2015 QCCQ 13438, 2015 QCCQ 13438

V.S. c. A.M. 2015 QCCQ 13438 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-200427-139 DATE: November 24, 2015 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ V. S. Plaintiff v. A. M.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Parties and Proceedings [ 1 ] Against a backdrop of acrimonious divorce proceedings between the parties initiated in November 2010 and still active in Superior Court, V. S. sues A.

M. alleging damage to his reputation, moral damages and extrajudicial costs resulting from statements Ms M. made in a legal proceeding in the divorce case referred to as the "Access Revocation Motion" made in March 2012 and resulting from criminal complaints she made against him in connection with the events of February 21 and 27, 2012. [ 2 ] The statements complained of relate to violent behaviour that Mr S. allegedly engaged in against Ms M. when picking up children as part of the exercise of the custody and access rights and obligations of the parties as parents of two minor children, X and Y. [ 3 ] Mr S. alleges not only that he did not act violently against Ms M. on the two occasions but also that it was her who assaulted him on February 27, 2012. [ 4 ] Thus he includes in his claim amounts for bodily harm and moral prejudice resulting from this assault. [ 5 ] Mr S.'s claims a total $ 53,404.06 including claims for extrajudicial costs and punitive damages. [ 6 ] Ms M.'s defence consists of the positive assertion that the allegations she made in the divorce case were true, and that they were made in a process that was "à huis clos", that the police complaint she made led to Mr S. signing an undertaking to keep the peace pursuant to sections 810 , 810.01 and 810.02 of the Criminal Code of Canada after having admitted under oath that she had reasons to fear him. [ 7 ] Her assertion is that Mr S. is attempting to exhaust her, physically and morally, in multiplying proceedings against her, notably in the present proceedings which she characterises as "manifestly unreasonable and abusive". [ 8 ] With regard to the claim relating to the criminal accusations, she also pleads extinctive prescription. [ 9 ] Her claim is for the extrajudicial costs that have resulted from the present case, assessed, subject to adjustment, at $ 10,000 and for punitive damages of $ 10,000. [ 10 ] She does not bring any action based on assaults committed against her.

Issues [ 11 ] To resolve this case, the Court must deal with the following issues: 1 . Is the case made that Ms M. made libellous allegations in the divorce proceedings against Mr S. concerning his conduct in order to gain an advantage over him there divorce proceedings? 2 . Is the case made that Ms M. falsely accused Mr S. of family violence for the same reason?

3 . Did she assault him? 4 . If so, what are the damages for bodily harm, moral prejudice and abuse of process and should there be punitive damages? 5 . Are the legal proceedings comprising these allegations and claims made against Ms M. properly characterised being calculated to harm her morally physically and financially? 6 . If so, what should be awarded as compensatory and punitive damages? Factual analysis of the two incidents [ 12 ] Leaving aside the issues that relate to

article 54.1, the crux of the matter before the Court is the characterisation of the events of February 20 and 27, 2012, in what could be considered a very mundane yet essential component of domestic life, the picking up of children to and from school and daycare. The violence alleged involves the use of car doors as weapons. [ 13 ] The sources of the two conflicting narratives concerning the two incidents are contained in testimony, in police reports and in evidentiary material in the divorce proceedings.

Ms M.’s version [ 14 ] Ms M. gives a very detailed play-by-play of violence being committed toward her on both occasions. [ 15 ] The agreement reached in the divorce case provided visiting rights in favour of Mr S. which he exercised, intermittently, with respect to the older girl, X, five and one-half years old. [ 16 ] Mrs M. states that on February 20, 2012, a Monday, one of Mr S.'s days according to the agreement, she went to pick up the two girls from school and daycare. She did so because Mr S. had not been active in exercising his rights for some time. When she arrived home, she received a call from Mr S..

He was complaining that she had picked up X on his day. [ 17 ] So, on her lawyer's advice, she permitted him to come to get X, but he arrived without a child seat. At her request he went back to his place to pick up the seat and returned. [ 18 ] The litigious event occurred at around 7:20. The two parents and children walked toward Mr S.'s car. Ms M. was carrying the younger child, Y, 21 months old, in her arms. [ 19 ] Mr S. put X into the car and Ms M. was asking him whether he intended to exercise his visiting rights.

