Had the couple done this in Ontario, would their marriage be valid? The requirements for a valid marriage are listed in the Marriage Act. The act requires the couple to be:

(5.1) Of the age of majority
(7) Be mental competent to wed
(25) Is not in another valid marriage somewhere, and that the ceremony is witnessed by at least two individuals who sign the marriage license attesting to doing so

So, if we analyze Craig and Weisz’s wedding, it seems clear that they meet all the requirements, and their marriage would have been valid in Ontario. Assuming of course that Craig or Weisz do not have any secret spouses hidden around the globe.

Marriages do not have to be large public affairs to be valid in Ontario.

So, we can ask ourselves what would have happened if Hugh and Crystal had been in Ontario. When looking at questions dealing with marriages in Ontario, the first place to check is the Marriage Act:

32. (1) No action shall be brought for a breach of a promise to marry or for any damages resulting therefrom. R.S.O. 1990, c. M.3, s. 32 (1).

In a way, most people who get married had previously made a promise to do so. This is what most people do when they get engaged; the couple agrees to get married at a future date. This law prevents one partner for suing the other if they do not get married. Their decision not to get married might have certain damages that result; Hugh for example would likely want to recall the magazine, or his reputation may have been damaged by the mix-up.

Under Ontario law, he would be unable to sue Crystal on the basis that she breached a contract when she called off the wedding. The courts in Ontario, ultimately, do not want to force people to get married when they have had second thoughts. So in the case of Hugh and Crystal; there would be no legal recourse under Ontario law for Hugh to try and sue his once girlfriend. However, if they both signed the contract for all of the suppliers such as caterer, musicians etc. then they both could be responsible for this expense.

The fact of the matter is that Charles and Diana did not sign what is known as a pre-nuptial agreement prior to their marriage. There is also no official reports as to whether William and Catherine have signed one or not. When considering William’s wealth going into the marriage, many may question whether this is a good idea in the unfortunate event that William and Kate decide to divorce in the future.

If William and Kate were married in Canada and they decided to sign a “pre-nup,” they would be signing what is known in here as a Marriage Contract. Pursuant to s. 52 of the Family Law Act, two people who are married or intend to get married can enter into a contract in which they agree on their respective rights and obligations under the marriage or on separation or on death. The contract can deal with issues such as:

1. ownership in and division of property;
2. support obligations;
3. the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
4. any other matter in the settlement of their affairs.

With respect to William and Kate, they can agree to how they will divide their property if they were to divorce in the future, which party would owe support to the other, and any other matter which they feel would make it easier for them to come to a resolution if they were to separate.

What William and Kate would not be allowed to agree upon is who would have custody of and access to these children in the event of a divorce. They would also not be allowed to agree in their marriage contract to limit either of their rights to the Matrimonial Home, which has not yet been reported where the couple will live. If there was a clause put into the contract limiting either of their possessory rights to the home, it would be unenforceable.

Looking to the future, if the couple decides to separate, either William or Kate would be able to apply to the court to have the contract set aside for one of the following reasons:

1. a party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into;
2. a party did not understand the nature or consequences of the contract; or
3. for general reasons such as undue influence, duress, mistake, etc.

In the event that the agreement is set aside in the future, this matter would be dealt with by the Court as if there was never a marriage contract in place.

Often when parties have marriage contracts in place and they attempt to have them set aside, they may argue that specific clauses were not clear enough or they did not understand their consequences when signing the contract. In these situations, the Court must look for an interpretation that is in accordance with the parties’ intention at the time the contract was signed. If there is an interpretation that would produce a result that the parties would not have reasonably expected at the time they entered into the contract, then that interpretation should be rejected.

For William and Kate, if they were to decide to sign a marriage contract, the more clear and specific they can make their contract, the better it will be in the future should they separate. Visit our website for further information on marriage contracts.

What if Hugh and Crystal were marrying in Ontario?

In Ontario, Hugh and Crystal would be entering into a marriage contract, instead of a Pre-Nup. Pre-nuptial agreements and marriage contracts are one in the same, but they have different names based on the laws in Canada and the United States. Pursuant to s. 52 of the Family Law Act, two people who are married or intend to get married can enter into a contract in which they agree on their respective rights and obligations under the marriage or on separation or on death. The contract can deal with issues such as:

1. ownership in and division of property;
2. support obligations;
3. the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
4. any other matter in the settlement of their affairs.

With respect to Hugh and Crystal, they can agree to how they will divide their property if they were to divorce in the future, which party would owe support (if any) to the other, and any other matter which they feel would make it easier for them to come to a resolution if they were to separate.

