Note that answers given in this section cannot take the place of a Toronto divorce lawyer. For legal advice about your specific situation, you must consult a qualified Ontario divorce lawyer. See our disclaimer.

"My spouse has had several affairs; it's one of the reasons we split up. Can I use this against him in the divorce proceedings?"

Conduct is irrelevant in Ontario divorce law, unless it is physical abuse and affects the ability of the other spouse to work. In cases of custody, conduct that affects the physical or emotional well being of the children and/or the ability to parent will be considered. An affair or twenty lovers simply is not relevant unless (in divorce laws, there is always an "unless") with children, if a parent is away constantly, it may affect the parent's ability to parent and therefore their fitness for custody or how much access they are capable of having.

Basically, a slew of lovers simply does not affect support. Adultery and ten cents will literally get you ten cents. The courts are immune to protestations about the spouse's adultery. The only way that would change is in very rare situations where the effect of the adultery -- in effect, the emotional effect on the spouse, plus other circumstances -- may render the spouse unfit to work. This is a situation that has arisen extremely seldom. In 2006, the Supreme Court of Canada dealt with such a case in Leskun v. Leskun in which an older wife approaching sixty years of age -- who already had a good case for support given her role within the family, lengthy absence from the workforce and few marketable skills -- also had a very violent emotional response to her spouse's adultery. This was on top of the fact that she had lost various other family members within a very short period of time before the husband left her for another woman. Her depression as a result of his "betrayal" aided her application for support. The adultery was one facet of a tale of woe which the court took seriously.

This is the same as a wife not being able to work as a reaction to physical battery. Then, too, a divorce court would have to look at her physical and emotional health when considering support. The press made much ado about the Leskun case, but it really is a case based on its own circumstances and does not mean that conduct is now a factor in divorce cases. In the Leskun case, the wife lost five members of her family while her husband was pushing for his divorce; another member of her family had cancer, and her oldest child had MS and faced being wheelchair bound. To add to this, she suffered from permanent back injuries and pain, and her employer had fired her. This is a very particular case, and if you hear about it, you shouldn't take it as meaning that your spouse's adultery will get you anything more than the court would otherwise entitle you to in the divorce.

From a religious and moral standpoint, adultery has significant ramifications, but in divorce law, it does not.

Judith Holzman is a collaboratively trained family lawyer who has practiced for over 25 years in the Toronto and York Region areas of Ontario, Canada. She has participated in amendments to the Family Law Act (provincial) and the Divorce Act (federal) in the area of religious divorce. She can be reached at (905) 303-1070 or (416) 977-3050. View her Divorce Magazine profile.

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