When facing a contentious family law matter, it can be difficult to understand what factors are relevant to the Court. While often emotionally significant, infidelity (also called adultery) does not always carry the weight that people assume when it comes to divorce proceedings. In this article I outline the legal effects of infidelity in Ontario family law.
Filing for Divorce Based on Infidelity
The biggest significance that infidelity carries in the family law field in Ontario is as one of the three recognized grounds for divorce, the other two being living separate for more than a year and cruelty. To obtain a divorce based on infidelity, the following key legal principles apply:
- Proof is required – Mere suspicion is insufficient. The spouse filing for divorce must provide credible evidence that infidelity occurred.
- A single act is enough – Infidelity does not need to be an ongoing affair; even a single instance is sufficient grounds for divorce.
- Timing matters – The infidelity must have occurred before the divorce application is filed in family law courts in Ontario.
- Definition of adultery – The legal definition requires actual physical sexual relations with someone other than one’s spouse while still legally married to their spouse. Emotional affairs or online infidelity do not meet this standard.
- Naming the third party – While not required, if the third party is named, they must be served with the application and given the opportunity to respond.
Although infidelity can be used to establish a breakdown of the marriage, in practice it is often shunned in favor of the other two methods. Many family law practitioners avoid pursuing divorce on this ground because It requires additional evidence, making it more complex and potentially expensive. A divorce can proceed much more easily based on a one-year separation period, avoiding the need to prove fault, which may take time.
Does Infidelity Affect Decision-Making Responsibility/Parenting Time?
Infidelity has no direct impact on decisions regarding decision-making responsibility (formerly custody) or parenting time (formerly access). On these issues the courts primarily focus on the best interests of the child, and a parent’s extramarital affair is not considered relevant unless it affects their ability to care for the child. However, if a parent’s behavior exposes the child to harm or instability, it would be taken into account under Ontario family law regarding infidelity matters.
Financial Consequences of Infidelity
Contrary to popular belief, infidelity does not impact an individual spousal support obligation. Whether a former spouse has been unfaithful or not, support is determined based on identified factors such as each parties earning capacity, the requesting parties financial need, and the length of the marriage among other factors.
However, in rare cases, reckless financial behavior related to an affair can impact the division of property. For example, in Frick it was determined that the high levels of spending the cheating spouse spent on his affair permitted a claim for an unequal division of net family property. However, this hurdle is a high one, requiring that the claimant establish that the affair depleted the cheating spouse’s net family property to the point of unconscionability.[1]
Key points to keep in mind when considering to bring such a claim include:
- Reckless Financial Decisions – If one spouse has spent a significant amount of marital funds on an extramarital relationship, such as vacations, gifts, or expensive outings, the court may consider this financial depletion when dividing assets.
- Intentional Depletion of Assets – If a spouse has hidden or misused joint funds in the context of an affair, the court may determine that this constitutes a form of economic misconduct that justifies an unequal division of property.
- Impact on Spousal Support – While infidelity itself does not influence spousal support, if one spouse’s extramarital behavior has led to financial losses for the other, the court may take this into account when determining support payments, particularly in Ontario family law infidelity cases.
Key Takeaways on Infidelity and Divorce
Infidelity is legally recognized as a ground for divorce, but proving it requires credible evidence.
Decision-making responsibility and child support are not affected by infidelity unless it impacts a parent’s caregiving ability or exposes the child to harm. Similarly, support and equalization are not influenced by infidelity, except in cases where financial misconduct is involved.
For most divorcing couples, a no-fault approach based on separation is the more practical option. Courts focus on resolution rather than blame, and the impact of infidelity on legal outcomes is often less significant than people expect. Claims involving the reckless depletion of marital assets due to an extramarital affair can be legally complex and challenging to prove. Such claims often involve financial analysis, forensic accounting, and detailed documentation of expenditures, making the legal process time-consuming and contentious. Given these complexities, retaining an experienced family lawyer familiar with infidelity law in Ontario is crucial. A skilled legal professional can help gather the necessary evidence, present a compelling argument, and navigate the legal intricacies to ensure a fair resolution. Without proper legal guidance, pursuing such claims may result in unnecessary delays, increased costs, and an uncertain outcome.
[1] Frick v. Frick (2016 ONSC 359).
Written By Caidan Ubell