Sex addiction and evidence in Canadian family law courts

According to Newsweek magazine and other sources, Harvey Weinstein is en route for “sex addiction” therapy. Weinstein is now part of a growing list of celebrities that have relied on this rationale to explain their infidelities. Those other celebrities include Charlie Sheen, Rob Lowe, Tiger Woods, Anthony Weiner, Russell Brand and, ironically, Steve Jones of the Sex Pistols, among others.

As a family law lawyer practising for more than 10 years, I have met many clients who have suffered unimaginable pain and embarrassment from their spouse’s infidelities that included sexual addiction. My job as their counsel is to always ensure that their emotions are validated but also to advise them how the law and the rules of evidence apply to their particular case.

It may be surprising to hear that the courts in Canada have rarely considered sexual addiction as a relevant factor in determining family law issues. The reason is likely because the evidence required to substantiate such claims needs to be significant in nature. And, even when there is evidence of sex addiction, it may not be enough to influence a decision with respect to child custody or spousal support entitlement.

For example, in a 2012 New Brunswick Court of Queen’s Bench decision, DLG v. GDR (http://canlii.ca/t/frkps), the couple had marital issues in part due to the lack of a sex life and the husband’s erectile dysfunction. However, they ultimately separated when the wife found her husband naked in the kitchen having cybersex with a woman online. During litigation, a psychologist determined that the husband’s sexually addictive behaviour was not good role modelling for his children. The court did order the man not to leave his children unsupervised and exposed directly or indirectly to sexual materials or any kind of pornography. However, the court still decided that both parents were entitled to have a shared custody arrangement.

Sometimes, the courts do take the claims of sexual addiction more seriously. In a 2012 Ontario Superior Court decision, J.M.G. v. L.D.G.  (http://canlii.ca/t/grpzp), the court determined that the parties separated in part due to the husband’s sex addiction, which involved solicitating the services of prostitutes and regularly watching internet pornography. The wife was concerned that her husband was unable to parent their 10-year-old son, that he was unable to seek treatment for his sex addiction and that he refused to properly address his psychiatric issues. The court suggested that for the man to be able to see his son unsupervised, he would need to provide a thorough report from a qualified mental health professional along with any information regarding followup treatment and compliance.

In general, for an individual to have to produce psychiatric or psychological records that may contain information of sex addiction, there would need to be evidence that such records would be relevant to the issues of a matrimonial case, particularly issues of parenting. 

For example, in a 2011 Ontario Superior Court decision, Yunger v. Zolty , the wife sought a court order for the husband to produce his medical records relating to his sexual addictions. The husband denied that he had sexual addictions. The wife claimed that the medical records would assist the court to determine whether the husband had or has sexual addiction and why the marriage broke down. The court ultimately decided not to force the release of the records and held that the disclosure of medical records is highly intrusive and that there are compelling reasons for preserving the confidentiality of communications between the patient and his doctor or therapist.

When it comes to a person who admits having a sexual addiction, the way that such evidence gets entered into court is critical. This was highlighted in a 2016 Ontario Superior Court decision, G. (J.M.) v. G.(L.D.), where the husband had a preoccupation with sexual fantasies that negatively affected the marriage. During the marriage, the husband entered therapeutic programs to deal with his issues. However, during his treatment, he kept a therapeutic diary that the wife improperly obtained and was so disturbed and devastated by its contents that it resulted in the marriage deteriorating. The wife was concerned that the couple’s children might be exposed to pornography or sexual remarks or jokes made by their father. At the trial, a psychologist recommend that the man obtain further therapy to address his issue of sex-related fantasies that led to poor judgment and inappropriate social behaviour in the past. However, the psychologist concluded that his therapeutic intervention was not a precondition to instituting a normalized parenting plan and that there was little evidence to suggest that the man’s issues with sexual fantasy negatively impacted his ability to appropriately parent his children.

Overall, the main concern for judges will be the best interests of the children and how a person’s sexual deviations would affect those interests. Typically, the connection is hard to make and would need to be supported by a professional deemed to be an expert witness in the case.

For example, in a 1995 British Columbia decision (Wilson v. Wilson), it was the wife who was found to be guilty of adultery. The husband claimed that their children were at risk by reason of the wife’s “interest in her various sexual partners.” The court ultimately held that there was no evidence to suggest that the woman’s alleged “pre-occupation with sex and sexual partners” would take priority over the interests of her children. 

As a final example, the 2017 Ontario Superior Court decision of Shaikh v. Matin shows how dangerous it could be to make a false claim against one’s spouse. In this case, the wife attempted to slander the husband in order to gain an unfair advantage in a custody fight. Her attempts to do so seriously backfired. The woman attempted to abduct her children by claiming in part that her husband assaulted her and was a “pornography and sex addict” without providing any evidence. The woman sent an email to the police of her claims. After a police investigation, it was found that her allegations were unsubstantiated. At trial, the court reversed custody of the children from the mother to the father and required the mother to have supervised access. The court decided that the woman had no credibility, that her evidence could not be relied on and that she was prepared to and had lied to the court. This was a painful reminder to litigants that a short win with the police or a temporary custody order may end up taking a drastic turn once all the evidence (or lack thereof) is before the courts.

Consequently, it appears that a claim of your spouse being a sex addict will not be easy to make and will likely require substantial evidence supported by a professional opinion, failing which there is a risk that making such claims in court would be at best ignored and at worst result in cost consequences or even a custody reversal in the severest of cases. The pain that a sex addict inflicts will be real and will be long lasting. However, the road to recovery will likely not be found in a courtroom but rather with the help of professional therapists, supportive friends and empathetic family members.

David Frenkel is an associate lawyer at Gelman and Associates. He has been practising exclusively family law for the past 10 years.