Is “Sexting” Considered Adultery for Divorce Purposes?


Aptly named U.S. politician Anthony Weiner has been making headlines once again. For the third time in recent years, Mr. Weiner has been involved in a “sexting” scandal. He has once again been caught sending sexually explicit images and messages to women he has met online.

Mr. Weiner’s serial misbehaviour first emerged in 2011, after which he resigned from Congress. In 2013, the same questionable behaviour overshadowed his campaign to become mayor of New York City. In the wake of this most recent scandal, Mr. Weiner’s wife has announced that the couple will be separating.

This high profile American incident raises a number of questions for couples here in Canada.

The proliferation of smart phones, social media, and various online communication apps has created numerous opportunities for “virtual infidelity”. However, Canadian family law has not yet caught up to the effect that technology has been having on some relationships.  While adultery is an established ground for divorce in Canada, the definition of adultery remains focused on physical indiscretions.

Adultery in Canada

Divorce in Canada is governed by the federal Divorce Act, which states that a “breakdown of a marriage” is only established if a) the spouses have lived separately for at least one year immediately leading to the divorce, (b) a spouse has committed adultery, or c) a spouse has treated the other spouse with physical or mental cruelty.

The Divorce Act does not define “adultery”. Adultery has instead been defined by courts on a case-by-case basis. See, for instance: the British Columbia Supreme Court’s decision in P (S.E) v. P (D.D).

To date, Canadian courts have generally defined adultery as intimate sexual activity outside of marriage. There must be a physical relationship between a spouse and a third party in order for that spouse’s actions to be considered “adultery”.  As such, sexting, phone sex, and other “cyber indiscretions” do not currently qualify as adultery in Canada. Finding out a spouse is engaging in sexting can be emotionally devastating to the other spouse, however, a court will not issue a divorce on grounds of adultery unless there is an actual physical, sexual relationship involved.

Some Considerations

Suspecting that your spouse may be engaging in virtual infidelity is distressing. It can certainly be tempting to look through their phone, read their emails, or otherwise investigate your suspicions. However, as we have addressed in a previous post,  “snooping” through a spouse’s phone, computer, or device can get you in trouble, and can ultimately work against you in family law proceedings.

If you have questions about divorce or separation, please contact Jason P. Howie, online or at 519.973.1500.

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