How Does Adultery Affect Divorce in Canada?
Did your marriage end due to an extramarital affair? Is adultery grounds for divorce in Canada? Adultery, or what most people refer to as “cheating” or “an affair,” is one of the three main grounds for divorce in Canada. The concept of adultery in Canada is a somewhat complicated one. There are some finer considerations to be met for a divorce to be granted on the grounds of adultery. This article will cover some of the commonly asked questions on the concept of adultery and how it affects the divorce process.
How Does Adultery Affect Divorce in Canada?
To file for divorce on the grounds of adultery, you must prove that the spouse who committed the adultery had an actual physical, sexual relationship with another individual. This other individual doesn’t have to be identified. If named, the individual that your spouse has committed adultery with has to be provided with the application and may choose to respond.
Does infidelity affect divorce in Canada? Even if the divorcing spouse can prove that there was only a single act of adultery, it’s still sufficient to be granted a divorce. Additionally, the courts can grant a divorce on the grounds of adultery regardless of how long the affair was going on. However, the adultery must have occurred before the divorce application was brought.
Is Suspecting Your Spouse of Adultery Enough or, Do You Need Clear Proof?
Merely suspecting that your spouse cheated on you is not enough to prove your claim. You will need to provide the court with proof of exactly what occurred. The spouse who wants to file for divorce on the grounds of adultery is required to present convincing evidence that the affair actually took place. You must prove that there was intimate sexual activity outside of the marriage, which represented a violation of the marital bond. Regardless of the nature of the sexual act conducted, it can still amount to “adultery” to be granted divorce in Canada.
Proving adultery doesn’t mean that you have to catch your ex “in the act” or provide tangible physical evidence of the affair, such as photos. However, the courts will need credible evidence of the affair. For instance, if the court determines that the facts and circumstances represented are proof that intimate sexual activity must have taken place, a reasonable conclusion of adultery can be made.
What the court will not consider adultery is mere suspicion of an affair or evidence that the spouse had an opportunity to cheat. The court doesn’t need one to identify or name the person with whom the adultery took place.
Admitting Adultery in Divorce
If the adulterous spouse admits to cheating or the third party who had an affair with him/her provides evidence to back the allegations, this evidence will be considered sufficient. Cases involving adultery and divorce in Canada can be complex to litigate. You’ll need sound legal guidance and advice to smoothly navigate these issues.
Is Cheating Over Internet Considered Adultery?
Divorce cases involving cheating over the internet have become rampant over the years. Generally, interaction over the phone or any conducted over a long distance is not considered adultery by the court. The court will only consider adultery to have taken place if there was an actual physical, sexual relationship between one spouse and another individual outside the marriage. Sexually charged activities like phone sex are generally not considered adultery under the Divorce Act.
What You Need to Consider if You File for Divorce on the Ground of Adultery
It’s important to note that the courts always strive to focus on the resolution in divorce proceedings rather than fault and blame. Blaming the adulterous fault doesn’t diminish their rights to property or child custody/access. The court will still rule based on the best interests of the children. Additionally, when applying for divorce on the grounds of adultery, the case may take a longer time to conclude, especially if a full hearing is required. Spouses who have lived separately for a year or longer can have a lawyer draft a separation agreement which can be used as the basis for the divorce claim.
Does Adultery Affect Divorce Settlement?
How does adultery affect divorce settlement? One important thing to consider before filing for divorce on the grounds of adultery in Canada is that an affair has no impact on how the support is structured. Things like spousal support, child support and division of property are all no-fault in Canada. What this means is that you will not be entitled to any more alimony, nor will you pay any more if you cheated on your spouse and ended the marriage.
Additionally, while it is possible to sue the individual who had an affair with your spouse, you cannot make a claim against this person for interfering with your marriage.
Should you apply for a divorce and then much later try to live with your spouse again, you can stop the divorce process indefinitely. However, you are allowed to live with your spouse for a maximum of 90 days for the purposes of seeking reconciliation before or after you have applied for divorce on the grounds of separation. If within these 90 days, things do not work out, you can continue with your divorce application, and this time period will still be considered part of your separation.
If your spouse has been mentally or physically cruel to you, which made it unbearable to remain in your matrimonial home, you can file for divorce on the grounds of cruelty. Cruelty, just like adultery, may require a long, costly trial process.
How Divorce Due to Adultery Affects Child Custody
It’s important to understand that adultery may have an impact on custody, access and spousal support matters in any divorce proceedings. Even though the parent’s past conduct is a nonissue when it comes to determining custody or access to the child, the courts scrutinize cases that involve adultery and how they impact the parent’s ability to fulfill their parental obligations.
How Does Infidelity Affect Spousal Support?
Does infidelity affect spousal support? Certainly no. The adulterous spouse will still retain their rights to receive spousal support. Adultery doesn’t impact the spouse’s entitlement to support. Similarly, the spouse who has had an affair will not be required to pay more spousal support as a result of their cheating. However, many family lawyers will advise against filing for divorce on the grounds of adultery due to three main reasons:
- The length of time and costs involved when pursuing an at-fault divorce, such as adultery and cruelty, can be emotionally and financially draining.
- The level of evidence required to prove these allegations. When filing under the ground of separation, no further evidence is required.
- Cases involving adultery can take years before the court reaches a decision, and by this time, the involved parties may have already lived separate and apart, which is already an established ground to file for divorce.
A family lawyer can guide you through the divorce process, including filling out the necessary application forms and helping you process the divorce. In case you and your ex agree on all the issues and choose to resolve them amicably, you can have an uncontested divorce.
