Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LAURIAN WALKER, Applicant
AND:
DEVON WALKER, Respondent
BEFORE: Mr. Justice M. D. Faieta
COUNSEL: Self-represented Applicant
No appearing for the Respondent
HEARD: May 4, 2026 (In writing)
ENDORSEMENT
[1]
Issue
At issue on this application for divorce is whether the applicant wife has established that a divorce should be granted on the grounds of cruelty.
[2]
Legal Framework
Pursuant to s. 8(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), a court may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage. A “breakdown of a marriage” is most often established under s. 8(2)(a) by the spouses having lived separate and apart for at least one year. On rare occasions, a “breakdown of the marriage” is asserted, under s. 8(2)(b)(ii), on ground that the spouse against whom the divorce proceeding is brought has, since celebration of the marriage “… treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses”.
3The test for a divorce based on cruelty was described by Schroeder, J.A. in Knoll v. Knoll, 1970 469 (ON CA), [1970] 2 O.R. 169, [1970] O.J. No. 1443, at para. 30:
Care must be exercised in applying the standard set forth in s. 3(d) that conduct relied upon to establish cruelty is not a trivial act, but one of a "grave and weighty" nature, and not merely conduct which can be characterized as little more than a manifestation of incompatibility of temperament between the spouses. The whole matrimonial relations must be considered, especially if cruelty consists of reproaches, complaints, accusations, or constant carping criticisms. A question most relevant for consideration is the effect of the conduct complained of upon the mind of the affected spouse. The determination of what constitutes cruelty in a given case must, in the final analysis, depend upon the circumstances of the particular case, having due regard to the physical and mental condition of the parties, their character and their attitudes towards the marriage relationship.
4Particulars of the respondent’s cruelty are required and particulars of the impact that such cruelty had on the applicant’s physical or mental condition are required in order for the court to determine whether respondent’s conduct is of a “grave and weighty” nature. See, for example, Delaney v. Delaney, 1971 353 (ON CA), [1972] 1 O.R. 34 (C.A.); Pongor v. Pongor, [1976] O.J. No. 309 (C.A.); French v. French, [1977] O.J. No. 288 (C.A.); Langtvet v. Langtvet, [1978] O.J. No. 2651 (H.C.); and Thordarson v. Thordarson, [1978] O.J. No. 6 (C.A.).
[5]
Analysis
In this case, the applicant wife states that the parties separated on June 1, 2025, although they continue to reside in the same home. The applicant states:
Devon has been battling mental health issues since 2024. During this time, he has been verbally hostile, verbally aggressive and sometimes disrespectful. The marriage has become intolerable and damaged beyond repair. For over a year, we have been sleeping in separate rooms and living separate lives. We are constantly having arguments and disagreements, and it has taken a toll on my mental health. Therefore, we have agreed to divorce as the marriage has broken down and we no longer feel like husband and wife towards one another.
6The applicant has failed to provide sufficient particulars of the respondent’s alleged cruel conduct and she also failed to provide particulars of the impact that such conduct had on her physical or mental condition.
[7]
Conclusion and Disposition
I find that the applicant has not satisfied the test under s. 8(2)(b)(ii) of the Divorce Act, as the evidence does not establish cruel conduct of a “grave and weighty” nature. However, I adjourn this application until I receive a further affidavit from the applicant sworn after June 2, 2026 which addresses whether the parties continue to live separate and apart.
Mr. Justice M. D. Faieta
Date: May 4, 2026