No. 1]
NOTES
NOTES
Cruelty as a Ground for Divorce
1. Definition of Cruelty in new Act:
Section 3 of the Divorce Act (Canada) of 1968 contains the four
types of matrimonial fault which are grounds for divorce, the fourth
being cruelty which is defined as follows:
3. Subject to section 5, a petition for divorce may be presented to a court
by a husband or wife, on the ground that the respondent, since the celebration
of the marriage,
(a) …
(b) …
(c) …
(d) has treated the petitioner with physical or mental cruelty of such a
kind as to render intolerable the continued cohabitation of the spouses.
2. Jurisprudence under new Act:
There has been some jurisprudence of trial Courts on cruelty
under the new Act, mostly unreported, but so far as I am aware
very few judgments from a Court of Appeal and none from the
Supreme Court of Canada. Tritschler, C.J.Q.B. of Manitoba
in
Zalesky V. Zalesky’ stated:
I wish to make it clear that in considering whether there has been proof
of cruelty, I have not been hampered by the definitions relating to the
concepts of cruelty which are to be found in the veritable legion of decided
cases which preceded and have followed Russell v. Russell, (.1897) A.C. 395.
(8d) 622
1 [1,969] 1 D.L.R. (2d) 471 at p. 472. Quoted with approval in Paskiewich v.
(Gregory, J., B.C.S.C.); Herman v.
Paskiewich, [1969] 2 D.L.R.
Herman, [.1,969] 3 D.L.R. (Sd) 551 (Dubinsky, J., N.S.S.C.); Williams v. Williams,
N.S. 1201-00049, January 31, 19.,9, Hart, J.; Nichols v. Nichols, N.S. 1.201-00154,
December 17, 19.68, Pottier, J.; Patenaude v. Patenaude, Man. Q.B., March 12,
19.69, Nitikman, J.; Delaney v. D laney, [1969] 1 D.L.R. (3d) 303, (Tyrwhitt-
Drake, J., B.C.S.C.); Countway V. Countway, (1068) 70 D.L.R. (2d) 7,
(Cowan,
C.J., N.S.S.C.); Galbraith v. Galbraith, (1069) 69 W.W.R. 390 (Man. C.A.);
Chouinard V. Chouinard, N.B.C.A., October 24, 1.969; Gold v. Gold, N.S.S.C.,
May 20, 1969, Cowan,
.J.; Pelletier v. Pelletier, Man. Q.B., July 9, 1969, Hall, J.;
See also Gumbert, Cruelty, Desertion, and Separation: An Analysis of the
Common Law in Relation to Certain Sections in
the Canadian Divorce Act
1968, (1969) 29 R. du B. 2.10, at p. 219 for comparable Australian jurisprudence.
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There is now no need to consider whether conduct complained of caused
‘danger to life, limb or health, bodily or mentally, or a reasonable appre-
hension of it’ or any of the variations of that definition to be found in
Russell.
In choosing the words ‘physical or mental cruelty of such a kind as to
render intolerable the continued cohabitation of the spouses’ Parliament
gave its own fresh complete statutory definition of the conduct which is
a ground for divorce under sec. 3(d) of the Act.
He added, however,
Of course, many of the principles laid down in the former cases will continue
to be proper guides.ia
Accordingly it is useful to consider the law of cruelty generally
in the light of past jurisprudence in England and Canada and then
to consider some specific cases of cruelty, bearing in mind, however,
the changed wording of the new Act.
3. Cruelty as a Statutory Ground in Canada Prior to 1968:
It is important to note that before the 1968 Divorce Act only in
Nova Scotia 2 was cruelty a ground for divorce. In the other common
law provinces, cruelty was a ground for judicial separation or for
action for alimony by the wife; and cruelty by the petitioner could
be a ground on which the Court could refuse a divorce on the grounds
of adultery or an action for separation or alimony.3
In only Alberta and Saskatchewan was cruelty defined by statute4
to include, in addition to conduct which creates a danger to life, limb
or health, any course of conduct which in the opinion of the court
is grossly insulting and intolerable, or of such a nature that the
petitioner could not be expected willingly to live with the other
consort after the latter had followed such a course of conduct.
