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Posts tagged ‘adultery’

Ashley Madison: Hackers Release More Data

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Ashley Madison: Hackers Release More Data

As many of you will know, in mid-July of this year the infidelity website AshleyMadison.com, which enables married people to find partners with whom to conduct secret affairs, was the target of hackers who released certain user information to the public.
Earlier this week, the culprits struck again, releasing a second larger “dump” of data that reveals not only information on the users’ identity, but other sensitive information as well.

The group taking credit is known as “Impact Team”; it had initially targeted Ashley Madison’s Toronto-based parent company, Avid Life Media, claiming that it had ripped off customers by charging them a $19 fee to delete their data permanently, but then not actually deleting it. Alleging that the false “full delete” service had netted the company $1.7 million in 2014, Impact Team then threatened to release more data if the entire site was not disabled permanently.

The most recent data exposure releases information on approximately 32 million Ashley Madison users – the vast majority of whom are male – and includes their names, usernames, addresses, phone numbers, and dates of birth. It also includes users’ own descriptions of themselves in profiles they would have set up during registration (e.g. “Let’s start as friends….”) as well as sensitive credit card information, login details and passwords.
Apparently, the latest release also reveals certain emails linked to the website’s founder and chief executive of the parent company, Noel Biderman.

Needless to say, from a public-interest standpoint, the data breach and its fallout has been particularly “sexy” fodder for discussion (pun intended); it has raised sort of legal issues and water-cooler chat relating data integrity, privacy, and criminality, not to mention the more obvious social issues relating to infidelity, ethics and morality.

But even leaving aside the more salacious aspects of the divulged information, at the very least it shows the widespread prevalence of actual or potential cheaters, and hints at the question of whether society’s appetite and tolerance for infidelity has changed. Indeed, using the latest release of Ashley Madison user data some socially-curious minds have even “run the numbers” to generate a worldwide map that illustrates the distribution of assumed cheaters across the globe.

Interesting stuff.

What are your thoughts?

At Russell Alexander, Family Lawyers 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. For more information, visit us at www.RussellAlexander.com

To learn more, we have written several blogs on adultery and affairs, including:

Adultery and Affairs

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

In a Failed Romance, Can You Sue for Negligence?

Can You Sue Your Ex’s Affair Partner for Damages?

Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

Top Five Points About Adultery That You Probably Didn’t Know

Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

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Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

I ran across a case called Trinchi v. Trinchi recently, where I thought the judge – who called the facts “extreme and potentially explosive” – showed admirable restraint in not making a few rather tempting conclusions about the husband’s alleged infidelity and his choice of affair partner.

The couple had been married for 11 years, and had two children together. In the context of resolving their dispute over which of them should have primary care of the children, and who should remain in the matrimonial home, the judge wrote:

Since August, 2010, the mother has been the target of a campaign of terror which has involved hundreds of communications to her alleging that the father is having an extramarital affair with Donna Bardy. The mother deposes to having been terrorized by the receipt of haunting emails, texts, photographs and messages left on her car by an unknown person. She has involved the police. The person who is the source of the terror claims to be either a jilted former lover of the father or his current girlfriend. This is not a campaign from afar. One of the emails sent 13 days ago describes the matrimonial home in detail. It is clear that whoever sent the emails has been inside the home and has accessed the parties’ mail. Some of the emails have been left on the mother’s windshield at the Go Train parking lot. Many of the emails describe the father having sex with Ms. Bardy in graphic detail. Some of the emails threaten the mother with the loss of her children. One of the emails sent to the mother and the maternal grandmother attached naked pictures of the father. Other pictures sent to the mother include pictures of Donna Bardy, pictures of a tattoo on her arm stated to be the father’s dental impression, images of ropes that were allegedly used in the course of their sexual relationship, images of areas where their sexual liaison was allegedly conducted and images of various gifts that they have purchased for each other. For example, one of the emails sent to the mother stated:

“How long until she is sleeping in your bed, having dinner with your children, showering in your shower, acting like they all belong to her…she is staying with him. You will be out and she will be in and your children will be dependent on her. You will lose them all Julia.”

