Court File and Parties

COURT FILE NO.: FS-308/19 (St. Thomas) DATE: February 11, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Cruz Elena Osorio Moncada Applicant

Leanna J.T. Simpson for the applicant

- and -

Horacio Pereira Alexandre Respondent

No one appearing

HEARD: October 9, 2020 (additional material filed November 5, 2020)

MITROW J.

Introduction

[1] This case proceeded as an undefended trial. The respondent was served personally and failed to file an answer. Rule 10(5) of the Family Law Rules, O. Reg. 114/99 applies to the respondent.

[2] The evidentiary record was the affidavit of the applicant. There was no oral evidence.

[3] At trial, the relief sought by the applicant focused on the physical injuries sustained by the applicant as a consequence of the respondent’s conduct. The applicant sought general damages in the amount of $60,000, special damages for loss of income totalling $11,000 and costs fixed in the amount of $15,000 inclusive of HST and disbursements.

[4] Following the trial, pursuant to my endorsement dated October 26, 2020, it was pointed out that some medical records appended to the applicant’s affidavit sworn October 6, 2020 indicated that the applicant’s native language is Spanish, and that there was a language barrier which made it difficult to communicate with the applicant.

[5] There was no indication in the jurat of the applicant’s trial affidavit that that document had been translated to the applicant before it was signed by her.

[6] Accordingly, the applicant was required to provide some brief evidence in affidavit form that she was competent to read and understand her affidavit without that affidavit being translated to her. Alternatively, the applicant was required to file a fresh affidavit together with an affidavit of a certified translator stating that, prior to signing the affidavit, it was translated to the applicant from English to Spanish and that the applicant understood the contents of the affidavit prior to signing it.

[7] The applicant utilized the latter option. She filed a fresh affidavit sworn November 4, 2020, together with the translator’s affidavit also sworn November 4, 2020; both affidavits were filed with the court on November 5, 2020.

[8] For reasons that follow, the order below awards to the applicant $60,000 in general damages and $8,700 in special damages.

Preliminary Procedural Matter

[9] In the Family Court, proceedings are limited to the proceedings listed in the schedule referred to in s. 21.8 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[10] In her application, the applicant sought relief in relation to property, including the sale of the parties’ jointly-owned residence.

[11] Section. 21.9 of the Courts of Justice Act provides as follows:

Other jurisdiction

21.9 Where a proceeding referred to in the Schedule to section 21.8 is commenced in the Family Court and is combined with a related matter that is in the judge’s jurisdiction but is not referred to in the Schedule, the court may, with leave of the judge, hear and determine the combined matters.

[12] In the circumstances, this is a proper case to grant leave to the applicant to determine her claim for damages, along with her claims that are covered by s. 21.8.

Background

[13] The parties began to cohabit on April 23, 2018. They separated on September 28, 2019.

[14] The parties are not married to each other. They have no children together.

[15] The evidence of the applicant discloses, and I find, that she was viciously attacked and injured by the respondent on September 28, 2019.

[16] The applicant’s evidence was that, without warning, the respondent attacked her with a claw end of a hammer.

[17] The attack occurred at the parties’ home. As part of her narrative, the applicant deposes that, in August 2019, that she told the respondent that she wanted to separate because of his “mental abuse”, and that she wanted to sell their jointly-owned home. According to the applicant, the respondent began yelling profanities at her.

[18] On the day of the attack, the applicant was using the computer when the respondent began striking her with the claw end of the hammer while shouting that she is “done” and that “this is the last day of your life”.

[19] The applicant’s evidence is that she covered her head and arms with her hands while the respondent continued to “batter me with the claw end of the hammer”.

[20] The applicant attempted to run to the door but she was having difficulty seeing because of all of the blood.

[21] The respondent caught up to the applicant and again began beating her with the claw end of the hammer. The applicant deposes that she was able to grab the hammer from the respondent, throw it and then escape out the door of the house.

[22] Some of the applicant’s neighbors attended, St. Thomas Police were contacted and attended and the applicant was taken to the hospital via ambulance.

[23] It is the applicant’s evidence that the respondent was arrested and charged with aggravated assault, assault with a weapon and uttering threats. The applicant believes there were other charges against him.

