wrongs that he suffered. The claim is all about re-litigating issues that did not get resolved to the Plaintiff’s satisfaction in the family law proceedings.

[8] The Plaintiff spent much of his examination-in-chief presenting evidence of the Defendant’s financial misdeeds. He contends that she scooped the equity out of the matrimonial home by mortgaging it. He also insinuates that she filed for personal bankruptcy in an effort to avoid paying him his due as a spouse. In addition to all of that, he states that had an affair with one of her daughter’s high school teachers, and that she was frequently angry and unable to control her temper.

[9] For her part, the Defendant spent the majority of the hearing of this matter demonstrating that the Plaintiff contributed nothing to the household finances, that he is himself immoral, and that his behavior is driven by animus and a vindictive streak. In her cross-examination of him, she focused on the fact that during the course of their marriage he never paid any of their mutual bills and never paid taxes or even filed a tax return. In addition to all of that, she introduced another piece of correspondence written by the Plaintiff, this time addressed to the Defendant’s daughter by a previous marriage. In this letter, the Plaintiff disparaged the Defendant, among other things advising her then 20-year old daughter about the conduct of, “your adulterous mother, fornicating with one of your…teachers at Havergal College on your sixteenth birthday, no less.”

[10] In terms of the actual assault charge – which formed only a small fraction of the evidence presented by either side – the transcript of the Ontario Court of Justice trial indicates that the incident came as the culmination of a series of fractious events between the parties. Several days beforehand, the Defendant apparently asked the Plaintiff for the first time to borrow his winter coat. He indicated that the coat had been purchased by the Defendant and given to him as a gift, and that the Defendant had no right to the coat. He then described the Defendant coming into his room a number of days later in a state of uncontrolled temper, demanding the coat that he was about to wear to go outside.

[11] Each of the parties claims that the other committed an assault in the ensuing tussle over the coat. According to the police report, the Defendant tried to grab the coat from the Plaintiff, at which point the Plaintiff pushed the Defendant to the ground. It was all characterized by the Ontario Court of Justice trial as “a level of aggressiveness that seems quite idiotic”. I couldn’t put it better if I tried.

[12] That said, the trial judge was not convinced that the charge of assault brought against the Plaintiff had been proved. He referred to the requirement that there be proof beyond a reasonable doubt, and recited the well-known instruction from R v W(D) , [1991] 1 SCR 742, which requires the trier of fact to be fully satisfied of the accused’s guilt on the prosecution’s evidence, and not to treat the criminal trial as a credibility contest between a complainant and the accused.

[13] I should note that the criminal charge was not a private prosecution, but rather was a charge laid by the police and carried at trial by counsel for the Crown. Detective Murray Barns, the Toronto Police Services officer in charge of the investigation, testified at the trial before me that at the time it was his considered opinion that the assault charge was warranted. He stated that the Plaintiff had over-reacted to the Defendant by physically pushing her away when she tried to put on the coat. He doubted the veracity of the Plaintiff’s contention that he had in fact been assaulted by the Defendant, and concluded that there was enough credibility in the Defendant’s version of the events to support a criminal charge against the Plaintiff.

III. The malicious prosecution allegation

[14] The gist of the Plaintiff’s claim in the present case is that the Defendant fabricated the assault charge in order to cause him to leave the matrimonial home. As evidence of this, he points to the fact that the Defendant at first told the police that he had hit her with two fists, but then corrected herself to say that he had not actually struck her. The Plaintiff also submits that the Defendant twice brought unsuccessful motions in the family law proceedings attempting to compel him from leaving the home.

[15] There is nothing in those contentions that effectively relates the assault charge to any improper motivation by the Defendant. The fact that the Defendant exercised her procedural rights and brought motions in the family law action to evict the Plaintiff from the home does not demonstrate any misconduct on her part. Further, Detective Barns testified that he understood from the Defendant that the Plaintiff had not punched her, but rather had pushed her away when she went to grab the coat. He indicated that the fact that the case ended in an acquittal does not mean that the complaint made by the Defendant was not made honestly and in a bona fide manner. It simply means that the Crown was unable to satisfy the high burden of proof that accompanies a criminal charge.

[16] One essential element of a tort claim for malicious prosecution is that the prosecution of the case must be shown to have been motivated by malice. As the Supreme Court of Canada put it in Miazga v Kvello Estate 2009 SCC 51 , [2009] 3 SCR 339, at para 56, “Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fueled by malice.” Indeed, this is not just a part of the test for establishing a cause of action in malicious prosecution, it is the lynchpin on which the tort claim turns: “The malice requirement is the key to striking the balance that the tort was designed to maintain: between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect”: Ibid.

[17] The Plaintiff has not established that the complaint against him that led to the assault charge was fueled by malice; the officer in charge of the investigation concluded that the Plaintiff had pushed the Defendant to the ground, and the judge presiding at the criminal trial concluded that there was an undue level of aggression displayed during the incident. Assault may not have been proved by the Crown, but there is little to seriously suggest that the charges resulted from an ulterior or malicious motivation.

IV. The counterclaim

[18] I note that he Defendant has brought a counterclaim against the Plaintiff alleging defamation. No evidence was put forward in support of this counterclaim, and the Defendant did not pursue it at trial.

V. Disposition

[19] The Plaintiff’s claim against the Defendant is dismissed. The Defendant’s counterclaim against the Plaintiff is likewise dismissed.

VI. Costs

[20] Although each party has succeeded in having the other’s claim dismissed, the Defendant’s counterclaim did not consume any time and did not put the Plaintiff to any expense. By contrast, the Plaintiff’s claim against the Defendant was time consuming and futile. In my view, it was effectively a family law grudge match brought by the Plaintiff represents the kind of post-matrimonial claim that should be discouraged. Our system of civil and family justice provides that all parties deserve their day in court; however, the litigious mudslinging must at some point come to an end.

[21] Self-represented parties are entitled to costs if they are successful at trial, although their costs are not the equivalent of a party who has had to pay legal fees to a lawyer representing them. Typically, the costs paid to a self-represented litigant are comparatively modest, and are designed as much to make a statement about putting the opposing side to the time and effort of pursuing or defending a legal action as much as they are designed to actually compensate the successful party.

[22] As if further demonstration were needed to show that the conflict between the parties has become a personal obsession for them, they each made what I would consider to be highly exaggerated costs submissions. Not only was this a one-day trial, but given their prior history of proceedings against each other, both sides had foregone examinations for discovery and agreed to proceed directly to trial following exchange of affidavits of documents. There were no expert witnesses and no disbursements of any consequence that would have been incurred by either side. Nevertheless, the Plaintiff, who I understand is unemployed, advised me that he was seeking costs for four weeks of full-time work preparing for this case, while the Defendant, who I understand is a teacher, indicated that she wanted compensation for six weeks of full-time work in preparing for the case.

[23] I would exercise the discretion given to me under section 131 of the Courts of Justice Act , RSO 1990, c. C.43, by awarding the Defendant an amount that represents approximately one full day of preparation time and one full day of trial. I would put this at a round figure of $500 per day, reflecting an appropriate amount for a party representing herself. Given the large amount of costs claimed by the Plaintiff, this amount is certainly not higher than what the Plaintiff would expect the successful party to incur, which is a factor I am authorized to taken into account by Rule 57.01(1) (0.b) of the Rules of Civil Procedure , RRO 1990, Reg. 194.

[24] The Plaintiff shall pay the Defendant a total amount of $1,000 in costs, inclusive of all disbursements and tax.

Morgan, J. Released: June 21, 2016