Marriages end for many different reasons. Adultery (marital infidelity, sometimes called cheating or an extramarital affair) is one of the most emotionally charged. This raises an important question: does adultery have any impact on a divorce case?
In this article, our Ottawa divorce lawyer explains how adultery does, or does not, have an impact on a divorce in Canada.
Adultery in the Federal Divorce Act
For family law purposes, adultery has a specific legal meaning: it requires a voluntary sexual relationship between a married person and someone other than their spouse.
Under the federal Divorce Act, a divorce can be granted based on one of three things:
- Adultery
- Cruelty (physical or mental cruelty of such a kind that it makes continued cohabitation intolerable)
- Having lived separate and apart for at least one year
The vast majority of divorces in Canada are granted based on the parties simply having been separated for at least a year, since proving fault, whether adultery or cruelty, adds cost and delay that most people would rather avoid. This is the central fact anyone researching adultery in Canada needs to understand before deciding how to proceed.
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How Marital Infidelity Can Affect a Divorce in Canada
Adultery can affect a divorce in a few specific ways under Canadian family law.
1. Adultery Can Change the Ground for Divorce
Under the Divorce Act, adultery is one of the recognized grounds for divorce in Canada. In theory, this means a spouse can seek a divorce without waiting for the usual one-year separation period, provided the adultery can be legally established.
That said, this only changes the ground for divorce. It does not, by itself, improve a spouse’s position on financial or parenting issues.
2. Adultery Can Change the Evidence You Need
If a spouse relies on adultery as the basis for divorce, they must still be able to prove it or obtain an admission. That can make the case more document-heavy, more emotionally charged, and more expensive than a standard divorce based on one year of separation.
What usually counts as evidence:
- a clear admission by the spouse who committed adultery
- an affidavit or sworn statement
- sometimes an admission from the other person involved
- strong circumstantial evidence that makes adultery the reasonable conclusion, such as messages, emails, photos, or other evidence showing more than mere suspicion
What usually does not count on its own is:
- suspicion
- rumours
- a dating profile
- emotional infidelity by itself
- proof that someone was merely spending time with another person
The key distinction is that courts are looking for evidence of actual adultery, not just inappropriate behaviour or emotional betrayal.
3. Adultery Can Increase Conflict, Cost, and Delay
In many divorce files, raising adultery formally does not simplify the process. It often does the opposite. Alleging marital infidelity can increase hostility between spouses, make settlement harder, and create additional factual disputes that would not otherwise need to be litigated.
For that reason, many Ottawa divorce lawyers recommend focusing on the more efficient one-year separation ground unless there is a specific legal reason to proceed on adultery instead.
4. Adultery Can Matter Indirectly Where the Facts Connect to Another Legal Issue
Adultery by itself is usually irrelevant to the major family law outcomes. But the surrounding facts can still matter if they connect to a legally relevant issue. For example, if proving adultery requires spending shared funds, involving a third party in the litigation, or escalating an already high-conflict case, that can affect how the divorce unfolds in real life even if it does not change the underlying law.
The key distinction is: the affair itself usually does not decide the case, but the way it is raised and the facts surrounding it can affect the process.
Adultery Has No Legal Impact on These Key Divorce Issues
Adultery will likely have no direct impact on any material family law issues that are generally at stake in a divorce case.
1. Property Division
When it comes to dividing property, Canadian courts do not consider adultery itself. In Ontario, the division of marital assets is governed by the Family Law Act, and how exactly the marital property of a divorcing couple gets split depends entirely on the specific circumstances of the case, not on who was unfaithful. An Ottawa property division lawyer can walk you through how the equalization of net family property actually works.
Our guide to net family property calculations in Ontario explains the math step by step.
Dissipation: One Key Exception
There is one narrow, genuine exception worth knowing about: dissipation. If marital funds were spent specifically on:
- the affair itself
- expensive gifts
- trips
- or hotels
that spending can sometimes be factored back into the equalization calculation.
The court isn’t punishing the affair morally; it’s simply recognizing that money spent this way reduced what should otherwise have been shared family property. This is different from saying adultery itself changes property rights, and it requires clear financial records to establish.
Our guide on protecting your assets during a divorce covers related steps worth taking if you’re concerned about this kind of spending.
2. Spousal Support
Adultery does not impact spousal support in Canada. Instead, the court looks at factors like:
- each spouse’s financial need
- their roles during the marriage
- and how long they were married
A spouse who committed adultery could still be entitled to spousal support, and a spouse who committed an act of adultery will not automatically be required to pay it.
