Adultery is a ground for Divorce pursuant to the Divorce Act, section 8. However, Adultery is rarely used as a ground for Divorce and is rarely successful in Canadian jurisprudence. Adultery may be challenging to prove, it is a costly process, and it can be emotionally draining for the parties. The most common ground for Divorce in Canada is separation, defined as living separate and apart for at least one year.
The non-adulterous spouse has the onus of proving the Adultery, and he/she is able to apply for the Divorce, but the adulterous spouse would not be able to apply for a Divorce based on his/her own Adultery. In Canada, Adultery has expanded its definition to include any extra-marital affairs between same sexes. With the advent of technology, it is important to note that simply phone sex or texting sexually charged messages from a spouse to a third party are not defined as Adultery. Adultery must include a physical sexual relationship between a third party and one of the spouses.
The Canadian courts do not take adultery into account when dealing with property division or awarding support. Adultery may be taken into account when courts are deciding custody and parenting time issues and how such behaviour affects a spouse’s ability to parent a child.