Mental cruelty can leave just as much damage on a victim as physical cruelty. However, a recent decision from the Ontario Court of Appeal highlights some of the challenges faced by the family law system involving cases of mental cruelty, particularly in how the courts address it in applications for divorce. In the case described below, a pretrial conference judge granted a divorce on an agreed basis of mental cruelty when in fact, there was no agreement from the parties on who was responsible for the mental cruelty.

A brief marriage

The parties were married on January 6, 2018, though problems began to appear almost immediately. The couple did not ever live together, and on May 9, 2018 the wife applied for divorce on the grounds of the husband’s “Physical or mental cruelty.” When submitting her facts to the court there were no details of physical cruelty, with the issues raised being of mental cruelty alone. In his response the husband denied any mental cruelty and he contested the facts the wife relied upon. However, he also asked for divorce. His reasons? He accused her of mental cruelty.

The pretrial conference

The parties met for a pretrial conference on August 1, 2018. During the convergence the court commented on the pretrial conference judge’s decision to treat the proceedings as “having been settled in light of the shared desire to end the marriage based on mental cruelty, and endorsed the record.” As a result, the parties were ordered to have been divorced.

The husband appealed the pretrial conference judge’s decision erred in granting the divorce on “the ground of mental cruelty in the absence of the agreement of the parties that one or the other of them experience mental cruelty caused by the other.” The court agreed with the husband that cross-allegations made by the parties alleging mental cruelty at the hands of each member of the marriage do not amount to an agreement.

But didn’t the husband want to get divorced?

While the husband also sought a divorce, the court agreed with his point of contention that as it stood, the divorce order was based on mental cruelty on his part. This was an allegation he denied in his response to the courts. The husband argued, and the court agreed, that this is a stigmatizing finding. This has been recognized by the courts, with the court referencing a 1970 decision from the Ontario Court of Appeal which stated “cruelty is not a trivial act but one of a ‘grave and weighty’ nature.” Ultimately, the court found the pretrial conference judge’s decision might have achieved a pragmatic outcome but was nonetheless unfair to the husband.

The court set aside the divorce order and remitted the matter back for a retrial. The court noted that by the time this occurs, it will have been over a year since the separation date identified by the parties, making them eligible for a non-fault divorce. The court suggested this may provide a preferable route to ending the marriage, though it would be up to the parties to decide.

The divorce process can be complicated, adding confusion to an already stressful time in one’s life. Our founding lawyer, Jason P. Howie, is certified by the Law Society of Upper Canada as a Specialist in Family Law. He and the rest of our team apply this knowledge as well as a personalized approach to guide our clients through the divorce process. To speak with us, please reach out by phone at 519.973.1500 or reach us by online to arrange a consultation.