The court treats marriage as an economic partnership, not a moral one. This framing means spousal support exists to address real financial imbalances created during the relationship. For example, one spouse stepping back from a career to raise children, or one spouse supporting the other through school.
3. Child Custody
Ontario uses the best interests of the child standard for parenting decisions, including parenting time and child custody. A parent’s moral conduct, in the narrow context of an act of adultery alone, typically does not play a role in how parenting time gets decided.
The one exception is if the act of infidelity occurred in a manner that put the child at risk, for example, leaving a young child home alone unsupervised to meet someone. In that situation, the act is directly tied to parental responsibility and could genuinely be held against a parent in a custody dispute, not because of the affair itself but because of the neglect involved.
4. Child Support
Child support decisions are made based on the parents’ income and the number of children under Canada’s child support guidelines. Adultery does not affect these calculations at all; the goal is simply to ensure the children’s financial needs are met consistently, regardless of why the marriage ended.
Find Out How This Affects Your Specific Case
Every situation has its own details that can change the analysis. A quick conversation can tell you where you actually stand.
How to Navigate a Divorce in Canada: Focus on the Future
If adultery contributed to the end of a marriage, the parties still need to work through their issues. That being said, the legal divorce process itself is focused on the future and on material family law issues, not on assigning blame for why the marriage broke down. Adultery can change the ground for divorce; it does not change the financial or parenting result.
As the law does not blame either party for the breakdown of the marriage, it is far more productive and far more effective to focus on practical issues. Among other things, you will need to consider how to:
- split property fairly
- ensure financial support for the spouse who needs it
- and make the best arrangements for your children
If a divorce becomes contested for reasons unrelated to the ground itself, such as disagreement over parenting or property, that’s a separate process from proving adultery and usually the more relevant concern.
Do not go it alone: a trusted Ottawa divorce lawyer can review your case, help you understand your rights and responsibilities, and guide you through the legal process.
Contact Our Ottawa Divorce Lawyer for a Confidential Consultation
At RPB Family Law, our Ottawa divorce lawyers are devoted to providing personalized, future-focused advocacy to clients facing adultery, infidelity, or any other divorce concern in Ontario. Contact us to set up a completely confidential, initial case review. From our Ottawa law office, we provide contested and uncontested divorce representation throughout Ontario, Canada.
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Adultery and Divorce: Frequently Askede Questions
Is adultery a crime in Canada?
No. Adultery has not been a criminal offence in Canada for many decades, and it is not a crime under the Criminal Code. While it may influence the personal dynamics of a marriage, it does not expose either spouse to criminal penalties.
Family law and criminal law are entirely separate systems in Canada, and this separation reflects a deliberate policy choice. Canadian divorce proceedings focus on fairness and resolving practical issues, like parenting, property, and support, rather than functioning as a system for punishing personal misconduct within a relationship.
Can I get a faster divorce by proving adultery?
Sometimes, but it’s rarely worth it. Proving adultery as a ground for divorce can let you skip the standard one-year separation wait, but the spouse alleging it must provide sufficient evidence, and the process of proving it often takes just as long, or longer, than simply waiting out the year.
Most family lawyers advise against relying on adultery as a ground unless there’s a specific, pressing reason to avoid the separation period, since the cost, conflict, and emotional toll involved usually outweighs the benefit.
Does it matter who my spouse had the affair with?
Generally, no. You do not need to identify or name the person your spouse had an affair with to rely on adultery as a ground for divorce, and naming them typically only adds complexity to the proceedings without changing the outcome. The court’s focus stays on whether adultery occurred and whether the legal threshold was met, not on the details of who was involved.
If you do choose to name the third party, they must be formally served with the application and have the option to respond, which is one more reason most family lawyers advise against naming them in an adultery-based divorce unless there’s a specific strategic reason to do so.
This page is provided for general informational purposes only and does not constitute legal advice. Reading this content does not create a lawyer-client relationship with RPB Family Law. The impact of adultery on divorce in Canada depends on the specific facts of each case, including the ground relied on for divorce, the available evidence, any related financial misconduct, and whether separate issues involving parenting, support, or property are also in dispute. Because divorce strategy and the legal significance of adultery can vary from one situation to another, you should speak with a qualified Ontario family lawyer for advice about your particular circumstances.
