Adultery, which refers to a spouse engaging in sexual relations with someone outside the marriage, can be a devastating breach of trust for the other spouse. In Ontario, adultery is grounds for divorce under the Divorce Act. However, does it have any bearing on the outcome of divorce proceedings, including child custody (Decision-making responsibility) and support, spousal support, and property division? In this article, we will explore how adultery affects divorce proceedings in Ontario.
Grounds for Divorce
Adultery is one of the three grounds for divorce under the Divorce Act in Canada, along with cruelty and separation for at least one year. In Ontario, adultery is defined as voluntary sexual intercourse between a spouse and a person who is not their partner.
The spouse who is seeking a divorce on the grounds of adultery must provide evidence to the court that proves their claim, such as eyewitness testimony or photographs. The evidence must show that sexual intercourse occurred, and that it was voluntary.
Property Division
In Ontario, property division is governed by the Family Law Act, which sets out a system for dividing property between spouses in the event of a divorce. The Act requires that all property acquired during the marriage, with some exceptions, be divided equally between the spouses.
Adultery does not affect the equal division of property, but it may be taken into account by the court when deciding how the property is divided. For example, if one spouse spent a significant amount of money on an extramarital affair, that may be considered by the court when dividing property.
Spousal Support
Spousal support is financial assistance paid by one spouse to the other after separation or divorce. In Ontario, spousal support is determined based on a number of factors, including the length of the marriage, the income and assets of each spouse, and the standard of living during the marriage.
Adultery can be considered as a factor when determining spousal support. If the adulterous behavior of one spouse affected the other spouse financially, such as by causing a loss of income or assets, that may be taken into account when deciding on the amount and duration of spousal support.
Child Custody
Child custody (decision-making responsibility) refers to the legal and physical care and control of a child. In Ontario, the court’s primary concern in child custody matters is the best interests of the child. Adultery is generally not a factor in child custody decisions, as long as it does not affect the child’s welfare.
However, if the adulterous behavior of a parent has a negative impact on the child, such as exposing the child to inappropriate behavior or people, it may be taken into account when deciding on custody.
Child Support
Child support is financial assistance paid by one parent to the other for the care and upbringing of a child. In Ontario, child support is determined based on the income of both parents and the number of children involved. Adultery is not a factor in the calculation of child support.
The amount of child support is determined based on the income of the parents, regardless of the reasons for the divorce or the behavior of either spouse.
Impact on the Divorce Process
Adultery can have a significant impact on the divorce process in Ontario, even if it does not directly affect the outcome of the divorce proceedings. The discovery of adultery can cause emotional turmoil for both spouses, which can make negotiations and mediation more difficult.
It may also lead to a breakdown in trust between the spouses, making it more difficult to reach agreements on important issues such as child custody and support, and property division. Adultery can also lead to increased conflict and tension in the divorce process, which can make it more difficult to reach a settlement or may require the case to go to trial.
