Cruelty as a Ground for Divorce in Ontario
In this article, we will be dealing with the third and last ground for the breakdown in marriage: Cruelty.
The first ground for divorce has been discussed in our earlier article on understanding the one-year separation period in Ontario family law. Additionally, we have provided an in-depth analysis of adultery as the second statutory ground for divorce in the province of Ontario.
In the domain of family law, the grounds for divorce are often a very sensitive and complex matter. One such ground that carries significant legal weight and emotional turmoil is cruelty. In the province of Ontario, cruelty stands as a legitimate reason for seeking divorce, acknowledging the profound impact it can have on one’s well-being and marriage.
This article aims to examine the legal terrain surrounding cruelty as a ground for divorce in Ontario, exploring the definitions, implications and legal remedies available to those on the receiving end of such an act.
What Is Cruelty in Family Law?
There is no legal definition of the term cruelty. It has been defined by the courts on a case-by-case basis depending on the facts and circumstances of each case.
For example, the court in Williams v. Williams relied on “conduct of such a nature as to cause danger to life, limb or health, bodily or mental or as to give rise to a reasonable apprehension of such danger” as the definition of cruelty.
In Knoll v. Knoll, the Court of Appeal stated “Over the years the courts have steadfastly refrained from attempting to formulate a general definition of cruelty. As used in ordinary parlance cruelty signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship, one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty.”
In Lacey v. Lacey, the court stated that only conduct that is ‘grave and weighty’ can reach this standard to constitute cruelty, but minor differences in opinion or trivial instances of incompatibility are of no significance.
Principles In Determining Cruelty as a Ground to Divorce
The principles by which the courts should be guided were laid down in the case of Lacey v. Lacey.
(1) each case must be determined on its own merits;
(2) the cruelty must be either physical or mental that renders cohabitation impossible;
(3) in almost every case the parties must be living apart for the Court to find cohabitation intolerable;
(4) the acts complained of must be “grave and weighty” and not such that merely illustrate the breakdown of the marriage and incompatibility of the parties;
(5) cruelty must not become a way of securing a quick divorce where the evidence of some other ground for divorce such as adultery is imperfect;
(6) the cruelty must be exercised by the respondent actively against the petitioner and not arise from the nature of things, the human condition or the acts of third parties;
(7) in general the cruelty must be established by proven and corroborated facts;
(8) in most cases there should be the element of fear, and
(9) acts that give rise to injury to health or a reasonable apprehension of the same are not a necessary element of cruelty.
Elements to Establish Cruelty as a Ground to Divorce
As per section 8 (2) (b) (ii) of the Divorce Act, to be considered as a ground for divorce, a spouse must have treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
It follows that there are two aspects, both of which must be proved to establish divorce on the grounds of cruelty:
- Physical or mental cruelty; and
- Render continued cohabitation intolerable
1(a) PHYSICAL CRUELTY
In Ontario, physical cruelty can be considered grounds for divorce under the broader term of “cruelty” as outlined in the Divorce Act. While the Act does not explicitly define the term physical cruelty, the term encompasses any severe form of physical abuse or violence inflicted by one spouse upon another, making it intolerable for the victim to continue the marriage. To establish physical cruelty as grounds for divorce, individuals must provide substantial evidence such as medical records, photographs, or witness statements, demonstrating abusive behaviour endured.
In Cooper v. Cooper, the Ontario court stated “it is the cumulative effect of the acts of the defendant upon the petitioner which must be considered and given proper weight”. In this case, the wife sought divorce from her husband alleging physical and mental cruelty. The court noted that the instances of purported physical violence, which the wife complained of, appeared relatively minor in nature. Notably, there had been no reported incidents of such a nature within the past two years or so. Therefore, in the court’s view, the husband did not exhibit a pattern of habitual violence. The wife’s application was dismissed.
Physical cruelty must be substantial to be regarded as a compelling and significant ground for divorce, highlighting the importance of safeguarding the well-being and dignity of individuals within a marriage.
1(b) MENTAL CRUELTY
Mental cruelty refers to sustained behaviour that inflicts significant emotional or psychological harm on a spouse making it unbearable to continue the marriage. The definition of mental cruelty is subjective and may vary from case to case, but it generally includes consistent patterns of emotional abuse, manipulation, humiliation or neglect.
In the case of Barron v. Bull, the husband was seeking a divorce due to a breakdown of marriage caused by mental cruelty. He cited several instances that constituted mental cruelty where the wife repeatedly threatened to leave him holding all their debts over him; she insisted on having a child believing it would fix their marital issues while the husband was not ready; she frequently discussed marital issues with her family, friends and colleagues; to alleviate their financial situation, he sold his motorcycle and car, and even cashed in his life insurance; and despite his financial struggles, he gave her $800 towards her first month’s rent and damage deposit.
The court held that the husband did not prove that the wife’s conduct had caused him to suffer but had only displeased him. He could also not prove that the wife’s conduct was so intolerable to render continued cohabitation impossible. The husband’s application for divorce on the grounds of cruelty was dismissed.
In Foley v. Foley, the Ontario Court of Appeal considered that a husband’s “wilful refusal to recognize his wife’s right to his society” and his persistence in this course of conduct over his wife’s objections constituted mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
The petitioning wife had testified that, throughout the period of cohabitation, the respondent husband would leave home after the evening meal and not return until the early hours of the morning. The husband’s attitude caused the wife to become depressed and produced a state of tension.
In Knoll v. Knoll, the Ontario Court of Appeal granted a divorce, based on mental cruelty, to a wife whose husband indulged heavily in the use of alcohol and who treated her very coarsely, rudely and disrespectfully while in this inebriated condition. The medical reports indicated that the wife could not continue to live with her husband without putting her health in jeopardy and that her nervous and tense condition was connected with her complaints about her husband.
