While it is true that sometimes a judge will consider past conduct of a parent in making a custody order, Section 16(9) of the Divorce Act specifically sets out that the past conduct of a parent will only be relevant where it speaks to that person’s ability to parent a child. The case law in this area of family litigation says that adultery does not damage a person’s ability to parent a child.
Although this result that Adultery does not affect a claim for custody is contrary to what many people except coming into a lawyer’s office, it actually does reflects the no-fault nature of Canadian divorce law.
