Separation alone is difficult to deal with. When the issues concerning adultery, physical and mental cruelty become involved, it can make a difficult situation that much worse. If these concerns are a part of the separation between two spouses, courts here in Canada will implement a “no fault” regime. This means that when a person’s rights are being determined in regards to: the children, child or spousal support, and property division, the fault of one party causing the breakdown of the marriage is usually not taken into consideration.
Courts will approach divorce in an objective manner; this generally means they do not look at the reasons for separation, and they won’t punish a spouse for their role in the breakdown of the marriage.
There are three reasons why a divorce can be granted:
- Adultery; and
- Physical and Mental Cruelty.
This blog post will focus on the third ground for divorce: physical and mental cruelty. See our previous blog post for more information on the first ground of separation.
One thing to note here is that when seeking a divorce under the ground of separation, you have to wait at least one year. An advantage of claiming a divorce under physical and mental cruelty is that you do not have to wait one year post separation in order to get your divorce.
Physical or Mental cruelty
If a party is claiming one of these grounds for divorce, they will have the onus of proving it on a balance of probabilities. Trying to prove domestic violence in this regard can be difficult, costly, time consuming, and can be very emotionally draining.
Catherine Christopher in The Law of Domestic Conflict in Canada, identifies 4 different types of domestic violence:
- Might be most readily identifiable – bruise patterns, fractured bones;
- Might be defined as including any kind of unwanted application of force, the use of which is intended to harm, threaten, or intimidate by one partner against another partner in an intimate relationship;
- Acts can include:
- pushing, pinching, slapping, hitting, punching, hair pulling, twisting limbs, restraint of movement and choking – this list is not exhaustive.
- Understood to be an act of unkindness or cruelty by one person calculated to threaten, intimidate, diminish or belittle another person in an intimate relationship;
- Can include:
- name-calling, yelling, screaming, belittlement of one’s body and ability, threats to harm partner, children, friends, family members or pets; physical abuse of pets; destruction of property including items of clothing or precious gifts; threats of suicide; acts of attempted suicide, particularly in the presence of children or a partner.
- Criminal code defines sexual assault and related offences in fairly specific terms;
- Possible to define certain acts as sexual abuse within confines of a relationship;
- Acts can include:
- enforcing a dress code, bringing unwanted pornography into home, forcing an unwilling partner to watch pornography, forcing unwanted sexual acts, forcing unwanted sexual acts with others, belittling sexual performance and body type, withdrawing sexual involvement or affection, and making unwanted overtures in public;
- Sexual abuse may also be said to be emotionally abusive conduct.
- Can be defined as unwanted aggression, control and/or domination committed by one partner against another involving money or financial resources;
- If one partner controls all of the financial resources to exclusion of other against their will, then abusive element emerges;
- Acts can include:
- failing to share money, purchasing all food and clothing, limiting or restricting entirely all access to financial resources or to information regarding financial resources, failing to provide essentials such as food, clothing and medical treatment.
In order for the physical and mental cruelty to be used as a reason for divorce, it must be “of such kind as to render intolerable the continued cohabitation of the spouses.” See the language in s. 8(2)(b)(ii) of the Divorce Act. This is a high bar to meet and will require diligent evidence production in order to satisfy the court that the abuse meets that bar.
Should the court find that the abuse does meet that high bar, the abuse does not impact the amount of money paid in spousal or child support. However, this conduct by one spouse can affect custody and access arrangements as is discussed in our blog post here.
- Catherine Christopher, The Law of Domestic Conflict in Canada, vol. 1 (Toronto: Thomson, Carswell, looseleaf – updated to 2016, Release 2) (at 1-12.1).
This post is provided for the purposes of legal information only and is not to be construed as legal advice.