He gave curt answers, but essentially said yes. [ 20 ] When he got into the driver's seat and started the engine, Ms M. was standing behind him, between the space between the open driver's side door and the driver's seat, still holding the smaller child in her arms. She was asking him if he would send an email confirming that he would take X the next day and on the weekend. [ 21 ] She testifies that Mr S. then suddenly closed the car door forcefully. As she saw the door coming toward Y, she jumped back to protect the child from the impact; her left leg was hit by the swinging door.

She protested to him, and he denied hitting her. [ 22 ] She made a complaint to the police the next day, February 21. [ 23 ] Jumping ahead to the second incident: on February 27 th , Ms M. was picking up the children at the school at the end of the afternoon. After she put Y in the back seat passenger side and was putting X in the back seat driver's side, Mr S. appeared in front of her. He started to speak about the visiting rights. As she was trying to close the passenger back door on the driver's side, he tried to open the door with his hands. She froze, and the car door was not yet closed.

He blocked the door with his hands and tried to open it. Since he could not open it against her, he made very fast movements with the door, hitting Ms M. with it, causing her to fall back. She feared that he was reaching into the car in the direction of Y to reach X, and that he could hurt Y. She remembers loosing her balance and trying to reach for Y. As she approached the car again, in shock, afraid, she told him not to touch Y. [ 24 ] She does not admit that she pushed the car door against him, and does not admit having any intention other than to protect Y.

She does not remember pushing him with the door. [ 25 ] She tried to call 911, asking him to go away. When he refused and pushed her away, she called 911 and, during her call to the police, he left. [ 26 ] She received a small bruise on her heft hip. [ 27 ] She was surprised at the fact that Mr S. made allegations that she had assaulted him. [ 28 ] She made a motion on March 6, 2012 to have his visiting rights suspended. The affidavit gives essentially the same version of these events and speaks of other element relevant to the motion.

Mr S.’s version [ 29 ] Mr S. gives a contrasting account of these events. [ 30 ] According to his testimony, On Feb 20, 2012, a Monday, he went to pick up X at her mother's apartment. He parked with the left side of the car near the curb. Leaving the car, he had to open the driver's door forcibly because of an accumulation of snow. He rang the door and Ms M. came down. He did not have the child booster seat for X. [ 31 ] He left, bought a booster seat at Walmart, came back and rang the bell again. The party came down.

X was on foot and Ms M. was holding Y on her hip, holding her with her right arm; she was holding in her left hand a milk bottle and a pacifier.

[ 32 ] There was a pile of snow, so they had to go around the car. He was standing near the right front light of the car. She was standing in front of the car as well. She asked whether he would write an email about taking the children. [ 33 ] He recounts that he was suspicious that she was stalking him and would speak badly about him so he didn't answer. He put X on the booster in the rear right seat. Then, after buckling her and closing the door he went around the back of the car, Mme M. was insisting on an answer and increasing the volume of the voice, because he was ignoring her question.

On the left side of the car, near the pile of snow, he pulled open the door and sat in the driver's seat. He was planning to close the door when Ms M. stood and pulled the driver's door with her left arm. When he started to close the door, she was pulling the door toward herself, shrieking at him, cursing him, using harsh language, speaking again about the email. When he pulled the door, he heard her cry out and saw that she lost her balance, lost the milk bottle and silencer that she had been holding. [ 34 ] The children were crying. He waited; Ms M. went back toward her home, uttering insulting words.

He opened the window, and told her "I did not raise an arm on you". (His translation of the phrase he used in Russian) [ 35 ] He denies making anything other than a “slick” movement, and denies hitting her with the door: he had the sensation that he was pulling against the snow. [ 36 ] One week later, on Monday, Feb 27, 2012, he went to the school with the intention of exercising his access rights to X. When he arrived he saw Ms M. putting the children into her car. He approached the car and stood between the open left rear door and the car.

