A common misconception is that an unfaithful spouse is suddenly disentitled to many, if not all, of their legal rights upon marriage breakdown. For the most part, adultery does not have an impact on financial awards except in exceptional circumstances.
Financial claims may take the form of equalization (i.e. property division), spousal support and child support. While child support is the right of the child and certainly not affected by either spouse having an extramarital affair, equalization and spousal support is not as clear cut.
In relation to spousal support orders, subsection 15.2 (5) of the Divorce Act states, [i]n making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
On its face, this provision suggests that previous behaviour, including extramarital affairs, are not at all relevant. However, the Supreme Court stated in Leskun v Leskun, 2006 SCC 25 that the court could look at the consequences of misconduct:
If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount.
The comments of the Court of Appeal case that preceded the Supreme Court case adds additional insight:
Not without hesitation, I have concluded that subsection (5) does not prevent us from considering, when an issue arises under subparagraph (6) concerning the failure of a spouse to achieve economic self-sufficiency, a failure resulting at least in part from the emotional devastation of misconduct by the other spouse.
Putting these cases together, the court is saying that when a recipient of spousal support is arguing they cannot become economically self-sufficient because of their partner’s extramarital affair, a court may consider their emotional devastation in deciding whether they truly cannot become economically self-sufficient. Thus, emotional devastation, arising from an extramarital affair, can be a relevant consideration if the “victim” spouse is alleging they cannot work. However, this is likely reserved for exceptional cases.
Additionally, subsection 33(10) of the Family Law Act reads:
The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship
According to the Family Law Act, entitlement to spousal support is not affected by a spouse’s misconduct. However, the amount of spousal support can be altered to reflect unconscionable conduct. The court elaborated on this provision in Rudky v. Kaybaki, 2015 ONSC 6431:
It is clear from s. 33(10) of the Family Law Act, that the obligation to provide support for a spouse exists without regard to the conduct of either spouse. However, the court may, in determining the amount of support, have regard to unconscionable conduct if it constitutes an obvious and gross repudiation of the relationship. The course of conduct must be exceptionally bad: Menegaldo v. Menegaldo, 2012 ONSC 2915 (Ont. S.C.J.), at para. 63, citing Morey v. Morey (1978), 8 R.F.L. (2d) 31 (Ont. Prov. Ct.).
The list of considerations was laid out in the 1978 case of Morey v Morey, 24 OR (2d) 124:
I. The conduct must be exceptionally bad.
II. The conduct must be such as could reasonably be expected to destroy the marriage.
III. The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse. (The black and white test from Harnett.)
IV. The commission of a so-called matrimonial offence is not necessarily sufficient by any means.
V. The party raising the issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test in s. 18(6) can be satisfied while acknowledging the risks of punitive costs if the court finds on the whole of the evidence that the issue is frivolous.
VI. The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the court can make a preliminary ruling based on the likelihood of the test's being met.
Bruni v Bruni, 2010 ONSC 6568, is perhaps the most notorious case on the matter. Here, the wife practically ruined the father’s relationship with his daughter. The court found that because of this conduct, the wife should only be entitled to one dollar of spousal support:
Dollars cannot replace the father-daughter relationship that C has destroyed. However, in the circumstances of this case, justice has only a Hobson's choice. C’s alienation of T and L must be condemned and, an effective method of expressing that condemnation, is by way of a reduction in spousal support…Accordingly, the spousal support to which C would otherwise be entitled shall be reduced to one dollar monthly.
This is clearly not a case of an extramarital affair. In an Ontario family case from 1978, Belanger v Belanger, 1 FLRAC 244, the court stated that an extramarital affair is not enough to invoke this provision:
With respect to support for the wife, Mr. Kort asks that I characterize her conduct with Mr. LeBlanc and Mr. Barclay as conduct referred to in s. 18(6) of The Family Law Reform Act, 1978. In my view, s. 18(6) is not applicable. The conduct involves no more than adultery and cannot be characterized as conduct that is so unconscionable as to constitute an obvious gross repudiation of the relationship.
