Does an Internet Affair Constitute “Adultery”?

Under the Canadian Divorce Act, spouses can get divorced if there has been a “breakdown of the marriage”, which is defined as including several scenarios.  Amongst these is the situation where one spouse has committed adultery during the course of the marriage.

But in this day and age of emails, texting, webcams and Facebook, an interesting question arises:  Does an internet-based affair amount to “adultery” for the purposes of a divorce in Canada?

So far, there do not appear to be any court cases in Canada that directly answer this question.

In one B.C. case, however, the court confirmed that “adultery” for purposes of divorce can include a husband having a same-sex affair with another outside his marriage to a woman.  (In contrast, in the U.K., it has been established that if the adultery is committed with a partner of the same sex, then it does not amount to “adultery” but rather “unreasonable behavior” that can form the basis of a divorce on other grounds.)   The court observed that “[i]ntimate sexual activity outside of marriage may represent a violation of the marital bond…” 

This suggests that Canadian courts might be willing to broaden the traditional interpretation if the need arises in the appropriate context.  Whether this can potentially extend to online encounters – such as cyber-sex, text-based sexual exchanges, or a virtual email affair – still remains to be seen.

Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation relating to the steps and processes involved in separating and getting divorced in Ontario.   Contact us to set up a free consultation.

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