Who Do You Love? Adultery and Your Legal Rights

When love goes out the window, you know who’s to blame. Fixing it may not be as easy. Forget  what you see on The Real Housewives. You can’t sue for alienation of affections in Ontario. 

Writing in mirror with lipstick

No Laws Against Alienation in Ontario 

Some U.S. states allow couples to sue when an “interloper” like a new lover, parent or clergy convinces their partner to leave them. Ontario and Canada have no divorce laws for alienation of affections. It’s simply an outdated idea. 

He Said, She Said

If you were around in 1962, you may remember hearing about Kungl  v Schiefer. Frank and Anna Kungl married in Hungary in 1937 and moved to Canada in 1952, living with her brother-in-law Tony Schiefer and her sister for a year. When her sister died, Frank argued Tony “invaded” his marital and conjugal rights. He asked the court for $76,000 in damages and legal costs for Tony’s affair with Anna. 

The Baby Wasn’t His

Anna, who had three children with Frank, gave birth to a baby girl in January 1957. Six months later, she confessed to Frank that the baby was Tony’s. Frank stayed with Anna for two more years, then took Tony to court. Frank and Anna separated just before the trial.

What About Love?

Since Frank continued to be married to and live with Anna for two years, the Supreme Court of Canada ruled the affair had not deprived him of her “love, services, and society”. Despite her confession, he “enjoyed all the normal marital rights and privileges”, so-called marital consortium. Frank won $5,000 in damages for criminal conversation because Tony talked Anna into the affair. But he lost out on alienation of affections.

Different Country, Different Laws

Canadian law can be very different from the U.S. While some U.S. states still allow alienation of affections lawsuits, Canada’s Supreme Court found domestic matters like alienation of affections and criminal conversation were “outside the law” in 1987. Canada adopted England’s legal system in 1792. But alienation of affections wasn’t included in English law in 1792. That made Canadian law exempt. Too bad Tony didn’t know that in 1962. 

Two hands

Adultery is Not Alienation

Fast forward to today and Frank could divorce Anna for adultery. Canada’s Divorce Act allows couples to sue for divorce if they:

  • live separate and apart for at least one year, or
  • commit adultery, or.
  • suffer physical or mental cruelty.

Cheating on your spouse is grounds for an immediate divorce. But wait a minute, if your spouse consents or forgives you, they may not get a divorce after all.  

10 Signs Your Spouse Cheats

Psychology Today suggests watching for these 10 signs your spouse may be cheating:

  1. They fix their appearance or dress up when going out.
  2. They have a smartphone password or delete their texts.
  3. They are hard to reach.
  4. Your sex life changes.
  5. Your spouse blames or pushes you away.
  6. They work later or travel more.
  7. Mutual friends avoid you or seem awkward.
  8. Money is missing or your bank statement seems odd.
  9. Your spouse is less affectionate. 
  10. They don’t want to talk about it.

Therapist Robert Weiss says “go with your gut”. If you suspect marital infidelity, it could be true.

Good News About Adultery

By the way, the good news is adultery doesn’t affect child custody, child access or visitation rights or spousal support. Even if you’re at fault, Ontario family courts will not take away your legal right to see your children or get child support. You won’t get more support if your spouse cheated on you or automatic custody. That’s decided case by case.

Suing for Divorce in Ontario

Ontario adultery cases are rare because they are expensive and time consuming to prove. Although even once is enough, adultery has to occur before you file for divorce. You don’t have to name your spouse’s lover, but you need exact proof of what happened. Love and affection won’t do — it has to be an actual physical sexual relationship. Be aware, if your spouse’s lover is named in your legal action, they have a right to respond.

Discussing contracts

Investigate Before You Go to Court

By now, if you are getting the idea filing for adultery may not be your best choice, you’re right. Most Ontario divorce attorneys advise spouses not to bother. Although you don’t need photos or tape recordings, you need enough evidence to show adultery was likely. By the time you do all that, your spouse may already have moved out and moved on. By waiting a year, you can file for divorce on the basis of separation. So much easier and less emotionally messy.

Practical, Affordable Divorce Advice for Ontario Families

Axess Law gives you practical divorce advice. We suggest legal strategies you can afford and charge you a flat fee to file for divorce in Ontario family court. Our virtual family lawyers are available by video conference 7 days a week, at times that fit your schedule. Arrange a day or evening appointment by dialing toll-free to 877-522-9377 or in Greater Toronto at 647-479-0118 or using our online booking form. In person appointments with licensed Ontario lawyers are available at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.
Click here to learn more about Axess Law’s family law services.