Court of Appeal for Ontario

Date: 2019-02-07 Docket: C65822

Judges: Hourigan, Miller and Paciocco JJ.A.

Between

Anastasia Baraz Applicant (Respondent)

and

Victor Vorobyev Respondent (Appellant)

Counsel

Victor Vorobyev, acting in person Anastasia Baraz, acting in person

Heard and released orally: February 6, 2019

On appeal from: The order of Justice Jane Ferguson of the Superior Court of Justice, dated August 1, 2018.

Reasons for Decision

[1] The respondent, Anastasia Baraz, and the appellant, Victor Vorobyev, were married on January 6, 2018. Problems emerged immediately. The parties never cohabitated. On May 9, 2018 Ms. Baraz applied for a divorce from Mr. Vorobyev on the grounds of his "physical or mental cruelty." The factual foundation provided in her application does not allege physical cruelty, but raises issues of mental cruelty alone.

[2] In his pleadings in response, Mr. Vorobyev denied mental cruelty on his part, and he contested the factual foundation that Ms. Baraz relied upon. However, he too asked for a divorce, alleging mental cruelty against Ms. Baraz.

[3] A pretrial conference was held on August 1, 2018. The pretrial conference judge evidently treated the proceeding as having been settled in light of the shared desire to end the marriage based on mental cruelty, and endorsed the record, "[Order to go] that the parties are divorced under all the circumstances."

[4] We agree with the appellant that the pretrial conference judge erred in granting a divorce on the ground of mental cruelty in the absence of the agreement of the parties that one or the other of them experienced mental cruelty caused by the other. Cross-allegations made by the parties that the other acted with mental cruelty do not represent agreement.

[5] Mr. Vorobyev's disquiet with the way the divorce was granted is understandable even though he sought a divorce. The pretrial conference judge endorsed the respondent's application record, granting an order that was requested based on Mr. Vorobyev's "mental cruelty". The impression is created that the divorce was granted because of Mr. Vorobyev's cruelty. This is a stigmatizing finding. As this court recognized in Knoll v. Knoll, [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 to Mr. Vorobyev.

[6] We therefore set aside the divorce order and remit the matter back for a retrial. It will be a year on February 17, 2019 since the separation date identified by the respondent in her application. When that date arrives the parties will be eligible for a no-fault divorce. That may provide a preferable route to ending the marriage, but that is for the parties to determine.

[7] No costs will be ordered in the matter.

C.W. Hourigan J.A. B.W. Miller J.A. David M. Paciocco J.A.