“Over the years the Courts have steadfastly refrained from attempting to formulate a general definition of cruelty. As used in ordinary parlance “cruelty” signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle a petitioner to dissolution of the marriage if in the Court’s opinion, it amounts to physical or mental cruelty “of such a kind as to render intolerable the continued cohabitation of the spouses”. That is the standard which the Courts are to apply, and in the context of s. 3(d) of the Act that standard is expressed in language which must be taken to exclude the qualifications laid down in Russell v. Russell, supra, and in the numerous other cases which have followed and applied the ancient ecclesiastical rule in matrimonial disputes. This is in accordance with the view taken in Zalesky v. Zalesky (1968), 1968 CanLII 612 (MB QB), 1 D.L.R. (3d) 471, 67 W.W.R. 104; Paskiewich v. Paskiewich (1968), 1968 CanLII 678 (BC SC), 2 D.L.R. (3d) 622, and Bonin v. Bonin (1969], 1969 CanLII 851 (NS SC), 5 D.L.R. (3d) 533. The only decision contra is that of Tyrwhitt-Drake, Co. Ct. J., sitting as Local Judge in Delaney v. Delaney (1968), 1968 CanLII 585 (BC SC), 1 D.L.R. (3d) 303, 66 W.W.R. 275. Reference may also be made upon this point to four recent decisions in the New Brunswick Courts: Hawthorne v. Hawthorne (1969), 1 N.B.R. (2d) 803; Maund v. Maund (1969), 1 N.B.R. (2d) 547; Chouinard v. Chouinard (1969), 1 N.B.R. (2d) 582, and Bustin v. Bustin (1969), 1 N.B.R. (2d) 496.
Care must be exercised in applying the standard set forth in s. 3(d) that conduct relied upon to establish cruelty is not a trivial act, but one of a “grave and weighty” nature, and not merely conduct which can be characterized as little more than a manifestation of incompatibility of temperament between the spouses. The whole matrimonial relations must be considered, especially if the cruelty consists of reproaches, complaints, accusations, or constant carping criticism. A question most relevant for consideration is the effect of the conduct complained of upon the mind of the affected spouse. The determination of what constitutes cruelty in a given case must, in the final analysis, depend upon the circumstances of the particular case having due regard to the physical and mental condition of the parties, their character and their attitude towards the marriage relationship.”