As Hugh is 85 years old and although it seems unlikely, it should be noted that while the two can agree on the upbringing of their children, they are not allowed to agree in a marriage contract on who would have custody of and access to these children. They are not allowed to agree in their marriage contract to limit either of their rights to the Matrimonial Home, which in this case is the Playboy Mansion. If there was a clause which was put into the contract limiting the rights to same, it would be unenforceable.

In addition, Hugh’s age may or may not play a factor in the drafting of this specific marriage contract. As mentioned, Hefner will be 85 years old when the couple marries and as such, the couple may also want to include provisions relating to how the ownership and division of property or support obligations will be handled if Hugh were to die prior to them separating. The same limitations would apply, however, as to what the couple would be able to agree to in the contract regarding, for example, the matrimonial home. Hugh would also want to ensure that his will was in line with the contract in order to avoid any problems that may occur should the two be contradictory.

Looking to the future, if the couple decides to separate, either party may apply to the court to have the contract set aside for one of the following reasons:

1. a party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into;
2. a party did not understand the nature or consequences of the contract; or
3. for general reasons such as undue influence, duress, mistake, etc.

In the event that the agreement is set aside in the future, this matter would be dealt with by the Court as if there was never a marriage contract in place. In the event that Hugh dies and the marriage contract had provisions in place regarding his death, Crystal would still be able to attend at the Court to have the contract set aside, but Hugh’s estate would be the other party to the matter.

Often when parties have marriage contracts in place and they attempt to have them set aside, they may argue that specific clauses were not clear enough or they did not understand their consequences when signing the contract. In these situations, the Court must look for an interpretation that is in accordance with the parties’ intention at the time the contract was signed. If there is an interpretation that would produce a result that the parties would not have reasonably expected at the time they entered into the contract, then that interpretation should be rejected.

Again, for Hugh and Crystal, the more clear and specific they can make their contract, the better it will be in the future should they separate. For further information on marriage contracts, please visit http://www.separation.ca/videos/marriage-contracts.

What if the two were marrying in Ontario?

In Ontario, pre-nuptial agreements are known as marriage contracts. Pursuant to s. 52 of the Family Law Act, two people who are married or intend to get married can enter into a contract in which they agree on their respective rights and obligations under the marriage or on separation. The contract can deal with issues such as:

1. ownership in and division of property;
2. support obligations;
3. the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
4. any other matter in the settlement of their affairs.

With respect to Jessica and Eric, they can agree to how they will divide their property if they were to divorce in the future, which party would owe support (if any) to the other, and any other matter which they feel would assist them in settling their affairs upon separation.

It should be noted that while the two can agree on the upbringing of their children, they are not allowed to agree in a marriage contract on who would have custody of and access to any children they may have in the future. Furthermore, they are not able to agree in their marriage contract on the limiting of either of their rights to the Matrimonial Home. If there was a clause which was put into the contract limiting the rights to same, it would be unenforceable.

Looking to the future, and the potential that the couple decides to separate, either party may apply to the court to have the contract set aside for one of the following reasons:

1. a party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into;
2. a party did not understand the nature or consequences of the contract; or
3. for general reasons such as undue influence, duress, mistake, etc.

In the event that the agreement is set aside in the future, this matter would be dealt with by the Court as if there was never a marriage contract in place. Therefore, before Jessica and Eric sign their marriage contract, it would be prudent that they ensure that, to the best of their ability, the above will not cause them problems in the future.

Often when parties have marriage contracts in place and they attempt to have them set aside, they may argue that specific clauses were not clear enough or they did not understand their consequences when signing the contract. In these situations, the Court must look for an interpretation that is in accordance with the parties’ intention at the time the contract was signed. Furthermore, if there is an interpretation that would produce a result that the parties would not have reasonably expected at the time they entered into the contract, then that interpretation should be rejected.

Again, for Jessica and Eric, the more clear and specific they can make their contract, the better it will be in the future should they separate and seek the assistance of the Court in interpreting what portions of their contract means for them on the Date of Separation. You may find further information on marriage contracts on our website.

In Ontario, parents who have joint custody of their children share the right to make important decisions about their care. While joint parenting is often misunderstood to mean that the children spend an equal amount of time with both parents, custody primarily focuses on the right to make decisions regarding the children’s care, education, religious instruction and welfare and has nothing to do with how much time the children spend with each parent.

