It is one thing to suspect that your spouse is having an affair, but when you find proof that your spouse is cheating on you, it results in a cascade of emotions ranging from anger to sadness to shame to emptiness and perhaps even relief. Now that you know the truth, you may attempt to repair the relationship or pursue a divorce if you believe the marriage is not worth or not capable of being saved. When you are divorcing on the grounds of your spouse’s adultery, how does it affect your legal outcome? Here is an explanation of adultery and divorce in the province of Ontario.

No-Fault versus For-Fault Divorce

Though Ontario is known as a No Fault Divorce province, it is actually one of two ways to prove the breakdown of a marriage. A No Fault Uncontested Divorce is agreed to by both parties and requires only a one-year separation period at which point the divorce will be granted; this is the route for most divorces in the country, regardless of the cause of the marriage breakdown. A For Fault Divorce includes grounds such as adultery or abuse. In such cases, one party places the other solely at fault for the marriage breakdown. If you are cheated on or abused, you will want to retain legal representation.

Going this route would also require proof of the adultery or abuse from a licensed private investigation agency, which can include pics, emails, texts, letters, or documentation of activities that serve as proof of infidelity. Pursuing a For Fault Divorce is generally a lengthier and more expensive legal process.

If you have been cheated on you may choose either route, though speaking with a family lawyer can help clarify your legal options. You are fully within your rights to seek a no-fault divorce even if your spouse has cheated just to get the process over with, or perhaps because you do not believe you have enough proof to pursue a For Fault Divorce.

It is important to note that neither route nor do the stated grounds have any effect on the court’s decision about custody, access, or child support.

When to Involve a Private Investigator

If you wish to pursue a For Fault divorce, you must provide evidence to substantiate your claims. This evidence will be weighed by the judge on the basis of its truth and relevance. You may be able to gather some of this evidence on your own, such as cell phone records that you have access to, travel records of your spouse, browsing history of your shared computer etc. Perhaps your spouse has admitted to the infidelity.

However the easiest and safest way to gather and preserve evidence is to hire a licensed private investigation agency that specializes in cheating spouse investigations (also known as adultery investigations or matrimonial investigations). A PI will discreetly and confidentially monitor and track your spouse’s activity and find evidence of infidelity if it is occurring. A PI will get to know the subject’s routine. For instance, cheating often occurs in the morning when they say they are going to gym before work, on lunch breaks, or during the evening if they claim they have to stay late at work for a meeting.

In addition to finding proof of marital infidelity, a PI can uncover if the subject is committing financial infidelity by hiding assets and financial data. Uncovering this information can make for a more transparent divorce process and ensure all assets are on the table for determining equalization, spousal support, and child support.

A private investigation agency will gather the evidence and present you with the facts. What you choose to do with it is completely up to you.

Finding the Right PI

If you wish to pursue a For Fault divorce, it is essential that you obtain proof from a licensed agency. Not a friend who thinks they can help out with some Google searching and Facebook stalking, not even a private investigator – you must hire an agency. Otherwise, the information will hold no credibility in court. It is very important that you do your research. If you are unsure, ask your family lawyer for a recommendation or ask them to verify their credentials.

Informed uncovered by a PI is only applicable in court if it comes from a licensed agency and is obtained legally. For instance, it is not legal for a PI company to place a GPS tracker on a subject’s vehicle. All evidence could be thrown out due to the investigator’s illegal actions. Ultimately, it is the judge’s discretion what to permit or exclude, but your best chance of having evidence permitted is to work with a PI company that does everything by the book and follows PIPEDA.

After the Divorce

After the divorce, evidence uncovered by a PI agency can still affect your legal outcome. For example, if you are in a custody battle and there is evidence that your ex is abusing drugs, this can cause favour to the client. If your ex claims not to be working to avoid paying child support or spousal support but a PI finds evidence they are working, the client can file with the Family Responsibility Office (FRO) and the subject’s wages may be garnished. While infidelity is not a factor after the divorce, if the ex-spouse is spending time with someone who is unsafe around the children due to drug abuse or violent behaviour, this can be a factor in custody and access.

As with any legal issue, results will vary case by case. This is why it is important to speak with a divorce lawyer for specific guidance related to your case.

Whitney Joy Smith
Smith Investigation Agency

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