Mr. Salahi is claiming that his soon to be ex-wife had an extra-marital affair with Neal Schon – the lead guitarist for Journey.  Perhaps Mr. Schon can encourage the band to remix their most infamous track and change the chorus to “don’t start believing.”

This isn’t the first time, and it certainly won’t be the last, that a marriage is riddled with infidelity.  The twist here is that in the state of Virginia, adultery is a crime.  It is only a misdemeanour punishable by a maximum $250 fine, but it is a crime no less.

In her court documents, Ms. Salahi has elected to “plead the 5^th” in this regard and she is refusing to comment on the alleged adultery.  According to TMZ.com, this is likely because the pre-nuptial agreement in place between the couple states that if it is proven that Ms. Salahi committed adultery then she loses all entitlement to spousal support.

Interestingly, Ms. Salahi and Mr. Schon are dating openly, and have been doing so for over four months according to TMZ.com.  The question now is: when did they start their affair?

Insofar as the law of Ontario is concerned, can a clause erasing someone’s entitlement to spousal support as a result of adulterous behaviour be built into a separation agreement or marriage contract?

Section 52 of the Family Law Act reads as follows:

Marriage contracts

52.  (1)  Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

1. ownership in or 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.

A simple reading of this section on marriage contracts would suggest that the clause regarding infidelity found in the agreement between the Salahis would be enforceable in a marriage contract drafted and executed in Ontario by two Canadian residents.  Not so fast!

Section 56(2) is an exception to the above, which reads as follows:

Provisions that may be set aside or disregarded
Clauses requiring chastity

(2)  A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another.

To my knowledge, no such law exists in Virginia, so Mr. Salahi may successfully protect himself from any spousal support obligation.  Too bad for Ms. Salahi that they don’t live in Ontario.

I’m curious to know what you think.  Is Section 56(2) of the Family Law Act reasonable?  Or do you believe couples should have the right to draft clauses related to remaining faithful to their spouses?

After twenty-eight years together, and two children, was it really necessary for the couple to make it official? Has anything really changed legally for them now that they are married to one another? In Ontario, the answer is yes. Although both married and common law spouses enjoy many of the same rights with regards to almost every aspect of their conjugal relationship, there are still some differences between the rights of cohabiting and married couples in Canada.

When it comes to spousal support, married and cohabiting couples have virtually the same rights under Ontario Law. For example, under s. 29 of the Family Law Act, and for the purposes of spousal support, spouse is defined as follows:

“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each and have cohabited,

(a) Continuously for a period of not less than three years, or
(b) In a relationship of some permanence, if they are the natural or adoptive parents of a child.

Therefore, pursuant to this definition, individuals who are not married, but have lived together for a period in excess of three years or together parented a child can make a viable claim for spousal support. In the case of Gene and Shannon, who have been together for approximately twenty-eight years, it would be quite possible that spousal support would be ordered for an indefinite period time. Therefore, despite the fact that they were not married to one another, they may have been be financially tied to one another for the remainder of their lives.

Unlike spousal support, property rights for married couples are different from those of cohabiting couples. Pursuant to the Family Law Act, married couples are entitled to a division of property via an Equalization Payment, while cohabiting couples are not usually entitled to same. However, case law has stepped in and filled the gaps left by the Legislature thereby ensuring that common law spouses who have spent a significant amount of time, money and effort building a life together and accumulating assets in the name of either one or the other, do not miss out on the opportunity to share in the value of same.

Therefore, despite the fact that under s. 1(1) of the Family Law Act, a spouse is defined as:

“spouse” means either of two persons who,

(a) Are married to each other, or
(b) Have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right,

Cohabiting couples are still able to make claims for a constructive trust thus granting either individual an interest in or compensation for any contributions made to the acquisition, preservation or maintenance of property.

To clarify, a constructive trust allows an individual to share in the value of property (or acquire an interest therein) even though he or she does not hold legal title. This could be due to the fact that said individual has contributed to the value of the property through work, money, etc. which would make it unfair to deprive him or her from a share in the value, or increase in value, of the property.