In the provinces other than Alberta and Saskatchewan which
had their own divorce courts, there was no statutory definition of
cruelty and the courts tended to follow English jurisprudence and
particularly Russell v. Russell referred to hereunder. Indeed there
is a Nova Scotia case 5 which held that the law of cruelty in Canada
and England was the same.
laFollowed in Bonin V. Bonin, [19,69] 5 D.L.R.
(3d) 353,
(Dubinsky, J.,
N.S.S.C.).
2 R.S.N.S.
(3d -Series), c. 126, as amended by S.N.S. 1866, c. 1,
s. 8;
reprinted in R.S.N.S., ,1054, vol. IV, pp. 31-33.
3 Power on Divorce, 2d ed., by J.D. Payne, (Toronto and Calgary, 1964),
p. 476.
4 R.S.A. 1955, c. 89, s. 7; R.S.S. 1960, c. 35, s. 25 (3).
6Clattenburg v. Clattenburg, [.1955] 2 D.L.R. 272, (Currie, J.).
No. 1″1
NOTES
In Quebec under Article 189 C.C. it has always been possible
for either consort to obtain a judicial separation on the ground of
outrage, ill-usage or grievous insult. Article 190 C.C. leaves the
grievous nature and sufficiency of the outrage, ill-usage or insult
to the discretion of the court, in the light of the rank, condition and
other circumstances of the consorts. 6
The concept of physical or mental cruelty under the 1968 Statute
is very similar to outrage, ill-usage or grievous insult in Quebec
jurisprudence in cases of judicial separation from bed and board. 7
is important to
bear in mind whether or not the case turned on a statutory definition
of cruelty and to compare the definition with that contained in the
new Divorce Act.
In considering jurisprudence prior to 1968 it
4. English and Canadian Jurisprudence Generally prior to 1968:
The existence or non-existence of cruelty is a question of fact
in each case in the light of the age, state of health and character
of the two consorts.
Each particular case must however stand on its own footing. For instance
if a wife suffered from heart disease, to the knowledge of her husband,
and he gave her a sudden shock, through which she might be in danger
of sudden death, such an act was not necessarily an act of actual violence;
yet if the wife was so constituted as to be thereby made sickly or ill or so
forth, the husband’s act would amount to legal cruelty.8
For, “what is tolerable by one may not be by another.” 9
A similar judgment has been rendered in Canada under the new
Act.1 0
Up to 1964, in both England and Canada, the Courts followed
Russell v. Russell where the wife had falsely accused her husband
of abominable sexual practices and this was held by the Court of
Appeal, two to one, not to constitute cruelty because the acts or
conduct of respondent must, in order to constitute cruelty, have caused
“danger to life, limb or health, bodily or mental or a reasonable
6 Stevenson v. Baldwin, (1023) 34 K.B. 41.
7 Robert, Quelques commentaires sur la nouvelle loi concernant le divorce,
(19.68) 28 R. du B. 513, at p. 517.
8 Barrett v. Barrett, (1903) 20 T.L.R. 73, at p. 74; in Canada see Power,
op. cit., p. 47.6, and cases cited therein including Plummer v. Plummer, (1962)
31 D.L.R. (2d) 723, (B.C.S.C.) and Cole v. Cole, (1,959)
19 D.L.R. (2d) 643,
(N.S.S.C.).
9 D’Aguilar v. D’Aguilar, 162 E.R. 748; Power, op. cit., at pp. 475 et seq.
and cases quoted therein.
“o’Delaney v. Delaney, supra, n. 1.
McGILL LAW JOURNAL
(Vol. 16
apprehension of it”.”. The Court added that it was essential that
respondent have inflicted bodily injury upon petitioner or have injured
her mental or bodily health etc.
On appeal to the House of Lords, 12 a slim majority of 5 to 4
sustained the judgment with the result that “cruelty was defined
as involving either violence or injury to health”. 13
In 1944 in the Ontario Court of Appeal, Laidlaw J.A. refused a
wife’s action for alimony on the ground of cruelty because she had
not established danger to life, limb or health. 14
Modern cases in England since 1897 may have seemed to be
widening the concept of cruelty “but in reality they merely afford
diverse illustrations of the principle in Russell v. Russell…”.15
However advances in medical science and particularly psychiatry
‘health’
have “vastly extended the bounds of what may be called
Power
and when it may be regarded as having been ‘injured’ “.’
stated in 1964 that in Canada “in recent years cruelty has been held
established in many cases in which the conclusion might have been
otherwise had the decision been made in former days…”.,6,
5. Intention:
There are many English cases prior to 1964 which held that
cruelty must be intentional, probably, as Denning L.J. said
in
Kaslefsky v. Kaslefsky,17 in order not to open the door of cruelty
so wide as to grant divorce on grounds of mere incompatibility.