With respect to the agreement that Sheen and Mueller have come to, since both parties identify December 25, 2009 as their separation date, the domestic contract that the two executed post separation is a separation agreement. In Ontario, separation agreements are the most common domestic contracts negotiated between couples. In order for two persons to enter into a separation agreement they must have cohabited and must now be living separate and apart. Generally speaking, the courts have held that “separate and apart” means a physical separation, combined with an intent to end the marriage. This intent does not need to be shared by both parties. In some situations, spouses may even be considered to have been living separate and apart while continuing to live under the same roof.

Unlike marriage contracts and cohabitation agreements, separation agreements may include provisions for custody and access to children in addition to all the rights and obligations that can be dealt with under those contracts. Nonetheless, such provisions may be disregarded by a court where it is in the best interest of the child to do so.

While the courts in Ontario are often reluctant to vary the terms of an agreement devised by the parties, an application may be made to a court for the setting aside of a domestic contract in one of the following three instances:

1. a party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into;
2. a party did not understand the nature or consequences of the contract; or
3. for general reasons at contract law such as undue influence, mistake, etc.

In all, what appears to be a clean break between Sheen and Mueller may not necessarily be so if either can how cause to set aside their agreement.

The breakdown of Aguilera’s marriage gives rise to some interesting issues that must be dealt with by the Family Court. Some of the more glaring issues include custody, the repercussions of the domestic contract and the effect of waiving spousal support. In what follows, each one of these issues will be independently addressed in accordance to the Family Law of Ontario:

Custody

Aguilera seeks joint custody of her son Max. In Ontario, parents who have joint custody of their children both participate in making important decisions regarding their welfare. The children may spend half their time with one parent and the other half with the other parent or they may spend more time with one than the other. Joint custody does not mandate that the parents share equal parenting time. Instead, it simply provides both parents with the authority to make significant decisions regarding their children such as decisions regarding education, religion and medical treatment.

In order for joint custody be successful, the parents have to be able to communicate with each other and to co-operate even though they are not living together. In this case, this parenting arrangement seems feasible as Aguilera and Bratman have separated on amicable terms and both desire to play an active role in the parenting of their child.

Domestic Contracts

Under the Family Law Act in Ontario, parties may enter a marriage contract to outline their expectations and obligations both during and after marriage. In this domestic contract, the parties may list the property that they are bringing into the marriage, state its worth and even decide on entitlement to the property upon the dissolution of the relationship. There are, however, certain things that cannot be included in the marriage contract. Parties are not entitled to make decisions as to custody and access upon the breakdown of the marriage, nor can the parties breach the law which entitles both the husband and wife an equal right to live in their home.

In this case, assuming that the marriage contract was duly executed, both parties exchanged full financial disclosure and both parties were in receipt of independent legal advice upon executing the contract it is unlikely that the terms or its validity of the contract will be raised.

Spousal Support

Under the federal Divorce Act, a Canadian family court will look at four heads when determining whether to order spousal support and how much to order. These four are

1. to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
2. to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses;
3. to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
4. in so far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. If a spouse is unable to support him or herself or if there is a big difference between the incomes of each spouse, he or she may have a claim for support against the other spouse.

The right to spousal support may be waived by way of an agreement. However, in order to be a full and final release, the clause in the agreement must be carefully worded and it must be clear that no change in circumstances will warrant a review of spousal support obligations. In some cases, a party’s waiver of spousal support is contingent on the potential payor’s undertaking to provide ongoing financial disclosure. That is, if ever the potential payor is found to be in a financial position to afford spousal support payments, the support obligation will commence. The latter is not an absolute release from the duty to provide support and as such, legal advice should be sought in order to ensure that the party’s agreement clears the potential payor from any future claim.

In this case, since there is likely to be some disparity in the incomes of both parties, if Bratman can show that his weaker financial position was caused by his marriage to Aguilera, he will certainly be entitled to support, a right he may or may not wish to waive.

In all, it appears that Bratman and Aguilera have planned for a clean break from one another and have decided to focus their attention on raising their young son as opposed to becoming involved in a drawn out legal battle over their separation.

Christina agreed to sign Terius’s lengthy petition for divorce which stated that the two did not have any children, waived both parties right to spousal support, and entitled both parties to maintain their own assets. However, Christina has since contested the petition, claiming that she was in an incapacitated state when served with the divorce papers as she was mere days away from having their baby. Further, Christina was pregnant at the time of the alleged separation and demands that the petition for divorce acknowledge their now 5-month old daughter. In short, now being a single parent, Christina hopes to invalidate Terius’s petition and receive financial support for their daughter.