The Supreme Court of Canada stated that courts will only impose a constructive trust once the following test is satisfied:

First, the principles of unjust enrichment must be satisfied:

1. There must be the enrichment of one of the spouses
2. A corresponding deprivation of the other spouse, and
3. No juristic or legal reason for the enrichment, such as:

• Making a gift or
• The presence of a contract

Once these principles are satisfied, a causal connection must be found between the contribution made and the property. If a connection is proved, then a constructive trust will result. More details regarding the law of constructive trusts and family law can be found in the recently released cases Kerr v. Baranow and Vanasse v. Seguin.

Lastly, and if all else fails, an attempt at a claim for unjust enrichment may be made. Here, the courts will simply apply the above mentioned test and then if unjust enrichment is found, the individual who was wrongly deprived of a benefit will get the value of his or her contribution.

Although legislation denies cohabiting spouses the automatic right to the division of property upon separation, the courts have founds way to ensure that they are still able to retain a benefit in cases where they have significantly contributed towards the assets or the accumulation of multiple assets.

In their candid interview, Kevin O’Leary revealed how often “marriages are collateral damage in the relentless drive to get rich” and while he was out gallivanting and promoting himself and his businesses on various television programs and at social gatherings, his wife was left alone.  His job forced him to be away from home for prolonged periods of time and while to him it was just work, for his wife it ended up being the force that drove the couple apart.  Kevin O’Leary has no qualms confirming that his TV career destroyed his marriage and he doesn’t waste his time pondering what could have been or how he could have saved his marriage.  After all, his own personal philosophy is “be a cold-hearted bastard and work like hell while the losers you’re about to destroy are nattering about work/life balance.”

What does this mean in the family law context?  Preliminarily, it may mean that as an individual who is worth upwards of $1.5 billion and who was in a long term marriage of over twenty years, Kevin O’Leary may be ordered to pay indefinite spousal support to his estranged wife.

The couple will more than likely look to s. 15.2 of the Divorce Act in order to ascertain Linda’s entitlement to support.  The four main principles enshrined in the Divorce Act respecting entitlement are found under subsection (6) which states:

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Based on this subsection, an order for spousal support may lessen the impact that a divorce may have on a spouse who forewent viable career opportunities and self-sufficiency in order to care for his or her family.

The Supreme Court of Canada in a 1999 decision revealed that there are three bases for entitlement to spousal support:

1. Compensatory;
2. Contractual; and
3. Needs-based

Compensatory entitlement seeks to compensate a spouse for his or her contributions to the marriage or for sacrifices made as a result of the marriage or its breakdown.  Contractual entitlement stands for the proposition that where an agreement is available it will generally be deferred to and enforced by the courts.  Lastly, needs-based entitlement allows a spouse to make a claim for support on the basis of need regardless of whether or not his or her need is due to the role assumed during marriage.  For example, a spouse who becomes ill or suffers a debilitating injury which is in no way related to the marriage may be entitled to long term or indefinite spousal support.

Once entitlement is established, we look to the Spousal Support Advisory Guidelines in order to establish quantum and duration.  The Guidelines have not been legislated and are merely advisory however the Ontario Court of Appeal essentially adopted said Guidelines and stipulated that they should be a starting point when attempting to determine quantum and duration.  The Guidelines provide two important formulas: the with child support formula and the without child formula.  Since we do not know whether the O’Learys had any children we cannot say which formula would be pertinent to their matter as of yet.  However, for the purpose of comprehension and clarity the with child support formula factors into any determination the fact that a recipient spouse may be receiving child support in addition to any order for spousal support whereas the without child support formula does not.

So, although he continues to enter into lucrative business deals which makes it seem as though Kevin O’Leary’s separation from his wife has not made an impact on him, the impact may be felt once an Order is made or an Agreement is entered into requiring him to pay over substantial amounts of support to his estranged wife, on a monthly basis, in order to ensure that she is adequately compensated and that her quality of life does not suffer as a result of the breakdown of the marriage.

