An appeal by a harassing de facto husband has been rejected by Canada's highest court, saying that his appeal was an abuse of process.
Last year Darko Danicic was ordered to pay to his former de facto wife Traci McLean C$15,000 for harassment and C$228,500 for the costs that she incurred by the delayed property settlement court proceedings caused by his conduct.
With the de facto changes that occurred here last year, and the need to establish a "genuine domestic relationship' in showing that there was a de facto relationship, the case is also an illustration of those types of cases where one party (the de facto wife) claimed that there was a de facto relationship, and the other (the de facto husband) said that there wasn't: merely landlord and tenant.
Was there a de facto relationship?
The trial judge had this to say:
The evidence that Mr. Danicic and Ms. McLean were cohabiting as common law spouses is simply overwhelming. At trial, the Applicant painstakingly introduced numerous photographs including birthday cards (one of which is addressed “To My Wife”), holiday cards, couples’ counseling records, love letters, anniversary wishes from Mr. Danicic’s cousin, and more. As indicated above, Mr. Danicic had denied any romantic relationship. He did produce a lease which indicated that Ms. McLean was a tenant, which Ms. McLean testified he had done for tax reasons. When Mr. Danicic was questioned, (before his pleadings were struck) however, he acknowledged that he wrote the cards, but suggested that they might not have been written to Ms. McLean. This is simply preposterous.
Ms. McLean produced numerous photographs that supported her evidence. In a number of the photographs with her and Mr. Danicic, the ring on the third finger of her left hand is readily visible. A number of the cards that she produced are identifiable as ones displayed on the bedroom dresser in the Brown’s Line bedroom. There are numerous photographs of them, taken by her parents or others, which depict a happy couple in front of a Christmas tree, at the cottage property at various points during its construction and elsewhere. There is also a home video, which Rhonda introduced during her evidence, which was made by her young son during a weekend visit to the cottage early in 2003. Mr. Danicic is shown showing the sons target shooting with a rifle, and Ms. McLean is shown in the kitchen preparing breakfast. It is clear that they are the hosts of the weekend.
These are just a few of the examples of the evidence that make it very clear that Ms. McLean and Mr. Danicic were cohabiting. If this was not clear enough, there is also the evidence from the documentary called “A Spiritual Journey” which profiled Ms. McLean in one of a 13 part series which was broadcast on Women’s Television Network. This, somewhat ironically, portrayed Ms. McLean as a woman who had taken charge of her life and who had found happiness. The video shows them together and the voice-over states that “another opportunity that came along was love” in the form of “her fiancé and photographer Mr. Danicic…” who were “spirits meant to come together…”.
Ms. McLean testified that Mr. Danicic was very proud and excited about this, and that they showed it to friends on a number of occasions.
On September 22, 1998, the day that Ms. McLean and Mr. Danicic became engaged, they created a computer-generated image based on their combined appearances of what their child might look like at Playdium. This is a small incident to which I would not ascribe great significance, but it does support Ms. McLean’s evidence in general and provides another indication of the dishonesty of Mr. Danicic’s denial of the relationship. Yet another example is found in the following entry which Mr. Danicic made in Ms. McLean’s daytimer in January 1999:
I saw it quite clearly that me and you are going to be enormously capable of takin [sic] on anything this world can possibly throw at us and come out laughing. I saw us jumping this hump were [sic] in as we start this new year together and spending an incredible life that our grandchildren just won’t fuckin believe. To this day, whatever I have accomplished in my life I’ve always felt I’ve had to go it alone and in turn I really never felt like sharin [sic] with anyone. I’ve not trusted for a long time. You from day one have been my dream come true. Whatever I have is yours… I give you my heart, my sole [sic] and I hope I can give you the best life you could ever dream of. I truely [sic] want you to be the happiest woman to ever walk this planet because the happiness you bring me… there are no words for… You are definitely a miracle! I love you FOREVER! Before this sap really drips I’ve got lights to do. Mr. Danicic xoxoxo 1999
In short, the evidence that they were cohabiting is overwhelming. I find that it is also overwhelming that they were cohabiting in a spousal relationship. They were an active and highly energetic partnership which worked extremely hard to build a life together...As Ms. McLean testified, they were always talking about their future together and their plans. This was corroborated by Ms. McLean’s parents and by Ms. Williams-Anceriz. It is clear that they were seen as a committed domestic unit which was enthusiastically building their life together.
