If a spouse has been unfaithful during a marriage, it is understandable to wonder whether adultery will affect the divorce or the other issues that must be resolved following separation. In Ontario, adultery is still one of the legal grounds that can be used to establish marriage breakdown under the federal Divorce Act.
However, the legal significance of adultery is more limited than many people expect. Although adultery can provide a basis for obtaining a divorce without waiting for one year of separation, it generally does not affect how property is divided or whether a spouse is entitled to support. Similarly, adultery will not ordinarily determine parenting arrangements.
Adultery Is One of the Grounds for Divorce in Canada
Under the Divorce Act, a court may grant a divorce where there has been a breakdown of the marriage. Marriage breakdown can be established in one of three ways: the spouses have lived separate and apart for at least one year, the spouse against whom the divorce proceeding is brought has committed adultery, or that spouse has treated the other spouse with physical or mental cruelty.
Of these grounds, separation for one year is relied upon in the vast majority of cases. Adultery may nevertheless be relevant where a spouse has a reason for seeking a divorce without waiting for the one-year separation period.
Importantly, a spouse cannot rely on their own adultery to obtain a divorce on this ground. The adultery must have been committed by the spouse against whom the divorce proceeding is brought.
For more information about the grounds for divorce in Ontario, click here.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8.
Proving Adultery May Require Evidence
A spouse who seeks a divorce based on adultery must establish that the other spouse committed adultery. Direct evidence of the adultery is not necessarily required.
Courts may rely on circumstantial evidence. Generally, the evidence must establish that there was an opportunity to commit adultery and that it can reasonably be inferred that the opportunity was taken. The applicable standard is the civil standard of proof, meaning the adultery must be established on a balance of probabilities.
Because allegations of adultery can be disputed, relying on adultery as the ground for divorce may result in additional evidentiary issues. This is one reason why a one-year separation is generally the simpler and more commonly used route to divorce.
Adultery Can Be Affected by Condonation or Connivance
There are circumstances in which adultery may not be relied upon as a ground for divorce. The Divorce Act requires the court to consider whether the adultery was condoned or whether the spouse seeking the divorce connived at it.
Condonation generally refers to forgiveness or acceptance of the misconduct. For example, if a spouse discovers an affair, forgives the other spouse and resumes the marital relationship, the previously condoned adultery may not later be relied upon as the basis for the divorce.
Connivance is different from condonation. It involves conduct by which a spouse participates in, facilitates or effectively looks the other way with respect to the misconduct in circumstances relevant to the divorce proceeding.
The court must also satisfy itself that there has been no collusion between the parties in presenting the divorce application.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 10–11.
Adultery Does Not Usually Affect Spousal Support
One of the most common misconceptions about adultery is that an unfaithful spouse will lose their right to spousal support or that the innocent spouse will automatically receive more support. This is generally not the case. Under the Divorce Act, when determining spousal support, the court is not to take into consideration misconduct of a spouse in relation to the marriage. Accordingly, adultery does not ordinarily determine whether a spouse is entitled to support or the amount of support that should be paid.
The Family Law Act similarly provides that the obligation to provide support exists without regard to the conduct of either spouse. There is a narrow exception where conduct is so unconscionable that it constitutes an obvious and gross repudiation of the relationship. Ordinary marital infidelity will generally not meet this high threshold.
For more information about spousal support after separation, click here.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(5); Family Law Act, R.S.O. 1990, c. F.3, s. 33.
Adultery Does Not Affect Property Division
Adultery also does not ordinarily affect the division of property between married spouses in Ontario.
Ontario’s property division system is based on equalization of net family property. When a marriage ends, the spouse with the lower net family property is generally entitled to one-half of the difference between the spouses’ net family properties.
The Family Law Act identifies specific circumstances in which equalization may be varied where an equal division would be unconscionable. These include certain financial circumstances, such as reckless depletion of assets or significant failures to disclose debts. Adultery is not one of the listed factors.
As a result, a spouse generally cannot obtain a greater share of the family property simply because their spouse had an affair.
Sources: Family Law Act, R.S.O. 1990, c. F.3, s. 5.
Adultery Does Not Automatically Affect Parenting Arrangements
Where children are involved, a parent’s adultery does not automatically determine parenting time or decision-making responsibility.
Under Ontario’s Children’s Law Reform Act, parenting decisions are based on the best interests of the child. A court should not consider the past conduct of a person unless that conduct is relevant to the person’s exercise of decision-making responsibility, parenting time or contact with the child.
This means that the fact that a parent had an affair, by itself, will generally not justify restricting that parent’s relationship with their children. The focus is on the child’s safety, security, well-being and the parent’s ability to meet the child’s needs.
Adultery could become relevant if the surrounding conduct has a direct connection to parenting. However, the fact that a divorce was granted because of adultery does not, on its own, make one parent less capable of caring for their children.
Sources: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24.
Adultery Is Usually Only One Part of a Separation
Adultery can be emotionally significant, but its legal impact on the other issues arising from separation is generally limited.
In most cases, adultery will not determine entitlement to spousal support, the division of property or parenting arrangements. Its primary legal significance is that it can establish marriage breakdown and allow a spouse to seek a divorce without relying on the one-year separation ground.
For a spouse considering divorce after discovering an affair, it is important to distinguish between the emotional consequences of adultery and its legal consequences. Understanding this distinction can help parties focus on the issues that will actually determine their rights and obligations following separation.
Obtaining legal advice early in the separation process by a family lawyer can help clarify which ground for divorce is appropriate and how the other issues arising from the breakdown of the marriage should be addressed.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 8, 11, 15.2; Family Law Act, R.S.O. 1990, c. F.3, ss. 5, 33; Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
- Efficient, structured process that respects counsel’s time and maintains client relationships
- Flexible scheduling including virtual mediation and travel to counsel offices
Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.
Categories: Divorce, Separation, Adultery