Affairs, Adultery & Spying Artificial Intelligence Court Cases & Orders Property Division, Sharing & The Matrimonial Home

Did Fact of Extra-Marital Affair Taint Trial Judge Against Husband?

Written by Russell Alexander / (905) 655-6335

In a recent decision in Stevens v. Stevens, the Court of Appeal had to assess whether the trial judge had allowed the fact of the husband’s marital infidelity to taint his judicial objectivity in assessing costs and the validity of a putative marriage contract between the parties.

The factual background involved a couple who had been married 16 years and had three children together. The relationship went sour when the wife discovered the husband was having an affair. In the course of their trying to reconcile the wife – who had acquired substantial wealth from her father – had had her lawyer prepared a marriage contract in case those efforts were unsuccessful. When it became clear there would be no reconciliation, the written agreement came under scrutiny because there was conflicting documentation about whether the husband was to receive one-half of the value of the matrimonial home, or whether he was entitled the full value. Thus the main issue was whether the agreement was valid.

At trial, the judge had concluded that there was no enforceable agreement, based on the fact (among other things) that there had been no “meeting of the minds” as to the essential terms, and that the purported agreement was unconscionable. He also imposed a hefty costs award against the husband.

As part of his appeal, the husband raised the argument that in assessing the evidence, interpreting the documentation, and in imposing costs, the trial judge had placed undue emphasis on the fact that he had cheated on the wife.

The Ontario Court of Appeal disagreed that this had any impact. It observed that the whole case revolved around the fact that the marriage was falling apart, and that there were necessary discussions about attempts to reconcile. These, by necessity, included reference by the court to the husband’s conduct as that related to reconciliation attempts. Indeed, the trial judge had clearly stated in the reasons that he found that the husband’s conduct could not be connected to the issue of whether the marriage contract should be set aside.

Turning next to the husband’s claim that the trial judge had made an unreasonable award of costs against him, the Court of Appeal found that – to the contrary – the husband had unilaterally driven up costs because of his behaviour during the litigation, and had refused a very reasonable offer of settlement. While conceding that the trial judge’s costs award “pushes reasonableness and proportionality to their limits” there had been no misuse of the cheating evidence and no reversible error.

For the full text of the decision, see:

Stevens v. Stevens, 2013 ONCA 267 (CanLII)

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.