He stood there intentionally, because she was hurrying to lock the doors before he could speak to X. He prevented the door from being closed. He had his hands in his pockets, without gloves, despite the cold weather. She started to yell words to the effect of "this is my car, leave my car alone, you are assaulting me with my car, etc". She started pushing the door against him to close it. He stood his ground and repeated in a calm and relaxed voice, after a while she went back and then forced all of her weight against the door.

He moved to avoid being hit in the head, and his forearm was struck by the edge of the door. His arm was immobilised by the impact. He moved back, went around the back of the car to the right and opened the rear right door to speak to X, but both girls were hysterical because Ms M. had been yelling. She was looking for witnesses to the event. No one came to her assistance. [ 37 ] Unable to calm X down, he closed the door and went to the school to speak to the administration. He asked why the school had allowed her to take the children on his day.

The answer was that she was the custodial parent and that this was the proper thing to do. [ 38 ] He left the scene, seeing that Ms M.'s car was still there. Knowing that she was calling 911, he spoke loudly about the events in a disculpatory way hoping that his voice would be heard by the dispatcher. [ 39 ] He returned home and, trying to open a bottle of wine, realised that his left arm was swollen, red and not very functional. Taking a glass of wine, he decided to call 911. Two police arrived, one was more easygoing, the other more serious. He told them what had occurred, and he explained that she had hit him.

Then, to his surprise, he was arrested, and he lost his compass. He asked to close off the cooking appliances, placed the wine down, drank some water, was told to remove his shoelaces, watches, etc.

He states that they did not read him his rights. [ 40 ] Conducted to the police headquarters, he recounted the events to them, and they released the handcuffs and brought him to the detention centre where he was "humiliated", through a strip search and put into a cell. [ 41 ] His narrative of the stay under guard is characterised by statements about his physical difficulties, because of a previous back injury, about the interrogation by an officer, his decision to remain silent, the arrival of other detainees, his move to another cell, and his interaction with another detainee, a Neo-Nazi, with the tattoo 88 (code for "Heil Hitler").

Being a half Jew born in the Ukraine (part of the Soviet Union at the time) having moved to Israel in 1991, he was fearful of this Nazi. [ 42 ] The Nazi and another detainee, a large black man, began fighting. The Nazi landed on Mr S., as the guards stood outside the cell waiting. The other inmates stood against the walls. Mr S. was wearing his star pendant, a religious symbol. When the Nazi saw it he assaulted Mr S..

The guards intervened, threatening to spray him with pepper spray. [ 43 ] The detention ended with his appearance, according to him after being detained two days, having been given very little food and drink. [ 44 ] At the appearance, he had received the advice of a lawyer. The video [ 45 ] Brooding over the events of February 27, Mr S. remembered that, during the events, Ms M. had frozen for a moment, looking toward the school.

He returned to the school and saw that where she was looking there was a security camera. [ 46 ] He obtained access to it with the assistance of his attorney. [ 47 ] The video of the events was viewed during the trial, and both parties gave their play by play narrative of it. [ 48 ] It is a very low resolution surveillance video, in colour, without sound. The image is very jerky, because there are only about three or four frames per second.

There is a chronometer that counts the seconds. [ 49 ] The video confirms the narrative of both parties up to the point where the altercation in the vicinity of the car door takes place. [ 50 ] Between 17:32:04 and 17:32:16 the two are in close proximity, Ms M. to the right, Mr S. to the left in the space left of the rear left passenger seat. Then, movement begins. [ 51 ] At 17:32:19 Ms M., outside the car door, suddenly goes backward several metres toward the curb. At 19:20 to 21, she goes

back toward the car; at 19:20:23 she is back a stride away from the car. [ 52 ] During her movement, Mr S. is placed in a manner such that the viewer infers that he is to the right of the car door.

The poor resolution of the images and the low number of frames per second prevents the viewer from seeing the car door, but, based on the position of the parties, and the motion observed, it would appear that Mr S. pushed her back, using the door, and that she came back toward and against the door, and he pushed her back again when she made contact with the door. [ 53 ] Without the testimony of the parties, the video shows images that cannot really be interpreted in any way.

