Court File and Parties

COURT FILE NO.: FS-23-106317 DATE: 2024 03 14 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

P.S.X. Applicant/Husband Applicant

- and -

A.B. Respondent/Wife Respondent

HEARD: in writing McSweeney J.

[1] This brief decision grants a divorce on the basis of cruelty.

[2] The Applicant husband alleges cruelty toward him by the Respondent wife within a month of their marriage and seeks an immediate divorce. The parties have been separated for less than a year.

[3] In the normal course, a divorce may issue after one year of separation where there is no prospect of reconciliation. In this case, such a “no fault” divorce could issue on or after May 17, 2023. If a finding of cruelty is made, the court may grant a divorce immediately.

[4] Decisions regarding what constitutes cruelty establishing “breakdown of the marriage” are few. This brief decision is therefore being released for publication.

The Application

[5] The parties were married February 3, 2023. They separated May 16, 2023. The Applicant husband issued an application for a simple divorce on the ground of cruelty in June 2023.

[6] The materials confirm personal service of the application on the Respondent wife. She filed no Answer, nor any other response.

[7] The application was therefore reviewed by court staff and prepared for review by a judge as an unopposed simple divorce. It was assigned to me as a “basket motion” for review in writing. Initially, I found the Applicant’s materials to be incomplete. He has now provided further evidence regarding the cruelty alleged.

Statutory Framework

[8] The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), provides in section 8(2)(b)(ii) that breakdown of a marriage on the ground of cruelty is established only if the respondent spouse, since the celebration of the marriage, is found to have “treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses” (emphasis added).

[9] The law is clear that in order to make a finding of cruelty, there must be more than dislike between the spouses. It is a subjective inquiry; each case requires a very contextual and specific analysis. The intention of the respondent is not the issue; a person may be cruel and cause harm to another due to their words and actions without even realizing it: Ashraff v. Ashraff (1970), 1 R.F.L. 157 (Man.Q.B.).

Evidence and Findings

[10] The application is unopposed. Nevertheless, as described below, the statutory and common law framework requires more than an assertion of cruelty. Evidence must be filed to support a finding of cruelty.

[11] The Applicant states at paragraph 5 of his affidavit that “[t]he Respondent was emotionally abusive immediately after our marriage. Everyday the Respondent scream and ill comment the me [sic]. She had mentally and emotionally harassed me and often threw my belongings out of the house. Many times, I had to stay at my friend’s place as the Respondent would not allow me to enter the house.”

[12] The Applicant filed further evidence as ordered by the Court. That further evidence includes occurrence reports from police services. I find on the evidence that the police were called to the matrimonial home by the Applicant husband on or around May 16, 2023. At that time, the Applicant expressed to the police that he was fearful for his safety due to verbal and physical conduct by the Respondent wife toward him. The police assisted him to leave the house with his belongings.

[13] The applicant states that he has not returned to the matrimonial home since May 16, 2023.

[14] I find on the basis of the Applicant’s affidavit and the police occurrence reports that the Respondent’s behaviour toward the Applicant on May 16, 2023 caused him to leave the matrimonial home for his own safety.

[15] Two supporting affidavits, one from a family member and one from a friend of the Applicant, describe the Respondent’s behaviour toward the Applicant and their observations of the Applicant during his marriage and since separation.

[16] I do not accept the evidence of these supporting deponents with respect to the Respondent’s alleged cruel behaviour, as the deponents did not themselves witness the conduct they describe. Their evidence simply repeats the Applicant’s statements, and is therefore hearsay. It is not admissible to support a finding regarding the behaviour of the Respondent.

[17] The supporting affidavits do, however, contain the deponents’ direct observations of the Applicant’s ongoing manifestations of psychological pain and stress following his marriage and since his separation from the Respondent. This evidence supports the Applicant’s description of his mental state, and is admissible for that purpose.

[18] On the basis of the Applicant’s own evidence and of the supporting deponents, I find that his state of mind due to the Respondent’s treatment of him, is subjectively one of acute distress.

[19] The evidence also describes the continuing nature of the Applicant’s expressed desire, since being forced out of the matrimonial home by the Respondent’s behaviour toward him, to end his marriage. I therefore conclude that there is no prospect of reconciliation between the parties.

[20] It is noted that the Applicant also filed screenshots of text messages he received from the Respondent as further examples of cruel behaviour. These documents were not legible in the form provided. In the result they did not assist the Court in reaching a conclusion in this matter.

[21] I find on the evidence that the Respondent’s behaviour, described by the husband, shortly after the exchange of their marriage vows, caused him significant psychological distress.

[22] I find that the Applicant’s continued cohabitation with his wife had become intolerable to him by May 16, 2023.

[23] I conclude that in these circumstances, the wife’s treatment of her husband caused him “grave and weighty” harm sufficient to establish a relationship breakdown based on cruelty.

[24] The court is not able on the record, nor is it required, to make any findings as to whether the Respondent wife intended to cause such degree of harm to her husband. She may have been indifferent to the effects of her behaviour on him. In either event, the subjective harm to her husband is uncontradicted.

Conclusion

[25] For the foregoing reasons, I am satisfied that there has been a breakdown of the marriage on the basis of cruelty per s. 8(2)(b)(ii) of the Divorce Act.

[26] Divorce granted.

[27] Divorce order to issue in form of draft filed.

McSweeney J. Released: March 14, 2024