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)
Adultery or Cruelty – For Fault Divorce
Couples who chose to file a divorce on the grounds of adultery or cruelty are filing what is referred to as a “For Fault Divorce”. This simply means that one spouse is trying to prove that the other is solely at fault for the breakdown of their marriage.
It is very important to be prepared when filing a “For Fault Divorce”, as the courts will require proof of exactly what has occurred in order to substantiate the claim. For this type of divorce legal representation is almost always necessary.
Divorce Canada provides the following advice on their website: http://divorce-canada.ca
“For Fault Divorces” as usually not recommended, as they tend to be costly, lengthy and difficult. Also, due to the backlog in our court system, it is not uncommon for a “For Fault Divorce” to take a year or more to be processed. This means, a couple could have successfully completed a one year separation (a no fault divorce) in less time, without the added expenses and stress.
Note: a spouse cannot apply for a divorce based on his or her own adultery.
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.
Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?
A case called Malandra v. Malandra, where the court found that – for the purposes of deciding whether their Net Family Property (NFP) should be unequally divided – the husband should not be held solely accountable for certain bad business investments.
This question of whether the NFP should be divided unequally comes up often: among other things courts must consider whether one of the spouses behaved in a manner that makes an even split unfair. Here are some of the categories of spousal misdeed that can come under the court’s scrutiny:
1. Reckless Investing
In a case called Lamantia v. Solarino, 2010 ONSC 2927, the question was whether the husband should be held accountable for deceit and various financial misconduct designed to hide his reckless investments in the stock market. He had forged the wife’s signature, and had borrowed from credit cards for which she became liable without her knowledge. He also took active steps to keep the wife from learning the true state of their financial affairs; for example, he made sure their bank statements were sent to another address. Furthermore, he continued to play the stock market even though the wife had asked him to stop. Those bad investments led to significant capital losses for the couple.
In finding that the NPF should not be equally divided, the court found that the husband had engaged in a pattern of deceit and engaged in conduct that made it unconscionable for the NFP to be divided equally.
2. Spending to Feed an Addiction
In a second case, Dillon v. Dillon, 2010 ONSC 5858, the husband was a severe alcoholic, who incurred debts to feed his alcohol addictions. He lost many jobs over the years, and took pains to hide the dire family financial circumstances from the wife, who was completely unaware.
Given that their financial circumstances were spurred by the husband’s need to incur debt to feed his addiction, the court found this was a situation completely out of the wife’s control. Because of his reckless behaviour, she had effectively contributed significantly more than the husband toward amassing their family assets which formed the NFP – for example a cottage worth $260,000, and RRSPs funds amounting to $150,000. She had also paid over $50,000 towards the husband’s debts in order to keep things afloat for the benefit of their children.
By concealing the extent and timing of his “financial perdition” (as the court called it), the husband deprived the wife of an opportunity to prevent his destructive behaviour, or to prepare herself for retirement. The court found that the husband had “taken advantage of the [wife’s] selfless act of placing herself in a position of vulnerability in the best interests of her children.” An unequal division of NFP was ordered.
3. Spending Money on an Affair Partner
Finally, in a case called Hutchings v. Hutchings (2001), 2001 CanLII 28130 (ON SC), 20 R.F.L. (5th) 83 (Ont. S.C.J.), the husband was engaged in an extra-marital affair, and used family money in to order to travel with his mistress to Europe and Quebec. The wife was suspicious, and accused the husband of spending money on not just this but other affairs as well; however she was never able to prove the allegations. In this case, the court also ordered that the husband had engaged in reckless and intentional depletion of the NFP and that there should be an unequal division.
Here are some common questions answered:
By Russell Alexander Family Lawyers, Ontario, Canada.
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.)