[24] There is no further information as to what happened to the respondent’s charges. The applicant’s evidence is that the respondent still remains incarcerated despite not having a trial and that over a year has elapsed since the charges were laid.

Injuries Sustained by the Applicant

[25] The extent of the injuries sustained by the applicant are corroborated by hospital records appended to the applicant’s affidavit and forming part of the evidentiary record.

[26] The records include the emergency room report from Dr. Rory Peca.

[27] Dr. Peca describes various injuries sustained by the applicant. The applicant was observed to have a total of five lacerations on her head. The treatment of these lacerations included sutures and staples.

[28] The applicant sustained lacerations on her right hand. The wound was treated at the hospital and was closed with sutures.

[29] The most serious injury sustained by the applicant was a fracture to her left hand. She sustained an obliquely oriented fracture through the mid to distal aspect of the first metacarpal.

[30] The injury was described in the emergency report as a “crush injury, delivered by a hammer”.

[31] After administering emergency treatment to her left hand while at the hospital, the applicant was referred to Dr. Graham King at the Hand and Upper Limb Centre in London, Ontario. The applicant also sustained right shoulder abrasions and lacerations, including on her arm. The abrasions and lacerations were treated at the hospital but sutures were not required.

[32] On October 4, 2019, the applicant was first examined by Dr. Chloe Cadieux, resident for Dr. King at the Hand and Upper Limb Centre.

[33] The consultation report of Dr. Cadieux notes that the applicant was doing well; that she had some pain over the left hand. The applicant denied any symptoms of infection such as nausea, vomiting, fever or chills. The applicant continued to take the antibiotics prescribed to her during her emergency treatment. This report notes that the applicant had no other complaints or concerns.

[34] On her left hand, the applicant had a left thumb spica splint. Dr. Cadieux noted that, on examination, the wound on the first metacarpal was clean, dry and intact, with no evidence of infection. The applicant’s thumb was placed back into the thumb spica splint.

[35] Dr. Cadieux confirmed the fracture of the mid to distal first metacarpal and that there was no significant displacement seen.

[36] The applicant was advised to continue taking her medications as prescribed and an appointment was booked for the following week.

[37] On October 11, 2019, the applicant was seen again by Dr. Cadieux. The clinical report indicates that the applicant reported that “she has been doing relatively well”. The applicant complained of some pain on the thumb under the cast, but it was manageable with pain medications. There were no symptoms from infections. The applicant did not have any other concerns raised that day in the clinic and she did not have any numbness or tingling in her digits.

[38] It was noted that the fracture had not shifted and “looks like it is in good alignment”.

[39] Dr. Cadieux described that, overall, the applicant is doing well. The plan that day was to remove the cast, remove the sutures and then replace the cast.

[40] On November 1, 2019, the applicant turned to the Hand and Upper Limb Centre and was seen by Dr. King. Dr. King noted that the applicant had some tenderness on her left thumb. He also noted that the alignment “still looks good”. It was decided for the applicant to wear the thumb spica splint fulltime and that she can come out of the splint and gently mobilize the thumb if her symptoms allow. Arrangements were made to reassess the applicant in three weeks.

[41] The clinical note from Dr. King dated November 22, 2019 notes that x-rays indicated that her thumb is continuing to improve, though not yet completely healed.

[42] The applicant was described as eager to discontinue the splint and return to her work, as her regular job involves sewing and using scissors frequently.

[43] The report notes that the splint will be discontinued but that the applicant will be referred to physiotherapy to increase the strength in her hand. The plan was for the applicant to return to work when the applicant and her physiotherapist feel that the applicant is ready.

[44] It is the applicant’s evidence that she continues to have soreness and stiffness in her left hand even a year after the incident. The applicant deposes that, due to her injuries, she continues to experience “severe anxiety and fear”. For a period of close to a month following the attack, the applicant resided with her sister and extended family in London, Ontario, following which she rented a room from a friend from the latter part of October 2019 to the beginning of February 2020. It was at that date that the applicant returned to the jointly-owned home. The applicant remains “extremely afraid” that the respondent will return and attack her a second time following his release from jail.

The Effect of the Applicant’s Injuries on Her Employment

[45] The applicant is employed by an upholstery business. She also works part-time at Budweiser Gardens as a ticket collector.

