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The recent hacking of Ashley Madison, a website designed to help married people have affairs, has undoubtedly led to many relationship disruptions as spouses learn that their partners accessed the site.

Finding out that your spouse has had an affair can be life-shattering. You are likely feeling hurt, angry, betrayed and even embarrassed, and if you have decided to end your relationship in light of this discovery, you must deal with rearranging your life while also coping with the emotional consequences of your spouse’s actions. In trying to move forward, you might ask yourself: are there any legal consequences of my spouse’s affair?

Ontario has a no-fault system for divorce and separation, which means that infidelity does not, in and of itself, give rise to any significant legal claims, entitlements or obligations. This also means that a spouse cannot avoid any legal obligations, such as paying spousal support, on the basis that his or her spouse cheated during the relationship. However, you or your spouse’s affair may affect you in one or more of the following ways.

1. Immediate grounds for divorce

If you are married, you can obtain a divorce by proving that there has been a “breakdown of the marriage”. Generally, a breakdown of the marriage is established by showing that you and your spouse have been living separate and apart for at least one year before the commencement of the divorce proceedings. However, one spouse’s adultery will also constitute a breakdown of the marriage; there is no need, under such circumstances, to live separate and apart for at least one year prior to starting divorce proceedings.

However, adultery cannot be used as a ground for divorce where the other spouse has “condoned” this behaviour by continuing the relationship after finding out about the extra-marital affair.

It is also usually more complicated, expensive and time-consuming to obtain a divorce on the basis of adultery rather than simply waiting the one-year period. Given that the basis upon which a divorce is granted doesn’t usually change the support and property outcomes, it is often not practical to seek a divorce based on adultery.

2. Date of separation

For married spouses, the date of separation is important because it becomes the date for valuing each spouse’s assets in order to divide the marital property equally.

In Ontario, the date of separation is the date on which spouses separate without any reasonable prospect of reconciliation. Spouses may disagree on the separation date, and this disagreement might be important if the value of assets have significantly increased or decreased in between the two dates that the spouses are arguing about. If one or both spouses have committed adultery, this may be factually important to show that the cheating spouse(s) intended to end the relationship at or around the time of the acts of adultery. A different separation date could have a huge impact on the value of the equalization payment.

3. Spousal support

In Leskun v Leskun, the Supreme Court of Canada made it clear that a spouse’s misconduct, such as having an affair, is not an appropriate consideration for a court when deciding the issue of spousal support. At the same time, the Supreme Court of Canada held that the consequences of the affair can be an appropriate consideration.

This means, for example, that if you become depressed and unable to work after finding out about your partner’s affair, your partner could be obliged to pay you spousal support. Also, the amount and duration of spousal support owing might be affected because of your resulting depression. However, any spouse seeking to argue that their partner’s infidelity affected his or her ability to earn income will need to provide sufficient evidence to the court, which would likely include medical evidence.

4. Claims in tort for physical or emotional harm

If your spouse contracts a sexually-transmitted disease as a result of an affair and passes this disease along to you, you might be able to claim damages in tort. Even if no STD is transmitted, a wronged spouse may be able to sue for mental distress damages arising from the possibility that she or he has contracted a disease.

As well, in the 2013 decision Leung v Shanks, the Ontario Superior Court left open the possibility that a person could successfully sue the person with whom his or her spouse was having an affair for mental distress damages, if that person knew that the cheating spouse was indeed in a relationship.

5. Unequal division of property

Upon the breakdown of a marriage, the net value of all assets accumulated during the marriage is generally divided equally among the two spouses. This is referred to as an “equalization of net family property”.

However, the Family Law Act allows courts to order an unequal division of family property if an equal division would be unconscionable. If your spouse has spent significant amounts of money on gifts, travel, website membership fees (such as Ashley Madison) or other expenses related to his or her affair, this may entitle you to more than half of the family property.

6. Whether a marriage/cohabitation agreement should be set aside

Generally, a spouse who is having an affair at the time of negotiating or executing a marriage or cohabitation agreement is not required to disclose this fact. However, in the 2012 decision Stevens v Stevens, the Ontario Superior Court of Justice found that there may be some instances in which the failure to disclose an ongoing affair might be grounds for setting aside a marriage or cohabitation agreement, such as where that agreement is being negotiated in circumstances where spouses are attempting to reconcile.

Discovering infidelity will undoubtedly lead to very serious emotional and life consequences for you and your family. Legal consequences are only one part of this. But one of the first steps you should take is to speak to a family law lawyer about these legal issues in the event that you do choose to separate.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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