Adultery As A Ground For Divorce In Ontario
In Ontario, the dissolution of a marriage can be sought when you have proved a breakdown in your marriage. In our previous article on Consent and Contested Divorces in Ontario, we discussed what is a “breakdown of marriage” and the legal test for the same. We also discussed the first rule in proving a marital breakdown in our article on Understanding the One-Year Separation Period in Ontario Family Law. In this article, we will discuss the second condition of the legal test – adultery.
Adultery, a breach of the marital vow of fidelity, holds a significant place within the legal framework for divorce. It is a complex and emotionally charged issue, often entailing profound personal and societal implications. As we delve into the intricacies of adultery as a ground for divorce in Ontario, it becomes evident that this legal avenue is designed to provide spouses with an opportunity to obtain a divorce when trust and the fundamental principles of marriage have been irrevocably compromised.
What Constitutes Adultery?
Although Ontario Family Law does not provide a specific legal definition for adultery, adultery broadly refers to the act of a married person engaging in sexual relations with someone other than their spouse. While the absence of a precise legal framework might lead to ambiguity, adultery generally implies a breach of marital fidelity and trust, causing emotional distress and leading to a breakdown of the relationship.
Prerequisites For Adultery As A Ground For Divorce:
There is no criminal sanction against adultery. It is simply a ground for divorce in Ontario. However, to proceed under this ground, there can be no collusion on your part, concerning the adultery.
In accordance with section 11 (1) (c) of the Divorce Act, in a divorce proceeding where adultery is used as a basis to bring an application for divorce, it is the duty of the court to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding.
Condonation is a defence made by a person accused of adultery, arising when their spouse forgives them and agrees to continue the marital relationship despite such misconduct.
Connivance, on the other hand, is a defence in which a spouse accused of adultery, or another form of sexual misconduct, asserts that the other spouse encouraged the act of adultery.
Unlike condonation which involves forgiveness after the act of adultery has occurred, connivance is the active participation or involvement in the act. To use adultery as a ground for divorce, neither condonation nor connivance should be present in the circumstances.
Considerations When Initiating Divorce On The Grounds Of Adultery
When pursuing a divorce on the grounds of adultery, it is essential to understand the key considerations involved in the legal process.
- The courts demand concrete proof of the specific events that transpired to substantiate the claim; mere suspicion holds no weight in establishing the case.
- A single instance of adultery is sufficient grounds for initiating a divorce proceeding, irrespective of the duration of the affair. Importantly, the occurrence of adultery must precede the filing of the divorce application.
- For an act to qualify as adultery, there must be a confirmed physical and sexual relationship between one of the spouses and another individual.
- The person involved in the adultery with your partner need not be identified by name, although if named, they must be served with the application and are entitled to respond to the claims made against them.
First Consideration – Proof Of My Partner’s Adulterous Relationship
There is no requirement for photographic or physical proof of an affair to establish adultery in the court. Having said that, mere suspicion or the opportunity for infidelity is insufficient. Instead, the court must be convinced by a preponderance of credible evidence, which can be inferred from the surrounding facts and circumstances, leading to a reasonable conclusion of adultery.
The onus is on the spouse initiating the divorce application to present compelling evidence of the adulterous relationship. That is to say, the party initiating the divorce application must prove that adultery was committed.
Second Consideration – Single Instance Of Adultery
A single instance of adultery is sufficient grounds to initiate a divorce proceeding. According to the Divorce Act, as long as one spouse committed adultery, the other spouse has legal standing to file for divorce. However, the decision to proceed with the application ultimately rests on the individual, taking into account factors such as the possibility of reconciliation.
Third Consideration – Physical Or Sexual Act
The Divorce Act does not define “adultery.” Rather, as has been seen, adultery has been defined by the courts on a case-by-case basis.
In 1921, the Court in Orford v. Orford discussed the necessary elements to constitute adultery. The term “adultery” has never had an exact meaning, nor has its meaning been the same in all countries or under all systems of law. However, the court stated adultery is not just about the immorality of sex, but about willingly giving your reproductive abilities to someone other than your spouse. Any involvement of these abilities with someone else besides the husband or wife is considered adultery.
Whereas the Ontario High Court in Kahl v. Kahl, defined adultery as “the voluntary sexual intercourse by a married person with another person of the opposite sex other than his or her spouse.” Next, we will discuss the evolution of the law regarding the adulterous party’s relationship with a same-sex partner.
Is A Sexual Act With The Person Of The Same Sex Considered Adulterous?
Yes – Like the definition of “spouse”, the concept of adultery has been expanded by the courts to encompass same-sex relationships. This also stems from the common law definition of “marriage” to exclude the necessity of a man and a woman. Rather, marriage means the lawful union of two persons to the exclusion of all others.
Until the 1985 amendment of the 1968 Divorce Act, a homosexual act was expressly stated to be a ground for granting a divorce. Once a homosexual act was removed as an express separate ground for divorce by the enactment, the question would arise whether a spouse’s sexual act outside of the marriage with someone of the same gender is adultery within the meaning of the current Divorce Act.
This topic was settled in the case of Guy v. Guy et. al., where the husband had proved that his wife and the co-respondent had engaged in a homosexual act since the celebration of the marriage. The words homosexual act were given a very broad meaning. It required only a positive, physical act between at least two persons of the same sex having as its object, whether satisfied or not, the gratification of the sexual drives or propensities or preferences of the parties. There was no need to prove any vaginal contact or sodomy to establish such an act.