The image is so poor, that, unless you know that Ms M. is a very petite woman and that Mr S. is a rather robust male of medium height, you would know very little about the two individuals, except that one, the male, is bigger than the other. The movements are so jerky because of the low frequency of the frames that very little could be understood of the movements. [ 54 ] Making a composite of the most probative elements of the testimony and the video, one possible

interpretation is that Mr S. pushed Ms M. back, using the door that stood between them. The force was such that she was pushed back several strides. When she caught her balance she lunged forward toward the door, but his mass resisted and he pushed back.

When she caught her balance again he left the spot where he was and moved toward the right side of the car which was now accessible because a large dump truck hauling snow that had been blocking access to the right side had slowly moved away during the time the two parties were standing near the left side of the car. [ 55 ] The video is compatible with the notion that Ms M. pushed the door against Mr S., but it is also consistent with her having been forcefully pushed backward by Mr S. a few seconds before and being pushed back again by him a second time. [ 56 ] The relative size and mass of the two individuals was such that Ms M. was pushed back very quickly and she moved several metres, but when she came back against the door, she did not move it much: Mr S.'s resistance was of a higher magnitude. [ 57 ] Though this is a possible narrative, it is by no means adequate proof of an assault on Mr.

S., even on the balance of probabilities. [ 58 ] As to the credibility of the witnesses, Mr S.'s testimony was, throughout the trial, at a high level of energy, emphatic, emotional and opinionated.

He sees himself as a victim, speaks readily about his psychiatric problems and the pharmacological treatments he received over a certain period of time. [ 59 ] He speaks openly about having memory loss. [ 60 ] He speaks of traumatic events in his past, and recounts in a great deal of detail his experience throughout the collapse of his matrimonial situation. [ 61 ] Judges are not trained specifically about the impact of emotional, psychological and psychiatric conditions on the credibility of witnesses: all of these elements are to be weighed with other objective and subjective factors, and much is left to the trial judge's perception as he watches the evidence unfold in real time. [ 62 ] The general impression is of an individual who is angry, under emotional pressure, very intelligent and very motivated and persistent in his conflict with his ex-wife.

His attention to the details of the events he describes is impressive and his narrative abilities are good, despite the fact that he is speaking English which is not his first language. There is a tremendous lack of credibility on his

part in regard to a fact that is central to the family situation though not crucial to the case at hand: that is his lack of acceptance of his paternity of the younger girl Y, despite the positive results of genetic testing. [ 63 ] The Court's impression of Ms M. is that she is worn out. She is a very patient and fatigued mother of two small children who has had to compose with a difficult marital breakup and acrimonious litigation. Her testimony was always straightforward and calm despite the painful context. [ 64 ] There is a physical reality that must be mentioned.

Ms M. is very petite and, although she appears strong, she could be no match in a physical altercation with Mr S. who is much taller and stronger than her, having an athletic build. [ 65 ] The video is consistent with her testimony that, when she came back toward the car after having been pushed back, she wanted to protect her smaller child Y, who was seated between Mr S. and X, whom he was attempting to bring with him. [ 66 ] This does not entirely preclude the possibility that he was slightly injured by the pressure of the car door, if indeed Ms M. pushed it against him, deliberately, instinctively or accidentally, but it renders the idea of him being physically harmed by her very unlikely. [ 67 ] Since he was allegedly assaulted while in detention, it would not have been possible for the evidence to establish a causal relationship between the event of February 27 and any physical injury he may have suffered.

Prescription [ 68 ] The Defendant correctly raises the one-year prescription applicable to defamation for that part of the action that is based on the criminal allegations of which the Plaintiff learned on February 27, 2012. The case was instituted on March 5, 2013. [ 69 ] Mr S. knew immediately after the events of February 27, 2012 that Ms M. had complained to the police during the 911 call. His testimony establishes this. He tried to talk over her voice so that they would hear his disculpatory statement. [ 70 ] He was arrested that evening, based on her complaint.

