People often approach me with questions about the result adultery can have on their marital relationship or post-separation situations.
Most people believe their spouse’s extra-marital affair, and the resulting breakdown of marriage, should favour the innocent spouse in a property and/or spousal/child support award. Others believe that even child access and custody should be impacted in favour of the spouse who was faithful through the marriage.
These people would not be wrong – if they lived in North Carolina.
A recent decision out of San Antonio ordered a man who had been sleeping with another man’s wife to pay 8.8 million dollars in damages for all manner of mental suffering and economic loss as a result of the affair. An earlier decision resulted in an award of $30 million! North Carolina is one of very few states that still has “alienation of affection” or “jilted spouse” laws in place allowing for claims to be made to compensate the innocent spouse for the behavior of the other.
After reading this U.S. decision, I thought it would be good to set the record straight on these matters here in Canada.
In Canada, the fact that one spouse was adulterous in the relationship has no direct impact on property division or support awards. Nor does the adultery reflect the parties’ ability to parent their children and, therefore, there is no consideration of the adultery when it comes to access or custody situations for the children.
Now, the above being said, adultery does have one potential impact on the dissolution of the parties’ marriage. This is when it comes to the timing of the divorce.
There are basically three grounds for divorce in Canada. The first, and by far most common ground relied upon, is living separate and apart for one year. This is an easy one – just live separate for a year and then either party can bring the application for divorce. Another ground, which I will not talk about in this article is cruelty. The last ground is that of adultery.
If the non-adulterous party brings an application for divorce (the adulterous party cannot bring the application and hence benefit from their own adulterous behavior), and evidence is provided to the Court indicating specifics of the adultery, such as the timing of the adultery and the behavior claimed to equate adultery (must be physical, not emotional), then a divorce can happen much faster than the one year period of living separate and apart.
The adultery claim is very rarely relied upon in Canada as the evidence to prove adultery often must come from the adulterous party themselves. Rarely does this party want a public Court file outlining their indiscretions, especially with the misconceived notion most people have that this behavior will hurt them in other areas of the legal proceeding.
So adultery in Canada has a very limited and rarely accessed use in family law proceedings. Given the strong emotional impact and resulting damage that adultery inevitably causes in a marriage, most people are surprised that more is not made of it in our family law courts.
This article is of a general nature only. It is based upon laws and policies in effect as of the date noted above, which may change. It is not intended to be relied upon or taken as legal advice or opinion. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.