In Canada, divorce is regulated by the federally-enacted Divorce Act. In order to obtain a divorce, one or both spouses must prove there has been a breakdown of the marriage. Under s. 8(2) of the Divorce Act, there are three ways in which to prove a breakdown of the marriage. They are:

  1. The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  2. The spouse against whom the divorce proceeding is brought has, since the celebration of the marriage, committed adultery; or
  3. 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.

Recently, the Ontario Court of Appeal had to consider the appeal of a divorce decision in which a judge had granted a divorce in a pretrial conference after both spouses had levied allegations of mental cruelty against each other.


The couple was married on January 6, 2018. Problems emerged immediately and the wife and husband never cohabitated.

On May 9, 2018 the wife applied for a divorce from the husband on the grounds of his “physical or mental cruelty.” In her application for divorce, she did not allege physical cruelty, but raised issues of mental cruelty.

In his response, the husband denied mental cruelty on his part, and contested the factual foundation that the wife relied upon. However, he too asked for a divorce, alleging mental cruelty against the wife.

Pretrial Conference

A pretrial conference was held on August 1, 2018.

The pretrial conference judge 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.”


The husband appealed the decision, alleging 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.

Court of Appeal Decision

The Court of Appeal agreed with the husband that cross-allegations made by the parties that the other acted with mental cruelty did not represent agreement.

The court stated that the husband’s disquiet with the way the divorce was granted was understandable even though he also sought a divorce. It stated:

“The pretrial conference judge endorsed the [wife]’s application record, granting an order that was requested based on [the husband]’s “mental cruelty”. The impression is created that the divorce was granted because of [the husband]’s cruelty. This is a stigmatizing finding.”

The court cited a previous Court of Appeal case that recognized that: “cruelty is not a trivial act but one of a ‘grave and weighty’ nature”.

As a result, the court found that, while the pretrial conference judge may have achieved a pragmatic outcome, it was ultimately unfair to the husband.

The court therefore set aside the divorce order and remitted the matter back for a retrial.

The court also noted that at the time of the retrial, the couple would be eligible for a no-fault divorce based on the length of time they had lived separate and apart. It stated that proceeding on that ground may provide a preferable route to ending the marriage, but that it would be for the parties to determine.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.