A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

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).  

Divorce: whose fault? who cares?

A recent court decision in the United Kingdom commented on the fault-based divorce regime currently  in place (there are calls to bring an end to the fault based divorce system in the United Kingdom).  As reported in the Daily Mail:

Senior judges yesterday renewed calls for no-fault divorces, as they attacked current laws as vastly outdated.

At present, couples can be legally parted within six months if one party is shown to be at fault.

The most common grounds are unreasonable behaviour, which can include committing adultery or devoting too much time to one’s career.

Leading family court judge Sir Nicholas Wall said: ‘I am a strong believer in marriage. But I see no good arguments against no-fault divorce.’

In the United Kingdom you can get a divorce if your marriage has broken down irretrievably.  As summarized in a blog by Family Law in Partnership LLP:

 In order to prove that the marrigae has broken down irretrievably you have to prove that one of the following facts is true:

  • adultery by your spouse
  • unreasonable behaviour by your spouse
  • desertion by your spouse for a period of at least two years
  • two years’ separation, if you both agree to the divorce
  • five years’ separation, if there is no agreement to the divorce

The fault based system in the United Kingdom does not usually extend to impact the division of property, calculation of support or determination of custody (NOTE – I welcome comments from UK lawyers for clarification of this law or greater detail!).

But what about in Canada?

In Canada we have a “no fault” divorce system.

Under Section 8 of the Divorce Act, there are three grounds upon which you can apply for a divorce:

  • Your spouse committed adultery;
  • Your spouse was cruel to you; or
  • You and your spouse have been living “separate and apart” for a year.

Although there are two fault based options in Canada (adultery and cruelty) all you have to do to get a divorce in Canada is live separate and apart from your spouse for one year (you can even live “separate and apart” in the same house!).  Neither of the spouses has to do anything “wrong” in Canada to have a divorce finalized.

Most divorces, from my experience, proceed on the grounds of living separate and apart for a year.  It is often inconvenient to have an affidavit of adultery sworn by the person who committed the adultery.  Without an affidavit sworn by the adulterous spouse, admitting to the adultery, “the standard of proof in divorce actions is the same as in other civil actions, that is, the court must be satisfied on that the adultery has been committed, based on a preponderance of probability…” as stated in Adolph v. Adolph (1964), 51 W.W.R. 42.

For example, finding your spouses’ underwear somewhere they should not be is generally not going to be sufficient evidence to satisfy the court that a divorce should be granted  (in British Columbia, Addison could probably not get a divorce granted on giving evidence of what she found in her husband’s pocket) – she would need more evidence than JUST the underwear:

The “no fault” system in Canada means,  not only that neither spouse has to be “at fault” to process the divorce, it also means that if a spouse behaved poorly (for example they had a Tiger Woods “esque” series of relationships) it is not to prejudice them in the rest of the divorce proceedings (for example in determining custody, access, support or property division).

Spousal misconduct is specifically addressed in the Divorce Act. For example, the provisions of the Divorce Act state in Section 15.2(5):

In 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.

The Supreme Court of Canada Decision Leskun v. Leskun considered the conduct (infidelity) of a husband and how it impacted a wife’s ability to become self sufficient.  While the court found that “misconduct, as such, is off the table as a relevant consideration”, it also acknoweldged that there is a fine line between misconduct and the resulting impact of the misconduct:

There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  The consequences are not rendered irrelevant because of their genesis in the other spouse’s 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 policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

The matter of conduct is a slipery slope.  For example, while you generally cannot be blamed for having an affair, your poor conduct or failure to tell the truth could be viewed by the court as indicative of your overall credibility.