Adultery is the act of engaging in a love affair outside the bounds of marriage. Anyone finding out about their spouse’s infidelity feels as if their world has been shattered.
We understand this pain all too well, as we have helped many families solve matters amicably. During this painful time, you might wonder about filing for divorce and whether this reason can affect your proceedings.
If you have any questions regarding this issue, you have come to the right place. Our family lawyer in Canada has created a comprehensive guide to help you answer the question, “How does adultery affect divorce in Canada?”
Is Adultery a Crime in Canada?
Adultery in Canada has never been a crime. The Criminal Code doesn’t identify adultery as a criminal offence and neither is it a common law offence.
However, there can be legal consequences of adultery during divorce cases, as it may impact your asset division or marital property. We will discuss all of this in detail below.
How Does Adultery Affect Divorce in Canada? 6 Legal Consequences of Adultery in Divorce Proceedings
Canada has a no-fault divorce system, which means that couples can choose to dissolve their marriage without having to prove any wrongdoing. However, adultery does affect the divorce process in many ways.
Let’s take a look at how does adultery affect divorce in Canada:
1. Child Custody: Does Adultery Affect Child Custody in Canada?
Child custody and parenting access decisions are an important part of divorce proceedings in Canada. However, adultery in Canada may not have any bearing on child custody decisions.
The main consideration for these decisions includes the best interests of the child. So, if the extra-marital affair has a negative effect on the children and their well-being, then the court may consider this factor when deciding custody and access.
If you think this is the case, then you can connect with a divorce lawyer in Ontario to learn more about how you can address this matter.
2. Spousal Support
Adultery in Canada doesn’t directly impact spousal support, but it can be a factor that the court might consider.
For example, if the affair has a significant financial impact on the innocent spouse, then it can be a factor when deciding the duration and amount of spousal support.
It depends on the specific circumstances of the case that will determine how does adultery affect divorce in Canada in terms of spousal support.
3. Division of Property and Assets: Does Adultery Affect Property Division in Canada?
As a general rule of thumb, Canada divides assets after divorce through equal asset division or equalization of net family property.
However, if the extra-marital affair has caused a significant impact on finances and marital assets, then the court may consider adultery when dividing property between spouses.
In such cases, the courts may decide to adjust asset distribution to compensate the innocent spouse. So, the effect of the divorce settlement will depend on the context and your circumstances after adultery in Canada.
4. Adultery in Canada as Grounds for Divorce
While Canada follows a no-fault divorce system, you can still use adultery in Canada as a grounds for divorce to dissolve your marriage. You can use one of these three reasons to determine that your marriage has failed and seek dissolution:
- Mental or physical abuse by your spouse
- You have been living apart for a year or more
- Adultery
When you file for divorce, you can include adultery as one of the reasons your marriage broke down.
Considerations to Take into Account When Filing for Divorce on the Grounds of Adultery
When you file for divorce on the grounds of adultery in Canada, here are some considerations to keep in mind:
- The courts will require evidence for you to prove the claim of adultery. You can do this through tangible proof or witness testimony
- Just being suspicious of adultery is not a valid claim.
- The length of the affair doesn’t matter in the divorce case.
- A single act of adultery is enough for you to use this as a ground for divorce.
- The adultery must have taken place before you brought the divorce application to the court.
- To qualify as a ground for divorce, adultery must involve a physical, sexual relationship between the third-party individual and one of the spouses.
- You don’t have to name the person with whom your spouse has committed adultery. If you name the person, then you must provide them with the application, and they can choose to answer it.
If you want more clarification on this matter, contact our divorce lawyers in Ontario.
5. Prenup and Post-Nuptial Agreements
Adultery in Canada can impact the enforceability and validity of the prenup and post-nuptial agreement. For example, if you have stated how you will deal with the matter of adultery in your prenup agreements, then the agreement outlined will have to be adhered to.
Let’s say you put a clause in your prenup agreement that if your spouse cheats on you, then you will keep the marital property. In that case, this agreement must be followed, and the innocent spouse will keep the specified marital property.
6. Separation Agreements
If you have opted for the enforcement and negotiation of a separation agreement, then you can influence the various terms if adultery is one of the reasons your marriage broke down.
These can include child support, spousal support, property division, etc. You can consider the specific circumstances when reaching a settlement between you and your spouse.
Is it Adultery if you are Separated in Canada?
Even if you are separated but as long as you are married, having a physical relationship with anyone outside your marriage will count as adultery.
The reason for this is that you legally remain married until your divorce has been finalized. You can further clarify by asking the right questions from your separation lawyer to understand any implications of your case.
Can You Sue a Person for Cheating with Your Spouse in Canada?
No, you can’t sue a person in Canada for cheating with your spouse. Adultery in Canada is not a crime, which is why there is no legal recourse for you to sue the third-party involved in an affair with your spouse.
It is better to get a divorce if your spouse is indulging in extra-marital affairs. Our divorce lawyer in Ontario can help you understand how you can deal with a cheating spouse.
How Does Adultery Affect Divorce in Ontario?
In Ontario, adultery has no impact on your divorce and settlement. However, if you base your claim on adultery in Canada, it can be a more expensive way to get a divorce for you.
The cheapest way to get a divorce in Ontario is to talk to your spouse and opt for an uncontested divorce.
If you live in Ontario and your spouse has cheated on you, then you can begin divorce proceedings. Soon, you will receive the divorce as the court sorts matters for you based on your circumstances.
FAQs
Does adultery matter in divorce in Canada?
Adultery in Canada doesn’t matter during a divorce. It will not impact your divorce settlements, and the judges’ decision will be based on your case circumstances and facts.
What to do when husband commits adultery?
We recommend consulting a family lawyer in Ontario when you learn that your husband is committing adultery. An experienced and knowledgeable lawyer can help you sort your options and move forward in the best way possible.
How to prove adultery in Ontario?
You can prove adultery in Ontario by providing evidence to the courts. These can include photographs, text messages, emails, eyewitness testimony and any other proof that will prove sexual intercourse took place between your spouse and another person and that it was voluntary.
Can you sue your spouse for adultery in Canada?
Adultery does not lead to civil liability, which means that you can’t sue your spouse for adultery in Canada. Instead, the best option for you would be to get a divorce and move forward with your life.
Connect with our Family Lawyer in Ontario to Discuss Your Options after Adultery in Canada
Adultery in Canada is emotionally and mentally taxing. In such times, it can be difficult for you to think straight and decide what to do.
If you are going through such tough times, we recommend you get in touch with our family lawyer in Ontario to discuss your options. Athena Narsingh will listen to your marital issues and provide you with knowledge on what you can do.
Author Profile
- Athena Narsingh is a trusted and knowledgeable lawyer in Scarborough. Her expertise spans real estate law, family law, adoptions and fertility law. A lawyer by profession and a humanitarian by heart, Athena Narsingh wants to help people become more familiar with the legal system and be well-informed to make important legal decisions.
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