In Canada, divorce is governed by the federal Divorce Act. The only ground for divorce is the “breakdown of marriage”, which can be proven in three ways:
- The spouses have lived separate and apart for one year;
- The spouse against whom the divorce proceeding is brought has committed adultery; or
- The spouse against whom the divorce proceeding is sought has treated the other spouse with physical or mental cruelty such that continued cohabitation has become intolerable.
Adultery Law in Canada
While adultery is a legislated ground for divorce, it is rarely pursued by divorce lawyers. As with most claims made to the court, the moving party has the onus of proving that adultery took place. While it is not necessary to catch one’s spouse in the act, or even provide photo or video evidence of the affair, proving the act can be a demanding task – one that is often not worth the time or expense.
The practical reality is that it often takes more than one year for the courts to decide the issue of adultery, at which point the ground of living separate and apart for one year will be satisfied. Accordingly, the moving party seeking to establish adultery could have saved the associated legal fees had they waited for the one-year separation period to expire.
In light of our technological society, “internet affairs” are becoming more and more common. However, courts generally only recognize physical sexual relationships as qualifying as adultery, rather than sexual activities that take place from a distance.
Contact Nussbaum Family Law to book a free consultation with one of our Toronto divorce lawyers.