He therefore was aware of what he considers to be defamatory. Prescription began to run from that point. That part of the claim is therefore prescribed according to

article 2929 of the Civil Code of

Quebec . [1] Discussion on the nature of the present proceedings [ 71 ] There is something inherently troubling about the concept of mobilising legal proceedings to attack a party because of her involvement in other legitimate legal proceedings. [ 72 ] Ms M., having been involved in two altercations, complained to the police. Her husband did so as well in respect of the second altercation. There were cross accusations, so to speak. [ 73 ] A process under the Criminal Code was initiated by the police who, in their discretion and acting under policy guidance, decided to arrest Mr S..

The DCPP exercised prosecutorial discretion, within a certain framework, to charge him and to allow the matter to be resolved by an order under

article 810 and following of the Criminal Code .

Mr S., in order to avail himself of the process offered to him, gave an undertaking to keep the peace and to abide by certain conditions, and admitted, in open court, that his estranged wife had reason to fear for her safety. [ 74 ] Now he makes the allegation that she made her complaint knowing that there is a policy that prevents the police from exercising their discretion otherwise than by arresting the man complained about, and that she deliberately used this process to cause him harm and that she defamed him. [ 75 ] In the plainest sense of the word, this is a “vexatious” use of the judicial process by Mr S..

He cannot overcome the fact that he made that admission which has the effect of validating, to a certain degree, her complaint. He had the option of pleading not guilty, and to face the evidence that would be made against him. [ 76 ] He also makes much of the treatment he received during detention, the violence he suffered at the hands of a very aggressive co-detainee. This cannot be attributed to his ex-wife. She made the complaint leading to the arrest in a state of fear and concern for her welfare and that of the children.

This was the second time in a week that she had been involved in an altercation with Mr S.. On both occasions she was trying to deal with his inconsistency in not regularly exercising his rights, and then insisting upon exercising them without prior notice.

Her complaint led to his arrest, a significant inconvenience for him, granted, but, but her complaint is not directly the cause of his treatment upon arrest. [ 77 ] There is no relationship of cause and effect between her complaint and the manner in which he was arrested, his victimisation in detention and his decision, on legal advice, to agree to the peace bond and to make the required admission under sections 810 and following of the Criminal Code . [ 78 ] When the events of February 2012 occurred, this was a crisis that had an impact on the proceedings in Superior Court: the question of the access rights became an issue.

When a party participates in a legal proceeding by giving sworn statements, in viva voce testimony or by affidavit, information given about another person in the case can give rise to a recourse for defamation of character only when certain criteria are met. [ 79 ] In the matter of judicial allegations, the doctrine [2] and jurisprudence have developed a set of criteria which were reviewed by the Court of Appeal in Bureau c. Bouchard [3] .

This case reiterates the notion that, to be considered actionable, defamatory allegations made in legal proceedings must not only be false, but also irrelevant to the dispute and they must be made maliciously, or at least without the foundation of a reasonable and probable cause. [ 80 ] The requirement that the statements be irrelevant and without probable cause is an other way of expressing what it sometimes referred to as a relative immunity. In Gagné c.

Galand [4] reference is made to a passage written by authors Baudouin and Jobin [5] which can be translated and paraphrased in the following terms: the proper administration of justice requires that a witness in a judicial proceeding be permitted to speak frankly without fear of being sued for damages for the words he speaks.

The jurisprudence recognizes that he benefits from a relative immunity. [ 81 ] In the present case, the Plaintiff characterises the conduct of the Defendant in a way that is consistent with these principles, using expressions that denote a malicious intention, which we have underlined in the passages quoted [6] : 10. By filing the Access Revocation Motion (Exhibit R-2), Defendant has intentionally attempted to portray the Plaintiff as a violent man in order to gain undue leverage in the Divorce Proceedings; 11.

In so doing, Defendant intentionally infringed Plaintiff’s right to reputation under the Quebec Charter of Human Rights and Freedoms , and punitive damages under s. 49(2) of the Quebec Charter should be assessed against the Defendant; 12. Furthermore, as will be demonstrated during the hearing, a policy exists pursuant to which, when a woman complains that her spouse has assaulted her, police agents have no discretion but to arrest the man and to instigate a criminal prosecution against him; 13.