If the worst were to come to pass, however, and the couple were in Ontario, the Family Law system would affect how the Life Insurance would be dealt with.  The  court can order an individual making a spousal, or custody support payment designate  a person under their life insurance under section 34(1)(i) of the Family Law Act:

(i) requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably;

This allows life insurance to act as security for the support payments.  If the person paying dies, their beneficiary will still be provided for by their life insurance.  In Ontario, some courts have begun to order individuals to take out life insurance policies in order to secure their support payments.  This was first done in the 1999 case Lackzo v. Lackzo. This precedent has been viewed favourably at the trial level, but has yet to be looked at by the court of appeal.

Life insurance is something that can become quite important during a divorce or separation in Ontario.  In the end it might be more reckless and dangerous to ignore discussing such issues with your spouse than anything Mr. Pastrana does during his stunts.

The Law in Ontario

If Leah and Cory were divorcing in Ontario, Leah would have filed a Court document known as an Application. This document commences the Court action and sets out the claims for relief that an individual is seeking in their matter. Without knowing the details of this case, it can be assumed that the following issues will be dealt with as a part of Leah and Cory’s separation and divorce:

1)  Custody of and a Parenting Plan for Aleeah and Aliannah

In Canada, custody refers to the legal decision making for the child(ren) in question. In this matter, it is not known whether Leah has requested sole or joint custody of the twins. If she was seeking sole custody in Canada, this would mean that she is looking to have the sole responsibility for the decision making for the children. If she was seeking joint custody, then she and Cory would be able to jointly make the major decisions regarding the twins including matters such as their religious upbringing, schooling, or medical care. Conversely, sole custody would mean that she would be requesting to be the sole decision maker for the twins.

When dealing with parenting arrangements for children, there are various options that the parties can agree to. The more common arrangements include one parent having the children reside primarily with him/her with the other parent having care of the child(ren) for a specified duration, usually on weekends, or the parents sharing the care of the child whereby neither parent would have the child less than 40% of the time. The court documents for this case are not public record and there have been no reports on the claims that Leah made for the parenting arrangements.

2)  Child Support

In Ontario, the Child Support Guidelines presumptively determine the amount that is to be paid in support obligations. The determination of the quantum of support payable, as per the Guidelines is generally based on the following:

1. The number of “children of the marriage”; as defined by the Divorce Act, or the dependants to be cared for when the Divorce Act does not apply; and
2. The payor parent’s line 150 income as per their annual Income Tax Return.

In this case, there are two children of this marriage. With respect to the payor parent, this is determined based on who the primary residence parent is. If it is decided that the children are to live primarily with Leah, then Cory would be the payor parent. The reverse, therefore, would also be true. Additionally, if the parties decide upon a shared parenting schedule with the twins residing equally with both parents, then the amount of what would be paid in child support would be based on what is known as the “set-off” approach. The Court would look to the following factors as outlined in Section 9 of the Child Support Guidelines in order to determine the appropriate amount of child support to Order:

1. the amounts set out in the applicable Tables for each of the spouses;
2. the increased costs of shared custody arrangements; and
3. the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Without knowing the particular details regarding what Leah is requesting regarding the parenting arrangements, it is difficult to comment further regarding the quantum of support that either parent, or both will have to pay to support the children.

3)  Spousal Support

If either Leah or Cory were to bring a claim for spousal support, in Ontario, the Court would first consider whether he/she was entitled to support. In order to determine this entitlement the Court would look at such factors as whether he/she is in need of support, or if he/she had made a contribution to the marriage that requires he/she be compensated for it. The length of the marriage is also a factor that will be taken into consideration.

Based on the known facts of this case, the parties are both very young. Although they have both been involved in two reality tv series, it is unknown how much they have earned, and it is unlikely that they have other significant sources of income. If either party is able to show that he/she contributed to the marriage in a way that he/she should be compensated for, then a Court may determine that he/she is entitled to support from the other. In this case, the fact that the parties were married for less than six months at the time that Leah filed her documents with the court, would also be taken into consideration. As the parties were only married for 5 months when they separated, it would likely be difficult to show that either contributed to the marriage in such a way that he/she should be compensated for. Therefore, based on the limited known facts of this case, it is difficult to say whether either party would be granted spousal support. Visit our website for more information on spousal support.

