David Tutera, the host of WE TV’s
My Fair Wedding is separating from his same-sex partner, Ryan Jurica after 10 years of
marriage. With Tutera’s a career predicated on fabricating fairy tale
weddings, many wonder what went wrong for the couple.
Well, if Jurica has anything to say on the matter, he’d say that the
Wicked Witch of this story comes in the form of Tutera’s alleged sex
addiction. There’s another twist: the couple is currently awaiting
the arrival of their twins who are to be born this year by a surrogate.
Jurica is currently seeking sole custody of the twins.
Adultery plays the bad guy in many divorce proceedings. The trouble is
that this bad guy often wears a disguise that makes it very tricky to
factor into a dissolving marriage.
According to Canada’s
Divorce Act, adultery is grounds for divorce, but is not the smoking gun many may think. The
Divorce Act establishes that parties may be divorced upon a finding of adultery or
cruelty. Absent a finding of adultery or cruelty, parties can only be
divorced after one year of separation-living “separate and apart.”
The problem with adultery, however, is in the proof (or in many instances,
lack thereof). If a party is basing the divorce on adultery, the court
will hold the Applicant to the burden of proving the adultery. As one
can imagine, adulterers are very reluctant to open up and admit to same
in a court of law-often out of fear of repercussions that may not even exist.
For all practical purposes, adultery is difficult to prove in Canada. In
the end, it changes very little for married couples. Further, there is
no legal mechanism to punish bad behaviour such as adultery. The bottom
line is that the marriage has broken down and the couple now have to deal
with practical issues of division of assets, equalization of net family
property,
spousal support, child support, as well as custody and access to children.
Therefore, in Canada, Jurica would be held to strict proof of Tutera’s
adultery. Case law in Canada has suggested that circumstantial evidence
will suffice. However, the court will seek to determine whether the evidence
lends itself to any other reasonable explanation. As such, adultery can
be very hard to prove. Even more so, by the time parties are actually
able to prove the adultery, the year of separation is just around the corner.
With regard to Jurica’s custody claim, Canadian courts determine custody
based upon the best interests of the child, and unfortunately for Jurica
this analysis does not presume that a bad partner equates to a bad parent.
No one yet knows how this story will play out, but what we do know is that
Tutera is not living happily ever after.