Tip: Cheating is almost never relevant to custody

I am always amazed at the degree of relief some women experience when I tell them that they will not lose custody of their children, simply because they had an affair or someone has accused them of having had an affair. While I'm sure that there are places in the world that seek to punish marital transgressions, Canada is not such a place. And, for the people who are suffering from the pain caused by this behaviour, I am sorry to tell you that our judges are not paid to act as your family's personal morality judge or to publicly denounce whatever act has occurred.

The Federal legislators who wrote the law related to custody and access to children, child support and spousal support in divorcing couples decided that the mere fact that there has been adultery or other matters of conduct should not be determinitive of these issues. For example, proof that a mother had an affair does not mean she will lose custody of her child and proof that a father cheated does not mean he will have to pay spousal support.

Cheating is only relevant if you can link something about the cheating to another issue. For example, when a court weighs evidence to determine who should be granted custody of a child, the fact that one parent had an affair, should not form a material part of the evidence. But, if a parent in a custody battle had an affair and has continued to live with a person who could be dangerous to the children (for example if the new partner had a history of violence to children, or serious drug or alcohol problems), the court may have to consider this factor in order to ensure that the children are protected. So, again, the court will not focus on the fact that there is a relationship with the new partner, but they might consider any safety matters arising as a result of the relationship.

A few years ago, a woman successfully presented a case to the Supreme Court of Canada in which she argued that her husband's affair placed her in need of spousal support. This was an unusual case in which she was able to show that the affair caused her such a degree of grief that she was not able to work. So, again, the spousal support was not granted because of the affair, but because the affair triggered a wife to suffer from a serious and debilitating depression. This was an unusual case.

One could ask if some of our judges could be influenced on an emotional level if evidence of conduct is included in submissions. Legal advice should be sought on this point. Afterall, our judges are able to hear that an accused has pleaded guilty and still find that accused to be innocent on strict application of the law.

I wanted to write about this point because I have seen good people on the brink of making really bad decisions about parenting due to their guilt, or their feeling of powerlessness in the face of accusations, even if they are not true. Please seek legal advice when the parenting of children is at stake -- as I have stated in previous posts, you cannot guess what the law is. It changes over time and from place to place. So, it is not necessarily what you see on t.v. or what your friends or community leaders tell you. It is not what makes good fiction. It is what it is and cheating is rarely relevant.
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