Monday, 8 February 2010

Canada: de facto husband ordered to pay wife $240,000 for harassment, costs

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 fiancĂ© 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 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.


Anonymous said...

This case here in Canada has got to be the biggest travesty of justice ever. The facts have been so skewed and distorted it is hard to imagine.

If you read the Judges endorsement of the matter, it is easy to see that a 12 year old could find giant holes in the decision ~ just look at the hours this woman claimed she worked for this man ~ it calculates to 7.8 hours every day weekends included for 3 years straight while she had a day job.
Wonder woman I am sure.

I happen to know the case, and fact is that the plaintiff spent 4 years attempting to get an "undefended trial" by created a constant barrage of accusations which incidentally have never been proven as fact. The trial was held and Mr. Danicic was not allowed to speak or present overwhelming evidence that both the plaintiff and her counsel were committing perjury and fraud in their testimony which went unchallenged. I am sad for our country when a Nazi type trial can be held and a party is banned from speaking in defense of mere allegations.
I hope some one will help Mr Danicic get redemption one day.
Oh Canada, I stand and cry for thee.

Anonymous said...

Mr. Danicic and friends have spent a great deal of time leaving comments, where they can, on sites and blogs that published this story, in continued attempts to make Ms. McLean look like the "bad guy" all without a shred of decent supportive evidence on his part.

"Overwhelming evidence" is exactly that. Why would anyone believe additional stories from a man, who could lie straight-faced in the Superior Court that his fiancee and common-law spouse of five years had only ever been his tenant? This is of course in the face of 5 years of photographs, cards, love letters, spousal dental and prescription claims by Mr. Danicic on Ms. McLean's insurance, video taped evidence and couples counselling records...

Mr. Danicic lost everything because HE was greedy. With combined equity in the properties of $600,000+, Ms McLean only ever asked for her estimated equity of $75,000 back (and that is essentially what she personally received from this case in the end). Mr. Danicic tried to keep everything that they had built together, for himself, and thought he could lie to the judicial system and eradicate her valid claims.

PRIMARILY, Mr. Danicic lost it all to pay a bunch of court costs that he himself inflated astronomically, due to his own lies, bad behaviour and belief that he could outsmart our Canadian legal system.

Had he done the right thing by settling things equitably in the beginning, out of court as Ms. McLean attempted to do, Mr. Danicic would still retain the family home and the cottage, in addition to a great deal of personal equity and power... and they'd both have the last five years of their lives back.

He gambled big in an attempt to hurt her, and he lost. He has done himself a grand disservice and now cries foul, when it was his own hubris that directly led him to this.

The Canadian courts were not prepared for the road he took them down, but in the end, found their way through his twisted tales to the truth and stood up against bullying, intimidation and power plays in our court system. Bravo!

outraged said...

I am outraged by our kangaroo court system that would allow an undefended trial, and blindly accept everything presented. I have first hand knowledge that the witness has no credibility, has perjured themselves repeatedly, and that there were glaring errors in simple mathematics that a grade 4 student would have picked up on. Yet the judge found no such errors or inconsistencies. In a worst-possible case scenario, I could never dream a judge would award EVERYTHING someone owns and worked for their whole life to someone else, merely on their say-so. To ssay this is an unfair travesty of justice would be a massive understatment.

Anonymous said...

Quite the mess! Love the comments from his "friends", defending him still, when even the court of appeals said his appeal was an "abuse of process"!

They're sure making some serious claims against the other side too - from the safety of being anonymous of course... ha ha! Says she was perjuring herself, when he's the one obviously shown to have been the big liar.

Sounds like a big case of sore loser to me - he tried to railroad her, scare her and wouldn't give her her money back and then had to pay the legal bill with his house.

So many bullies in this world. Nice to see one have to face the music.

Anonymous said...

Obviously the woman herself is on this thread trying desperately to push forward the same nonsense she used to mislead the court.
Karma will provide justice where the system has failed. One can never benefit from ill-gotten gain.

Anonymous said...

Sounds like karma already made it's appearance mate... and it wasn't after the gal!

Anonymous said...

I read the endorsement and have to agree that obviously this judge is a man hater. There are some very strange pro-female quotes from her on line. I don't think such a biased Judge should be allowed to work in Family Law.

Anonymous said...

He IS a liar and
He WAS greedy
lets hope that this serves as a lesson to him.

Anonymous said...

Darko Danicic tried to make Ms. McLean look like a crazy fraud. He stood up, smiled and lied to the judges face, denied their 5 year relationship ever happened and also denied ever sending her frightening packages with pornographic material.

In December of 2010, when Mr. Danicic stood before the Criminal Courts, facing the possibility of serious jail time for three indictable offenses he was charged with, he plead guilty to sending Ms. McLean the pornographic materials, in order to get a reduced sentence.

Mr. Danicic is the liar, the fraud and now, a convicted criminal in Canada with his DNA in the National Database.

Justice Harvison Young conducted a fair trial back in family court and saw him clearly for the liar he has now been proved to be, by his own admission in the Canadian Superior Criminal Court.

Anonymous said...

If you are reading any of this trash about Darko and believeing any of it you as stupid and sick as Tracy .I was friends with Tracy and let me tell you she has you all fooled if you believe any of this . that judge omg what !!!! Darko is a great amazing man, he wouldnt hurt a fly so i all ou stupid people think he hit or do anything to anyone you all are on cheap drugs. Darko has been a friend for yrs my kids love him he has stayed at my house many times when he was working on HIS cottage .Its just not fair that judge didnt even call any of Darko witness .Tracy got everything hmmm how is what I like to know? she said she worked on that cottage hmmm no she didnt she stained maybe 10 boards if that. you may ask how do I know well my husband helped on that cottage side by side with Darko from the basement up.I would go spend the days with them and help when and where I could thats what friends are for .we would all be laughing and singing with Darko having a good time .my kids would ask can we go see Darko. Tracy was never there oh sorry I can count on one hand all the times I seen Tracy at DARKO'S Judge if Tracy fooled you that easy I wanna know how do I get cottage from Tracy it seems pretty easy she said she worked there and she got it all..... I know we worked there I want my half ,now that sounds silly doesnt it judge i cooked a couple meals for Darko and I did his laundry a couple times,I worked on HIS cottage , I sat up all hrs of the night talking and laughing getting to know a amazing man like Darko . so doesnt that mean . Darko and I are married?hmmm wow Dark man I know one thing you got Fucked and Im sorry I couldnt of helped you more. I love and miss you more then you will ever know .