Very rarely do we see in family law, cases released by judges that are in substance specifically related to the topic of adultery. This is because in family law, courts consider it improper to allow the mere allegation of adultery to affect their decision of a support award or claim for equalization. Courts are much loathed to delve into the personal lives of a couple and pass judgment on an individual’s affairs that have no relevance to the principles and goals of a support claim or equalization payment. Nevertheless, the case of Brazeau v. Brazeau, reminds us that the issue of adultery might still be relevant in certain contexts, and thus, the case is worth canvassing for that very reason.
In this short, but interesting case, the parties were married since 1978 and had three children of the marriage. The wife, in May 2006, commenced an Application seeking an award of spousal support and a division of net family property under the Family Law Act. While the wife in this case took the position that the parties separated in January 2005, the husband claimed that the parties were separated long before that date, namely in March 1996. During the questioning of witnesses which took place in 2007, counsel for the husband sought answers to questions from the wife relating to the issue of adultery. Counsel for the husband argued that such questioning should be permitted in order for the husband to be able to establish the relevant date of separation, which was a contentious issue between the parties. The wife, however, refused to answer the sought after questions, claiming protection under s.10 of the Ontario Evidence Act, which essentially says that, in most instances, the issue of adultery cannot be dealt with on the questioning of a witness or a party to the proceeding. According to the judge in this case, the purpose behind the Evidence Act provision is to prevent a party from being forced to self incriminate him or herself by having to answer questions related to his or her alleged adulterous behaviour.
At the motion, the husband moved for an order compelling the wife to respond to his questions regarding her alleged adulterous behaviour, so that he may be able to establish the relevant date at which the parties separated. Of course, the date of separation was most relevant, since this date would be used for the purposes of the division of net family property.
After much deliberation, the judge ultimately concluded that the wife’s Application was made for the sole purpose of relief under the Family Law Act; that is, for spousal support and an equalization of net family property. The judge further concluded that the relief sought by the wife in her spousal support and equalization claims did not require proof of adultery, and thus, granted the husband’s motion and allowed him to ask the questions of his wife with respect to her alleged adulterous behaviour, since the sole purpose of him doing so would be to establish the parties’ relevant separation date. The court asserted that the husband should not be deprived of his opportunity to ask questions of his spouse, just because his wife had manipulated, whether intentionally or not, the pleadings so as to attempt to preclude her husband from discovering relevant information.
The point of this case – questioning a witness or a party to the proceeding with respect to his or her alleged adulterous behaviour may produce important evidence in establishing a couple’s date of separation, if such an issue is in contention between the said parties. As a result, the court will allow such questioning, despite s.10 of the Evidence Act, where the relevant issue is to establish a couple’s date of separation.