For a while, malice was believed to be necessary;18 but this was
rejected by the Court of Appeal in Squire v. Squire.,sa From 1955
up to 1964 the cases -appear to have held that the respondent to be
cruel must have acted voluntarily in a manner which he foresees
or should foresee may harm the petitioner.
11 [1895] P. 315, at p. 322.
12 Ibid., [1897] A.C. 395, at p. 456.
13 Biggs, The Concept of Matrimonial Cruelty, (London 1962), p. 43; See
(London 1052), 3d ed.,
also Halsbury’s Laws of England, Lord Simon, ed.,
vol. 18, at p. 269.
14Hawn v. Hawn, [.1944] 4 D.L.R. 173, at p. 186; See, however, Walsh v.
Walsh, (19,14) 7 W.W.R. 620 (B.C.); MacDonald v. MacDonald, [1,954] O.R.
521, (C.A.) where divorce was granted.
15 Biggs, op. cit., p. 44.
16 Ibid., p. 47.
i6a Op. cit., p. 477.
‘7 [151] P. 88, at p. 48.
18Astle v. Astle, [1039] P. 415 at pp. 419-420.
‘sa Squire v. Squire, [1949] P. 51, at p. 58 (C.A.).
No. 1]
NOTES
The House of Lords in Gollins v. Gollins 19 in 1964 definitely
decided by a majority of 3 to 2 that intention to injure was not
a requisite in matrimonial cruelty. In 1968 it was so held in a Canadian
case 20 prior to the new Act.
6. Effect of Insanity:
Also in 1964, the House of Lords decided that if the conduct of
a respondent would be held to be cruelty irrespective of motive or
the intention to be cruel, insanity would not be a defence. 2 1 Accordingly
proof of cruelty is purely objective and not subjective. As Power
on Divorce 22 states :
Proof of insanity is not necessarily an answer to a charge of cruelty,
although the mental derangement of the respondent cannot be wholly
disregarded. It falls on the respondent to prove that he or she was not
legally responsible for his or her actions and the onus must be discharged
in the same way and to the same extent as would be required in civil
proceedings, that is, on a balance of probabilities.
It was held in Herman v. Herman23 under the new Act that the
fact that respondent had been in and out of mental hospitals over
many years was no defence to a petition for divorce based on physical
and mental cruelty to his wife.
7. Particular Types of Cruelty:
A. Drunkenness:
A leading English case 24 held in 1865 that habitual drunkenness
could not, by itself without violence, constitute cruelty, perhaps
because drunkenness was more common then than now. Modern
jurisprudence 25 holds to be cruelty drunkenness causing injury to
the health of the other consort. Usually, but not always, drunkenness
is combined with abusive treatment. 25a
19 [1064] A.C. 64; Followed in N. v. N., [.1969] 4 D.L.R. (3d) 639, (Munroe, J.,
S.C.B.C.).
20 Whitie v. White, (1968)
69 D.L.R. (2d) 60,
(McLellan, J., D.C.N.S.);
Power, op. cit., p. 480.
21 Williams v. Williams, [1-964] A.C. 698; followed in Canada in Brown v.
Brown, N.S. E-6871, 1.966, Cowan, J.
22 op. cit., pp. 480-481.
23 Supra, n. 1.
24 Brown v. Brown, (1865) L.R. 1 P. & D. 46, at p. 50.
25 Baker v. Baker, [1055] 1 W.L.R. 1011, at p. 1015, (Davies, J.); In Quebec
see: Danyluke v. Dubkowetska, [1964] B.R. 909.
25a See, for example, Stewart v. Stewart, [.1,45] 1 D.L.R. 500, (N.S.C.A.).
