Does Infidelity Affect Spousal Support or Property Division in Canada?

No, in the vast majority of cases, a spouse’s infidelity does not directly affect the payment of spousal support or the division of property in Canada. Canadian family law operating under a federal no-fault regime establishes that marital misconduct does not dictate financial outcomes. However, there are two distinct exceptions: marital misconduct can serve as a legal ground to establish the breakdown of a marriage for a divorce, and if the infidelity involves real economic misconduct—such as hiding assets or depleting family property for the relationship—those tangible financial impacts may be reviewed by the courts.

Quick Reference: How Courts View Infidelity

Federal Law: The Divorce Act and Spousal Support

Under federal legislation, infidelity is recognized as a formal ground for divorce. Specifically, Section 8(2)(b) of the Divorce Act notes that a divorce may be established if:

“the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, (i) committed adultery”

However, when the inquiry shifts to whether infidelity affect spousal support in Canada, the same Act explicitly bars the court from considering moral blame. Section 15.2(5) of the Divorce Act states:

“the court shall not take into consideration any misconduct of a spouse in relation to the marriage”

Instead, Section 15.2(4) mandates that the court must evaluate objective financial realities rather than moral behaviour:

“the court shall take into consideration the condition, means, needs and other circumstances of each spouse”

According to Section 15.2(6), the statutory purposes of spousal support are strictly economic, designed to recognize financial advantages or disadvantages, relieve economic hardship, and promote economic self-sufficiency.

What the Courts Say About Marital Misconduct

Canadian jurisprudence consistently reinforces this no-fault financial framework. In the case of Doucet v Doucet, 2016 ONSC 5602, the court clarified at paragraph 122:

“Infidelity does not disentitle a spouse to spousal support. Section 15.2(5) of the Divorce Act provides that in making a spousal support order, the court shall not consider any misconduct of a spouse in relation to the marriage.”

This principle has been firmly upheld at the appellate level. In Unterschultz v Clark, 2022 ABCA 335, the Court of Appeal confirmed that support mechanisms are not instruments for moral retribution:

“A spousal support award is not to be used to punish a spouse for bad behavior or perceived character flaws.”

The court added that “spousal misconduct is not a relevant factor in awarding spousal support. A spousal support award is not intended to punish the payor spouse for misconduct.”

Limited Exceptions: Economic Consequences of Infidelity

While the act of infidelity itself is excluded from the evaluation, the tangible financial or psychological consequences arising from a partner’s conduct might become relevant if they directly impact a spouse’s earning capacity or needs. In Kohli v. Thom, 2025 ONCA 200, the Court of Appeal for Ontario (referencing Supreme Court principles) explained at paragraph 136:

“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 … The policy … is to focus on the consequences of the spousal misconduct not the attribution of fault.”

Similarly, in the British Columbia case of D.L.A. v. N.W.A., 2026 BCSC 7, the court emphasized that allegations of misconduct alone cannot justify a failure to achieve self-sufficiency:

“Allegations of a spouse’s misconduct, alone, cannot be used as a reason for the other spouse’s inability to become and remain reasonably self-sufficient. Unless it fits within the limited circumstances outlined in Leskun, misconduct is not to be considered when calculating support.”

The court succinctly concluded that “an affair is not sufficient to overcome the legislative no-fault regime.” Therefore, the simple assertion that a partner committed adultery is insufficient to alter support obligations.

Child Support: Why Infidelity is Irrelevant

When it comes to child support, the rules are even more absolute. Under Section 17(6.1) of the Divorce Act, any variation order must comply strictly with the statutory guidelines:

“A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.”

Section 26.1(2) clarifies that child support is a joint economic duty based entirely on financial capacity:

“spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities”

In El Sherif v Abdallah, 2018 ONSC 5195, the court explicitly noted that “punishment of a parent or of children is not part of the court’s mandate in the area of child support.” Furthermore, in the British Columbia decision C.C.R. v T.A.R., 2016 BCSC 519, the court reiterated at paragraph 84 that “it is the child, not the other recipient parent, who has the right to maintenance.” When a parent attempted to withhold support due to parenting disputes or personal grievances, the court stated at paragraph 89: “I do not accept that this is a proper basis for denying support to a child which is the right of the child.”