[46] The applicant requires the use of her hands for both jobs; in particular, the applicant is left handed and her upholstery employment requires steady and detailed hand work.

[47] As a result of her injuries, the applicant was not able to work in either job for a period of time.

[48] The applicant’s evidence is that she returned to her employment at the upholstery business on February 3, 2020.

[49] In relation to Budweiser Gardens, the applicant’s evidence is that she did not return to that employment. She alleges that she was not able to restart that employment after her injuries healed and, as discussed below, the applicant claims loss of income for not being able to return to that employment.

[50] The evidence does support the finding, which I make, that the applicant’s injuries had healed to the point that she was able to return to work at both jobs by February 3, 2020.

General Damages – Pain and Suffering

[51] The applicant relies on two cases in support of her claim for general damages. The applicant submits that these cases involve injuries similar to her injuries.

[52] In Shaw v. Shaw, 2012 ONSC 590 (S.C.J.), a decision of Blishen J., the wife claimed damages as a result of injuries sustained by her after an altercation with the husband. That case also included family law claims. In Shaw, the wife suffered a serious fracture of the right wrist, which required surgery and the insertion of screws and plates (para. 6). There was no issue at trial that the wife suffered a “badly fractured right wrist”; rather, the issue was whether the injuries resulted from the husband’s actions or as a result of an accidental fall onto the walkway from the matrimonial home, as alleged by the husband (para. 44).

[53] Although the husband was charged criminally with assaulting the wife, he was found not guilty (paras. 6 and 11). However, in Shaw, the trial judge found that the husband either pushed, or threw, the wife out of the home, thereby causing the injuries to her right wrist, which the judge characterized as battery (paras. 47 and 76).

[54] In Shaw, although the wife sustained her injuries in August 2007, the wife continued to experience symptoms for a number of years. In June 2009, the wife was referred to an orthopedic surgeon and, in September 2009, she was referred to the chronic pain clinic. In March 2011, the wife saw the orthopedic surgeon again as a result of continuing symptoms, including pain. The wife suffered from sleep deprivation and attended a sleep deprivation clinic in the fall of 2010. In April 2010, an occupational therapy report was prepared, which noted that the wife continued to experience pain, restriction in her wrist movement and reduced grip strength.

[55] The trial judge, in Shaw, assessed general damages, inclusive of aggravated damages, for pain and suffering, at $65,000. Without the aggravating factors, the trial judge would have assessed general damages in the amount of $50,000 (para. 111).

[56] The second case relied on by the applicant was Sorrenti v. Blair, 2013 ONSC 2584 (S.C.J.), a decision of Rady J. In that case, the plaintiff wife was assaulted by the defendant husband, causing a fracture to her right arm. The defendant was charged and convicted of assault (para. 1).

[57] In assessing damages, the trial judge noted that: (a) the plaintiff underwent surgery to reduce the fracture, requiring the insertion of a plate and screws; (b) the plaintiff was left with a number of residual deficits, including diminished range of motion and difficulty performing activities that required grip strength or endurance; and (c) the plaintiff underwent intensive physiotherapy, including some 200 sessions over a course of 20 months.

[58] The trial judge found, at para. 64, that the range of damages for a serious orthopedic injury, such as the one in that case, is $50,000 to $60,000. Taking into consideration aggravating factors, the trial judge assessed general damages at $75,000.

[59] In both Shaw and Sorrenti, there were specific monetary claims made for aggravated damages, whereas in the case at bar, the applicant sought general damages, without specifying separately a quantum for aggravated damages. However, as explained in Shaw, at para. 109, general damages are assessed taking into account aggravating factors:

109 In Norberg v. Wynrib, [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), 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.

[60] In the case at bar, the applicant’s injury to the wrist, although serious, did not require surgical intervention, and the effects of her wrist injury were not as long as described in Shaw. The applicant was able to return to work in early February 2020, a little over four months after sustaining her injuries.

[61] However, the applicant did sustain cuts and lacerations, which required both sutures and staples. I take into account the applicant’s evidence that she continues to experience anxiety and fear, with the fear being related to further attacks by the respondent when he is released from jail.

