Is Adultery a Crime in Canada? Ontario Law

Adultery by Itself Is Not a Criminal Offence in Canada#

There is no offence of adultery in Canada, and you will not be arrested, charged, or prosecuted simply for having an affair. The closest the Criminal Code comes is a narrow child-protection provision: under s. 172(1), participating in adultery in the home of a child is an offence only where doing so endangers the morals of the child or renders the home an unfit place for the child to be in. The offence targets harm to children in the home, not the adultery itself.

Older English common law treated some aspects of adultery as actionable, for example through the tort of “criminal conversation,” but current Canadian law does not punish adultery as such. For most people, adultery matters only in family law, where it serves as one of three grounds for divorce under the federal Divorce Act.

If you are searching this question because your spouse has been unfaithful, the real issue is probably not whether it is a crime. What usually matters is whether adultery changes the outcome of the divorce, and in most cases it does not. It can establish the ground for divorce, but it generally has no effect on support, property division, or parenting arrangements.

Adultery as a Ground for Divorce#

Under section 8(2)(b)(i) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a court can grant a divorce if the other spouse has committed adultery, making it one of three grounds for divorce in Canada alongside cruelty and one year of separation.

In practice, nearly every divorce file I see proceeds on the one-year separation ground. There are good reasons for this:

• You generally do not need to prove misconduct. Separation is straightforward. You and your spouse have lived separate and apart for at least one year, which can happen even under the same roof once the marriage has broken down, and at least one of you intends it to be over.
• Adultery requires evidence. If your spouse denies the affair, you need enough proof to satisfy a judge, which means gathering text messages, photographs, or written admissions, and you bear the burden of proving it.
• It doesn’t speed things up much. You might think that proving adultery lets you skip the one-year wait. Technically, yes. But contested adultery claims can take longer to resolve than simply waiting out the separation period.

For these reasons, adultery as a divorce ground is used far less often than separation, and I typically advise clients to rely on the separation ground unless there is a specific strategic reason to allege adultery in their particular case.

For more on divorce grounds and potential barriers, see our guide on obstacles and bars to divorce in Ontario.

What Counts as Adultery?#

The Divorce Act uses the term without defining it, so its meaning comes from the courts, which have defined it case by case (P. (S.E.) v. P. (D.D.), 2005 BCSC 1290, at para 10). As the courts have applied it, adultery is voluntary sexual intercourse between a married person and someone who is not their spouse. A few points to keep in mind:

• Emotional affairs are not adultery in the legal sense, no matter how serious or painful they may be.
• Online relationships that do not involve physical sexual contact do not meet the legal definition.
• One instance is enough. A single act of sexual intercourse with someone outside the marriage is sufficient.
• You cannot rely on your own adultery. Under the Divorce Act, a spouse cannot use their own adultery as a ground for divorce. Only the other spouse can rely on it.

Condonation: How the Adultery Ground Can Be Lost#

Condonation is a concept that can catch people off guard. If you learn about your spouse’s adultery and then resume the marital relationship (meaning you continue living together as a couple), a court may find that you have condoned the adultery and can no longer rely on it as a ground for divorce.

The Divorce Act deals with this directly. Under s. 11(1)(c), the court must satisfy itself that the spouse seeking the divorce has not condoned or connived at the adultery, and it must dismiss the application where there was condonation, unless, in the court’s opinion, the public interest would be better served by granting the divorce. And once conduct has been condoned, s. 11(2) says it cannot be revived as a ground later. The way a spouse responds after learning of an affair can matter well beyond the question of divorce grounds, and acting hastily sometimes limits options without people realizing it.

If adultery is found to have been condoned, you may lose the ability to rely on it as a ground for divorce, because the law treats condonation as forgiveness. Continuing to live together as a couple after learning of the affair may result in a finding of condonation and the loss of adultery as a ground for divorce.

There is room for brief attempts at reconciliation, and the window is written into the statute. Under s. 11(3), resuming cohabitation for a period of, or periods totalling, not more than 90 days (with reconciliation as the primary purpose) does not count as condonation. A parallel rule in s. 8(3)(b)(ii) protects the one-year separation clock in the same way. A genuine attempt to reconcile inside those limits costs you nothing; staying longer puts the adultery ground at risk.

