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My Spouse Cheated! Can I Sue?

Emily Hanberry

In Leung v Shanks, 2013 ONSC 4943, a common-law couple started dating in 2006 and moved in together in 2007. In May 2007, the couple began attending at a fertility clinic in the hopes of expanding their family. “Dr. P” became the treatment provider to the couple. The Defendant, Shanks, was a nurse at the fertility clinic and became their primary contact. The couple continued to receive fertility treatments between 2007 and 2010. At some point during the course of treatment, the husband and the nurse, Shanks, became intimately involved. The relationship between the common-law couple ended in March 2020, shortly after the Plaintiff (the common-law wife) learned that she was pregnant and the common-law husband disclosed the truth about his relationship with the nurse. Unfortunately, the common-law wife ultimately ended up having a miscarriage.

The common-law wife sued Dr. P, the fertility clinic, and the nurse, Shanks (collectively, the “Defendants”), seeking general damages for pain and suffering, breach of contract, intrusion upon seclusion and breach of privacy. The common-law wife also sought punitive, aggravated and exemplary damages.

The Defendants asked the Ontario Supreme Court to do a “threshold screening” of the potential legal viability of the lawsuit, arguing that the lawsuit should be struck as it was “plain and obvious” that there was no reasonable cause of action, and no reasonable prospect of success. However, the Court was ultimately satisfied that the lawsuit, when taken as a whole, disclosed several reasonable causes of action. The Court noted that the common-law wife’s allegation that the traumatic nature of the breakdown of her relationship with her partner had resulted in the deterioration of her mental/physical condition, and her ultimate miscarriage, supported a reasonable cause of action in the tort of intentional infliction of mental distress. Ultimately, the Court allowed the matter to proceed and did not strike the common-law wife’s lawsuit at this stage.

2020-10-20T15:36:02+00:00August 10, 2020|Family Law|
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