Myths about Separation & Divorce in Ontario

1. My spouse cheated. Since I am not at fault, I should get a bigger share of property, right?

Although there is a good moral argument that someone who cheats in a marriage should pay a price, the law in Ontario says that behaviour is not a factor in financial concerns. Thus, with respect to the law applying to division of property, or child or spousal support, the law does not allow for a difference because someone cheated.

However, there are many times where in the court system, and in the negotiation process, there is room for putting a figure “into a range.” Where that figure ends up “on the range,” can be impacted by subjective elements. These could include how the person has behaved, or sympathy towards a person. Even though the law does not say that cheating is a factor, if the case is handled properly, there can be negative consequences for negative behaviour.

If an affair did happen, most couples choose the option of living separate and apart for 12 months as the reason for separation and divorce. Proving adultery in court is a high bar, indeed.

2. I have emails to prove the affair really happened!

In “a court world,” allegations must be provem with “evidence.” An email may be admissible in some situations, but not every situation. It depends how the evidence was obtained. If it was taken without someone’s permission (you hacked into your spouse's email, or printed a copy of an email when your spouse was away, thereby violating their privacy), to discourage that type of behaviour, a court may rule that it is not admissible.

To prove “adultery,” there had to be enough evidence to demonstrate that there was a meeting between the unmarried individuals, and on a balance of probabilities (which means “most likely”) they had sexual relations. Adultery, if proven with evidence, is an “immediate ground” (meaning no waiting requiring for 12 months) for a divorce to be granted.

To claim a divorce on the ground of adultery, the evidence should be assembled in advance before the proceeding is commenced. The person with whom the adultery occurred is also named in the materials, and served with documents. This is a challenging and difficult process, which requires good planning.

Again, courts have set a high bar for proving adultery as the cause of the breakdown of a marriage.

3. We are not married. Do common-law couples share property the same way as marries spouses?

Common-law couples do not have the same property rights as marries spouses upon the breakdown of the relationship.

In Canada, it is the provinces, not the federal government, that are entitled to make laws about property. The Divorce Act (federal legislation) does not apply to property.

The provincial legislation that governs family law is the Ontario Family Law Act.

Each province has its own stated laws, and these laws may apply to child and spousal support, but the law does not allow for any claim of division or equalization of property between unmarried people. Generally, the courts respect a couple’s decision not to marry, and this is reflected in how property is divided when the common-law relationship ends. For the most part, each common-law partner keeps what s/he brought into the relationship.

Thus, it is just like your brother or your roommate, no property division, unless you qualify under special rules. These are what are called “common-law” rules, which may fall under categories of “constructive trust,” “resulting trust,” or “joint venture.”

These arguments require a careful review facts about the relationship, whether a person contributed to the value of property, whether they paid money in, or even whether these people acted as if their money was being shared and their property was being shared (“ joint venture”).

However, these arguments are not guaranteed and will most likely not give the same result as if people were married. Any suggestion that common-law relationships (regardless as to the length of the relationship) automatically gives the same property result as if married, is not correct.

Not married means uncertainty about property division, and requires a careful review and analysis.

4. My husband/wife is making a claim for child support for his/her children. They are not my biological children; must I pay their child support? It doesn’t seem fair at all.

If you are married, and a child is born of that marriage, there is a presumption that it is the biological child of the married couple, and the child qualifies to claim support from both parents. However, in some situations, it can be demonstrated that even though the parties were married, the child is not the child of the husband. In other situations, people come together and there is a child from a former relationship.

The legal concept that applies is whether the parent was acting “loco parentis,” [Latin, for acting like the parent to that child would act].

This question depends on many factual events in the relationship. Courts typically look at:

whether the child called the person "father" or "mother"
whether a spouse contributed financially to the child's needs, either directly or indirectly (providing housing, food, clothing, school supplies, sending the child on school trips, etc.).
helping a child with homework
whether a spouse disciplined the child
whether a child was included in family vacations
buying a child birthday gifts, and gifts for religious holidays

Whether child support is due in these cases is a question that requires a lot of review, research and consideration before it can be answered in any specific case.

Another factor is whether there has been any domestic contract signed by the parties, prior to entering into the relationship or signed during the relationship.