This is one of the bars to divorce that can affect your case if not handled carefully.

How Adultery Affects Different Areas of Family Law#

Does Adultery Affect Spousal Support in Canada?#

Many clients ask me whether a cheating spouse will have to pay more support, or whether an unfaithful recipient will receive less. The answer, as a general rule, is no.

Both the Divorce Act and Ontario’s Family Law Act take a largely conduct-neutral approach to spousal support. Support depends on factors like the length of the marriage, the roles each spouse played, their incomes, and their ability to become self-sufficient.

The Supreme Court of Canada addressed misconduct and support in Leskun v. Leskun, 2006 SCC 25 at paras 20-21. Section 15.2(5) of the Divorce Act directs that the court “shall not take into consideration any misconduct of a spouse in relation to the marriage,” and the Court put it plainly: misconduct, as such, is off the table. But the Court drew a distinction: the emotional consequences of misconduct are not irrelevant just because they flow from the other spouse’s behaviour. Where the psychological impact of a betrayal undermines a spouse’s ability to work or become self-sufficient, those consequences can matter. It is the effect on the recipient’s circumstances, not the wrongdoing itself, that a court considers.

In practical terms, adultery on its own does not change a support outcome. Whether support is owed turns on financial factors, and the advisory Spousal Support Advisory Guidelines address amount and duration only after entitlement is established.

For more detail on how support works in Ontario, see our articles on spousal support and spousal misconduct and support.

Does Adultery Affect Property Division in Ontario?#

Adultery by itself does not affect property division in Ontario. The equalization of net family property under the Family Law Act is a mathematical exercise. In simplified terms, each spouse calculates the value of their assets minus their debts at the date of separation, subtracts the net value of what they brought into the marriage (except a home that is a matrimonial home at the date of separation, which gets no marriage-date deduction), and the spouse with the higher net family property pays half the difference to the other. The full calculation has more steps than this, including exclusions for gifts and inheritances received during the marriage, but the inputs are financial.

Marital misconduct by itself does not factor into the equalization calculation, which means that a spouse who committed adultery is generally entitled to the same equalization payment as a spouse who did not.

If you are working through the separation process and want to protect your rights, a separation agreement is often an effective way to resolve those issues.

Does Adultery Affect Decision-Making and Parenting Time?#

Courts decide parenting arrangements based on the best interests of the child, which is the governing test under both the Divorce Act and the Children’s Law Reform Act.

An affair on its own says nothing about a person’s ability to parent. I have seen many cases where one spouse tries to use the other’s infidelity to argue for reduced parenting time, and courts give that argument little weight unless the related conduct is relevant to the child’s best interests. The analysis shifts only where the circumstances around the affair bear on parenting, for example, if a parent exposed children to inappropriate situations or if the surrounding instability affected the children’s wellbeing.

Adultery by itself is generally not a factor in parenting decisions. Under the Divorce Act, a court considers a parent’s past conduct only where it is relevant to the exercise of parenting time or decision-making responsibility (s. 16(5)), so infidelity on its own is unlikely to affect where a child lives or how parenting time is divided.

The Practical Reality: Adultery Rarely Changes the Outcome#

Adultery carries less weight in Ontario family law than most people expect. It can serve as a ground for divorce, but beyond that its legal effect is usually limited. By itself, it has little effect on financial outcomes or parenting arrangements, because the law is designed to divide property fairly and determine support based on economic factors, not on who was at fault for the marriage ending.

Where adultery does have an effect is emotional rather than legal. A spouse who feels betrayed can find it much harder to compromise, and the spouse who had the affair may respond with guilt or defensiveness. We see that dynamic make negotiations more acrimonious, drag out the process, and make a reasonable settlement less likely, even though nothing about the affair changes what a court would order.

If your spouse has been unfaithful, you have options. But the best path forward usually involves focusing on the practical issues (support, property, and parenting) rather than on proving fault. In my experience, clients who redirect their energy toward a fair resolution, whether through negotiation or a mediation-based approach, often resolve matters more efficiently than those who pursue adultery litigation.

Frequently Asked Questions#

If you have questions about adultery, divorce, or any other family law matter in Ontario, contact Krol & Krol for a consultation.