In Canada, the Divorce Act permits a spouse to seek a divorce if the other spouse has committed cruelty. But this does not entitle the victim to collect compensation for emotional distress. In fact, Canadian law seems to minimize the relevance of spousal misconduct when determining the issues of custody, access, support and division of property. However, a Wyoming Supreme Court decided that extreme and outrageous conduct by one spouse that results in severe emotional distress to the other spouse can create a cause of action for intentional infliction of emotional distress and entitle the victim to collect compensation for her suffering. In the decision of McCulloh v. Drake (Wyoming, 24 P. 3d. 1162 (2001)), the court heard that shortly after the husband and wife were married, the husband began to
physically and sexually abuse the wife. The trial court found that the wife had proven the abuse and the emotional distress that she suffered. The husband appealed this decision by arguing that intentional infliction of emotional distress within a marriage is not a tort (a legal wrong.) In an effort to preserve domestic harmony, courts have tried to remain indifferent when it comes to regulating behaviour within a marriage. However, courts have recently begun to distinguish claims for civil relief in marriage cases by pronouncing that a tort claim may provide a better remedy for spouses than a divorce claim. The court concluded that "emotional distress is as real and tormenting as physical pain, and psychological well-being deserves as much legal protection as physical well-being." In preserving marital harmony as their main goal, the court held that "behaviour that is truly outrageous and results in severe emotional distress should not be protected in a misguided attempt to promote marital harmony." It
remains to be seen if Canadian courts will follow this reasoning.
Historically, the answer to this question was “No.” Canadian federal law only permitted a spouse to obtain a divorce if the other spouse had an extramarital affair with someone of the opposite sex.
Indeed, Canada’s Divorce Act states that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.”
Adultery has historically been defined by the courts as voluntary sex between a spouse and someone of the opposite sex, outside of the marriage.
But this week, a Vancouver woman was granted a divorce after Justice Nicole Garson decided the woman’s husband had committed adultery by having an affair with another man.
It is expected that this decision may have a significant impact on same-sex partners who are likely to engage in extramarital affairs with persons of the same gender.
The court’s written decision is expected to be published in two weeks.
This just happened in Saint John, New Brunswick.
Fourty-nine year old Pascal Thebeau was been granted a divorce on the grounds that his wife committed same-sex adultery in a precedent-setting case. Although same-sex marriage has been legislated in New Brunswick, as well as in Ontario, same-sex adultery has not been included in the language of the law.
Canadian federal law only permits a spouse to obtain a divorce if the other spouse committed adultery with someone of the opposite sex. Canada’s Divorce Act provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” Adultery has historically been defined by the courts as voluntary sex between a spouse and someone of the opposite sex, outside of the marriage.
Previously, a Vancouver woman was granted a divorce after the judge decided that the woman’s husband had committed adultery by having an affair with another man. Now there is a precedent for same-sex adultery being committed by a wife. Until the legislation is amended, same-sex adultery cases will be decided on a case by case basis.
Interestingly, divorce lawyers are required, by law, to discuss with the client the possibility of reconciliation and the availability of marriage counseling. In fact, in every application for a divorce, the lawyer acting on behalf of the client must certify that he has complied with this requirement. Then the divorce judge is required to satisfy herself that there is no possibility of reconciliation of the spouses and, if at any stage in a divorce proceeding, it appears to the judge from the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the judge is then required to adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation. The judge may even appoint a marriage counselor to assist the spouses to achieve a reconciliation.
But does this actually happen ?
» In the vast majority of cases, once the client makes an appointment with a divorce lawyer, the decision to separate has been made and is not typically open to change. But what if the lawyer insisted on having a discussion about reconciliation ? What if the lawyer caused the client to reflect ?
The exercise of reflection seems to me to have certain prerequisites or ingredients. For the client to reflect, the lawyer must guide the process of reflection. That means that the lawyer is now expected to be reflective of his role at this critical stage. When approached by a client who is asking for a divorce, the reflective lawyer must be prepared to stop, listen and think before arriving at a viewpoint, opinion or advice.
To some extent, this is counter-intuitive. The client seeks counsel. Specifically, she or he seeks guidance, direction and advice. The client does not seek - or wish to pay for - reflection. However, reflection is probably the very best service that the lawyer can give the client.
This mode of response should permit the lawyer to better examine the totality of the circumstances of the family, the factors influencing the conflict, the client's individual challenges, the stated problem, the essence of the problem (which may or may not be uncovered) and the various options that can improve the lives of this client, family and, especially, the children.
It can be argued that lawyers typically perpetuate the problem through a failure to reflect by operating within the (legal) system that places great emphasis on tradition, convention and precedent. This is undisputable. Proponents of change are seen as contrarian, ill-informed or even cavalier.
Maybe if we lawyers worked harder (or were better trained) to elicit the client's interests, we could not only achieve satisfying solutions for the client, but improve the conditions for the entire family and even (in a modest way) cause the population of separating spouses to reconsider and reverse the decision to separate. If, in the end, divorce is inevitable, then at least the family will experience separation and divorce in a less conflictual and more peaceful manner.
As soon as one of the following three circumstances has occurred: the other spouse has committed adultery, the other spouse has committed cruelty, or the spouses have separated. As soon as one of these circumstances has occurred, a spouse can commence an application for divorce. If separation is used as the ground to obtain a divorce, the spouses need to have been separated for at least one year before a judge will grant a divorce judgment.
An uncontested divorce usually takes between eight to 16 weeks. A petition for divorce that is contested usually takes much longer. There are many factors that affect the length of time it takes to get divorced. Unless the reason for the divorce is adultery or cruelty, the spouses must have lived separate and apart for at least one year.