[62] I take into account that the applicant continues to have some soreness and stiffness in her left hand, despite having sustained the injuries over a year ago.

[63] The aggravating factors in the case at bar are significant and appear more serious than those described in Shaw. The decision in Sorrenti does not discuss the details of the incident. The applicant was attacked in a brutal manner with a hammer, by the respondent, while the respondent uttered threats to the applicant’s life. The respondent pursued the applicant and continued attacking her with the hammer, while the applicant made efforts to escape. The applicant had complained of the respondent’s past “mental abuse” that precipitated her desire to separate.

[64] While the general damages for the applicant’s injuries may fall below the range of $50,000 to $60,000 discussed in Sorrenti, I would assess the applicant’s general damages at $60,000 for assault and battery, taking into account the aggravating factors.

Loss of Income

[65] The applicant seeks $10,000 for loss of income for the period October to December 2019. The applicant has based that claim on the difference in her employment income in 2019 as compared to 2018. The applicant has included her income tax returns for those years.

[66] In 2018, the applicant had employment income totalling $43,066. In 2019, her employment income dropped to $33,894. The different is $9,172.

[67] Given the applicant’s approach to quantification of her income loss by comparing her 2018 and 2019 incomes, it is unclear how the applicant arrived at $10,000. I assess the applicant’s income loss in 2019 at $9,172, which I round to $9,200.

[68] The applicant claims loss of income for January 2020 in the amount of $3,500. I find this claim to be reasonable as it is very close to one month’s income based on her 2018 income.

[69] The applicant offers no explanation as to why she was unable to return to Budweiser Gardens in February 2020. Accordingly, I do not allow the applicant’s claim of $1,500 for loss of income from Budweiser Gardens for the period starting February 2020 onwards.

[70] Although the applicant did not provide any documentation, the applicant deposes that she received $4,000 in Employment Insurance benefits, and the applicant agrees that this amount should be deducted from her loss of income claim.

[71] I assess the applicant’s special damages resulting from loss of income at $8,700 ($9,200 + $3,500 - $4,000).

The Jointly-Owned Residence

[72] The applicant obtained an interim order of Price J. dated July 17, 2020. That order permitted the applicant to list and sell the parties’ jointly-owned residence and dispensed with the signature of the respondent. That order also dealt with the payout of the net sale proceeds when the property was sold. The applicant was to receive her one-half share of the net sale proceeds immediately, while the respondent’s one-half share was to remain in trust pending the determination of the applicant’s claim for damages.

[73] At the time of trial, there was no evidence that the residence had been sold. The order sought by the applicant at trial (Ex. A) referred to the sale of the residence as “pending”.

[74] Accordingly, the order below anticipates that the residence is yet to be sold and provides that that issue remains before the court. That will allow any further orders or directions to be made in this proceeding if there are any remaining issues relating to the sale of that property.

Costs

[75] The applicant seeks $15,000 in costs inclusive of HST. However, no details were provided by the applicant in relation to costs except the amount sought. In assessing costs, the court is required to consider the various factors set out in r. 24(12) of the Family Law Rules. Accordingly, the order below permits the applicant to provide written costs submissions.

Order

[76] I make the following order:

1. The respondent shall pay to the applicant forthwith general damages in the amount of $60,000 and special damages in the amount of $8,700.

2. If the respondent fails to pay the amount as required in paragraph 1, then any unpaid amount shall be paid to the applicant from the respondent’s one-half share of the net sale proceeds from the sale of the parties’ jointly-owned property located at 14 Bennett Place, St. Thomas, Ontario.

3. Paragraphs 1 and 2 of this order are final.

4. The applicant’s claim for the sale of the aforementioned jointly-owned property remains before the court in the event that any further orders or directions are required in relation to that matter.

5. The applicant’s written costs submissions shall be made within three weeks. The costs submissions shall be filed electronically in the usual manner and a copy of the costs submissions shall be forwarded to the trial coordinator in St. Thomas. The costs submissions shall be limited to three typed pages, double-spaced, together with copies of any offers, time dockets and bill of costs. Any references to case law shall be only via hyperlink in the written submissions.

“Justice Victor Mitrow” Justice Victor Mitrow

Released: February 11, 2021