A common issue that leads to the breakdown of a marriage is infidelity from a spouse. In Calgary, after the Calgary Stampede, divorce rates spike. The aggrieved spouse focuses on the affair, and understandably so. However, the reality is that the infidelity has virtually no bearing on the issues in the divorce. In a recent decision of Cosentino v. Cosentino the Ontario Superior Court dealt with a matter where the wife was asking for an unequal division of matrimonial property because the husband had an affair.
Her position was that the nature, extent or duration of the extramarital affairs engaged by the husband, for example, leaving evidence of the affair where the wife could find it, allowing multiple women to discover where he lived and on occasion because of this the wife had to speak directly with these women. In the opinion of the wife this was evidence under section 5(6) of the Family Law Act for an unequal division of matrimonial property. Justice C. Perkins who presided over the case dealt with this issue in a 2001 decision of Biant v. Sagoo, a case where the husband had spent significant funds on his mistress for things such as jewelry and travel. In that case Justice Perkins rejected the claim for an unequal division holding that there was no evidence that the husband's expenditures on the mistress materially effected the family in any way. Similarly, in Cosentino, Justice Perkins rejected the claim for unequal division of matrimonial property.
There may be some cases where a flagrant or extravagant spending spree has been conducted by a husband or wife on a third party with whom they are having an affair. The court, in light of the comments of Justice Perkins, will look at if the expenditures had a significant effect on the parties' debts, liabilities, or property. An example of this is the 2001 decision of the Ontario Superior Court in Hutchings v. Hutchings, in that case the court gave an unequal division of matrimonial property where it was determined that the husband was engaged in an affair in which he spent significant family funds in order to travel with his mistress to Europe.
Often times when the issue of an extra-marital affair comes up I end up telling the client "the Court does not care". A harsh but true reality. Canada is a no-fault jurisdiction when it comes to divorce. No-fault divorce is when there is no blame placed on either of the parties for wrongdoing, such as infidelity, during the marriage. Prior to 1968, the only grounds for divorce were adultery and cruelty. However, in 1968 the Divorce Act was amended to permit divorce after one year, with no requirement to prove fault. Effectively three ground for divorce exist in Canada (1) your spouse committed adultery; (2) your spouse was cruel to you (mentally or physically); (3) you and your spouse live "separate and apart" for one year. Although there are fault based options, effectively all you need to do in Canada is live "separate and apart" for one year to get a divorce in Canada. If you choose a fault-based approach the onus is on your to prove the fault. In my experience most cases proceed based on the one-year separation. The grounds of cruelty (mental or physical) or adultery are often difficult to prove and can open a Pandora's box of emotions. The other issue is cost, if you proceed by way of either cruelty or adultery, the legal costs grow exponentially. The accusations of adultery or cruelty are put into an Affidavit then the opposing party will want to test the veracity of the claims in the Affidavit if they are refuting the claims. I can recall a recent Alberta case where a husband had come across a website where he thought his wife was starring in adult films. He alleged adultery in his grounds for divorce. The wife denied the allegation and they proceeded to tangle in litigation that involved court applications, examinations, experts to review the alleged videos etc. All the while they were apart for over two years.
Opponents of no-fault divorce suggest that the introduction of no-fault divorce caused an increase in divorce in Canada. In jurisdictions where there is fault-based divorce, like the United Kingdom, senior jurists are pushing to move to a no-fault system. Leading UK Family Court judge Sir Nicholas Wall recently said in a decision "I am a strong believer in marriage. But I see no argument against no-fault divorce."
In the 1995 decision of Verberg v. Verberg, Justice Veit of the Alberta Court of Queen's Bench opined that a no fault system "...deprives many husbands and wives from asserting their sence of betrayal in one of most important forms of social contract in our society. Whether this is natural or healthy is indeed a useful subject of reflection." 20 years after the Verberg decision the jury is still out on no-fault divorce.
Her position was that the nature, extent or duration of the extramarital affairs engaged by the husband, for example, leaving evidence of the affair where the wife could find it, allowing multiple women to discover where he lived and on occasion because of this the wife had to speak directly with these women. In the opinion of the wife this was evidence under section 5(6) of the Family Law Act for an unequal division of matrimonial property. Justice C. Perkins who presided over the case dealt with this issue in a 2001 decision of Biant v. Sagoo, a case where the husband had spent significant funds on his mistress for things such as jewelry and travel. In that case Justice Perkins rejected the claim for an unequal division holding that there was no evidence that the husband's expenditures on the mistress materially effected the family in any way. Similarly, in Cosentino, Justice Perkins rejected the claim for unequal division of matrimonial property.
There may be some cases where a flagrant or extravagant spending spree has been conducted by a husband or wife on a third party with whom they are having an affair. The court, in light of the comments of Justice Perkins, will look at if the expenditures had a significant effect on the parties' debts, liabilities, or property. An example of this is the 2001 decision of the Ontario Superior Court in Hutchings v. Hutchings, in that case the court gave an unequal division of matrimonial property where it was determined that the husband was engaged in an affair in which he spent significant family funds in order to travel with his mistress to Europe.
Often times when the issue of an extra-marital affair comes up I end up telling the client "the Court does not care". A harsh but true reality. Canada is a no-fault jurisdiction when it comes to divorce. No-fault divorce is when there is no blame placed on either of the parties for wrongdoing, such as infidelity, during the marriage. Prior to 1968, the only grounds for divorce were adultery and cruelty. However, in 1968 the Divorce Act was amended to permit divorce after one year, with no requirement to prove fault. Effectively three ground for divorce exist in Canada (1) your spouse committed adultery; (2) your spouse was cruel to you (mentally or physically); (3) you and your spouse live "separate and apart" for one year. Although there are fault based options, effectively all you need to do in Canada is live "separate and apart" for one year to get a divorce in Canada. If you choose a fault-based approach the onus is on your to prove the fault. In my experience most cases proceed based on the one-year separation. The grounds of cruelty (mental or physical) or adultery are often difficult to prove and can open a Pandora's box of emotions. The other issue is cost, if you proceed by way of either cruelty or adultery, the legal costs grow exponentially. The accusations of adultery or cruelty are put into an Affidavit then the opposing party will want to test the veracity of the claims in the Affidavit if they are refuting the claims. I can recall a recent Alberta case where a husband had come across a website where he thought his wife was starring in adult films. He alleged adultery in his grounds for divorce. The wife denied the allegation and they proceeded to tangle in litigation that involved court applications, examinations, experts to review the alleged videos etc. All the while they were apart for over two years.
Opponents of no-fault divorce suggest that the introduction of no-fault divorce caused an increase in divorce in Canada. In jurisdictions where there is fault-based divorce, like the United Kingdom, senior jurists are pushing to move to a no-fault system. Leading UK Family Court judge Sir Nicholas Wall recently said in a decision "I am a strong believer in marriage. But I see no argument against no-fault divorce."
In the 1995 decision of Verberg v. Verberg, Justice Veit of the Alberta Court of Queen's Bench opined that a no fault system "...deprives many husbands and wives from asserting their sence of betrayal in one of most important forms of social contract in our society. Whether this is natural or healthy is indeed a useful subject of reflection." 20 years after the Verberg decision the jury is still out on no-fault divorce.