The mother deposes that in mid-December, 2010, she returned to the matrimonial home accompanied by her children and saw a woman unknown to her leaving her home. This woman identified herself as “Donna”. When the mother asked what she was doing there, the woman stated that the father had asked her to set up a camera at the front of the matrimonial home and to check the mailbox at the matrimonial home periodically to see if they could catch the stalker. The woman addressed the parties’ children by name. It is admitted by the father that Donna Bardy did place a camera at the front of the home. The camera was removed at the mother’s request. After the woman left, the mother, in the presence of the children, found a note attached to the door from “Donna” which stated that the father was having an affair with Donna Bardy. On Donna Bardy’s Facebook, she lists “stalking” as her hobby.

The judge observed that both husband and Donna Bardy had filed affidavits denying that they had an affair, and claiming that they were merely friends.

Nonetheless, having apparently concluded that it was not relevant to the determination of custody or exclusive possession of the matrimonial home, the judge said simply: “I refrain from expressing any conclusion on the credibility of the assertion by the father and Ms. Bardy that they are not having an affair or that they have no knowledge of who is harassing the mother.”

Personally, in view of these facts I might have had difficulty showing the same restraint. Your thoughts?

For the full text of the decision, see:

Trinchi v. Trinchi, 2011 ONSC 3855 (CanLII)

At Russell Alexander, Family Lawyers 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. For more information, visit our main site.

Top Divorce Blogs of 2013

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Top 10 Familyllb’s Blogs of 2013

Well it has been another busy year for us and our bog has been honoured with a Clawbies Award as one of Canada’s top legal blogs.  Thank you to everyone for your continued comments and support.

Here are some of our Top 10 Blogs for 2013:

Number 10: Top 5 Things Self Represented Litigants should know about conducting a trial10.1

As a self-represented party, you must present your own case at trial. The purpose of this blog is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.

 

Number 9: Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?9 9 9

A recent decision called Ivancevic-Berisa v. Berisa shows what Ontario courts can do if one spouse refuses to co-operate in selling the matrimonial home post-separation.

 

Number 8: Husband Downgrades Job, Then Quits Altogether – But Support Stays the Same8

This was a case which shows that a voluntary change in circumstances – including a significant reduction in income – does not necessarily mean that a parent’s obligation to pay child support will be reduced correspondingly.

 

Number 7: 5 Ways to Make Sure Your Separation Agreement is Valid 7

Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. This Blog was a fan favorite in 2012 and continues to be popular as it provides a list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

Number 6: We’re Officially Separated – Can I Change the Locks on the House? 6

When a couple first separates under contentious circumstances, I will often get questions about what each party’s respective rights are in the early stages, i.e. before the long process has started of formally dividing up their assets and dealing with any support and child-related issues. One of the most common questions is whether the spouse who remains in the matrimonial home after separation can change the locks in order to exclude the other spouse.

Number 5: Texting and Family Law – Top 3 Things to Know5.1 bmp

Virtually everyone texts these days. In the context of Family Law disputes, it can be a useful tool for short, informative exchanges between separated spouses, for example to efficiently communicate on matters relating to the day-to-day care and custody any children they share.

But in the hands of some former couples, they can serve as a high-tech medium for thinly-veiled hostility, confrontation, acrimony and confusion.

 

Number 4: Top 5 Things to Know About the Canada Child Tax Benefit 4

This blog was also a fan favourite in 2012. Soon it will be time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

Number 3:  What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples3

The concept of “material change” involves the notion that a court-imposed order requiring a parent or spouse to pay support may have been fair at the time it was handed down, but subsequently becomes unfair due to unforeseen circumstances. Where a later court finds that such “material change” has taken place, it may have the authority in the right circumstances to vary the initial order accordingly.

This determination of what constitutes “material change” is not always straightforward. Indeed, some scenarios may intuitively seem to qualify on first blush, but on closer examination turn out not to meet the legal standard at all.

Number 2: Top 5 Questions About Adultery and Divorce in Ontario2.1

Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally (and why such powerful, successful people would jeopardize their marital relationships in this manner), the legal effect of adultery is quite clear.

In Ontario (as elsewhere in Canada), the laws relating to divorce based on a adultery are governed by the federal Divorce Act, which provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” (Note that it must be the other party who commits the act: a spouse cannot apply for a divorce based on his or her own adultery).

Number 1: 10 Things You Should Know About Child Support1.11.11.1  1.1

1.2Again, this continues to be a very popular post and is evidence of the ongoing need that parents have to for information about child support.  This blog examines how all dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody).

Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

There you have it.  Some of our top Blogs for 2013.  Thank you  again to everyone who have visited our Blog and all your continued comments and support and thank you for the honour of a Clawbie Award.

Top Five Points About Adultery That You Probably Didn’t Know

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Top Five Points About Adultery That You Probably Didn’t Know

As I have written before, one of the grounds on which divorce can be granted to spouses in Canada is that of adultery. For the most part, the concept is quite straightforward: “Adultery” for these purposes is precisely what most people think it would be.

However, from a Canadian legal standpoint there are some finer points that are worth mentioning, largely derived from cases that have been decided over the years. Here are the top five lesser-known points to know:

1 • Adultery may occur if there is “[i]ntimate sexual activity outside of marriage may represent a violation of the marital bond and be devastating to the spouse and the marital bond regardless of the specific nature of the sexual act performed.” (From the case called P. (S.E.) v. P. (D.D.))

2 • A single act of sexual intercourse can amount to “adultery” for the purpose of divorce in Canada. (Henderson v. Henderson and Crellin)

3 • Adultery can occur with a same-sex partner. (P. (S.E.) v. P. (D.D.))

4 • An affidavit admitting to adultery with an unnamed party is sufficient for Divorce Act purposes. (d’Entremont v. d’Entremont)

5 • In the right circumstances, adultery can be condoned. For example, if out of love and a desire to make the marriage work one spouse takes back an adulterous cheating spouse, then he or she 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. (Ingram v. Ingram)

For the full text of the cases, see:

d’Entremont v. d’Entremont (1992), 44 R.F.L. (3d) 224, 118 N.S.R. (2d) 51, 327 A.P.R. 51 (C.A.)

Henderson v. Henderson and Crellin, [1944] A.C. 49, [1944] 1 All E.R. 44

Ingram v. Ingram (1985), 1985 CarswellSask 768, 48 Sask. R. 157 (Sask. Q.B.)

P. (S.E.) v. P. (D.D.), 2005 CarswellBC 2137, 2005 BCSC 1290 (B.C. S.C.)

At Russell Alexander, Family Lawyers 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. For more information, visit us at www.RussellAlexander.com

Father’s Affair Uncovered by Daughter; Court Considers Whether to Oust Him From 6,000 Square-Foot Matrimonial Home Pending Trial

Father’s Affair Uncovered by Daughter; Court Considers Whether to Oust Him From 6,000 Square-Foot Matrimonial Home Pending Trial

In this case the mother, aged 50, and father, aged 52, had been together for 15 years, and married for 13 of them.  The father was a successful realtor and the mother never worked during the marriage; she stayed home to be the primary caregiver for the 12-year old daughter they had together.

They separated in 2011 when the daughter, in the course of using the home computer, discovered that the father was involved in an ongoing extra-marital affair with a woman who lived in Sweden.  Over the mother’s protestations – and despite several lengthy trips to Sweden – the father had continued to live in the matrimonial home post-separation, ostensibly as a means to maintain a relationship with the daughter.   About this situation, the court wrote:

The mother wants the father out yesterday. She states that his continued occupation of the home is intolerable.

The interesting twist was that the matrimonial home was a 6,000-square foot, custom-built residence owned solely by the mother.  It has been purchased with funds from her extended family, and had a fair market value of over $3 million.  By virtue of a marriage contract, the home was specifically excluded from the couple’s assets that were subject to division upon separation.  

Under the Family Law Act, however, upon separation both spouses had a right to equal possession of the home; a court could nonetheless order that exclusive possession be given to one of the parties pending trial where (among other factors) the best interests of the daughter dictated it. The mother accordingly applied for exclusive possession, with an order that the father vacate within 15 days.    

The father resisted; he proposed instead to live “quietly and discreetly” within 500 square feet of the 6,000-square foot premises, claiming that he had nowhere else to live and no savings or assets with which to arrange for new living accommodation.

As a first step to resolving the dispute, the court had no difficulty concluding that the daughter and mother should continue to live in the matrimonial home; the next question was whether the father should be ordered excluded from it entirely.

The court considered the test for whether the daughter’s best interests would be served by allowing the father to remain. Of particular relevance was the fact that the existing situation might give rise to conflict and stress in the home that adversely affected her.

