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Can I sue my husband for Emotional Distress?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In Canada, the Divorce Act permits a spouse to seek a divorce if the other spouse has committed cruelty. But this does not entitle the victim to collect compensation for Emotional Distress.

In fact, Canadian law seems to minimize the relevance of spousal misconduct when determining the issues of custody, access, support and division of property. However, a Wyoming Supreme Court decided that extreme and outrageous conduct by one spouse, that results in severe emotional distress to the other spouse, can create a cause of action for intentional infliction of emotional distress and entitle the victim to collect compensation for her suffering.

In the decision of McCulloh v. Drake (Wyoming, 24 P. 3d. 1162 (2001)), the court heard that shortly after the husband and wife were married, the husband began to physically and sexually abuse the wife. The trial court found that the wife had proven the abuse and the emotional distress that she suffered.

The husband appealed this decision by arguing that intentional infliction of emotional distress, within a marriage, is not a tort (a legal wrong). In an effort to preserve domestic harmony, courts have tried to remain indifferent when it comes to regulating behaviour within a marriage. However, courts have recently begun to distinguish claims for civil relief in marriage cases, by pronouncing that a tort claim may provide a better remedy for spouses than a divorce claim.

The court concluded that ‘emotional distress is as real and tormenting as physical pain, and psychological well-being deserves as much legal protection as physical well-being’. In preserving marital harmony as their main goal, the court held that ‘behaviour that is truly outrageous and results in severe emotional distress should not be protected in a misguided attempt to promote marital harmony.’

It remains to be seen if Canadian courts will follow this reasoning.

Steven Benmor

About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available.