4) Equalization

In Ontario, when a couple separates there is a process known as equalization whereby a calculation is completed to determine the amount which spouse with more assets is obligated to pay the other. This calculation and payment is completed in order to ensure that neither spouse leaves the marriage better or worse off than the other. Not knowing anything about the couple’s assets or liabilities, it is impossible to say which spouse would be responsible for an equalization payment to the other, if any.

It is interesting to note that there has been mention of the fact that Cory had taken a significant amount of money out of the couple’s joint bank account to purchase a new truck for himself. This factor could be taken into account when determining the equalization calculation in this matter if Leah wanted to argue for an unequal division of the parties’ net family properties. It should be noted however, that meeting the test associated with a claim for unequal division is very difficult and the individual who makes the claim has the onus of proving why the parties net family properties should not be divided equally. Because of this, it is difficult to determine how Cory’s decision to purchase a truck with money from the joint account would be dealt with.

Visit our website for more information on how equalization is calculated.

5) The Matrimonial Home

In Ontario, the Family Law Act states that regardless of how title of the home is held or how it was brought into the marriage, if it has been made the matrimonial home by the couple by their family living in it during the marriage, or determining it to be such for tax purposes, each spouse has equal possessory rights to the home. In this case, it is unknown whether there is a matrimonial home which needs to be dealt with.

Academy Award nominated American actor, Terrence Howard and wife Michelle Ghent, a commercial production employee, are going their separate ways only a year after getting married.

According to tabloids, Ghent filed for divorce citing “irreconcilable differences.” She is seeking spousal support and asking for the actor to pay her legal fees.  Ghent’s paperwork for the divorce proceedings states the couple married on January 20, 2010 and separated on January 27, 2011.

Just six days before Ghent filed for divorce, the couple attended the Sundance Film Festival in Park City, Utah together.

This marks the third divorce for the actor, but only his second wife. He was previously married twice to Lori McCommas, with whom he has three children.

Ghent’s Claim for Spousal Support

In Ontario, spousal support is governed by Section 15 of the Divorce Act (federal legislation) and Sections 30 and 33 of the Family Law Act (provincial legislation).  The issue of spousal support post marriage is dealt with in accordance to the Divorce Act, whereas spousal support for couples who cohabited outside of marriage (and meet the legal definition of having cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child) must use the Family Law Act.

In determining the quantum of spousal support, the following factors are often considered by the courts:

• The current assets and means of both parties,
• The likely future assets and means of both parties,
• A dependant’s capacity to contribute to his or her own support,
• The payor spouses’ capacity to provide support,
• The age and physical and mental health of both parties,
• The dependant’s needs with respect to accustomed standard of living during cohabitation,
• The length of time and cost involved, as well as means available to assist dependant in becoming self-supporting,
• Any contribution by the dependant to the respondent’s career potential during the time of cohabitation,
• The requirement for either party to stay at home to care for a child and the history of child care responsibilities during the time of cohabitation,
• The length of cohabitation and the effect on the dependant’s earning capacity because of responsibilities, including housekeeping and other domestic services, assumed during cohabitation.  Essentially, the economic hardship suffered by either spouse as a result of the marriage.

Further, the federal Department of Justice has released Spousal Support Guidelines. They include tables laying out expected ranges of support that take into account such factors as:

• length of the marriage,
• income levels,
• work history of each spouse, and
• number of offspring.

However, it is important to note that unlike the federal guidelines for child support, these guidelines are only recommendations from the federal government and are not legislated.  Therefore, the courts are not obliged to follow them in deciding the issue of spousal support.

In this case, in view of the short duration of the party’s marriage and assuming that there was not a substantial disparity between their respective incomes it is likely that if support is ordered for Ghent, it will be time limited or in a lump sum and intended only to assist her with the transition back to living separate and apart.  The current state of the law suggests that a minor difference between the spouses’ standards of living following the breakdown of a shorter modern marriage should not be considered as sufficient hardship to prompt support entitlement under the Divorce Act.  However, a gross disparity in lifestyles would warrant support entitlement.  In such a case, support is awarded to ease a dependant’s progress to economic independence and may be of limited duration.  A court should try to ensure that the form, duration, and amount of support promote, not discourage, a payee’s self-sufficiency, insofar as realistic in the circumstances.  As such, in this case, unless there was significant economic hardship to Ghent as a result of the marriage, her entitlement to support, if any, is likely to be short lived.