On this point, the mother produced evidence that the daughter had suffered an anxiety attack on the same day that the father was leaving for Sweden to spend the entire Christmas period with his new partner.  While noting that “the father’s decision calls his parenting priorities into question,” the incident did not amount to sufficient evidence on which to conclude that her parents’ continued joint cohabitation in the home was adversely affecting the daughter.  Nor was the court provided with independent evidence of the daughter’s views and preferences on this point, one way or the other.  

Therefore – and despite voicing its concerns that the daughter had become caught in-between her parents’ struggle — the court declined to make an order for exclusive possession in favour of the mother.  (Of its own volition the court did, however, order the assistance of the Children’s Lawyer to provide the daughter with counsel).

For the full text of the decision, see:

Menchella v. Menchella, 2012 ONSC 1861  http://canlii.ca/t/fqpzv

At Russell Alexander, Family Lawyers 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.  For more information, visit us at  www.RussellAlexander.com

 

 

50 Ways to Leave Your Lover … Thinking of Leaving Your Spouse? Get Some Good Legal Advice First

50 Ways to Leave Your Lover  … Thinking of Leaving Your Spouse? Get Some Good Legal Advice First

 These days, there is quite a lot of basic, free legal information available on the Internet, including information pertaining to uncomplicated or relatively common Family Law issues.  (And I count my Blog among them).

The better information comes from government-sponsored sites, or from reputable websites written by individuals or organizations with a particular interest or passion.    But even on these sites, the quality of the information can be uneven, and the accuracy can be suspect.  And of course there are the truly bad sites:  Inaccurate, out-dated, and often revealing the particular bias, underlying motives, or not-so-hidden agenda of the website author(s).

Furthermore, by definition even the good sites will tend to be very basic; a person with a Family Law concern may manage to find good information, but will be virtually impossible for them to find reliable and comprehensive Family Law advice, meaning input tailored to the specific parties and to their specific circumstances.

This is why it is particularly important – especially for married or common law spouses contemplating or actually deciding to separate – to obtain early, competent and accurate legal advice from a Family Law lawyer, not only about what the process involves and how the system works, but also about their respective legal rights in the unique situation facing them.

Why?

  • Family Law can be complicated.   An Internet site or other generalized / rudimentary source of information cannot possibly cover all scenarios, or provide comprehensive advice to parties contemplating separation.  It is vital that the parties learn and understand the particular rights that arise in connection their specific scenario and personal circumstances.
  • There can be many overlooked issues.  When spouses decide to separate, there are many issues that need to be decided.  For example:  Who will stay in the matrimonial home?  Who will take care of the children?  Who will be responsible for paying family debts?  How much child or spousal support will be paid, and by whom?  How will your mutual property be divided?    Moreover, there may be specific arrangements made for the short-term period immediately after separation, as compared to longer-term arrangements after an eventual divorce.  All of this needs to be contemplated and the groundwork must be laid.  A knowledgeable Family Lawyer is the person best-positioned to do this.
  • There may be other options.  A lawyer who is experienced in Family Law can (after meeting with one or both spouses) do a preliminary assessment of the specific issues that arise between them.  After narrowing down the contentious issues, and assessing the likelihood of disagreement and whether there will be acrimony between the parties, the lawyer can then consider the best by which to achieve a resolution.  These avenues may include alternative (and frequently less-costly) dispute resolution mechanisms such as private settlement, collaborative family law, mediation or arbitration.  This way, it may be possible to avoid the court process altogether.
  • Different courts govern different matters.  If the matter must go to court, it can be difficult for separating spouses to even know where to begin, let alone navigate through the legal system. In Ontario, for example, and depending on where the parties live, their matter may be heard in one court that resolves all Family Law issues (including divorce, custody, access, division of property, adoption, and child protection).  In other regions of the province, however, family law matters are dealt with by two separate courts, with one being limited to non-divorce matters and dedicated to hearing only issues relating to support, custody / access, and child protection or adoption. This can be confusing and overwhelming, to say the least.

With all of this in mind, it is crucial for spouses considering separation, or who have already split, to seek competent advice from a Family lawyer.   But in addition to the items listed above, one of the most important services the lawyer can provide, is to give advice on negotiating and formalizing a written separation agreement (which will reduce the parties’ agreement into a binding contractual form).  This is often one of the most fundamental – and frequently overlooked – steps in the long and complicated separation and divorce process.

