Adultery and Affairs: Understanding the Basis for Divorce in Ontario
Adultery and Affairs
The only ground for divorce in Canada is the breakdown of a marriage.
This can be proven in three ways:
(1) The spouses have lived separate and apart for one year (no fault);
(2) The spouse against whom the divorce proceeding is brought has committed adultery (at fault);
(3) The spouse against whom the divorce proceeding is brought has treated the other spouse with physical or mental cruelty (at fault).
Important Considerations when Filing for Divorce on the Ground of Adultery:
- The courts will require proof of exactly what occurred in order to prove the claim.
- Mere suspicion of adultery is not enough to prove the claim.
- A single act of adultery is a sufficient basis on which to bring a divorce action on this ground.
- It does not matter how long the affair was going on.
- The adultery must have occurred before the divorce application is brought.
- In order to qualify as “adultery”, there must be an actual physical sexual relationship between one of the spouses and another individual.
- The person who committed the adultery with the spouse does not have to be named. However, if this person is named then he/she has to be provided with the application and he/she may choose to answer the application.
Impact of Adultery on Custody and Access
- Past conduct of a parent is irrelevant in determinations of the issues of custody or access unless that conduct is relevant to the person’s ability to act as a parent to the child.
- Adultery will not have any impact on child custody.
Impact of Adultery on Spousal Support
- Adultery will have no impact on your entitlement to spousal support. For example, if you have been cheated on, you will not be entitled to obtain more money. Likewise, if you have cheated on your spouse, you will not have to pay more spousal support to your spouse as a result of your infidelity.
It is rare for family law practitioners to file for a divorce using the circumstance of adultery for the following reasons:
1) At fault divorces such as adultery and cruelty can be costly;
2) No further evidence is necessary when filing under the ground of living separate and apart, making this no fault basis more appealing;
3) It can take more than a year for the courts to decide the issue of adultery and by that time you may have already established the ground of living separate and apart for one year.