In Ontario as elsewhere in Canada , the laws relating to divorce based on adultery are governed by the federal Divorce Act which provides 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.
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Adultery, then, is one of the established grounds for divorce in Canada. But the questions often arise as to whether the duration, extent or nature of the adultery matters when it comes to the right to obtain a divorce. Provided that it can be proven that adultery has been committed by one of the spouses, the other spouse can ask for a divorce. However, it should be noted that the adultery must have occurred before the petition for divorce is brought. What if the extramarital sex occurred only a single time? What if the spouse is remorseful?
A single act of adultery is a sufficient basis on which to bring a divorce action. And technically speaking, as long as the adultery was committed by one of the spouses, the other spouse has legal grounds under the Divorce Act to proceed with a petition. Whether or not the spouse actually wants to do so, in light of prospects of forgiveness and reconciliation, is a personal decision.
Do you need clear proof of an affair? Is it enough to suspect that something is going on? In order to prove adultery, there is no prerequisite that the other spouse gets "caught in the act," or that there be photos or other physical evidence of the affair. Instead, as with all civil actions, a court must be satisfied on a "preponderance" of credible evidence that adultery has taken place.
For example see Nelles v. This can take place by inference, that is, where the facts and circumstances lead to the reasonable conclusion that adultery has indeed taken place. However, a mere suspicion of adultery is not enough, nor is evidence that the other spouse had the opportunity to cheat see Doucette v. Also, there is no requirement that the party with whom the adultery is taking place must be named or identified. In order to qualify as "adultery," there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage.
Finally, it is the spouse who wants to bring the divorce action who must bring forward the convincing evidence that adultery actually took place. There is nothing unusual about the type of evidence required; however, the evidence will be considered sufficient if the adulterous spouse admits to the affair see for example d'Entremont v.
What if the husband had an affair with another man? Or the wife cheats with another woman?
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