How Does Adultery Affect Divorce in Canada? | Is It a Crime?

Divorce is a legally binding process, but it’s also extremely personal. Many marriages end when one partner discovers that their spouse has extramarital affairs. The divorce process is difficult enough. And, it’s even more difficult with the aspect of infidelity.

If your spouse has betrayed you, you are likely to think—how does adultery affect divorce in Canada?

Is Adultery a Crime in Canada?

Note that—adultery itself is not a crime. So, the consequence is rather social. But having an affair will affect your divorce in some ways, if not entirely.

How Does Adultery Affect Divorce in Canada?

The federal Divorce Act in Canada sets out the rules for divorce. The “breakdown of marriage” is the only basis for divorce. And it can be established in one of three ways:

1. One year has passed since the separation.
2. Either the spouse who is the subject of the divorce petition has been unfaithful or
3. The other spouse has been subjected to physical or mental abuse at the hands of the spouse against whom you seek the divorce.

You can see that the second ground is about adultery. Therefore, it will influence spousal support and property settlement. On the other hand, some aspects will stay unaffected. Keep reading to know more about those.

Adultery as a Ground for Divorce

When one of the partners has an affair that the other partner does not support, it is considered adultery.

Note that a judge may assume that the spouse accused of adultery committed did not respond to the allegations and/or does not contest the accuser. This is because the spouse did not state otherwise.

However, suppose the spouse who is accused of adultery denies the allegation. In that case, the other spouse will have to prove this ground to the court to obtain a divorce Order.

Adultery Law in Canada

For sure, adultery is a legally recognized basis for divorce. But divorce attorneys rarely use it as a defence. Because—the burden of proof for adultery lies with the moving party.

Although catching one’s spouse in the act or even providing photographic or video evidence of the affair is not required. Overall, proving it can be a difficult task that is frequently not worth the time or money.

Wondering how long it takes to prove adultery? Practically speaking, it frequently takes longer than a year for the courts to rule on the ground of adultery.

Is Adultery a Crime in Canada?

In Canada, adultery is not a crime. Adultery is defined as having intercourse with someone who is not your husband while you are married. While this can have legal repercussions in some situations (like during divorce procedures), adultery is not a crime. In Canada, the federal government is in charge of criminal law, and adultery is not a crime under any federal legislation.

The Scenario of a Divorce Involving Adultery

Look at the following 4 points. I have considered essential aspects of divorce that will or won’t be impacted by the cause of separation.

Impact on the settlement

You should have no trouble understanding this point. You know that adultery can be grounds for filing a divorce but not a crime.

That’s why—adultery, desertion, or cheating has nothing to do with the terms of a divorce settlement. Considering that, the same amount of money for alimony is guaranteed for every divorce reason.

Spousal support and other expenses

Adultery will not affect your eligibility for spousal support. For instance, you won’t be getting more money if you were the one who got cheated on. Similarly, if you cheated on your spouse, you won’t have to give them more spousal support as a result of it.

In addition, if your partner is a cheater, he can do many things that involve various expenses. For this reason, he or she could expense irrationally.

That irrational expenses will be added with the amount of alimony. In this case, you need to mention this to your lawyer at the beginning.

Child custody

Under Canadian law, when determining custody or visitation, a parent’s past behaviour is irrelevant. A history of violence may have an impact on child custody. However, adultery will not.

Additionally, this implies that the child custody arrangement and the amount of child support will remain the same regardless of what your partner does. That means both parents will have the same visitation rights.

Property settlement

I have mentioned earlier—cheating does not affect the divorce settlement. Well, it has an impact on the division of assets and income.

Here, the motive is that the cheater’s spouse might use it as leverage to maintain their standard of living.

Five Facts About Adultery

Adultery is exactly what most people would expect it to be in terms of a marriage-breaking context. And there are some subtle factors worth noting from a Canadian legal perspective. These rules are primarily based on cases that have been decided over time.

Let’s take a look at the top five facts below.

1. Intimate sexual activity outside of marriage (regardless of the specific nature of the sexual act) may constitute adultery and devastate the spouse and the marital bond.
2. To obtain a divorce in Canada, a single sexual act may constitute “adultery.”
3. Adultery involves same-sex affairs as well.
4. For Divorce Act purposes, an affidavit admitting adultery with an unnamed party is enough.
5. Adultery may be tolerated under some circumstances. For instance, if a partner returns to an unfaithful partner who has cheated on them out of love and a desire to save the marriage, that partner may not be able to file for divorce based on the earlier adultery. In this case, the innocent spouse might be deemed to have approved the affair for the divorce.

7 Factors to Consider When Filing for Divorce Based on Adultery

1. To establish the claim, the courts will need proof.
2. Adultery is not proven by mere suspicion.
3. To file for divorce on this ground, at least one instance of adultery is necessary.
4. It makes no difference how long the relationship lasted.
5. Before filing for divorce, there must have been adultery.
6. There must be an actual physical relationship between one of the spouses and another person for there to be “adultery” in the situation.
7. Identifying or involving the person who had an extramarital affair with the spouse is unnecessary. However, if this person is identified, the application must be given to them, and the applicant is free to respond.

Final Remarks

There are some misconceptions among people concerning how adultery affects divorce in Canada. Though adultery can be a ground for divorce, it will not affect spousal support, property division, child custody, or visitation rights.

Note that the amount of spousal support (contrary to what some people believe) won’t double up because of a partner’s infidelity. However, it’s better to ask or hire a family lawyer if you are confused about anything or need more information.