Property Division Under Provincial Laws

Unlike divorce and spousal support, property division is governed primarily by provincial statutes. While provincial regimes vary slightly, they uniformly focus on financial equity rather than marital fault.

Ontario

Under Section 5(1) of the Family Law Act, R.S.O. 1990, c. F.3, the presumptive rule is the equal division of net family property:

“the spouse whose net family property is the lesser … is entitled to one-half the difference between them”

A court may deviate from equal division under Section 5(6) only if the result is “unconscionable,” focusing heavily on financial misconduct such as “a spouse’s intentional or reckless depletion of his or her net family property” (s. 5(6)(d)) or circumstances relating to the preservation or maintenance of property (s. 5(6)(h)).

In Frick v Frick, 2016 ONCA 799, the Court of Appeal for Ontario addressed funds spent on an extramarital affair, noting at paragraph 25 that “the focus of s. 5(6) of the Family Law Act was not on immoral conduct but on financial consequences.” The court added at paragraph 32 that “a general sense of outrage, absent a clear connection to the parties’ debts, liabilities, or property, is not sufficient,” and that “section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.”

This principle was mirrored in D’Amico v D’Amico, 2022 ONSC 574, where the court noted at paragraph 162:

“the only type of conduct that the Court may consider in making an order which provides other than direct equalization is economic misconduct… The property provisions of the [Family Law] Act should not be used to punish the traditional types of marital misconduct.”

British Columbia

Section 81 of the Family Law Act [SBC 2011] c. 25 creates an equal entitlement to family property and responsibility for family debt “regardless of their respective use or contribution.” Section 95(1) permits unequal division only if equal division would be “significantly unfair,” guiding courts to look at specific economic factors under Section 95(2)(g), such as “whether a spouse … substantially reduced the value of family property.” The core focus remains on the preservation of asset value, not moral behaviour.

Alberta

Under Section 7(4) of the Family Property Act, courts must distribute property equally unless it would not be “just and equitable to do so.” Section 8(l) instructs courts to evaluate whether “a spouse … has dissipated property to the detriment of the other spouse.” If a spouse spent family funds directly to sustain an extramarital affair, the court addresses it strictly under the doctrine of asset dissipation, rather than penalizing the moral act of infidelity.

Provincial Regimes on Spousal Support Misconduct

Provincial family laws also restrict courts from looking at misconduct during spousal support determinations:

• Ontario (s. 33(10) Family Law Act): “The obligation to provide support for a spouse exists without regard to the conduct of either spouse,” except in highly restrictive scenarios where conduct constitutes “an obvious and gross repudiation of the relationship.”
• British Columbia (s. 166 Family Law Act): The court must not consider misconduct unless it “arbitrarily or unreasonably (a) causes, prolongs or aggravates the need for spousal support, or (b) affects the ability to provide spousal support.”
• Alberta (s. 59 Family Law Act): Misconduct is excluded unless it “arbitrarily or unreasonably precipitates, prolongs or aggravates the need for support, or… affects the ability… to provide the support.”

Domestic Contracts and Chastity Clauses

In certain jurisdictions like Ontario, parties cannot contractually penalize a spouse for infidelity within a domestic agreement. Section 56(2) of the Ontario Family Law Act explicitly states:

“A provision in a domestic contract … whereby any right of a party is dependent upon remaining chaste is unenforceable”

Consequently, clauses in separation or marriage agreements that seek to strip a party of their financial rights based on a lack of chastity are generally legally invalid.

Frequently Asked Questions (FAQ)

Does a spouse lose their right to spousal support if they cheat?

No. Under Section 15.2(5) of the federal Divorce Act and corresponding provincial laws, courts cannot consider marital misconduct or infidelity when determining eligibility for or the amount of spousal support.

Can I get more property if my spouse had an affair?

Generally, no. Canadian property division laws are based on a no-fault regime focused on equal asset equalization. However, if your spouse spent significant family funds or depleted net family assets on the affair, the court may address this purely as financial dissipation or economic misconduct.

Does infidelity affect child support calculations?

No. Child support is the absolute right of the child and is calculated strictly using parental incomes and the statutory Child Support Guidelines. Marital misconduct or disputes between parents have no bearing on these obligations.

For detailed assistance regarding your family law matters, contact Pax Law Corporation.