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FactsEdit

The parties married in 1955 and separated in 1967. The husband alleged that the parties were not getting along very well before the separation and was currently living with his new partner, Sadie. The wife had been living and working as a housekeeper in the home belonging to Sadie's husband, Warren. In the divorce petition, the husband alleged adultery between his wife and Warren, which both parties denied. She alleged that she took the housekeeping job because Warren needed someone to look after his home and she was out of work and was desperate. Sadie alleged that when she and her husband were still living together she saw the wife and Warren lying on a bed clothed and with the lights out, an allegation which was not refuted by either party.

IssueEdit

  1. What is necessary to demonstrate adultery for the purposes of the Divorce Act?

DecisionEdit

Petition and counter-petition allowed.

ReasonsEdit

Justice Dubénsky quotes from the British case of Ross v Ellison or Ross, [1930] AC 1:

Adultery is essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstance. It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents, e.g. letters and diaries, or antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.
Holding that only the "most naîve" would conclude that the wife and Warren were in the darkened bedroom for a purpose other than adultery, this was sufficient antecedent conduct to make a reasonable inference of adultery.

RatioEdit

Adultery can be proven if there is sufficient evidence to allow a reasonable inference based on opportunity for commission and an inclination to take advantage of that opportunity. Actual evidence of the commission is not required.

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