While the validity of the signed petition is a matter of contract law and thus beyond the scope of this article, our focus will be on child support and is based on the assumption that paternity is not at issue and that Terius is the biological father of Violet. This also fictitiously applies the laws of Canada and Ontario to this scenario, which is not a matter before our domestic Courts.

Violet’s Right to Child Support

In Ontario, the Family Law Act, as well as the Divorce Act if the parties are married, dictate that all dependent children have a legal right to receive financial support from their parents. When parents live together with the children their costs are assumed to be inter-related and so, any money the parent with custody spends on the household will also benefit the child. Upon separation, however, support becomes an issue, the outcome of which is dependent on the living arrangements determined to be in the child’s best interests. The child can either reside somewhat equally with each parent, or one parent may have primary care of the children. When the children remain in the primary care of one parent, that parent is said to have primary residence of the child. As such, the parent with primary residence has the main responsibility for the day-to-day care of the child. Therefore that parent has most of the ordinary expenses of raising the child. The other parent must help with those expenses by paying money to the parent with custody.

In the case of shared parenting, the child resides with each parent no less than 40% of the time. Therefore, in this residence arrangement it is typical for Courts to “set-off” the parties’ respective child support obligations such that the party with the higher income pays to the party with the lower income the difference between their individually owed child support payments.

In view of the law regarding child support in Ontario and assuming Violet remains in the primary care of Christina, she will be entitled to receive child support from Terius.

How much Support

The issue now becomes of quantum. The Family Law Act and Divorce Act both dictate that where children reside primarily with one parent, child support is calculated using the Federal Child Support Advisory Guidelines. The Guidelines specify that unless otherwise stated, the amount of child support payable is:

1. the amount set out in the applicable table, having regard to the number of children a couple has and to the income of the payor spouse, AND
2. the amount, if any, determined to be a special or extraordinary expense (ie. post-secondary education, dance lessons, soccer, tutors etc.).

Since Terius is speculated to earn in excess of $150,000 per annum from his lucrative music career, his child support obligation is likely to deviate from the suggested table amount. For incomes over $150,000, the tables list an amount of child support for the first $150,000, and a percentage, which if found appropriate by both parties, may be applied for the part of the income over $150,000. Alternatively, for the amount of income over $150,000, the parties can agree on a sum based on the condition, means, needs and other circumstances of both parents and the child, such as whether the child is over the age of majority and is earning an income.

How Long does the Obligation Exist

Also worth consideration is the duration of Terius’s child support obligation towards Violet. In Ontario, child support must be paid as long as a child remains dependent. A dependent child is any child under the age of 18, unless:

• the child has married, or
• the child is 16 years of age or over and has voluntarily withdrawn from parental control.

Child support might also continue after a child turns 18 years of age if the child is unable to be self-supporting because he or she:

• has a disability or illness, or
• is still going to school full-time. Even if the child is not living at home while going to school, as long as the child’s primary residence is with the parent with custody,
• the parent without custody might have to continue to pay child support. This usually continues until the child turns 22 years of age or gets one post-secondary degree or diploma. In some circumstances, a judge might order support to continue even longer.

When deciding how much support should be paid for a child who is 18 years of age or older, the judge will take into account any earnings or income the child receives from other sources.

Making Sure He Pays

Having established Terius’s obligation to pay support, let’s shift our attention to enforcing Violet’s entitlement to child support. In Ontario, enforcement occurs through a provincial government office called the Family Responsibility Office (FRO). When the court makes an order for child support, it automatically files the order with the FRO. The payor parent is required to make all support payments to the FRO. Upon receiving payments, FRO delivers a cheque to the parent with custody, or deposits the money directly into that parent’s bank account.

The FRO ensures collection of owed support payments through a number of ways. It can:

• get the payments directly from the parent who is supposed to pay support,
• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions),
• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes,
• garnish (take money from) the bank account of a parent who fails to pay support, or garnish up to 50% of a joint bank account that he or she has with someone else, or
• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support.

Where the preceding tactics prove unsuccessful, the FRO can put additional stress on parents who do not make their support payments by:

• suspending their driver’s licenses,
• reporting them to credit bureaus so that it will be difficult for them to get loans, or
• cancelling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the primary residence parent, that is responsible for any actions taken to enforce it. A recipient parent may withdraw or re-file their support payment with FRO depending on their circumstances.

Conclusion

Violet is certainly entitled to child support. It is Violet’s legal right of to receive financial support from her parents. That right exists whether or not her parents were ever married and whether or not they ever lived together and continues until the she turns 18 years old. Even after 18 years of age, if Violet is still a dependent – owing to illness or disability, or because the child is still in school, for instance – then her right to financial support will continue.

