Cheaters Never Prosper: Adultery and Affairs

Unlike the complex discussion of how adultery affects couples psychologically and emotionally, the legal effect of adultery is quite clear.  In Ontario (as elsewhere in Canada), the laws relating to divorce based on adultery are governed by the federal Divorce Act, which explains 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.”

Adultery, then, is one of the established grounds for divorce in Canada and it is important to 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. Questions often arise as to 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.

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.