“Adultery” in Canadian Family Law: A Zombie Category?
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Authors
Nelson, Ronnie
Date
Type
thesis
Language
eng
Keyword
Adultery , Constitutional Law , Vagueness Doctrine , Divorce , Family Law , Legal History , Zombie Category , Zombie Law
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Abstract
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), [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.
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Queen's University's Thesis/Dissertation Non-Exclusive License for Deposit to QSpace and Library and Archives Canada
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Copying and Preserving Your Thesis
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ProQuest PhD and Master's Theses International Dissemination Agreement
Intellectual Property Guidelines at Queen's University
Copying and Preserving Your Thesis
This publication is made available by the authority of the copyright owner solely for the purpose of private study and research and may not be copied or reproduced except as permitted by the copyright laws without written authority from the copyright owner.