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Under Section 4 (1) (b) of the new Canadian Act, gross addiction
to alcohol for three years, with no reasonable expectation of reha-
bilitation, is a ground for divorce if it causes a permanent breakdown
of the marriage. Drunkenness of a lesser degree can constitute cruelty
if it renders continued cohabitation intolerable, as was the case in
Willicms V. Williams.26 However, a divorce on the grounds of chronic
alcoholism under the new Act was refused in the Ontario case of
Knoll v. Knoll2 7 as the evidence showed the respondent to be merely
a heavy drinker and not a chronic alcoholic, and because his conduct
had “not produced such injury to health as will give reasonable
apprehension that the continuance of such conduct will cause per-
manent injury of mind or body”.
B. Verbal Abuse, Humiliating Treatment, Nagging:
In England “there seems to be nothing to prevent abuse of one
spouse by the other constituting cruelty if it be of such a degree as
to be grave and weighty… ,.28 Nagging can be a ground for divorce,
for,
One knows that dropping water wears a stone. Constant nagging will become
completely intolerable and though in the course of married life you may
be able to point to no single instance which could possibly be described
as, in common parlance, “a row,” yet nagging may be of such a kind,
and so constant that it endangers the health of the spouse on whom it is
inflicted. 29
Sulking and refusal to talk can also be cruelty. 30 Furthermore, it
can be said that continued humiliation of a wife in the presence
of others, as well as before the children; treating the wife as inferior;
and swearing and cursing at her, may in certain circumstances be
held to be mental cruelty. 31
One surprising case32 held that where an invalid wife made
excessive demands on her husband requiring him to read to her
throughout the night and otherwise preventing him from sleeping
so that his efficiency as an army officer was impaired, the husband
was entitled to a divorce for cruelty.
26 Supra, n. a.
27Knoll v. Knoll, [1969] 6 D.L.R.
(3d) 201, (Moorhouse, J.); See to the
same effect Moore v. Moore, C.S.M. 349, September 25, 1068.
28 Biggs, op. cit., p. 151.
29 Atkins v. Atkins, [1942] 2 All E.R. 637, at p. 638; See also: Usmar V.
Usmar, [1949] P. 1, and King V. King, [1053] A.C. 124, (H.L.) where divorce
was refused as cruelty was not proven.
3 OLander v. Lander, [1049] P. 277
3mNichols v. Nichols, supra, n. 1.
32Squire v. Squire, supra, n. 18a.
(C.A.).
No. 1]
NOTES
C. Abnormal Marital Relations:
a) The jurisprudence is confusing and contradictory and it may
be said that “unjustifiable refusal of intercourse to the other party
to the marriage is capable of constituting cruelty but it may be a
matter of considerable difficulty to convince the court that the
refusal was, in fact, unjustifiable”. 33
Refusal was held to be unjustified and to constitute cruelty
sufficient to justify u divorce in Evans v. Evans,- whereas a divorce
was refused in B. v. B.35 as the refusal was considered to be justifiable
because not accompanied with the intention to injure. In several
other cases a6 a petition for divorce for cruelty was dismissed where
one consort had an invincible repugnance to intercourse or where
one consort found the other repugnant.
The decisions in the United States go both ways and are almost
equally divided.3 7
Jurisprudence in Quebec in separation from bed and board cases
prior to 1968 often assimilated refusal of sexual relations to grievous
insultM7a and will probably, in appropriate cases under the new Act
find cruelty.
In one recent Quebec case38 the absolute refusal of the wife
to have intercourse during the first three weeks of marriage because
of invincible repugnance followed by her desertion and return to
her parents was held not to constitute cruelty sufficient to justify
a divorce under the new Canadian Act. In that case the judgment
was dated only 11 months after the wife’s desertion so permanent
breakdown of the marriage could not be invoked either on grounds
of desertion or non-consummation.
33 Biggs, op. cit., p. 2174.
34 E-1965] 2 All E.R. 789; See also P. v. P., [1.965] 2 All E.R. 456; Sheldon v.
Sheldon, [1966] P. 62 (C.A.).
35 [1965] 3 All E.R. e63, (C.A.).
36 Kaslefsky v. Kaslefsky, [,W51] P. 38, at p. 42, (Buckwill, J.); Clark v.
Clark, [1958] C.L.Y. 968, The Times, June 25, 1958; P. v. P., [1964] 3 All
E.R. 919; See also the Scottish Case of Scott v. Scott, [.1960] S.C. 36.