As will be demonstrated during the hearing, Defendant was aware of said policy and was using her complains against the Plaintiff with th e intent to further her position in the Divorce Proceedings and to cause undue harm to the Plaintiff; 14.

As will be demonstrated during the hearing, even prior to the February 20 and February 27 incidents, Defendant has, on several occasions, called the police upon the Plaintiff in a wanton and gratuitous fashion specifically designed to impede Plaintiff from seeing his daughter (who is also Defendant’s daughter); [ 82 ] The evidence does not establish the allegations the Plaintiff is making: despite his lengthy narrative of the history of the conflict, he has provided no palpable evidence of fault on the part of Ms M.. [ 83 ] On the contrary, his own sincerity in the divorce proceedings is brought into serious doubt.

At the time that the present case

was heard, a matter was pending in Superior Court relating to the pension rights of the Plaintiff in certain funds in Israel, the previous country of residence of the parties, and the place of their nationality.

The judgment rendered by Madame Justice Jodoin Kerr J.S.C., on March 13, 2015 illustrates Mr S.’s abusive conduct in the divorce file. [7] [ 84 ] Filing a police complaint about a breach of the peace and providing sworn testimony in a legal proceeding are both situations where a protagonist acting in good faith does not incur civil liability for statements made in sincerity and with reasonable cause, even if they are not proved or if they are disproved. [ 85 ] A person participating, in good faith, in litigation should be exempt from what has happened here: a lawsuit taken to silence an opponent who is attempting to assert rights.

The Plaintiff’s suit is the private equivalent of a SLAPP, a strategic lawsuit against public participation, referred to in Québec as "poursuite baillon" a legal proceeding taken to prevent an opponent from using his freedom of speech in a public debate.

In this case the debate was private, but the lawsuit is none the less strategic. [ 86 ] The insidious nature of the proceeding is evident when you consider that the divorce proceedings in which the allegations where made were conducted in camera ("huis clos") precisely for the reason that the intimate details of a family conflict can, if made public, be damaging to the innocent, chiefly the children. [ 87 ] The allegations of family violence and their treatment by the Superior Court in its Family Division are publicly made, but without the nominative information being disclosed in judgments and orders.

Hearings are held in camera. Thus, a member of the public could know of the facts and issues of a divorce such as this one, but without the identity of the antagonists being readily known. In the criminal case, the matter was dealt with in a perfunctory way with a simple admission by the accused, without a trial, and with his agreement to sign a peace bond.

Mr S. was not found guilty of a criminal offence, though he agreed to be restrained by a set of conditions. [ 88 ] The notion that allegations in a divorce file concerning the conduct and character of a litigant that are relevant to the issues can be met with a retaliatory lawsuit is unsettling. It would mean that every time a spouse is accused of family violence and then confronted with these allegations in a divorce proceeding, he or she could take recourse through a civil action. There could be a shadow civil proceeding for every such divorce file.

It would also mean that, in the present case, because she has read allegations about her own alleged mX and the alleged assault, she could treat that as being defamatory and bring her own action in defamation: the mirror image of the one she is now defending. [ 89 ] Of course, the recourse to legal proceedings and criminal complaints cannot give rise to absolute immunity: in cases of mX, the perpetrator of false allegations made with intent to harm may be subject to recourses, whether based on defamation [8] , if there is a dissemination of the information or on abuse of procedure, if the criteria of

article 54.1 and following and/or the Viel [9] doctrine are present. [ 90 ] In reading the allegations of the motion made March 6, 2012, it is impossible to see mX. This is a spouse giving her version of events that are litigious. The fact that her allegations led to her husband admitting, perhaps obliquely, that she had reason to fear, and, even the low-resolution video presented as evidence against her, show that she had reasonable grounds to make her allegations because this material is consistent with her having been assaulted.

Considered from the moment in time when she made the allegations, she may or may not have been destined to succeed in proving them, and, even if she did, the conclusions she sought may or may not have been forthcoming. But, the judicial process had to run its course. It should not have been interfered with by another legal recourse for compensatory and punitive damages unless this was a case where there was a demonstrable illicit attempt to harm the other person. [ 91 ] The conduct of the parties in the trial in the present case was not immoderate: the lawyers conducted the case properly.

