The parties were married in 1987. The wife stated that she always wanted to have children but her husband did not. After a move the relationship became strained; the husband was unemployed and the wife alleged that she was being treated like a "slave". On Christmas 1989 the husband presented his wife with a handmade cradle and they made a decision to "start a family". A few months later she became pregnant, but the relationship soured and the husband left. There were some additional allegations about conversations and actions of the parties, all of which left the wife distraught. She brought a petition on the basis of cruelty.
- What constitutes "physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses"?
Justice Haliburton goes through the existing case law and finds that some of the conclusions are out of date. After an extensive review she concludes that the petitioner must establish three things:
- she was the object of cruel treatment;
- the cruel treatment was that of the respondent; and
- as a consequence of the treatment, the cohabitation of the spouses would be intolerable.
To qualify as cruel treatment the conduct must be "grave and weighty", the ordinary arguments, etc. of married life are not sufficient. Whether the respondent intended to be cruel or not is of no concern; the matter to be established is whether it was subjectively cruel in the mind of the petitioner. Considering the timeframe in which the cruelty must have occurred, Haliburton states the time of the hearing is when the facts must be established - when prior to that it occurred is of no consequence. Petitioner bears the burden of establishing cruelty. She doesn’t have to prove that the H intended to be cruel. She has to prove that she has been the victim of cruelty and that future cohabitation would be intolerable. The conduct must be “grave and weighty” – more than the ordinary wear and tear of married life. The test is in part subjective – the requirement is cruelty to this particular spouse. However, there is an objective element – the court must determine whether the allegedly cruel treatment made further cohabitation of the spouses intolerable.
In the case at bar, Haliburton finds that ordering the spouses to resume cohabitation would be unreasonable and thus finds sufficient grounds for an order on the basis of cruelty.
Establishes the test for cruelty as a breakdown of marriage.