Couple Agrees On Existence Of Mental Cruelty, But Can’t Agree Who Is Carrying It Out

Written on behalf of Arbesman Hamilton LLP

There can be a number of issues that may lead a couple to divorce, and some of these can be difficult for the courts to manage. A recent decision from the Ontario Court of Appeal showcases some of the challenges a court may face, this time when mental cruelty was alleged to have been carried out by both parties. In the decision, the court looked at whether a a pretrial conference judge was wrong in allowing a divorce on the grounds of mental cruelty despite there being no clear indication of who was responsible for it.

The marriage and separation

The marriage was far from a long or happy one. The couple were married on January 6, 2018. The court stated that problems began to emerge immediately, and the couple did not ever live together. The wife applied for divorce just four months after the marriage on the grounds of the husband’s “physical or mental cruelty.” He facts in her application focused solely on mental cruelty.

In his response, the husband denied mental cruelty, but also asked for a divorce. His grounds? He alleged the wife was mentally cruel towards him.

A pretrial conference was held on August 1, 2018. The pretrial conference  judge, looking at the couple’s shared desire to end the marriage, endorsed the wife’s application after determining the proceeding to have been settled since it was agreed that there was mental cruelty, and ordered the couple divorced.

The appeal

The husband appealed the pretrial conference judge’s decision, alleging the judge erred in granting a divorce on the allegations of him committing mental cruelty. He argued he did not agree to those facts, and there was no agreement of the parties that one of the other of them had experienced mental cruelty caused by the other.

The court agreed with the husband, stating that “cross-allegations made by the parties that the other acted with mental cruelty do not represent agreement.”

In its decision, the court noted the significance of a finding that one party has been guilty of mental cruelty, writing,

“(The husband’s) disquiet with the way the divorce was granted is understandable even though he sought a divorce. The pretrial conference judge endorsed the (wife’s) application record, granting an order that was requested based (the husband’) “mental cruelty”. The impression is created that the divorce was granted because of (the husband’s) cruelty. This is a stigmatizing finding. As this court recognized in Knoll v. Knoll1970 CanLII 469 (ON CA), [1970] 2 O.R. 169, ‘cruelty is not a trivial act but one of a ‘grave and weighty’ nature’. The pretrial conference judge may have achieved a pragmatic outcome, but it was unfair (the husband).”

The court set aside the divorce and sent it back for a retrial. However, by the time the retrial occurs, it will have been a year since the parties separated, which means they will be eligible for a no-fault divorce.

At Arbesman Hamilton LLP we understand that the end of a marriage can be a difficult and emotional time for everyone involved. We look to make the process easier by providing our clients with outstanding legal guidance, ensuring their interests are protected every step of the way, allowing them to move on with their lives following the divorce. Please contact us at 416-481-5604 or reach us online to find out how we can help you today