Brazeau v. Brazeau: Evidence and Adultery

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.

This Post Has 2 Comments
  1. When parties separate, they are often surprised when their lawyers tell them that adulterous conduct is rarely relevant in a family law case. Further, section 10 of the Evidence Act, will protect the adulterer from answering questions if the court case was instituted in the consequence of adultery. Even in cases where adultery has occurred and a party is confident they can prove that it has, lawyers will generally tell their clients that by the time they prove adultery a year will have likely passed and they may wish they had simply claimed a divorce on the grounds of being separated for a year since the result will be the same and they will likely save some money on their legal fees.

    This case was rather unique in that the Honourable Justice permitted questioning about adultery. This case was not instituted because of adultery and so the protection offered by the Evidence Act did not apply. The questioning about adultery was permitted because it was needed to help decide when the parties separated since one party said they separated in 1996 and the other in 2005.

  2. The court’s decisions in this case was predicated on the need to establish the correct date of separation. Many factors are looked at to determine separation between parties including, but not limited to, the stated intention of a party to separate, living separate and apart in the home, the termination of socializing as a couple, etc… Adultery in and of itself does not constitute concrete evidence of separation. I disagree strongly that evidence of adultery is a determining factor in establishing separation. This is in fact a slippery slope. This ruling suggests that persons having an adulterous affair have in fact “separated.” Given the high rate of adultery in today’s society, this would tend to suggest that any person having an affair is in fact “separated.” Many people have relationships outside of their marriages with absolutely no intention to end that marriage. This would be an absurd result. Moreover, for there to be a true separation, there must be a stated intention to separate to the other spouse.

    While adultery does remain a ground for divorce in s. 8 of the Divorce Act, it is rarely used. This conduct, while upsetting to wronged spouses, does not influence family law issues, per se. Short of conduct that represents a gross repudiation of the marriage, evidence of adultery should be irrelevant.

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