37 Biggs, op. cit., p. 1712; Clark, The Law of Domestic Relations, (St. Paul,
1968) p. 346; Pro: Diemerv. Diemer, (1960) 203 N.Y. Supp. 2d 820, (C.A.N.Y.);
Martin v. Martin (1922) 1.18 A. 410; Sonmore v. Sonmore, (1-961)
360 P. 2d
359; Reeves v. Reeves, (1952) 55 N.W. 2d 793; Contra: Hinkle v. Hinkle,
(1953) 74 S.E. 2d 657; Dominik v. Dominik, (1951) 81 A. 2d 147; X. v. X.,
(,1946) 47 A. 2d 470.
37a Robert, Quelques commentaires sur la nouvelle loi concernant le divorce,
loc. cit., at p. 51I; Brosseau v. Dame Peachy, (.1923) 35 K.B. 389; Dasylva v.
Plante, (1882) 8 QJ,.R. 349.
38 Webster v. McKay, [1969,] C.S. 132.
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b) Birth Control:
In England, “any form of birth control is capable of being cruelty
if practised to an extent which proves injurious to the other spouse” 9
and if unjustified. The reported cases 40 turn on their own facts and
sometimes appear contradictory, as for instance Fowler V. Fowler,41
where insistence on contraception by the wife who feared childbirth
was held to be justified.
Sterilisation of either spouse on medical grounds cannot be cruelty,
but sterilisation as a matter of convenience in order to prevent
pregnancy can be if the petitioning consort did not consent to the
operation and if there is injury to health of the petitioner. 42
c) Sexual Abnormalities:
Having engaged in a homosexual act or being guilty of sodomy
are grounds for divorce under Section 3 (b) of the new Act. It may
well be that such acts may still constitute cruelty within section
3 (d) in which event the English cases, where completed or attempted
sodomy with the consort 43 or with others 44 or lesbianism on the
part of the wife45 was invoked as constituting cruelty, would be
relevant.
8. Degree of Proof Required:
It had been held before 1968 in both England by the House of
Lords 46 and in Canada by two judgments of the Supreme Court of
Canada 47 that in a divorce case proof need not be made beyond a
reasonable doubt, but according to the civil standard, that is on
the basis of the balance of probabilities. 4
The Hon. George S. CHALLIES:
39 Biggs, op. cit., p. 175; Clark v. Clark, [1969] 6 D.L.R. (3d) 383, (Henderson,
J., Ont. H.C.).
40 Baxter v. Baxter, [1948] A.C. 274, at p. 290, (Jowitt, L.C.) ; White v. White,
[1.948] P. 380; Knott v. Knott, [1055] P. 249.
41 Fowler v. Fowler, (1.952) 2 T.L.R. 143, (C.A.).
4 2 Bravery v. Bravery, [1.954] 3 All E.R. 59,
43C. V. C., (1905) 22 T.L.R. 26; N. v. N., (1862)
(C.A.).
.164 E.R. 1264; Lawson
v. Lawson, [1955] 1 W.W.R. 200, (C.A.); Davidson V. Davidson, [1053] 1
W.L.R. 387, at p. 392. In Canada see Cesale v. Cesale, (.1020) 57 D.L.R. 435,
(N.S.); F. v. F., (W1O50) 2 W.W.R. 54, (Alta.); Fast v. Fast, [1945] 3 W.W.R.
66, (B.C.); Warden V. Warden, [1.951] 3 D.L.R. 336, (Ont.).
44 Mogg V. Mogg, (,1824), 162 E.R. 301; Countway v. Countway, supra, n. 1.
45 Gardner V. Gardner, [1947] 1 All E.R. 630; Spicer V. Spicer, [1954] 1
W.L.R. 1051.
46 Mlyth v. Blyth, [19.66] A.C. 643,
47Smith V. Dame Smith, [1952] 2 S.C.R. 312; Forester v. Forester, [1055]
(H.L.).
4 D.L.R. 710.
48Delaney v. Delaney, supra, n. 1, at p. 308; Zalesky v. Zalesky, [1069]
1 D.L.R. (3d) 471, at p. 472; Power, op. cit., at p. 486.
*Associate Chief Justice of the Quebec Superior Court.
