



COURT OF APPEAL FOR ONTARIO

CITATION: Baraz v. Vorobyev, 2019 ONCA 90

DATE: 20190207

DOCKET: C65822

Hourigan, Miller and Paciocco JJ.A.

BETWEEN

Anastasia Baraz

Applicant (Respondent)

and

Victor Vorobyev

Respondent (Appellant)

Victor Vorobyev, acting in person

Anastasia Baraz, acting in person

Heard and released orally: February 6, 2019

On appeal from the order of Justice Jane Ferguson of the Superior
    Court of Justice, dated August 1, 2018.

REASONS FOR DECISION

[1]

The respondent, Anastasia Baraz, and the appellant, Victor Vorobyev,
    were married on January 6, 2018. Problems emerged immediately. The parties
    never cohabitated. On May 9, 2018 Ms. Baraz applied for a divorce from Mr. Vorobyev
    on the grounds of his physical or mental cruelty. The factual foundation provided
    in her application does not allege physical cruelty, but raises issues of
    mental cruelty alone.

[2]

In his pleadings in response, Mr. Vorobyev denied mental cruelty on his
    part, and he contested the factual foundation that Ms. Baraz relied upon.
    However, he too asked for a divorce, alleging mental cruelty against Ms. Baraz.

[3]

A pretrial conference was held on August 1, 2018. The pretrial
    conference judge evidently 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.

[4]

We agree with the appellant 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. Cross-allegations made by the parties that the
    other acted with mental cruelty do not represent agreement.

[5]

Mr. Vorobyevs disquiet with the way the divorce was granted is
    understandable even though he sought a divorce. The pretrial conference judge
    endorsed the respondents application record, granting an order that was
    requested based on Mr. Vorobyevs mental cruelty. The impression is created
    that the divorce was granted because of Mr. Vorobyevs cruelty. This is a
    stigmatizing finding. As this court recognized in
Knoll v. Knoll
,
    [1970] 2 O.R. 169, cruelty is not a trivial act but one of a grave and
    weighty nature. The pretrial conference judge may have achieved a pragmatic
    outcome, but it was unfair to Mr. Vorobyev.

[6]

We therefore set aside the divorce order and remit the matter back for a
    retrial. It will be a year on February 17, 2019 since the separation date
    identified by the respondent in her application. When that date arrives the
    parties will be eligible for a no-fault divorce. That may provide a preferable
    route to ending the marriage, but that is for the parties to determine.

[7]

No costs will be ordered in the matter.

C.W. Hourigan J.A.

B.W. Miller J.A.

David M. Paciocco J.A.


