What is the definition of an affair when it comes to the online realm?

Can cyber-cheating be considered adultery in Canada? The short answer is no; cyber-cheating does not legally qualify as adultery in Canada.

To be granted a divorce in Canada, a party must show that the marriage has broken down, which can be established by one of the three grounds listed in section 8 of the Divorce Act. Here, a breakdown of a marriage is established only if:

  • the spouses have lived separate and apart for at least one year preceding the divorce,
  • a spouse has committed adultery, or
  • there has been physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Cruelty and adultery do not greatly impact the division of assets or distribution of spousal support, however they can speed up the divorce process.

In the case of P. (S.E.) v. P. (D.D.) the court defined adultery as intimate sexual activity outside of marriage, regardless of the specific nature of the sexual act performed. Cyber-sex or sexting, however, while obviously emotionally devastating to the other spouse or partner, does not reach the level of intimacy necessary for it to function as adultery under the Divorce Act. Ultimately, this means that a person who seeks to divorce someone based on their virtual infidelity must live separate and apart for one full year. Cyber-sex or sexting are simply not infidelity under the Canadian legal definition.

It is important to remember however, that just because cyber-affairs do not constitute adultery under the Divorce Act, that does not make them altogether benign to your divorce proceedings. A person might spend a lot of time escaping into cyberspace with their would-be-paramour. This sort of escapism may very well come at the expense of time and attention being paid to children. These factors become relevant when cases of child custody make their way before the court.

When it comes to emotional or cyber-cheating, Canadian law takes a very hands-off approach. Some people have tried to sue in civil court for “alienation of affection,” essentially arguing that they ought to be compensated for a harm caused to them by another who seduced their mate away. The 1962 Supreme Court of Canada case Kungl v. Schiefer confirmed that there were no damages to be awarded for alienation of affection. Although other countries allow people to sue civilly for “stealing their partner’s affection,” Canada is not one of them. Therefore, neither family nor civil courts are likely to take action based upon a cyber-affair.

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