No couple enters into a relationship, especially marriage, expecting it to fail or break down. However, circumstances can change with time and unfortunately, they may decide to separate or get a divorce. Though this is a personal decision, it ultimately impacts their families and the extended social fabric. If children are involved, or the couple jointly owns properties and businesses, it can complicate matters.
Divorce in Canada is granted on grounds of:
- A year or more of separation
- Mental/Physical cruelty
While seeking divorce, if separation is cited as the reason, this is a No-Fault divorce, while the other two grounds constitute a Fault divorce.
What Constitutes Cruelty In A Marriage?
Since marriage consists of two people with unique and distinct personalities, a certain amount of adjustment and understanding are essential. Emotional reactions and displays, violent behavior and other forms of non-physical aggression can be extremely frightening and distressing. Though people may occasionally display such behaviors in the course of normal life, when these become regular, repetitive and increasingly dangerous features, they make it impossible for one spouse to continue in the marriage.
Cruelty or apprehension of it under Canada’s Divorce Act is one of the grounds on which one spouse can seek a divorce.
- Conduct that creates danger to bodily and/or mental health, life and limb
- Conduct that is grossly insulting and intolerable
- Exerting control through threats, financial deprivation, emotional blackmail etc
- Outrage, ill-usage
- Physical attacks
- Displays of rage, anger, screaming, yelling
- Verbal abuse, humiliating treatment, nagging
- Continuous belittling, insulting, demeaning the other’s looks, abilities, etc
- Public flaunting of adulterous affair/relationship or falsely suspecting/accusing other of adultery
- Absence from marital home without explanation
- Failing to disclose having a sexually-transmitted disease and continuing to have sexual relations with spouse
- Neglect or abandonment may sometimes be considered cruelty
Proving Cruelty As Grounds For Divorce
Since this type of divorce would be a fault based one, the burden of proof is on the one filing for divorce on grounds of cruelty to provide the proof of it.
The nature and extent of cruelty have to be sufficient to demonstrate that staying in the marriage is impossible. Simple claims of nagging, humiliation, threats or even occasional physical violence may not be enough. Consistent, intentional and serious patterns have to be established.
Such proofs can be quite difficult to prove in the absence of actual physical evidence, such as signs of bodily harm, torture, camera or video footage, audio recordings. Often, in court, the proceedings turn out to be of the he-said-she-said variety, with charges and counter-charges being freely traded.
Copies of medical reports, police reports, text messages, psychiatric or counseling reports, e-mails, photos of injuries and damage to property etc can be robust supporting proofs.
There is no legal impact on spousal/child support and division of property when divorce is granted on grounds of cruelty. Past conduct and behavior may impact custody and access to children.
If cruelty is being cited as a reason for divorce, it’s important to get the right information, assistance and advice from an experienced, qualified divorce lawyer, separation lawyer, family lawyer or child custody lawyer. There may be several complex issues involved and you will need the benefit of sound advice to ensure that your rights and entitlements are safeguarded.