A legal term germane to family law generally and divorce in particular as in connivance with another spouse's adultery.
When a married spouse conducts himself or herself to promote or encourage the other's adultery, the court has traditionally denied a divorce on the grounds of adultery brought on behalf othe conniving spouse. Indeed, the bar has been codified; see, for example, §11(1) of the Canadian Divorce Act (2009):
"In a divorce proceeding, it is the duty of the court ... to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce."
In McPherson, Justice Ford of the Alberta Supreme Court wrote:
"It is clear law that there is a presumption of law against connivance and, if the evidence is equally consistent with its absence as with its existence, the plaintiff, in an action for divorce, is entitled to the negative finding thereon which the Judge may effectively make by saying nothing about it in giving judgment.
"(C)onnivance ... is an absolute bar, differing from wilful neglect or misconduct conducing to adultery, which is only a discretionary bar."
In Maddock, Justice Laidlaw of the Ontario Court of Apeal atempted to summarize the law as follows:
"It will be convenient and helpful to state certain propositions or principles of law respecting connivance....1. Connivance may consist of any act done with corrupt intention of a husband or wife to promote or encourage either the initiation or the continuance of adultery of his or her spouse, or it may consist of passive acquiescence in such adultery. 2. Corrupt intention of the husband or wife seeking a divorce is an essential ingredient of connivance, and the conduct of the husband or wife seeking the divorce must show that he or she, as the case may be, willingly consented to the adultery of the other spouse. 3. The issue is whether on the facts of the particular case, the husband or wife seeking the divorce was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse. 4. Acts done by a husband or wife seeking a divorce or by any person employed by him or her, as the case may be, to keep watch on the other spouse to see whether or not his or her suspicions of adultery are well-founded or unfounded, do not necessarily constitute connivance and, likewise, if one spouse does nothing without lulling into a sense of security, the other spouse about whom he or she, as the case may be, is suspicious, but merely watches her, he is not necessarily guilty of passive acquiescence amounting to connivance. 5. The Court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regard to wholly different circumstances and be led to a conclusion contrary to the justice of the case.... 6. There is a presumption of law against the existence of connivance and the Court should not find a spouse guilty of connivance unless the evidence shows clearly that all the essential ingredients thereof exist in the particular facts under consideration."
REFERENCES:
- Divorce Act, RSC 1985, Chapter 3, 2nd Supplement
- Duhaime, Lloyd, Family Law
- Duhaime, Lloyd, Family Law Dictionary
- Duhaime, Lloyd, Legal Definition of Adultery
- Duhaime, Lloyd, Legal Definition of Condonation
- Duhaime, Lloyd, Legal Definition of Divorce
- Duhaime, Lloyd, Legal Definition of ex turpi causa non oritur actio
- Maddock v Maddock 1958 OR 810 or 1958 CarswellOnt 129
- McPherson v McPherson (1933) 2 WWR 513; also at 1933 CarswellAlta 26