Husband’s Infidelity Constituted Family Violence, Court Rules

August 5, 2021

Mark Feigenbaum

What is Family Violence?

In the context of a divorce proceeding, the definition of family violence is set out in s. 2(1) of the Divorce Act as:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

As will be seen below, while not specifically named in the Divorce Act’s definition, one court recently held that infidelity can constitute family violence. The determination was relevant to the court’s decision in awarding parenting time with the couple’s child.

Couple Marries and Seeks Divorce

The couple met online in 2007. Although they experienced difficulties almost from the outset, they were eventually married in December 2010. They have one child, who was born in 2014.

In 2018, the husband commenced legal proceedings seeking a divorce and various orders relating to parenting arrangements as well as spousal and child support.  

The case was heard over numerous days spanning 2019 through 2021, with the final 203-page decision being issued in 2021.

Wife Details Husband’s Infidelities

In her submissions to the court, the wife detailed the husband’s numerous infidelities, which she claimed began early on in the relationship and continued on a consistent basis. 

Among her claims relating to the husband’s infidelities, the wife submitted that the couple had become enmeshed in a continuous cycle repeated over the years in which she would suspect infidelity, but the husband would initially deny it and make the wife doubt herself. However, she would eventually find evidence and confront the husband, at which point he would downplay the affair, apologize and become emotionally manipulative, promising to never do it again. Eventually the wife would forgive him, but the cycle would begin again.

The wife testified as to the devastating effects the husband’s conduct had on her self-esteem, confidence and feelings towards him. The court summarized this testimony as follows:

“[The wife] testified about the effects that this repeated pattern of events had on her sense of self-worth and confidence. She compared her relationship with [the husband] as a constant emotional roller-coaster with ups and downs at every turn. She described becoming completely exhausted both physically and emotionally due to a constant barrage of emotions arising from his behaviour, including worry, anger, hurt, guilt, self-questioning, resentment, hope and disappointment. She relayed that the most emotionally damaging aspects of [the husband]’s conduct were his attempts to repeatedly manipulate her into believing that she was imagining things and being irrational or insecure, when in fact her suspicions and concerns were completely justified.” 

Court Finds That Husband’s Infidelities Constituted Family Violence

In terms of credibility, the court preferred the wife’s evidence. The court explained its conclusion on family violence as follows:

“I find that [the husband]’s numerous infidelities during his relationship and his conduct towards [the wife] in relation to the affairs constituted family violence. Specifically, it amounted to a pattern of coercive and controlling behaviour that was psychologically abusive, and his communications with [the wife] after she uncovered the infidelities often amounted to harassment…. 

I find that [the husband]’s responses and communications with [the wife] after his infidelities were revealed were often so persistent, protracted, emotionally manipulative and coercive that they rose to the level of harassment within the meaning of section 2(1)(d) of the definition of family violence under the Divorce Act.” 

Court Makes Order Relating to Parenting Time

Despite its finding of family violence, the court also considered the fact that the husband had been engaged in counselling since 2017 for his behaviour. Ultimately, the court was satisfied that the husband had made significant progress through therapy in addressing his emotionally abusive conduct, how to communicate effectively and considerately with the wife, and how to become a better person and father.   

In the result, the court ruled that it would be in the child’s best interest for both parents to assume decision-making responsibility under a “hybrid type of arrangement” and it granted both parents equal parenting time with the child.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.


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