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Facts[]

The petitioner brought a petition for divorce on the grounds of a sexual relationship between his wife and another woman.

Issue[]

  1. Can adultery for the purposes of marriage breakdown include sexual relations between a married person and a person of the same gender?

Decision[]

Petition granted.

Reasons[]

Justice Wooder, finding that adultery is not defined in the Divorce Act quotes from the decision of the British Columbia Supreme Court in P(WE) v P(DD), [2005] BCJ No 1971 where Justice Garson states:

[I] consider Parliament's enactment of the Civil Marriage Act to be a legislative statement of the current values of our society consistent with the Charter that I am obliged to use as a guide to my consideration of the current common law definition of adultery. Individuals of the same sex can now marry and divorce and the common law would be anomalous if those same-sex spouses were not bound by the same legal and social constraints against extra-marital sexual relationships that apply to heterosexual spouses.

In light of that decision, Justice Wooder concludes that infidelity should not be confined to heterosexual couples and grants the petition.

Ratio[]

Adultery is not confined to heterosexual infidelity.

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