Simpson, younger sister of Jessica Simpson, and Wentz married in May 2008, and by that November welcomed their child, Bronx Mowgli Wentz.  Now that the couple is separating, the issues of child support and spousal support are among the many issues that must be dealt with.

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 Bronx remains in the primary care of Simpson, she will be entitled to receive child support from Wentz.

Spousal Support

In Ontario, many family law practitioners would probably agree that entitlement to spousal support is one of the most fluid areas in family law.  In stark contrast to the area of equalization and property sharing where technical rules are rigidly applied and adhered to, the area of law dealing with spousal support witnesses a tremendous deal of fluidity and judicial discretion.

In an attempt to alleviate some of the uncertainty surrounding the issue of spousal support, in January 2005 the Justice Department released a draft proposal titled Spousal Support Advisory Guidelines (“SSAG”).  While the circumstances surrounding every divorce depend on the specific facts and arrangements of the particular marriage, the Spousal Support Advisory Guidelines provide the courts with a cursory formula, or series of formulas, to guide them through the support allocation process.  It is very important to note, however, that unlike the Federal Child Support Guidelines, the Spousal Support Advisory Guidelines are not legislated and are only discretionary.

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 Simpson’s career has had to take the back burner to Wentz’s there is likely to be some disparity in the incomes of both parties, if Simpson can show that her weaker financial position was caused by her marriage to Wentz, she may be entitled to support, a right she may or may not wish to waive.

What if the parties were in Ontario?

As the parties do not have any children, if the parties were separating in Ontario, the issues which would need to be resolved would be:

1. The Matrimonial Home;
2. Equalization of the parties Net Family Property; and
3. Spousal Support.

The Matrimonial Home

Although there have not been many details released regarding Olivia and Tao’s relationship, it is relatively safe to assume that they shared a home together and as such, this asset will need to be properly addressed as part of a settlement in this matter. Part I of the Family Law Act deals with the Matrimonial Home and protects each spouse’s rights to the home whether or not they have been placed on title. What will be done with the Matrimonial Home, for example whether it will be sold or whether one party will retain the home, is a decision that is the parties must make on their own. The value of the home, and all associated liabilities, will be dealt with as part of the Equalization calculation as will be discussed. For further information on how Matrimonial Homes are typically handled by the Ontario Courts, please visit our website.

Equalization

When a married couple decides to separate, the parties will have to address the issue of what their new financial reality will be like. The process to come to this determination is known is called “Equalization,” and is a calculation which will be completed to determine the amount that the spouse with more assets is obligated to pay the other. Not knowing which spouse in this situation earns more, as Tao is an Italian Prince and filmmaker and Olivia is an actress, or anything about the couple’s assets, it is impossible to say which spouse would be responsible for an equalization payment to the other. For more information on how equalization is calculated, please visit our website.

Spousal Support

There have not been any reports as to whether either party will be seeking spousal support from the other, Ontario Courts would first consider whether the individual was entitled to support. In order to determine this is entitlement the Court would look at such factors as whether he/she is in need of support, or if he/she had made a contribution to the marriage that requires they be compensated for.

Based on the known facts of this case, as Olivia is an actress on “House,” and as Tao is a filmmaker and likely has significant wealth due to the fact that his family is royalty, both parties are likely high income earners. Based on the assumption that they are both making a very good living, it would be difficult to prove that either is in need of support and therefore they would likely not be able to meet the test for entitlement. If the parties could not meet this test, then the spousal support issue would be completed and neither would receive it from the other.

