“He is a lying, cheating, blankity blank and I can prove it!”  I sometimes hear this type of statement (blanks usually filled in) with the client sitting across from me and looking at me expectantly … almost as if waiting for me to put my feet up on my desk and declare, “Well, that’s it then: case closed!!”.  While it would be strangely satisfying to be able to resolve a matter with that degree of simplicity, in reality, it just doesn’t work that way.

Before I say more, lest I become labeled as a sexist who likes making generalizations about the promiscuity of men everywhere, I should point out that the lying, cheating, blankity blank could just as easily be a “she” as opposed to a “he” .  There must be statistics on that somewhere but I’ll leave it to those who are interested to ferret that data out for themselves.

Adultery is one of the three grounds for getting a divorce in Canada; along with, cruelty and living separate and apart from one another for at least one year.  I think it’s pretty safe to say, however, that seeking a divorce on the grounds of either adultery or cruelty is the exception to the norm.  Most divorces are sought on the grounds of separation because you don’t have to prove anything and you can just wait it out for a year before filing the required paperwork.  The only plus from proceeding on the basis of your spouse’s adultery is that, if you can prove it, you may be able to get a divorce order more quickly.  The catch is that you actually have to prove, on a balance of probabilities, that your spouse has had an intimate sexual relationship with somebody outside of the marriage.  You also have to satisfy the court that there has been no collusion between you and your spouse regarding the infidelity: you and your spouse cannot just agree to fabricate evidence of adultery in order to get a quick divorce.   In most cases, it is simply easier to wait for a year and obtain your divorce based on the passage of time.

With respect to the issue of child support, a support payor will be required to pay support in accordance with his or her income and the Child Support Guidelines.  Whether that person has cheated on his spouse or not is irrelevant to the amount of child support he or she will be required to pay.

With respect to making an order for spousal support, according to both our federal and provincial legislation, the court is not supposed to take into consideration any misconduct of the spouse in relation to the marriage.   The Supreme Court of Canada confirmed in Leskun v. Leskun that “the attempt to get to the bottom of all the rights and wrongs that contributed to the break-up is likely impossible and in any event irrelevant to the task of sorting out the financial consequences”.  By the same token, you are not going to acquire a more significant property settlement based on your spouse’s infidelity.  The value of the property acquired during the marriage will, except in the rarest of circumstances, be equalized by the court in the event of a breakdown of the marriage.

Even when it comes to the issue of custody of or access to a child, the legislation specifically states that a person’s past conduct shall be considered only when the conduct has been violent or abusive or when the court is satisfied that the conduct is relevant to the person’s ability to act as a parent.  In the eyes of the court, committing adultery does not, in and of itself, prevent an individual from parenting a child.

The bottom line is that, while learning that your spouse has been unfaithful will almost inevitably cause a great deal of emotional trauma and while the thought of “making him or her pay” may seem very appealing,  the courts are not going to be particularly interested in the adultery unless it is somehow relevant to an issue at hand.  In most cases, adultery simply is not relevant.