Assuming Christina maintains primary responsibility for Violet’s day-to-day care, then Terius being the non-custodial parent must pay child support. While Terius’s extraordinary income makes it difficult to be exact with respect to the quantum of his support, the basic table amount obligates him to pay at least $1,254 in support per month.

Should the parties enter into a Separation Agreement??

Separation Agreements are typically used by parties upon the breakdown of the marriage or a common law relationship. They are more commonly used by parties that have an amicable relationship such as Cesar and Illusion. Separation Agreements provide the parties for arrangements upon separation or divorce.

A Separation Agreement can resolve issues in a matter on a final or interim basis depending on the needs of the parties. Cesar and Illusion will be required to disclose their financial information to one another including their incomes (assuming they are both working), assets, debts and liabilities. If they do not, this may result in the court setting aside the Separation Agreement in the future.

Some of the provisions that can be included in Cesar and Illusions Agreement are as follows:

1. The children’s custody information, such as who will have custody of the children and with whom the children will live with and access arrangements including vacations and holiday time. Here, Illusion would like the children to reside with her while Cesar has access to the children;
2. Child support information including to whom it is payable and the duration of same. It may also be prudent to include the timelines for the exchange of financial disclosure in the future as the parties’ income may change over the years;
3. Spousal support information such as who will pay support and the duration and amount of same. Here, it is likely that Cesar may be required to pay spousal support to Illusion given his high income and the duration of the marriage;
4. Property division including the sale of the matrimonial home, the division of the contents of the home and equalization payment;
5. Outstanding debt information in order to ensure that Cesar and Illusion address which spouse will be responsible for which debts they currently have.

Each Separation Agreement will vary according to the facts of that particular case. The courts prefer that parties enter into a Separation Agreement rather than engage in the family court system because a Separation Agreement is more likely to satisfy both parties’ needs and needless to say, court is rather expensive and time-consuming. Lastly, it is important to note that both parties should obtain Independent Legal Advice regarding the Agreement.

If Carrere was divorcing in Ontario, the following considerations are relevant:

Lawyer’s Ethical Obligations

If Wakelin retained counsel for his matrimonial matter, Wakelin’s counsel has a professional legal obligation to ensure that

1. Carrere who is unrepresented understands that Wakelin’s lawyer is acting exclusively in Wakelin’s interests;
2. Wakelin’s lawyer should recommend Carrere to obtain independent legal representation; and
3. Wakelin’s counsel is to take care to see that Carrere is not proceeding under the impression that her interests will be protected by Wakelin’s lawyer.

When one party is represented and the other is unrepresented (with no question of capacity), the lawyer has to directly correspond with the unrepresented. If Wakelin has legal representation, his lawyer would be obligated to directly deal with Carrere. This means all correspondences; negotiations; court pleadings, etc… would be addressed to Carrere.

Conversely, if both parties retain counsel, the lawyers on each side have an ethical obligation to ensure that the lawyers directly communicate with each other in resolving the matrimonial matter. This means that opposing counsel is prohibited from communicating directly with opposing party. The only exception to this ethical rule is if the lawyer on one side provides consent to the other lawyer to permit direct communication between opposing party and opposing counsel.

Domestic Contracts

There are three types of domestic contracts in Ontario:

1. Separation Agreement – which is used by common law or married couples upon the breakdown of the marriage or relationship. To learn more about Separation Agreements, please see http://www.familylawnews.ca/familylaw/separation-agreements.php.
2. Marriage Contract – which is known as a prenuptial agreement in the US. This contract is entered into between parties prior to marriage or during marriage in order to deal with the rights and obligations of the parties during marriage and/or martial breakdown. To learn more about Marriage Contracts, please see http://www.familylawnews.ca/familylaw/domestic-contracts.php.
3. Cohabitation Agreement – which is equivalent to a marriage contract, but it applies to common law couples. To learn more about Cohabitation Agreements, please see http://www.familylawnews.ca/familylaw/domestic-contracts.php.

Carrere and Wakelin are said to have a marriage contract (prenuptial agreement) in place which may assist the parties in their division of property, and support obligations, if any. However, Carrere and Wakelin’s marriage contract cannot deal with issues of custody and access of their 4 year old child because custody and access issues are determined based on the best interests of the child and not contractually negotiable. However, it is possible that one of the parties may apply to the court to set aside the marriage contract. If this claim was successful, then all of the issues would be before the court as if there was no marriage contract.