How Does Adultery Affect Divorce Under Canadian Law?

Has your spouse been unfaithful? Are you considering a divorce? If so, you might be wondering how your spouse’s adultery affects your own legal rights. Here are some of the key points you should know.

Adultery is one of the grounds for getting a divorce in Canada.

Under the federal Divorce Act, you are only eligible to divorce if you can show there has been a “breakdown of the marriage”. That term is defined to mean one of three things: 1) adultery; 2) physical or mental cruelty; or 3) living separate and apart for at least a year. So if your spouse has been proven unfaithful, then you are eligible to get divorced promptly. You cannot use your own “adultery” to expedite the divorce.

The duration or nature of the physical affair does not matter, legally. 

Your spouse’s affair need not be longstanding; even proof of a single act of adultery by your spouse during your marriage is enough to file for a divorce. You also do not need to identify and name your spouse’s affair partner. Nor is there any requirement that you must catch your spouse “in the act” or supply the court with incriminating photos.

You do have to offer convincing proof of your spouse’s adultery, however.

If your spouse does not admit to being unfaithful, then you must provide the court with evidence of his or her adultery. Suspicions are not enough. Practically speaking, getting convincing proof can be hard to do. That’s one of the reasons the “adultery” ground is not commonly relied on, when people apply for divorce in Canada. Instead, most people base their divorce on simply living separate and apart for a year (ie. No chance of reconciliation for at least a year); it’s a “no-fault” ground for divorce that is much easier to orchestrate and prove, since it involves a clear-cut separation date.

Related: How Long Does It Take to Get a Divorce in Ontario?

Your spouse’s adultery doesn’t give you any legal advantage in the divorce process.

Perhaps it’s surprising, but the mere fact that your spouse committed adultery does not give you a preferential legal stance or position, when it comes to the other elements of your divorce. This includes determining issues such as spousal support, parenting time or access to your child, and property division. In particular:

• No effect on spousal support: Your spouse having an affair has no bearing on the court’s determination which of you must pay spousal support to the other. Instead, any legal entitlement to spousal support is determined based on a host of factors that include: 1) the duration of your marriage; 2) the financial needs of each of you; and 3) your respective ability to provide support for yourselves and each other. So if your spouse is otherwise eligible for support by law, the fact they committed adultery does not disqualify them from receiving it, nor are they financially “penalized” in the traditional sense of the word.
• Equalization unaffected: The same goes for dividing up your marital assets as part of your divorce. This process is governed by provincial Family laws, which guide the courts with clear principles that must be applied to achieve equalization of your shared property. Spousal infidelity has no direct part to play in those calculations. (With that said, if the infidelity prompted your spouse to also engage in financial misconduct, or to dissipate your family assets behind your back, then this may influence the court’s decision on property division).
• No impact on parenting time and child access: Similarly, the sheer fact your spouse committed adultery – without more – does not automatically make them a “bad parent” in the court’s eyes. Nor does it disentitle them from asserting their legal rights in connection with your children. Instead, the courts will always remain focused on your child’s best interests, and will make an order that takes stock of numerous factors, including your own and your spouse’s ability as parents to attend to your child’s needs.

The legal impact of your spouse’s infidelity may be less profound than you might think, but the emotional toll can be devastating.

And the divorce process is never easy at the best of times. It’s always essential to get the advice of an experienced Family lawyer so that you know your rights, and can navigate the process in the best possible way under the circumstances.