Under the federal Divorce Act, proving adultery in New Brunswick requires an affidavit from the cheating spouse or compelling evidence presented at the Court of King’s Bench. Because this process is highly expensive and emotionally draining, over 90% of applicants choose to file based on a mandatory one-year separation instead.
Discovering that your spouse has been unfaithful is an incredibly painful experience. When emotions are running high, many separating spouses in New Brunswick immediately want to file for divorce on the grounds of adultery.
However, the Canadian legal system treats adultery much differently than the court of public opinion. Whether you are in Fredericton, Moncton, or a rural community, understanding the strict burden of proof required by the Court of King’s Bench is crucial before you file your petition.
Understanding Grounds for Divorce in Canada
In Canada, there is only one legal ground for divorce: the breakdown of the marriage. According to the federal Divorce Act, this breakdown can be established in one of three ways: living separate and apart for one year, physical or mental cruelty, or adultery. 📍
Adultery is defined strictly as a married person having intimate sexual intercourse with someone outside the marriage. Emotional affairs, online flirting, or inappropriate texting generally do not meet the legal definition of adultery in a Canadian court.
Step-by-Step Guide to Filing for Divorce Based on Adultery
Step 1: Gathering Admissible Evidence
If you intend to file based on adultery, you must have concrete proof. Rumours or suspicions are not enough. The most common and cost-effective way to prove adultery is to have the cheating spouse sign a sworn affidavit admitting to the affair. 📄
If they refuse to admit it, you must gather admissible evidence. You cannot illegally spy on your spouse, hack their emails, or place GPS trackers on their vehicle, as this evidence may be thrown out, and you could face criminal charges. Legal evidence usually requires hiring a licensed private investigator.
Step 2: Drafting the Petition at the Court of King’s Bench
Once you have evidence, you will file a Petition for Divorce at your local Court of King’s Bench, citing adultery. You are the “Petitioner,” and your spouse is the “Respondent.”
It is generally recommended not to name the person your spouse had the affair with (the “Co-Respondent”) in your legal documents. Naming them makes them a party to the lawsuit, which drastically increases court delays and legal costs.
Step 3: Attending a Court Hearing
Unlike a standard one-year separation, filing for adultery without a signed confession means a judge must review your evidence. This often requires attending a hearing where your lawyer will present the findings of the private investigator or call witnesses.
Because the burden of proof rests entirely on you, this step is notoriously stressful and heavily reliant on professional legal representation.
Why Most Spouses Choose a One-Year Separation Instead
Because proving adultery is a complex, contested process, the vast majority of New Brunswickers ultimately choose to wait out the mandatory one-year separation period. Filing for a no-fault divorce is simpler, far less expensive, and guarantees the divorce will be granted regardless of the other spouse’s behaviour. ⏱
Furthermore, Canadian family law is “no-fault.” This means that proving your spouse cheated will not result in a larger share of the property, nor will it increase your spousal support or automatically grant you full decision-making responsibility for the children.
Adultery vs. One-Year Separation
| Consideration | Filing for Adultery | One-Year Separation |
|---|---|---|
| Burden of Proof | High. Requires a sworn affidavit or concrete, admissible evidence. | Low. Simply requires swearing you have lived apart for 12 months. |
| Financial Cost | Very high due to private investigator fees and extra court appearances. | Standard costs; highly manageable if uncontested. |
| Impact on Property Division | None. Cheating does not affect the 50/50 division of marital assets. | None. Property is divided based on standard provincial guidelines. |
How Much Does it Cost in New Brunswick?
If you choose to pursue an adultery claim, be prepared for significant financial expenses:
- Court Filing Fees: The standard divorce filing fee in New Brunswick is approximately $130 CAD.
- Private Investigators: Hiring a professional to legally document an affair often costs between $1,500 and $5,000 CAD, depending on the hours required.
- Lawyer Fees: Litigating an adultery case in court requires a law firm, which can easily cost $5,000 to $15,000 CAD or more in legal fees.
How Long Does the Process Take?
While an adultery claim theoretically bypasses the one-year waiting period, compiling evidence and waiting for a court hearing date at the Court of King’s Bench can actually take 12 to 18 months. In contrast, if you file based on a one-year separation, the uncontested paperwork is usually processed within 3 to 6 months after the waiting period ends. 📅
Frequently Asked Questions (FAQ)
Does adultery affect spousal support payments?
No. Under the federal Divorce Act, spousal support is determined solely by financial need, income disparity, and the length of the marriage. A judge will not punish a cheating spouse by making them pay more, nor will they deny support to a lower-income spouse just because they cheated.
Will my spouse lose parenting time if they cheated?
No. Infidelity does not make someone an unfit parent. Decision-making responsibility and parenting time are based strictly on the best interests of the child, not the moral conduct of the spouses, unless the affair directly placed the children in physical or emotional harm’s way.
Can I use text messages or emails as proof of adultery?
Generally, text messages are not enough on their own. They might prove an emotional affair or suggest infidelity, but the court requires proof of actual sexual intercourse. The most reliable proof remains a signed admission or eyewitness testimony from a licensed investigator.
Can I sue the person my spouse had the affair with?
No. Canadian courts do not recognize claims for “alienation of affection.” You cannot sue the third party for ruining your marriage or causing you emotional distress.
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