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

Yes. There are several ways to incorporate your spouse's infidelity in the divorce proceedings.

You can rely on your spouse's adultery as evidence proving the breakdown of your marriage. The advantage to claiming adultery is that, if your spouse does not contest the divorce proceedings and acknowledges that he has committed adultery, you can obtain a divorce immediately rather than waiting for a year's separation.

In addition, some lawyers reference a spouse's adultery in an Application or Answer to paint a picture for the court of that spouse's character. Character may be relevant to credibility and to custody and access issues.

Lastly, in 2006 the Supreme Court of Canada faced the question of whether a husband's affair could be taken into account in determining the wife's entitlement to spousal support in the face of section 15.2(2) of the Divorce Act. Section 15.2(2) provides that, in making an interim or final order for spousal support, "the court shall not take into consideration any misconduct of a spouse in relation to the marriage."

The Supreme Court of Canada determined that fault-blaming is irrelevant to the issue of spousal support. However, it acknowledged there is a distinction between the emotional consequences of misconduct and the misconduct itself. The Court explained that if a spouse's adultery triggered a depression in the other spouse so serious as to make him or her unemployable, this would be a factor in divorce law, and therefore could be taken into account in determining the right to spousal support and its amount and duration. Therefore, it's not whether your husband repeatedly cheated on you that matters, but whether his infidelity caused you to suffer emotionally to such a degree that your ability to work has been affected.

Michelle Roy is a Toronto divorce lawyer and a junior associate practicing family law exclusively with law firm Berman Barristers..

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