In Ontario (and in other provinces as well), the federal Divorce Act governs the grounds on which a married couple can obtain a divorce. That Act specifies that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.”
In plain language, this means that adultery is one of the established grounds for divorce in Canada. However, there are relatively few guidelines in connection with adultery (unlike the “separation” ground, which requires a minimum one-year separation period). There is no minimum duration of an affair, and no stipulations as to the nature or extent of the adultery for the purposes of obtaining a divorce. The adultery can have occurred on a single occasion; the perpetrating spouse can show remorse. But as long as adultery has been committed by one of the spouses, the other spouse can ask for a divorce. (And note that a spouse cannot apply for a divorce based on his or her own adultery).
In order to prove adultery for the purposes of a court-ordered divorce, the spouse making the application must be satisfied on a “preponderance” of credible evidence that adultery has taken place. There is no need to catch the cheating spouse “in the act”; on the other hand mere suspicion that there has been adultery is not sufficient. Cheating with a same-sex person still qualifies for these purposes, but “phone sex” or other forms of sexually activity that is performed from a distance is not. Rather, there must be an actual, physical relationship between the spouse and a third party to constitute adultery under the Divorce Act. Finally, the person with whom the cheating spouse is having an affair need not be specifically named in the divorce application.
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