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Divorce: alienation of affection

I recently got a call from a wife who wanted to bring an alienation of affection lawsuit against her husband’s mistress.

Having done research on this topic a few years ago, I had to flip through my old files to refresh myself on the Canadian cases dealing with this cause of action (alienation of affection lawsuits do not come up very often).

What is alienation of affection?

Alienation of affection is, in non-legal terms, when someone ‘steals’ your partner away from you.

A situation that could give rise to such a claim, for example,  is when Brad Pitt and Angelina Jolie fell in love on the set of Mr. and Ms. Smith, while he was still married to Jennifer Aniston.

In legal terms, the tort of “alienation of affection” law “evolved from common law under which women were classed as property of their husbands.  As property, they were something that could be “stolen.”

Can you bring an alienation of affection lawsuit in Canada?

The Ontario Court of appeal considered the law of alienation of affection in 1960 in the case of Kungl v. Schiefer.  The case was subsequently appealed to the Supreme Court of Canada in 1962.  In that case, Canada’s highest court confirmed that there were no damages to be awarded for alienation of affection.

The Supreme Court of Canada reconsidered their decision in case of Frame v. Smith In that case, the Court upheld that there was no separate cause of action for alienation of affection and that such domestic matters lie outside of the scope of the law altogether.

What about in other places?

In some jurisdictions, you can successfully bring an alienation of affection lawsuit.  In North Carolina, for example, courts have awarded 5.8 million dollars in damages to a wife who sued her best friend (who also turned out to be her husband’s mistress).  

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