In Ontario, separating parties are not entitled to bargain away child support as public policy dictates that both parents have a financial obligation towards their child.  A parent’s child support obligation is a continuing obligation that cannot be removed by agreement.  A child’s right to receive support from their parents is inherent and cannot be waived.  The status of the parents’ relationship has no impact on this right.  In other words, it does not matter whether the parents are divorced, separated or unmarried; the child’s right to support so long as he or she remains a child of the relationship is guaranteed.  Thus, any attempted waiver of such support is a direct violation of public policy.

In this case, Camille has not waived her right to make a claim for child support.  Instead, she is agreeable to accepting a one time payment in the amount of $50 million which would encompass Kelsey’s child support contributions (we assume both retroactive and ongoing).  In Ontario, a child’s best interests are given paramount importance child support cases.  The best interests of the child is the standard courts use in determining many child support, custody and visitation issues.  In order to determine the best interests of the child, the Court considers a non-exhaustive list of elements that examine the family’s life to help determine what actions will be in the best interest of the children. A few main areas that are examined include parental employment and quality of life.

Courts will not agree to a complete waiver of child support by the parents. Courts will refuse to limit the amount of support based on parental agreement if it is not in the best interests of the child.  A court will look to child support guidelines to decide if an agreement falls within the guidelines and results in the protection of the child’s best interests.

Again, in this case Camille is willing to limit the amount of support and has not agreed to a complete waiver.  While the family courts encourage parties to negotiate their affairs on their own accord, a compromise over child support that is a bad deal for the child, is not within the Federal Child Support Guidelines and not in the child’s best interests will not get court approval.  On the other hand, if an agreed-upon support amount is consistent with child support guidelines and protects the best interests of the child, court approval is more likely.

Essentially, if Kelsey and Camille were divorcing in Ontario, the court would have to review their proposal and consider it in light of the best interests of the children in order to determine if such negotiations would be fair for all parties involved.  After all, child support is not about the parents; it is about the child.

In Ontario, the following legal issues may be considered…

Custody

Dylan and Joanna are seeking joint custody of their daughter Stella. In Ontario, parents who have joint custody of their children both participate in making important decisions regarding the child’s welfare. These decisions may be with respect to religion, education, medical treatment and the overall upbringing of the child. It is important to note that custody does not relate to actual time spent with either Dylan or Joanna. In the United States, it appears that the term for same is ‘physical custody’ which does not exist in Ontario. In Ontario this is referred to as ‘access time or parenting time’.
Stella may spend half her time with Dylan and the other half with the Joanna or Stella may spend more time with one than the other. Joint custody does not impact the amount of time spent with each parent. As noted above, it will provide Dylan and Joanna with the authority to make significant decisions regarding Stella jointly. In order for the Court to award joint custody to Dylan and Joanna, they will need to demonstrate that they are cooperative and willing to communicate with one another regarding any child related issues.

Child Support

A final access schedule will determine the issue of child support and who will have to pay child support to whom. If Stella spends at least 40% of her time with each parent, then a set off approach to child support may be used. This means that the courts would determine how much child support each parent must pay based on their respective incomes. Once this amount is determined for Dylan and Joanna, the amounts would be subtracted from one another, and the party who earns more (here most likely Dylan) would pay the difference to the other.

Spousal Support

Although Dylan has offered spousal support to Joanna, we will discuss the factors considered by the Court when determining whether to order spousal support and the quantum for same. The following factors are considered by the Court:

1. the length of the relationship;
2. the need for financial support;
3. the need to compensate a partner for the economic hardship they endured from the relationship;
4. a partner’s contributions to enhance the other’s career; and
5. the need to maintain the same standard of living when the partners lived together.

In this case, both parties are actors earning relatively high incomes. There may however be a disparity in the parties’ incomes if Joanna can demonstrate that she is in a weaker financial position as she gave up certain career opportunities and this was a result of the marriage. If, for example Joanna can show that she made certain career sacrifices to further Dylan’s career which did not allow her to pursue her own career, she may be entitled to compensatory support. We are not told whether Joanna will accept Dylan’s offer to give her with spousal support, however, given that both parties are working and the marriage was a six year marriage, Dylan should have thought twice about offering her spousal support as there appears to be no real need for it.