From the case laws listed above, it is evident that the test for cruelty is largely subjective. It is rather difficult to determine mental cruelty and depends on the facts, circumstances and gravity of the act in each case.
Differentiating Cruelty in Ontario Divorce Cases
In general, cruelty must be established by proven and corroborated facts and not be merely the subjective evidence and hurt feelings of the injured spouse. The acts complained of must be more than those which merely demonstrate the breakdown of the marriage and the incompatibility of the parties. In most cases, there should be the element of fear, for it to be cruel enough to render cohabitation intolerable.
In the case of Lacey v. Lacey, the court provided clear distinctions and specific examples to define acts that constituted cruelty within a marital context and those that did not. The court’s ruling offered valuable insights into determining the threshold of cruelty.
Thus, evidence merely that the spouse “was mean to me”, “hit me with his hand”, “did not visit me in the hospital”, “laughed when I fell down”, “changed after the wedding”, “criticized my children unfairly”, “was drunk in front of the children”, “came in late”, “threatened to eat me alive” is patently not enough to establish cruelty in itself, although it may lead to separation and a breakdown of the marriage.
On the other hand, corroborated evidence of physical or bone-breaking injury, repeated police assault charges, horrible and believed threats, and cruel and malicious plots, leading in each case to fear and separation, are evidence to a greater or lesser degree of cruelty.
2. RENDER CONTINUED COHABITATION INTOLERABLE
Canadian courts have indicated that both the ingredient of cruelty and the element of intolerance are requisite to obtain a divorce on this ground.
If there has been cruelty, and continued cohabitation has become intolerable, obviously there is a breakdown of the marriage. That breakdown is an end result of such intolerability. But a breakdown could be caused by a number of reasons other than the cruelty of one spouse. Mere incompatibility leading to the breakdown of the marriage does not constitute “cruelty”.
As remarked in Curby v. Curby, “The marriage of incompatibles often leads to unhappiness and violence. The unhappiness alone can affect the health of one of the parties. This does not necessarily imply that the other party has been guilty of cruelty….”
MENTAL DISORDER
In Williams v. Williams, the court held that neither intention to hurt, nor knowledge that the act done is wrong or hurtful is an essential ingredient for cruelty. The court took the view that divorce is for the protection of the innocent spouse, and hence the mental disorder of the other is irrelevant. A decree of divorce should be pronounced against such an ‘abnormal person’ simply because the facts are such that the character and gravity of his acts were such as to amount to cruelty. This reasoning also applies to an insane person because the policy behind divorce provisions such as cruelty is the immediate relief of the petitioner from an intolerable situation. Accordingly, in Canada, a heroin addict and a schizophrenic have been held to have treated their spouses with cruelty.
Where cruelty is alleged as a ground for divorce, the parties should generally be living separately and apart as proof of the intolerable situation. Spouses living under the same roof may be living separately and apart from each other. But a petition brought on that ground will be dismissed if the petitioner is free to move but continues to tolerate the conduct of the spouse by remaining in the home. The situation may be different, however, where economic circumstances or parental obligations trap the petitioner.
Condonation Of Cruelty
Condonation is the implied forgiveness of an act or the overlooking of such an act, pretending as if it never happened.
A question always arises as to whether prior cruelty may be considered in determining the legal effect of any future repeated act of cruelty, or whether it serves as a bar to divorce on the ground that such an act was condoned.
This question was dealt with in the case of Jaworski v. Jaworski. Until 1964, the husband had physically assaulted the wife on several occasions. From September 1964 to June 1969, the parties lived separate and apart. From June 1960 to November 1970, an attempt was made at reconciliation. In November 1970, the husband, in the presence of the wife, seriously assaulted their 14- year old daughter. Following this, he threatened the wife with violence and advised that if she took any action to enforce maintenance, he would quit his job and leave the country.
The court held that the husband had treated the wife with physical and mental cruelty. Although condoned acts of cruelty cannot be revived to constitute grounds for divorce, a history of cruelty may help to explain the reaction of the petitioner to similar conduct occurring after condonation.
Thus, where there has been a long history of cruel acts in the past, even though condoned by a subsequent reconciliation, a single serious incident occurring after the condonation bears an increased importance to the petitioner fearful that cruelty will continue in the future, thereby rendering continued cohabitation impossible.
The legal framework provides a valuable recourse for those facing abusive circumstances within their relationships. It is essential to recognize that the decision to pursue a divorce based on cruelty is a complex and deeply personal one, and it is advisable to seek professional guidance to navigate the process effectively.
Our experienced team at Nazarian Law is dedicated to assisting individuals facing these challenging situations, offering expert legal advice and support to help you make informed decisions. If you have any questions or require assistance in understanding your eligibility for this ground of divorce, please do not hesitate to reach out to us. Start by booking a complimentary discovery call with us. We are here to help you through this difficult journey, ensuring your rights are protected.
In case of an emergency or imminent danger call 911 or your local police immediately.
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Disclaimer
The content provided in this article or blog is for informational purposes only. It is not intended to constitute legal advice or to replace the advice of a qualified legal professional. While we strive to provide accurate and current information, the law is complex and constantly changing, and each person’s circumstances are unique. Therefore, you should not rely on this information as a substitute for professional legal advice. This information does not create an attorney-client relationship between you and our law firm. We strongly recommend that you consult with a qualified attorney in your jurisdiction to understand your legal rights and obligations. Always seek legal advice before making any decisions that may impact your legal rights or obligations.
