Alienation of Affection

Alienation of Affection

Family Law
Mark Norton
Mark Norton

A recent case out of North Carolina saw a man from that state awarded $750,000.00 against his wife’s lover for “alienation of affections”.  These laws are also known as “home wrecker” laws.

In this case, the husband, suspecting there was something more going on with his wife than she way saying, hired a private investigator and discovered that she was having an extramarital affair with her co-worker. As a result, the husband blamed the co-worker for ruining the marriage.

While this case makes for an interesting read and some “water cooler talk”, you might be asking yourself “can someone in British Columbia sue a partner’s secret lover for their role in ending their relationship?”  As I will discuss below, the answer is a resounding "no!"

Alienation of affections is a common law tort through which a spouse can sue their partner's lover for ruining their relationship. However, only a few states in the United States have historically allowed this type of court action.

The Supreme Court of Canada in Frame v. Smith, [1987] 2 SCR 99, 1987 provided a brief overview of the origins of the tort at paragraph 7:

In the United States, a separate tort of "alienation of affections" was developed to protect the reciprocal interest of spouses in one another's companionship, but from the mid-1930's onward, it began to fall into disfavour and, along with the traditional actions already mentioned, was abolished in many of the states. It simply did not sit well in an age of "rapidly shifting husbands and wives and ever-increasing family catastrophes"... Opening the gates to a multiplicity of actions within the family circle and against close family friends was not viewed as an undiluted good.  Indeed, in Michigan, one of the few states where this extension was made, the State legislature went out of its way to abolish it; see Mosberg, ibid., at pp. 689-90.  In Canada this Court in Kungl v.Schiefer, 1962 CanLII 5 (SCC), [1962] S.C.R.443, rejected an action by a husband to recover damages for the alienation of the affection of his wife, holding that no such tort existed in Canada. In this, it followed the lead of the English courts where, in Gottlieb v. Gleiser, [1957] 3 All E.R. 715, Denning L.J. made it clear that such domestic matters lie outside the realm of the law altogether.

While a handful of states still allow the tort of alienation of affections, it is not a tort in Canada.  In British Columbia's Family Law Act, the provincial legislation that governs spouses and the breakdown of relationship, this cause of action is barred by s.196:

British Columbia Family Law Act - Section 196

These provisions of the Act, 196 (a) through (g), cover off all the elements that form part of alienation of affections torts or that are derivative of such claims.  The Family Relations Act, the legislation that was in effect before the Family Law Act, also abolished the tort.

The reasons for abolishing such a tort are many. However, the most important one is practicality.  The legislature did not want Courts being used (more so than they are now) as a weapon by one spouse against another (or their new partner) for “hurt feelings”. Alienation of affection claims would open up the flood gates to this kind of action.

There are only a few examples of litigants trying to advance these claims in recent years, but all have been dismissed with some being classified as vexatious litigation or an abuse of the court process.  Simply put, an attempt to advance an alienation of affection claim will fail in British Columbia and can possibly involve an award of court costs against the person advancing it.

It should also be noted that in addition to not having alienation of affection claims in Canada, affairs in general play a limited role in how courts will determine divorce and family cases.  For example, while adultery is a still a ground upon which Courts can grant a divorce under the Divorce Act, it is rarely employed.

Adultery also plays a minimal role in asset division, spousal support and parenting.  That is not to say it is a “non-factor”.  However, the adultery on its own has no impact on these areas.  Only when the effects of the adultery can be linked to the criteria used to determine these issues on their own does it matter.  This topic, on its own is complex and may be something I dive into in a further post.

For more information on this or other real estate concerns in B.C., please feel free to contact us through our website, or call us at (250) 385-6004 / (888) 385-6004.

Note: laws may change over time and should only be interpreted in the context of particular circumstances. These materials are not intended to be relied upon or taken as legal advice or opinion, and readers should consult a legal professional for specific advice in any particular situation.

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