When will counsel seek to compare facts in an instant cruelty case with those in the reported cases?

It has been my experience in deciding matrimonial causes based on alleged cruelty that one does not get much, if any, assistance from comparing the facts in an instant case with those in reported decisions because of the infinite variations in facts and circumstances to be found in such cases. Although he was speaking with respect to a negligence action in Craig v. Glasgow Corporation, [1919] S.C. (H.L.) 1, 35 T.L.R. 214, Lord Finlay’s remarks are equally applicable when counsel seek to compare the facts of an instant cruelty case with facts as reported in cruelty decisions. Lord Finlay said: “ . . . it seems to me that no inquiry is more idle than one which is devoted to seeing how nearly the facts of two cases come together. The use of cases is for the propositions of law they contain; and it is no use to compare the special facts of one case with the special facts of another for the purpose of endeavouring to ascertain what conclusion you ought to arrive at in the second case. Authorities which are so used would very much encumber the administration of justice.”

With these remarks I find myself in full agreement; and when one adds to the variance in facts and circumstances found in reported cases the wide variance in the personalities of petitioning spouses, it becomes apparent that cruelty cases cannot be decided on a basis of comparison of facts with those found in other cases. After all, as Pearce J. said: “the question is whether this conduct by this man to this woman, or vice versa, is cruelty.” And so Pearce J. further said in Lauder v. Lauder, supra, at pp. 308-9: “How far a spouse has to depart from the normal standards of kindness and self-control that are the basis of married life and how great an effect that departure has to have on the other spouse before it constitutes cruelty is always a question of degree, depending largely on the temperament, circumstances and health of each party. To attempt to decide that question in such a case as this without seeing the parties or their witnesses would be a hazardous business, and an appellate court does not lightly embark on it.” When is an act or conduct “cruelty” within said s. 3(d)?