In the case of T v. T et. al., the court defined the term ‘homosexual act’ as follows- “In my view, it includes any act of physical conduct between two persons of the same sex having as an object gratification of the sexual impulses or drives of either or both participants, the sexual quality of the act being the determining ingredient”.
Does Flirting Or Cheating Over The Phone Count As Adultery?
For an act to be considered adultery under the Divorce Act, activities such as phone sex or other sexually charged interactions conducted remotely do not typically qualify as adultery. While these situations can be intriguing and unfortunate, they do not serve as the basis for a divorce application. This is because the court’s focus is primarily on resolution rather than assigning fault.
Fourth Consideration – Can I Sue My Spouse’s Lover?
Family Law Perspective
Rule 36 (3) of the Family Law Rules states that in an application for divorce claiming that the other spouse committed adultery with another person, that person does not need to be named, but if named, shall be served with the application and has all the rights of a respondent in the case. This would mean that the third party having an affair with your spouse if named, would have the same rights as the cheating spouse.
Civil Litigation Perspective
The question as to whether you could sue the other party for damages was raised in a recent Ontario decision Leung v. Shanks. The court was tasked with evaluating the legal viability of a woman’s lawsuit against her partner’s mistress and the fertility clinic where the mistress worked. The husband and wife had sought fertility treatments at the clinic, during which the husband began a secret affair with a nurse named Shanks. After the wife became pregnant, the husband disclosed his affair. The wife subsequently suffered a miscarriage. She sued Shanks and the clinic for various claims, including breach of trust, invasion of privacy, conspiracy to injure and intentional infliction of mental distress. The court, in a preliminary hearing, decided that the woman’s claims should proceed to trial. While Canadian courts typically do not compensate spouses for emotional distress arising from relationship issues, the court found that Shanks’ conduct might be extreme enough to warrant consideration at trial.
This decision suggests a willingness of the court to expand legal boundaries in cases involving emotional distress arising from extramarital relations. It signifies a shift in how Canadian courts may approach claims related to emotional turmoil. Courts may be more inclined to assess each case considering the specific facts and conduct involved. Extreme misconduct may be a driving factor in pushing more cases to trial.
Does Adultery Affect My Rights To Spousal Support Or Family Property?
Subject to section 33 (10) of the Family Law Act, adultery is an irrelevant consideration to entitlement for either spousal support or division of property. Section 33 (10) of the Family Law Act reads:
The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may, in determining the amount of support, have regard to the course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Therefore, the obligation to provide spousal support applies irrespective of the adulterous act, however, the amount of the support may be considered in the case of adultery.
Custody & Access: Does Adultery Affect My Parenting Rights?
Generally, parents are not entitled to an advantage with respect to child custody or access because of adultery.
As per section 24(5) of the Children’s Law Reform Act, a parent’s past conduct is considered relevant for the purposes of dealing with custody and/or access issues only if it impacts that person’s ability to act as a parent. As such, having an affair is not enough for a parent to lose custody or access to their children.
It is important to note that if the parent who committed adultery is planning to build a relationship with the third party, this may impact their custody or access to the children from their previous relationship. For example, if a parent’s new partner intends to move in with them and their children immediately after the separation, this may pose a problem as exposing children to this type of trauma may be insensitive and not in their best interests. However, each case depends on the relevant facts and circumstances.
What If I Am Falsely Accused Of Adultery?
As previously stated, it is on the non-cheating spouse to provide the adulterous act.
If you are falsely accused of adultery, it is essential to gather evidence to prove your innocence.
This evidence may include witness testimonies, communication records, or other relevant documents that can help demonstrate that the accusations are false. It is important to work closely with your lawyer to build a strong defence. During legal proceedings, both parties have the opportunity to present their case and provide evidence. Your lawyer will help you navigate the legal process and ensure that your rights are protected. It is crucial to be honest and transparent with your lawyer so they can effectively represent you.
Practical Considerations When Filing For A Divorce For Adultery
It is rare for family law practitioners to file for a divorce using the ground of adultery for the following reasons:
- At-fault divorces such as adultery and cruelty can be costly;
- No further evidence is necessary when filing under the ground of living separate and apart, making no-fault divorces more appealing;
- 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 grounds of living separate and apart for one year.
At Nazarian Law, we recommend filing for divorce under the ground of separation for at least one year. Proving adultery and cruelty can not only be time-consuming but also emotionally draining and costly. By the time circumstances leading to at-fault divorces are proven, chances are the one-year separation rule would have applied. Notwithstanding the foregoing, one-year separation rule is more objective than at-fault divorce grounds and therefore more reliable to proceed on that ground.
However, we customize and strategize our approach to each individual case. We recognize the sensitivity and complexity surrounding cases involving adultery, and we are dedicated to providing compassionate, expert legal guidance to our clients. Whether you are navigating accusations of adultery or seeking to establish a defence, our experienced team of lawyers is committed to offering personalized and strategic solutions tailored to your unique situation. Start by booking a discovery call with us today.
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Disclaimer
The content provided in this article or blog is for informational purposes only. It is not intended to constitute legal advice or to replace the advice of a qualified legal professional. While we strive to provide accurate and current information, the law is complex and constantly changing, and each person’s circumstances are unique. Therefore, you should not rely on this information as a substitute for professional legal advice. This information does not create an attorney-client relationship between you and our law firm. We strongly recommend that you consult with a qualified attorney in your jurisdiction to understand your legal rights and obligations. Always seek legal advice before making any decisions that may impact your legal rights or obligations.