The Court patiently heard all of the evidence, including much background to the family conflict provided by Mr S.'s testimony, but most of this evidence did not bear directly on the subject matter: the question whether Ms M.'s allegations of March 2012 were malicious. The Court heard from Mr S. much that was simply argumentum ad hominem.

It was the narrative of how he got to where he is now, about his character, his difficulties and his hopes and aspirations and about his former wife's character. [ 92 ] The hearing of all of this evidence did however serve to convince the Court of the stronger relative credibility of Ms M.'s version of the events of February 20 th and 27 th 2012 as opposed to that of Mr S., and to establish her sincerity in terms of her attitude in the conduct of difficult family relations and her participation in the litigation in Superior Court and the difficulties she has faced in respect of a very difficult opponent.

On the testimony the Court heard, which is our only glimpse into the situation, it became clear that, if anyone is not acting properly in the divorce file, it is probably not her. [ 93 ] The Plaintiff did not fulfill his burden of proving the malicious character of the Defendant's allegations in the divorce proceedings and the complaint to the police in connection with the events of February 2012. [ 94 ] He did not fulfill the burden of proof on his allegations of fault causing bodily harm and moral damages in connection with those events. [ 95 ] The legal proceedings constituted an abuse in respect of the allegations of defamation of character and wrongful allegations to the police.

This aspect of the proceedings was improper because it proceeded from an obvious intention to discourage the opposing party from maintaining a position that she had every right to take in these situations. It was an attempt to defeat the ends of justice. [ 96 ] With respect to the allegations of assault, it cannot be said that the case was frivolous on its face. It is however impossible to separate the case for assault from the parts of the case that are clearly an attempt to thwart an opponent in a legitimate legal conflict by inflicting expensive and energy-consuming litigation on her.

The circumstances of the alleged assault were harnessed as a means of bringing the rest of the case. Even if there was, given the conflicting testimonial evidence and the low-resolution video, a fighting chance for the Plaintiff on the allegations of assault, it was counterproductive on his part to put energy into this endeavour, given that the person against whom he was concentrating his efforts is the mother of his children and their main support. To have been successful against her would have simply deprived them of a portion of their economic security and increased his own financial obligation, an

obligation that is part of a pattern of avoidance on his part, as appears from the judgment of the Superior Court referred to above. [97] The proceedings, taken as a whole, were misguided and constituted a nuisance because of this. [98] Ms M. should recover as damages for abuse of process an amount equivalent to her extrajudicial costs. The evidence (D-19)establishes a claim for $ 9,515.77 as of the point by the trial when she testified on this point, on May 13, 2015. By the end of the trial,this amount had grown to approximately $ 15,000 applying the hourly rate charged by her attorney.

This is a reasonable fee for the case,which included four days of hearing. [99] Punitive damages will be awarded, but for an amount of $5,000 only. This amount is arbitrated by the Court in light of thedifficulty of establishing the Plaintiff's capacity to pay more. The goal of dissuading the Plaintiff and others from bringing this type ofprivate nuisance litigation is met by such an award.

BY THESE REASONS, THE COURT: DISMISSES the Plaintiff’s action; ALLOWS the Cross-demand in part; CONDEMNS the Plaintiff to pay the Defendant, an amount of $ 5,000 as punitive damages; CONDEMNS the Plaintiff to pay the Defendant, as damages for abuse of process, her extrajudicial costs of $ 15,000. THE WHOLE WITH COSTS. __________________________________ DAVID L. CAMERON, J.C.Q. Me Andrey MutchnikBMLEX AVOCATS INC.Attorney for the Plaintiff Me Éric MarquetteDE CHANTAL D’AMOUR FORTIERAttorney for Defendant Dates of hearing: October 9 and 10, 2014, May 13 and 14, 2015 [1] Gille c.

Placements Diar inc., (QC CA),[1992] RJQ 2746; (QC CA), cited in Bourquec. Bellemare, (QC CS), par. 18. [7] Droit de la famille — 15635, 2015 QCCS 1280.