Currently, there is little case law suggesting that adultery invokes section 33(10) of the Family Law Act. In G v B-G, [2007] WDFL 4681, the husband’s conduct crossed the threshold because he was charged with assaulting a minor which led to the marriage breakdown as well as the wife being solely responsible for looking after their disabled child:
The marriage breakdown occurred when the husband was charged under the Criminal Code Section 151 and Section 152 that is inappropriate sexual behaviour with minors under the age of 14.
The applicant is asking for spousal support retroactive to the date of his application in 2005. There are a number of very good reasons why the applicant claim should be denied. Pursuant to the provisions of section 33(10) of the Family Law Act, I have no hesitation in concluding that the husband's conduct satisfies the criteria set out in that section, see the case of B. (S.) v. B. (L.) (1999), 2 R.F.L. (5th) 32 (Ont. S.C.J.).
Since the separation in 2004, the husband has not made a reasonable effort to be gainfully employed. Given his experience in managerial competence, it is obvious that the husband can be employed if he makes any effort as demonstrated with his initiative to work at Burger King. A review of the husband's financial statement does not demonstrate a need for spousal support. Finally, given the husband's conduct and irresponsible behaviour which places the full burden of child-raising with the applicant, it would be cynical in the extreme to order the applicant to pay spousal support to the respondent.
Accordingly, the applicant's request for spousal support is denied.
There is little evidence to suggest spousal support will be drastically reduced because of an extramarital affair, as was the case in the custody case of Bruni v Bruni.
While these previous cases dealt with spousal support, section 5(6) of the Family Law Act allows for an unequal division of property in unconscionable circumstances. The question becomes whether adultery can invoke this section. In Brown v Brown, 2015 ONSC 7968, the husband committed adultery and the court stated:
Having regard for the exceptionally high unconscionability threshold under s. 5(6) of the FLA, on the evidence before me, I am unable to conclude that Mr. Brown's conduct crosses it to then support an unequal division of the property in favour of Ms. Brown. To begin with, in coming to this conclusion it is important to note that for the purposes of an unequal equalization payment, Mr. Brown's conduct cannot be considered in the abstract but rather in relation to the impact of that conduct on his financial position
This case is clearly contrasted with the 2001 decision of Hutchings v Hutchings, 20 RFL (5th) 83 (Ont SCJ), where the court found that the money the husband used during and for the purposes of his affair amounted to unconscionable conduct that warranted a credit in equalization:
The third issue is whether there has been an intentional or reckless depletion of the net family property by the husband pursuant to the Family Law Act, s. 5(6)(d). On the evidence I do find a case for an unequal division made out by the wife. I note the case law requirements that unconscionable or shocking conduct is required, that there be something more than an unequal division on the basis of what is fair and reasonable. Heal v. Heal (1998), 43 R.F.L. (4th) 88 (Ont. Gen. Div.); Berdette v. Berdette (1991), 3 O.R. (3d) 513 (Ont. C.A.) at 525-526. I find accordingly that the money spent by the husband on Donna Durnford during the European and Quebec trips, set out in Exhibit 14 at Tab 3 of $4,300.00 and $1,600.00 respectively is unconscionable and the wife will receive an unequal credit [$4,300.00 + (1,600 ÷ 2)] of $5,100.00.
Thus, an affair can be relevant insofar as it relates to the adulterer using family funds for the purposes of their affair. In these cases, it appears that courts may be willing to acknowledge this money spent and essentially make the cheating spouse pay this money to the “victim” spouse in equalization. However, it is unclear how a court would treat this type of situation today, over 20 years later.
Obvious takeaways? Seldom does an affair have any financial “penalties” in family law. Case law demonstrates that the consequences flowing from an affair can be relevant in deciding spousal support. For instance, if a spouse is emotionally devastated from the affair and cannot work, this may be relevant in deciding whether that spouse will continue to get spousal support. Theoretically, conduct that is so unconscionable may be able to reduce the amount of spousal support but there are no relevant cases in the context of extramarital affairs. Finally, extramarital affairs may be relevant in equalization only insofar as the money that was incurred for the purposes of that extramarital affair. As the example shows, if a spouse uses family funds to go cheat on a fancy vacation, this money may be credited back to the other spouse in equalization if it amounts to unconscionability.