At Russell Alexander, Family Lawyers 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.  For more information, visit us at  www.RussellAlexander.com

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A “Day in Court” Can be Costly for Persistent Family Litigants

A “Day in Court” Can be Costly for Persistent Family Litigants

In our last blog  No Need to Disclose Affair When Negotiating Separation Agreements  we talked about the decision in D’Andrade v. Schrage, where the court concluded that a spouse’s failure during negotiations to disclose the existence of an extra-marital affair did not automatically invalidate the resulting separation agreement reached with the other spouse.

The case is an interesting one, and settles an important legal point for all separating spouses in Ontario.     But whatever the legal merits may be, the fact remains that – as with all litigation – the individual spouses in the matter each expended a good deal of money getting the matter heard.  

Therefore, after rendering its decision on the merits of the case, the court also had to consider how to allocate responsibility for the court costs of the 8-day trial, specifically since the husband had insisted on proceeding to trial but was unsuccessful.  

The resulting costs decision in in D’Andrade v. Schrage is a good reminder that having a “day in court” can be very costly, especially for a persistent-but-unsuccessful party.

First of all, the court’s overriding assessment was that this was a matter that should not have proceeded to trial at all.  The husband had persistently and steadfastly refused to settle throughout, and in fact had continued to heap additional claims against the wife and had increased her exposure at trial.   In the end, after an 8-day trial which was the culmination of three years of litigation, the wife was awarded $250,000 as her support entitlement together with pre-judgment interest.    Also, as the unsuccessful party, the husband was also obliged to pay the wife’s legal costs, amounting to more than $100,000 plus disbursements and taxes that she had spent in bringing the matter to court.  

The husband resisted paying this $100,000 costs award, claiming that they were “excessive” and “unreasonable”.    However, the court reviewed the wife’s detailed bill of costs and found nothing reflected in them that suggested they were grossly excessive.  Instead, the wife had properly retained competent counsel, and the steps taken by him on her behalf were necessary in defending the wife against the husband’s numerous claims.

More importantly, the court also considered the fact that 1.5 years before trial, the wife had submitted an offer to settle for $225,000 that would amount to full satisfaction of her claim, and which remained valid until the day the trial commenced.    The wife’s offer was more favourable than the $250,000 plus interest that she ultimately received a year-and-a-half later.

This triggered a consideration of the Family Law Rules, which (among other things) are designed to encourage settlement.  Those Rules specifically set out the basic principle that if a party chooses to pursue litigation despite a reasonable offer to settle, they do so knowing that will have to pay their own lawyers, but also the lawyers of their spouses as well.   In particular, as was the case here, if one spouse makes an offer to settle that is more favourable to the losing party that the result that is obtained at trial is entitled to full recovery costs from the date of the offer.

The court found no reason to deviate from that Rule in this case.   The legal costs claimed by the wife’s lawyers were within the scope of what the husband should have expected to pay in light of his lack of success at trial.   Indeed, in awarding the full amount, the court found it was not enough for the husband to merely suggest that the costs were excessive – the court characterized that as being “no more than an attack in the air”.  

Furthermore, the court emphasized that the spouse who challenges a costs award should come to court with clean hands:  if he or she forced the other to proceed to trial and then – after an unsuccessful outcome – argues that the costs incurred by the successful spouse were excessive and unreasonable will not be accorded sympathy by the courts.   Indeed, the court observed that the husband in this case:

“had three lawyers representing him at the trial, an indicator that he was prepared to spare no expense to defeat [the wife’s] claims and to advance his own. It would be unreasonable for him to have expected [the wife] to do less.”

The wife was awarded her full legal costs of almost $120,000.

For the full-text of the costs decision, see: D’Andrade v. Schrage, 2011 ONSC 2144 (CanLII)) http://canlii.ca/s/6knav

Top 5 Questions About Adultery and Divorce in Ontario

Top 5 Questions About Adultery and Divorce in Ontario

It seems that celebrity gossip tabloids will never have a shortage of topics to cover, as long as there are stories about extramarital affairs by successful, high-profile celebrities. Most recently, it has been alleged that Arnold Schwartzenegger fathered a child with the housekeeper employed in the home he shared with his wife of 25 years; prior to that, Tiger Woods has admitted to having sexual trysts with at least 14 women outside of his relatively short marriage.

Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally (and why such powerful, successful people would jeopardize their marital relationships in this manner), the legal effect of adultery is quite clear.

In Ontario (as elsewhere in Canada), the laws relating to divorce based on a adultery are governed by the federal Divorce Act, which provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” (Note that it must be the other party who commits the act: a spouse cannot apply for a divorce based on his or her own adultery).

Adultery, then, is one of the established grounds for divorce in Canada. Questions often arise as to the whether the duration, extent or nature of the adultery matters when it comes to the right to obtain a divorce. Here are some common questions answered in this regard:

1) Does it matter how long the affair was going on?

No. Provided that it can be proven that adultery has been committed by one of the spouses, the other spouse can ask for a divorce. However, it should be noted that the adultery must have occurred before the petition for divorce is brought.

 

2) What if the extramarital sex occurred only a single time? What if the spouse is remorseful?

A single act of adultery is a sufficient basis on which to bring a divorce action. And technically speaking, 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. Whether or not the spouse actually wants to do so, in light of prospects of forgiveness and reconciliation, will be a personal decision.

 

3) Do you need clear proof of an affair? Is it enough to suspect that something is going on?

In order to prove adultery, there is no prerequisite that the other spouse gets “caught in the act,” or that there be photos or other physical evidence of the affair. Instead – as with all civil actions – a court must be satisfied on a “preponderance” of credible evidence that adultery has taken place. (For example see Nelles v. Nelles).

This can take place by inference, i.e. where the facts and circumstances lead to the reasonable conclusion that adultery has indeed taken place. However, a mere suspicion of adultery is not enough, nor is evidence that the other spouse had the opportunity to cheat (see Doucette v. Doucette). Also, there is no requirement that the party with whom the adultery is taking place must be named or identified.

Finally, 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 (see for example d’Entremont v. d’Entremont), or if the third party with whom the spouse is having the affair gives evidence attesting to the fact (see Vickers v. Vickers).

 

 

4) What if the husband had an affair with another man? Or the wife cheats with another woman? Does that count?

Yes. Historically, Canada’s Divorce Act defined adultery along the same lines as the former definition of “spouses”, which involved only people of the opposite sex. Adultery was similarly defined by the courts as consisting of voluntary sex outside of marriage, between a spouse and someone of the opposite gender.

However, both the definition of “spouse” and the concept of adultery has been expanded by the courts to encompass same-sex relationships. In a 2005 case called P. (S.E.) v. P. (D.D.) a B.C. woman was granted a divorce after it was shown that the husband had committed adultery by having an affair with another man.

 

 

5) What about cheating over the Internet?

In order to qualify as “adultery”, there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage. Phone sex and other forms of sexually-charged activity – if conducted “from a distance”, so to speak – do not generally qualify as “adultery” as that term is used in the Divorce Act.

 

Although these cases are often interesting and quite sad, for most family law practioners in Ontario these circumstances do not form the basis for thier clients’ divorce claims.  The Court does not want spouses to focus on fault and blame but rather resolution.  For the most part, blame does not improve or diminish one’s property rights or entitlement to share family property in Ontario.  And the practical reality is that an Application for divorce based on cruelty or adultery may take a few years before the matter is finally determined if a full hearing is required.  If this is the case then the party seeking the divorce could also likely rely on the fact that s/he has lived separate and apart for one year and use this as the basis for the divorce claim.

For the full-text of the decisions, see:

P. (S.E.) v. P. (D.D.), 2005 CarswellBC 2137, 2005 BCSC 1290 (B.C. S.C.)

Nelles v. Nelles (1971), 2 R.F.L. 153 (Ont. H.C.)

Doucette v. Doucette (1986), 73 N.B.R. (2d) 407 (Q.B.)

d’Entremont v. d’Entremont (1992), 44 R.F.L. (3d) 224 (C.A.)

Vickers v. Vickers (1976), 24 R.F.L. 303 (B.C. S.C.)

At Russell Alexander, family lawyers our lawyers can provide customized advice in connection with the dissolution of a marriage based on a adultery, and with a large array of other family law questions. For more information, feel free to visit us at www.russellalexander.com 0r call us to schedule a private and confidential consultation.

10 Things You Should Know About Divorce

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Here is a list of 10 things you should consider.

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