Adultery and Affairs: What Are Your Rights and Legal Options in Canada?

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Adultery and Affairs in Canadian Law

Adultery and affairs are probably some of the most challenging and emotionally intense problems a marriage will experience. Sometimes, it can be the very reason why people file a divorce. In Canada, adultery and affairs are dealt with under the federal Divorce Act which determines the legal grounds for the dissolution of marriage.

Mostly divorce is granted based on the “breakdown of marriage” which is proven by living apart for over a year or mental and physical cruelty. Adultery can also be one of the grounds for filing a divorce; however, it can often complicate matters, raising questions about fault, asset division, and sometimes child custody. 

Having answers to these questions brings some clarity in an already emotionally challenging time.

Q: What is adultery in Canadian law?

In Canadian law, adultery refers to a voluntary sexual relationship between married persons and someone other than their spouse. It has been defined under the federal Divorce Act as a legal ground for divorce, through which the spouse wronged by such an affair can seek divorce.

Q: Is adultery a crime in Canada?

No, adultery is not considered a criminal offense in Canada. A person is not punished for adultery but can have emotional and legal consequences related to the divorce filed on adultery grounds. 

Q: What is infidelity?

Infidelity, in the legal context, is a violation of the emotional and/or sexual exclusivity that is entrusted in a marriage. While physical affairs are the most common forms of infidelity, it can also come in the form of emotional relationships that reduce the trust in a marriage. In divorce cases, infidelity can affect the outcome, but usually, its importance is assessed concerning the collapse of the marriage as a whole.

Q: How does the law define an extramarital affair in Canada?

An extramarital affair refers to the commitment of infidelity by a recognized marriage under the law. Legally, an extra-marital affair may be used as a ground for divorce, although in most instances, it is not the most common basis for the dissolution of marriage.

Q: Is cheating illegal in Canada?

Cheating comes under infidelity and isn’t considered a legal crime in Canada. However, it can have legal consequences if the spouse files for a divorce and can prove the cheating of their partner.

The person who has been involved in adultery cannot apply for divorce based on their acts. However, the other spouse can pose legal consequences that are involved in a divorce. 

For example, in divorce cases, there might be a possible impact on the share of marital assets allotted to the spouse who has committed adultery, based on various considerations. 

It may also impact spousal support in some circumstances, specifically when one spouse is proven to have committed marital misconduct.

Q: Does it matter how long the affair was going on?

In Canadian law, the duration of the affair is not a deciding factor in divorce. Be it a few weeks or even years, an adultery or affair could serve as the grounds for divorce under the Divorce Act. 

The duration could, however, affect how the court looks at the emotional impact on the marriage, which may then influence the decision on the division of property, spousal support, and custody. Longer affairs may indicate a deeper breakdown within the relationship.

Q: What if the spouse is remorseful for one-time adultery?

It does not matter if the extramarital relationship was short or only once. Canadian law can still consider it adultery and a valid cause of divorce. However, in cases when the spouse is truly regretful and would like to patch things up, the court can consider this fact in deliberating issues of property division and support.

While feeling remorse does not fix the damage created by the affair, it may be considered if both parties are working on trying to save the marriage. Ultimately, the court’s concern is with the general breakdown of the marriage rather than with the actual affair itself.

Q: Is it cheating if there is only emotional involvement and no physical intimacy?

Well, emotional infidelity can be regarded as cheating even though there was no physical intimacy. While the law in Canada normally views adultery in terms of physical sexual relations, an emotional affair can be just as harmful to a marriage. Emotional infidelity undermines trust and can lead to a breakdown in the marital relationship.

While an emotional affair would not meet the legal definition of “adultery” under the Divorce Act, they nevertheless often impact the divorce process, including the decisions relating to spousal support and division of property.

Q: Do internet or phone affairs count as cheating?

Yes, an internet or phone affair can be considered cheating, especially if the parties are sharing emotional or sexual intimacy. Traditional adultery usually involves physical sexual relationships, but with modern technology, it is much easier for people to develop intimate relationships online. 

Courts are increasingly recognizing that emotional or sexual relationships conducted over the phone, via text, or on the Internet can lead to the same breakdown of trust as physical affairs. In family law, the key issue is the harm it inflicts on the marital relationship, whether in person or online.

Q: Do you need clear proof of an affair, or is suspicion enough?

Some evidence is required to prove adultery when using it as a ground for divorce. The court will want clear evidence to prove that an affair has taken place: photos, videos, text messages, emails, or witnesses. Circumstantial evidence is beneficial, but it has to be strong enough to support the accusation. 

Q: What sort of evidence will suffice in establishing the commission of adultery during divorce?

Evidence that may prove adultery in a divorce case is varied and may be presented as a photograph, video, or eyewitness testimony. This may more often be from text messages, emails, and telephone records of a spouse proving one of the spouses was involved in an affair. 

Physical evidence of having sex is usually not mandated, but proof that such a relationship occurred because the accusing spouse is burdened to prove that the extramarital relationship existed.

Q: How does adultery affect the division of property in a divorce?

Adultery is not a consideration in the division of property in Ontario, since it is based on equalization under the Family Law Act. However, in those cases where the actual affair has led to substantial and significant financial misconduct-for example, one spouse spending considerable money on the affair-the court will adjust the division of the property. The main focus is to make sure the division of property is fair and equitable. 

Q: Can adultery impact child custody decisions in Ontario?

In Ontario, courts grant custody based on what is in the children’s best interest. If it can be established that the extramarital relationship has caused potential harm to the children then custody might be affected. 

In custody determinations, the most important factor that the courts review is how well both parents can continue providing an emotionally and financially stable environment for their children. 

Q: Is there a time limit to file for divorce after committing adultery? 

There isn’t a specific time limit for a person to file divorce after experiencing their spouse’s adultery. Adultery can be used as a ground for divorce no matter how long it has taken since the affair happened. 

However,  the spouse seeking divorce will no longer be able to use adultery as the ground of divorce if he or she stays together with their partner for more than a year after the discovery of his partner’s affair.

Going through a divorce involving adultery can be overwhelming, especially when navigating the legal complexities of property division, custody, and spousal support. It’s important to have the right legal support to help you understand your options and protect your rights. With the right guidance, you can make informed decisions and move forward with confidence.

At Nussbaum Law, our team is here to provide the support and expertise you need during this challenging time. Get in touch with us today to book a consultation and start addressing your family law concerns efficiently.

Did You Know

Most abusers’ behaviour stems from feelings of privilege and entitlement and learned attitudes.

These can be extremely challenging to change. They must be deeply committed to making lasting changes to their behaviour. 

Published On:December 17, 2024