In Canada the laws related to divorce are governed by the Divorce Act, which effective March 1, 2021 underwent some significant amendments. The Divorce Act is federal legislation, so it applies all across Canada. The Divorce Act sets out what must occur prior to a Court granting a Divorce to married persons.
The Divorce Act provides that a breakdown in marriage is established when:
- the spouses have lived separate and apart for at least one year;
- there has been adultery; or
- mental cruelty.
The most common ground relied upon to obtain a divorce is the parties having lived separate and apart for at least one year. It is quite uncommon for divorces to be grated based upon "fault", such as the other two grounds for divorce, being adultery or cruelty.
When seeking a divorce based upon adultery it is necessary that the adultery is committed by the other spouse – the person (Applicant) applying for the divorce cannot be the party that committed the adultery. The incident(s) of adultery must have occurred before the Application is commenced. There must be actual physical sexual contact between the adulterous spouse and a third party. One proven incident of adultery is sufficient; for example, it is not necessary to have evidence of a long-standing adulterous affair or a series of affairs. Emotional affairs are not sufficient for a Judge to grant a divorce on the ground of adultery, nor would a spouse having "telephone sex" be sufficient evidence for a divorce to be granted. Gender plays no role in the adultery; with sufficient evidence the Court can grant a divorce based upon adultery even if the adultery occurs between two individuals of the same gender.
Evidence will be necessary for the Court to grant a divorce based upon adultery. It is not sufficient for the Applicant to suspect that the spouse was having an affair. Proof of the adultery could include pictures, but it may not be possible to obtain pictures. The evidence of adultery could be set out in an affidavit or the Court may require a hearing with oral evidence presented by the Applicant and their witness(es). The evidence must be convincing for a Court to grant a divorce based upon adultery. For example, sufficient evidence could include evidence of the adulterous spouse admitting to the adultery or evidence from the third party having the affair with the adulterous spouse, attesting that the adultery occurred.
If the Applicant is aware of the name of the person whom their adulterous spouse was having an affair provides the name of the third party in the divorce Application then it will be necessary to serve the divorce Application on that person. Then the third party is entitled to file their own Answer in the proceedings and a Court hearing will be necessary to determine if the divorce will be granted based upon adultery. But it is not necessary to name the third party in the divorce Application.
When I meet with a client to discuss their separation and divorce sometimes the issue of adultery is raised. The client wants to know the possible impact adultery may have on issues, including issues such as parental decision-making (formerly "custody"), parenting time (formerly "access"), child support, property issues, etc. The reality is that such past conduct is not relevant to issues of parental decision-making/custody or parenting time/access unless the adultery impacts the spouse's ability to properly parent. Adultery does not impact entitlement to spousal support.
It is unusual for divorces to be granted based upon adultery. Most divorces are granted based upon the spouses having lived separate and apart for more than a year. This is largely a result of the fact that evidence of the adultery can be difficult to obtain but mostly because a divorce based upon adultery will cost more and it will take far longer for the Court to grant a divorce, especially if a hearing is required.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.