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In Canada, the breakdown of a marriage as a basis for divorce can be established in 3 different ways according to the Divorce Act. First, it can be proven by establishing that the spouses have lived separate and apart for one year. Second, if one spouse has committed adultery. Third, if physical or mental cruelty took place during the relationship and can be proven. Regardless of the grounds for divorce, a divorce is only final when a judge grants you a divorce order.

This article looks at what adultery is and how it is determined in divorce proceedings. It is not intended to act as legal advice but instead intended to be a general overview on a legal topic.

What is adultery? 

Adultery is when one spouse in the marriage has conducted an affair that the other spouse does not approve of or tolerate. For the purposes of filing for divorce, it is important to note that suspicion of adultery is not enough to prove that adultery did take place. There must have been some form of physical or sexual relationship between one of the spouses and someone else. Unfortunately, the Divorce Act does not consider phone sex or online cheating as a form of adultery given that it takes place from a distance.

However, there may be some exceptions to this under certain circumstances. We recommend you consult with a divorce lawyer if your spouse or partner has committed adultery and if you wish to protect your rights in your upcoming separation or divorce. Alternatively, if you have committed adultery on your spouse – we also recommend you consult with a divorce lawyer for legal assistance. 

Proving adultery through evidence

In Ontario, there is no prerequisite that requires a spouse gets caught in the act or that photos or videos of the affair should be provided to establish that adultery took place. On the contrary, in order to prove that adultery took place, the court must be satisfied on a preponderance of credible evidence that adultery has taken place. For example, if the facts of the case lead to a reasonable conclusion that adultery has indeed taken place – then that is enough to assume that adultery took place. 

In more recent years, the concept of adultery has also been expanded by the courts to encompass same-sex relationships. 

What if adultery only took place once? 

For the most part, it does not matter how long the affair was being conducted for. Even if it occurred only once, it can be enough to use the incident as a grounds for divorce. Also, adultery must have occurred before the divorce application gets filed. Every couple is different, where some may seek to forgive their spouse if adultery took place, others may choose not to forgive. How you respond to the adultery is a personal choice and there is no legal requirement that you must divorce or separate from your spouse if adultery took place. 

Whether your divorce is a contested divorce or an uncontested divorce – it can be an emotionally charged experience. When you throw adultery into the mix, a divorce proceeding may become a highly contentious divorce proceeding. For this reason, we recommend you hire a divorce lawyer if you need representation in a divorce proceeding that deals with adultery as the grounds for divorce.

At Gelman & Associates – we have been helping individuals in Ontario with their divorces for over 20 years. While our main office is located in North York – we also have  offices, by appointment only, in downtown Toronto, Aurora, Grimsby, Barrie, Mississauga, Scarborough and Whitby. Secure your family’s financial future in as little as ten minutes by scheduling a consultation with a member of our legal team. 

You can book your consultation by filling out our contact form here or by calling our office at 416-736-0200.

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