Affairs, Adultery & Spying

Adultery, COVID, and Grounds for Divorce

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Adultery, COVID, and Grounds for Divorce

There is a common misconception in Canada that when there is adultery, then a divorce is granted automatically. This is neither true nor false. In Canada, the only ground for divorce is a “breakdown of the marriage”.

A breakdown of the marriage can be established only if the spouses have lived separate and apart for at least one year or the spouse whom the divorce proceeding has committed adultery or treated the other spouse with physical or mental cruelty.

This essentially means that if there has been adultery in the relationship, then the party who did not commit the act can apply for a divorce based on this ground. The party who did commit the adultery cannot rely on their own actions as a ground for the divorce.

The Impact of COVID on Adultery

We recently discussed the affect that the pandemic has had on adultery and how it has made it both more difficult for cheaters to do so and easier for the other spouse to find out. For example, government lockdown measures have limited the ability to meet clandestinely, whereas in countries like South Korea some people can track their spouse through the COVID alert apps.

However, the effect of these notices has been to inadvertently betray the whereabouts of spouses who are not where they are supposed to be, or are not where they claim to be. Although no names or addresses are given in these government alerts, South Koreans are finding a way to “connect the dots” to identify individuals, and to correctly draw the conclusion that they are having an affair.

Here are few other common questions and answers with respect to this ground for divorce:

Q: Does It Matter How Long the Affair Was Going On?

No – If it can be proven that adultery has been committed by one of the spouses, the other spouse can ask for a divorce regardless of the length of time the affair was going on.  However, it should be noted that the adultery must have occurred before the petition for a divorce is brought.

Q: What If the Extramarital Sex Occurred Only a Single Time? What If the Spouse is Remorseful?

One single act of adultery is a sufficient basis on which to bring a divorce action. Technically, as long as the adultery was committed by one of the spouses, the other spouse has legal grounds under the Divorce Act to proceed with a petition.  It is a personal decision whether or not the spouse actually wants to do so in light of prospects of forgiveness and reconciliation.

Q: Do You Need Clear Proof of an Affair? Is Suspecting One Enough?

There is no prerequisite that there be photographic or physical evidence of the affair to prove adultery. However, the mere suspicion of adultery is not enough, nor is evidence that the other spouse had the opportunity to cheat. Instead, a court must be satisfied on a “preponderance” of credible evidence that adultery has taken place.  This can take place by inference – where the facts and circumstances lead to the reasonable conclusion that adultery has in fact occurred.

That being said, it is the spouse who wants to bring the divorce action who must bring forward the convincing evidence that adultery actually took place.  There is nothing unusual about the type of evidence required; however, the evidence will be considered sufficient if the adulterous spouse admits to the affair or if the third party with whom the spouse committed adultery with gives evidence attesting to the affair.

Q: What If the Spouse Had an Affair with Someone of the Same Sex? Does That Count?

Yes – Like the definition of “spouse”, the concept of adultery has been expanded by the courts to encompass same sex relationships.

Q: What about Emotional Affairs? Does Cheating Over the Phone/Internet Count?

In order to qualify as “adultery”, there must be a physical sexual relationship between one of the spouses and a third party to the marriage. Phone sex or other forms of sexually charged activity conducted “from a distance”, so to speak, do not generally qualify as “adultery” within the Divorce Act.  Although these cases are often quite interesting and unfortunate, their circumstances do not form the basis for many clients’ divorce claims.

The court’s aim is to focus on resolution rather than fault and blame, and for the most part, blame does not improve or diminish one’s property rights or entitlement to share family property in Ontario.  The practical reality is that an application for divorce based on cruelty or adultery may take a few years before a determination is even made to if the matter requires a full hearing.  If this is the case, the party seeking the divorce could also rely on the fact that he or she has lived separate and apart for one year and use this as the basis for the divorce claim.

For the most part, the concept of adultery is precisely what most people think it would be and is quite straightforward.  However, from a Canadian legal standpoint, there are some finer points that are worth mentioning.

  1. Adultery may occur if intimate sexual activity outside of marriage may represent a violation of the marital bond and be devastating to the spouse and marital bond – regardless of the specific nature of the sexual act performed.
  2. One single act of sexual intercourse can amount to “adultery” for the purpose of divorce in Canada.
  3. Adultery can occur with a same sex partner.
  4. An affidavit admitting to adultery with an unnamed party is sufficient evidence for Divorce Act.
  5. In some circumstances, adultery can be condoned. For example, if a spouse takes back an adulterous/cheating spouse out of love or desire to make the marriage work, then they may not be able to ask for a divorce based on the earlier adultery. In this scenario, the innocent spouse may be considered to have condoned the adultery for divorce purposes.

If you are going through a separation or other family law related issues, to ensure you understand all of your options and rights, you do not need to wait and you can get started online with us today or get in touch with us.

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to 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 of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.