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Many BC divorce and British Columbia Separated parents involved in a BC child custody case think their chances of receiving child custody, more or less support, or a larger share of the family property will change if their spouse has had an affair.

In reality an affair has little if any impact on the issues surrounding marriage breakdown. In the infamous case of Leskun we acted for husband who had had an affair and we were successful in the Supreme Court of Canada in upholding the principle that a spouse’s affair was irrelevant to the issues of spousal support unless it could be proven, supported by medical evidence, that the affair had a negative financial impact the other spouse that prevented them from earning what they normally would have earned. The ability of one spouse to sue the other spouse or mistress for damages for an affair or for “alienation of affection” was long ago abolished in British Columbia. While there still is the ability to sue for damages for physical and mental abuse in British Columbia, the Supreme Court of Canada has narrowed the scope of this claim in their decision of Frame v. Smith.

We warn our spouses that a new relationship during the end of a shaky marriage or immediately after the marriage has broken down can negatively impact a child custody claim if it is shown that the new person is introduced too soon into a relationship or that the new relationship distracts the separating spouse from focusing on their children and putting their children’s interests ahead of their own. A new relationship can also impact and reduce a receiving spouse’s claim for support under some circumstances. We want people to go slow as it is imperative people do not “jump from the frying pan into the fire”.The existence of a new relationship often will not help promote a quick settlement so this is a critical factor to consider as well!

Some people argue that Canada should return to the old fault days of divorce where misconduct resulted in negative consequences to the offending spouse. As an example of what might happen if Canada were to return to the antediluvian days of fault we point to the recent decision in United States below.

Wife’s $9m victory in adultery case warns mistresses to ‘lay off’: Cynthia Shackelford, 60, was awarded the unprecedented sum by a jury in the United States for damages to her feelings under an obscure 19th century adultery law; North Carolina is one of seven states in America where the so-called “alienation of affection” law is still in force. It evolved from common law under which women were classes as property of their husbands. As property, they were something that could be stolen. The award was made against Anne Lundquist, 49, an administrator at a private school, who was accused of having an affair with Allan Shackelford, a 62 year-old lawyer who had been married to Mrs. Shackelford for 33 years. The jury awarded her $5 million compensation and also awarded $4 million in punitive damages to be paid by Miss Lundquist. Miss Lundquist, who is now the dean of students at Wells College, in Aurora, New York, did not attend the court hearing and said she had not even been told it was happening. She is appealing. She said: “I’m so caught off guard by everything. I don’t have a lot of money, so where this $9 million comes from is kind of hysterical.” “My main message is to all those women out there who might have their eyes on some guy that is married to not come between anybody,” Ms. Shackelford told “Good Morning America”. “I wanted other people to understand, before they do it, how much it hurts.” Lee Rosen, of the Rosen Law Firm in North Carolina, said the state has around 200 “alienation of affection” claims a year. He said: “If your spouse is going to cheat, you really would like them to cheat with somebody who has a lot of money.”
As reported in:
Coffee Break – North, Fort St. John, Vol. 1.23 March 27-April 4, 2010