Intentional Infliction of Mental Suffering in BC Family Law
By George Lee
George Lee Law · 李广田律师事务所
The question always begins the same way.
A client sits across the table. The family file is open. There is a parenting application, a support claim, maybe a property dispute. On paper, the case looks ordinary. Then they say it.
“He didn’t hit me. But what he did to me was worse.”
Or:
“She tells everyone I am cheating and dangerous. She files complaint after complaint. The police came to my home twice. My employer found out. I can’t sleep. I lost twenty pounds. I am on antidepressants.”
Or:
“He sends me texts at three in the morning. He threatens to take the children. He posts about me online. He told my parents I was unfaithful when I wasn’t. I am afraid to open my phone.”
Then the question:
“Can I sue him for what this has done to me?”
For years, the cautious answer was usually no — at least when the claim looked like ordinary family pain dressed up as a civil lawsuit. Family court was for family pain. Civil court was for civil wrongs. The two were kept apart, deliberately, because judges feared what would happen if every broken marriage became a tort claim. That caution has not disappeared. But it is no longer the whole story.
The truth is closer to this: yes — if you can prove three specific things.
The civil claim has a name. Lawyers call it the tort of intentional infliction of mental suffering. “Tort” is just the legal word for a civil wrong — something one person does to another that the law will pay damages for. The labels shift from case to case: intentional infliction of mental distress, intentional infliction of emotional distress. The three things you must prove do not.
Here is the unlikely origin of those three things.
In 1984, a British Columbia Supreme Court judge in Vancouver — three years on the bench — decided a case called Rahemtulla v. Vanfed Credit Union. A bank teller had been wrongly accused of theft, marched into an interrogation, and emotionally devastated. The judge writing the decision was Beverley McLachlin. Twenty-five years later she would become Chief Justice of Canada. The three-part test she set down in Rahemtulla is still, four decades later, the law across the country. The Ontario Court of Appeal formally adopted it in Prinzo v. Baycrest Centre for Geriatric Care, and refined it again in Boucher v. Wal-Mart Canada Corp. and Colistro v. Tbaytel.
Three things. In plain language.
First, the conduct must be flagrant or outrageous. Not rude. Not insensitive. Not even cruel by the standards of a bad day. The kind of conduct that makes a reasonable person say: that is not something one human being should do to another. Snapping at someone during a fight does not count. Three hundred threatening texts over six months does.
Second, the conduct must be calculated to produce harm. That means the person either intended the harm or knew, with near certainty, that the harm would happen. Anger is not enough. Stupidity is not enough. The court must be able to look at the conduct and conclude: they meant it, or they knew exactly what they were doing.
Third, the conduct must have caused a visible and provable illness. This is where most claims die. Hurt feelings are not enough. Stress is not enough. The plaintiff must be able to show real psychological damage — depression, anxiety disorder, post-traumatic symptoms, sleep collapse, weight loss, hospitalization, prescribed medication. Something a doctor or counsellor or coworker can describe, not just something the plaintiff feels.
Three years after Rahemtulla, the Supreme Court of Canada appeared to close the door that this BC case had opened. In Frame v. Smith, a father sued his ex-wife and her new husband in tort for interfering with his access to his children. The majority refused to recognize that kind of claim. The Court worried about what would happen if every angry ex-spouse could sue. Tort law, the Court said, should not become a second battlefield for ordinary custody, access, and separation disputes. Frame did not say spouses could never sue each other. But for years, family lawyers cited it as a sign that the courthouse door was nearly shut.
Then the door cracked open.
In McLean v. Danicic, an Ontario judge awarded $15,000 against a former common-law husband who had never raised a hand against his ex-partner. What he had done was worse. He sent her threatening letters. He filed a false fraud report with her disability insurer. He threatened to send sexually explicit photographs of her to her family and friends. He wrote, in plain language, that he would “put a bullet in her head.” She developed acute anxiety. She lived in fear. The judge applied the McLachlin three-part test, found all three boxes ticked, and ordered him to pay. The marriage had ended. The lawsuit had only begun.
The door opened wider in Yenovkian v. Gulian, another Ontario decision. After separation, a father waged a years-long online campaign against the mother of his children. He built websites accusing her of kidnapping, child abuse, drugging her own children, defrauding the government. He posted secret recordings of access visits with sneering commentary. He defamed her parents, her lawyer, even a sitting judge. He would not stop, even after court orders. The court found that the mother had suffered visible psychological harm — nightmares, hyper-vigilance, sustained anxiety, repeated visits to her family doctor. She received $50,000 for intentional infliction of mental suffering, $100,000 for invasion of privacy, and $150,000 in punitive damages. He had never touched her.
