This week the Ontario Court of Appeal considered a divorce appeal where a judge in a pretrial conference granted a divorce based on each spouses’ allegations of mental cruelty against the other.
In Baraz v. Vorobyev, 2019 ONCA 90 the parties married in January 2018, but encountered problems in their relationship almost immediately and never lived together. In May 2018 Ms. Baraz sued her husband for divorce alleging physical and mental cruelty. Mr. Vorobyev denied the cruelty alleged and counter-sued for divorce alleging mental cruelty against his wife. The Court noted that the wife provided no factual foundation for her claim of physical cruelty.
The pretrial conference judge apparently accepted the cruelty pleadings of the parties, treating the circumstances as if the parties had agreed to a divorce on the basis of mental cruelty. He granted a divorce to the parties based on “Mr. Vorobyev’s mental cruelty”, a finding that disturbed Mr. Vorobyev and led to his appeal.
The Appeal Court held that “cross-allegations of mental cruelty do not establish an agreement” between the parties and that the unfair finding was stigmatizing to the husband.
The Appeal Court relied on Knoll v. Knoll 1970 Canlii 469 (Ont. CA) where the Court stated:
“Cruelty is not a trivial act but one of a ‘grave and weighty’ nature”.
The Appeal Court found the pretrial conference judge’s order to be pragmatic but ultimately unfair, set aside the divorce order, and remitted the matter back to the trial court.
Lawdiva aka Georgialee Lang