When Ms. McLean began to work at Regal Cards and Gifts in April 2001, she listed Mr. Danicic as her spouse and he made claims for various health related benefits. This also supports the assertion that the parties were cohabiting spouses.
What did Mr Danicic do wrong?
Back to the trial judge:
Ms. McLean commenced this application in January 2005. Before that, Ms. McLean’s counsel had written to Mr. Danicic in an attempt to resolve the matter. His response was to deny the relationship. On March 14, 2005, the parties appeared ...at a case conference. ...On March 15, 2005, Mr. Danicic withdrew $25,006.50 from the secured credit line ... He later claimed that he required this amount to repay a debt to his friend.........
Early in 2005, Mr. Danicic contacted Manulife and advised that he had information related to a claim that was “fraudulent”. He claimed to have information that Ms. McLean, who he said was a tenant in his house, had additional income that she was not disclosing. Mr. Danicic admitted to having done this when he was questioned. Manulife investigated, found the allegations to be groundless, and did not discontinue the payments at any time. In the course of her testimony, Ms. McLean stated that she did earn a small amount of contract income while she was claiming disability but that this was within the level permitted by her claim.
Between May 30, 2005 and November 2006, Mr. Danicic was represented by three different lawyers. During that period there were numerous motions, mostly relating to disclosure and Mr. Danicic’s continuing failure to comply with the court orders.
In October 2006, Ms. McLean received a letter signed “concerned” that purported to be from a girlfriend with “some information you might find useful.” The writer claimed that she and Mr. Danicic had been “hanging out” for the last six months and that recently he had “freaked out” and hit her, and also stated that she was too afraid to go to the police because “I know what he is capable of.” The letter continued:
He has talked to me allot [sic] about what he plans to do to you. He was constantly said that he will “personally put a bullet in her head” and “make sure she suffers first.” I couldn’t stand this kind of talk, and when I told him so, that’s when he hit me and told me that if I ever told anyone he would “smash my brains in.”
The letter also went on to state that Mr. Danicic was lying about his finances and had “bragged regularly that your lawyer will never find out about this.” It claimed that he had received insurance money from an accident which he had deposited to an account in the Bahamas where he claimed to own property.
Ms. McLean was of course very upset about this. She took the letter to the police and advised them that she was sure that it was from Mr. Danicic. She testified that she did not believe anything about the money or property allegedly held in the Bahamas. Rather, she believed that he was trying to send her on a wild goose chase. In addition, and more importantly, she “believed that he was letting me know that he would do whatever it took to make me back off.”
In November 2006, Mr. Danicic’s counsel at the time delivered a letter allegedly written by [ the friend] in which he claimed to have a 40% interest in the cottage property. This ultimately necessitated the addition of [the friend] as a party ...[The friend] was finally questioned ..........His answers are vague and evasive, and while he did not admit that Mr. Danicic wrote the letter, he retreated from any claim to an interest in the property: When asked if he was abandoning any claim to such an interests, he answered affirmatively. [The friend] did not appear at the trial. I am satisfied on the basis of the evidence that the claim that [the friend]had an interest in the cottage was initiated by Mr. Danicic in an attempt to obstruct or frustrate Ms. McLean’s claim.
The Criminal Charges
In January 2007, Ms. McLean received two threatening and humiliating packages in the mail. They included intimate sexual photographs of Ms. McLean and Mr. Danicic, taken while they were a couple, on Mr. Danicic’s digital camera. Ms. McLean candidly admitted that the photos were taken with her consent, something that she now very much regrets. Mr. Danicic retained the photos after separation.
Among other things, the note in the first package said:
Because you are such an ignorant asshole, and find great satisfaction in attempting to ruin people’s lives due to your own incompetence, we have decided it was about time you got a taste of your own medicine. Every time you piss us off further, we will be mailing a card or letter to the short list of addresses to start. … We will not stop until you cannot cross the road without people knowing what a truly disgraceful fucking fat pig you are.