So is the answer in 2026 simply yes?
No. The BC reality is more sober than the Ontario headlines.
Lu v. Shen is not itself a spousal family-law case. It is a BC dispute between two women who had spent more than a decade in bitter conflict. But it is a useful BC warning about how the third element of the test plays out in practice. Each sued the other for intentional infliction of mental suffering. Each described real distress. The court accepted that the relationship had been deeply unpleasant. But neither claim succeeded. The judge could not find independent or objective evidence of a visible and provable illness. The only proof either side offered was their own bruised version of events. That was not enough. Both walked out of court with nothing.
The lesson of Lu v. Shen is the lesson every plaintiff in this kind of case must understand. The court does not weigh how much you suffered against how badly the other person behaved. It weighs whether you can prove all three elements of the test. Without proof of real, observable injury, even genuine pain wins nothing.
The good news is that proving injury is no longer the impossible exercise it once was. In Saadati v. Moorhead — another case that began in BC — the Supreme Court of Canada said something important. Saadati was a negligence case, not an intentional-infliction case, but the principle it established travels. A plaintiff does not need a psychiatrist’s diagnosis to prove mental injury. Evidence from family, friends, coworkers, and the plaintiff’s own family doctor can be enough — as long as it shows that the suffering is serious, prolonged, and beyond the ordinary anxieties of life. Combined with Mustapha v. Culligan of Canada Ltd., where the Court confirmed that psychological injury is real injury, Saadati opened a path for plaintiffs who never saw a specialist but whose lives were visibly broken.
Which brings us to this year.
In Ahluwalia v. Ahluwalia, 2026 SCC 16, the Supreme Court of Canada recognized an entirely new tort: intimate partner violence. The new tort captures patterns of coercive control inside intimate relationships — control that may include physical, psychological, financial, and sexual abuse, sustained over time. Some commentators wondered whether this new tort would swallow the older one. It has not. The two now sit side by side. The new tort is built for patterns. The older tort is often the better fit for sharp, identifiable conduct: the harassment campaign after separation, the false report to police, the manufactured allegations to an employer, the relentless cyberbullying, the threats that broke a person down.
The right tool depends on the facts.
If you believe your spouse’s conduct has crossed from ordinary bitterness into something tortious, four steps matter more than the rest.
The first is to document. Save the texts, voicemails, social media posts, screenshots, third-party communications, false reports, and anything else that shows what happened. Save the originals. Do not edit. Do not delete. The case will live or die on the records you keep now.
The second is to get help. See your doctor. See a counsellor. Speak to a psychologist if your doctor recommends it. Do this for your own sake first. But understand that the medical and counselling records you build today may, one day, be the proof that establishes the third element of the tort. Plaintiffs who lose these cases often have no treatment records, no independent witnesses, and no objective evidence of how their functioning changed.
The third is to restrain yourself. The angry message you send at midnight will be exhibited in chambers three years later. The social media retaliation will be quoted in someone else’s affidavit. Family courts have long memories. The line between victim and co-aggressor is thinner than most people realize.
The fourth is to speak to a lawyer before you plead. A tort claim inside a family file changes everything. It can increase cost, lengthen trial, expose your own medical records, and shift the focus away from parenting and support. In the right case, it is worth all of that. In the wrong case, it is not. The right route may be the new tort of intimate partner violence under Ahluwalia. It may be the older tort of intentional infliction of mental suffering. It may be assault, battery, defamation, breach of privacy, or simply a robust costs award inside the family case. Or it may be none of these, and the right answer is to keep your file focused on what family court was built to do.
Frame v. Smith warned that tort law should not devour family law. That warning still matters.
But Rahemtulla, Prinzo, McLean, Yenovkian, Saadati, and now Ahluwalia have, between them, told us something just as important. When conduct is flagrant. When harm is calculated. When the injury is real and provable. The law is not silent because the people involved were once married.
You may have a claim.
But you will need more than pain.
You will need proof.
This is general legal information, current as of May 2026. It is not legal advice. For advice on your situation, please contact our office.
George Lee Law · 李广田律师事务所
604-681-1611 | gleelaw.com | info@gleelaw.com
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