“Adultery” in Canadian Family Law: A Zombie Category?
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The focus of this thesis is upon the construction of “adultery” within Canadian divorce law. I argue that this legal construct is exemplary of what social theorist Ulrich Beck described as a “zombie category” - a moribund concept that haunts the living. It is my contention that this construct is unconstitutionally vague and should be jettisoned. I locate the origins of this matrimonial fault and chart its development over time. I emphasize that until recently, the definition of adultery that informed Canadian family law was robustly heterosexist, phallocentric and anchored in an understanding of procreation as the sine qua non of marriage. Adultery, as defined in Kahl v Kahl (1943),  OJ No 365 referred to "voluntary sexual intercourse by a married person with another person of the opposite sex other than his or her spouse.” In a post-Charter era, P(SE) v P(DD), 2005 BCSC 439 and Thebeau v Thebeau, 2006 NBBR 154 made clear that the definition of adultery must be consistent with the governing legislation and the values that the Charter enshrines. However, neither case furnished a definition of adultery that serves this purpose and, as of 2020, this void remains unfilled. I forward two models of how adultery might be operationalized in judicial determinations of the occurrence of this matrimonial fault and describe the problems that inhere in each.