The addressees included Ms. McLean’s grandmother, her parents, her doctor, hairdresser and others. The last addressee was a friend from high school with whom Ms. McLean had only reconnected after separation. This was disturbing to her as it suggested that Mr. Danicic had been following her or watching her. Ms. McLean stated that she was deeply shocked, distressed, and frightened, in part because she had no idea at that point whether the packages had been sent to the addressees. She went to the police.
Four days later, while she was still reeling from the first package, Ms. McLean received the second package. This time, the writer referred, in intimate and familiar terms, to sexual acts, saying, for example “Do you remember the time…” The letter again threatens to contact “Nana” which is the familial name for Ms. McLean’s grandmother. The writing ends with the following words:
No, this is what you bring upon on yourself when you are a greedy, conniving, fucking ignorant cunt, craving attention. Well enjoy your upcoming popularity. Then one day, somehow you come to terms with this, months or years later we’re uncertain. You get away from the cock in your mouth finally. Finally it’s behind you. Then out of the blue, it starts again. This time its much worse.
Although the address on the envelope that enclosed the second package was that of Ms. McLean’s apartment, the postal code was Mr. Danicic’s.
The tone of the writing in the second package is markedly more hostile than the first, and overtly threatening. Ms. McLean expressed no doubt that Mr. Danicic sent both packages to intimidate her. She stated that she thinks that he expected to get away with it because she would be too embarrassed and humiliated to go to the police. If so, he was wrong. Mr. Danicic was charged by the police with extortion, criminal harassment and attempt to obstruct justice, and released on bail approximately three days later. His trial ...has been adjourned.
Having listened to the evidence and reviewed the material contained in the packages, I am satisfied on a balance of probabilities that Mr. Danicic sent these packages. The factors that lead me to this conclusion include a number of details. First, the addressees and the details such as the name “Nana” are ones that would only have been selected by someone who knew Ms. McLean well.
Second, the fact that the postal code on the second package was Mr. Danicic’s is too much of a coincidence. Third, the packages were delivered during a period in which he was under increasing pressure in the litigation through contempt of court motions and so forth. Fourth, his tone is similar, though significantly more angry, to the tone of the email in May 2004, referred to above, in which he warned Ms. McLean to “be careful.” Fourth, he had possession of the photos and there is no suggestion that anyone else did, or that anyone else would have had any reason to send such packages. There is no shred of evidence to suggest that there is anyone else who might have had this sort of animus against Ms. McLean. The tone of the writing is clearly highly personal. It is written by one person to another he has known intimately. Mr. Danicic’s conduct, apart from this incident, manifested a very angry man who was determined to frustrate Ms. McLean’s attempts to obtain any relief, beginning with his initial reaction when she raised the issue over coffee and the ensuing email, to his denial of any romantic relationship with her, to the fabricated claim that [the friend] held a 40% interest in the cottage property. I agree with Ms. McLean that Mr. Danicic, miscalculated her reaction in believing that she would be too embarrassed to go to the police.
I also find that it is more probable than not that he either wrote or caused to be written the letter which purports to be from a girlfriend. I would not have so concluded if that had been an isolated incident, but within the context of the other incidents I am satisfied that Mr. Danicic either wrote or essentially dictated the letter as part of his campaign to intimidate and harass Ms. McLean. In the circumstances of this case, however, the claim of harassment is made out by the incidents relating to the criminal charges.
I also note that during the latter half of 2006, Ms. McLean felt very strongly that she was being followed at times. She also reports receiving numerous telephone calls late at night. When she did reverse look ups, she discovered that they were originating from Bell Canada payphones. Most of these calls just were “empty air” before the caller hung up. A couple of them were more disturbing, featuring an altered male voice which sounded as though it was “on a loop.” Most of it was difficult to make out, but Ms. McLean thinks that she heard the words “cervical vertebrae,” “claim,” and “get rid of this.” She suspected Mr. Danicic as the timing of the calls was close to court dates, and reported the calls to the police. Though I find Ms. McLean credible, given that the evidence is untested I make no findings of fact with respect to whether Mr. Danicic made these calls.
