According to Forbes Magazine, it is unclear whether or not there is a pre-nuptial agreement between the parties.  This can certainly make distributing millions and millions of dollars between these two quite difficult.  One would like to think their presumably high-priced lawyers had the common sense to make them sign one. 

As happy as a couple as they may have been, we all know the divorce rate between celebrity couples is astronomically high.  So high in fact, it necessities a weekly blog!

The parties were married for seven years.  According to Forbes Magazine, over the past 10 years Ms. Klum’s earnings were approximately $108.7 million, plenty of which was earned via her contract with Victoria’s Secret.  She now has a lucrative contract with New Balance.  Forbes’ estimations indicate that Ms. Klum’s net worth is significantly higher than Seal’s – $50 million to $70 million versus $10 million to $15 million.

Perhaps the sales of Seal’s new album can help rectify that?  Regardless, it wouldn’t have an impact on any equalization payment he may be entitled to.

In Canadian law (and let’s assume for a minute that the parties are Canadian), any money earned post-separation does not have an impact on equalization.  Post-separation income is, however, relevant to spousal and child support payments.

If we also assume each of the parties’ Net Family Properties is reflective of their estimated net worth, then how would the division of their finances play out?

Section 5 of the Family Law Act, which applies to married couples going through the divorce process, reads as follows:

Equalization of net family properties
Divorce, etc.

5.  (1)  When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

Assuming the estimates in Forbes Magazine are accurate, then how much money would Seal be entitled to?  According to the Family Law Act, he could receive anywhere from $17.5 million to $30 million.  From an outsiders perspective, it may seem absurd that someone with a net worth of $10 million+ could be entitled to many more millions of dollars, but under typical circumstances (i.e. when the numbers aren’t staggeringly high) entitlement to half of the difference of each parties’ Net Family Property seems more “fair.”

For Ms. Klum’s sake, let’s hope that pre-nuptial agreement does in fact exist.

The couple married on May 10, 2005 and since then their family has steadily grown.  Currently, they have 3 biological kids in addition to Heidi’s eldest daughter from a prior relationship with Flavio Briatore, a notorious Italian ladies’ man.

The breakdown of their relationship will require the resolution of many issues, which include custody and access to the children.

However, will the fact that Seal is not the biological father of Heidi’s eldest daughter impede his ability to parent her post-separation and maintain the relationship formed over the past 7 years?  In Ontario, the answer to this question would be a resounding “no”.

Once Seal effectively adopted Heidi’s daughter, he gained all the same rights and obligations with respect to her care and well-being as a biological parent would have.  Therefore, if this matter were to be heard in Ontario, when making a determination with regards to the custody of and access to the children, there would be no distinction between the factors considered for Seal’s three biological children and those considered for his adoptive daughter.

To clarify, the parent who is granted custody of the children is endowed with the authority to make any important decisions about the care and upbringing of the child with regards to religion, school and educational programs, and medical treatment.  Whereas, the parent who is granted access has the right to visit with the children as well as the right to obtain information regarding the children’s health, education and welfare.

When attempting to come to a determination as to which parent should be granted custody of the children, the courts in Ontario will defer to “the best interests of the child”.

This concept is somewhat defined under s. 24 of the Children’s Law Reform Act which states that when attempting to determine which custodial arrangement would be in the best interests of the children, Ontario courts will consider the love, affection and emotional ties between the child and the person claiming custody as well as other family members who reside with the child and other persons involved with the child’s upbringing; the child’s views and preferences; the length of time the child has lived in a stable home environment; and the ability and willingness of the person applying for custody to provide the child with guidance and education, the necessities of life and any special needs of the child.

In Ontario, various court judgements suggest that when making a determination regarding custody and access, judges tend to prefer maintaining the status quo.

Parents who have throughout the couple’s relationship acted as the primary caregiver to the children are commonly awarded custody of the children.  In the case of Heidi and Seal, TMZ.com reports that Heidi made a whopping $20 million dollars in 2011 with her various reality shows, modelling shows, photo shoots, and cameo appearances. Seal’s net worth is estimated at between $15 million to $20 million.

If her work-related commitments forced her to stay away from the home for prolonged periods of time, leaving Seal to care for the children in her absence, then the status quo created could favor Seal.

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?

Approximately 18 days later, the world was once again shocked by the singer-songwriter, when on December 26, 2011; she announced that she would be ending her marriage to Herridge as a result of pressures placed upon him by individuals in his life who did not want to see the couple together.

The singer was deeply hurt and revealed on her website and twitter that she was still enamored of Herridge, like her 1990 global hit “Nothing Compares 2 U.”  O’Connor and Herridge were spotted together, walking arm-in-arm on January 4, 2012, after leaving an Irish pub.  In addition, O’Connor has once again taken to the “twitterverse” to profess her undying love and devotion to her husband.  On January 3, 2012 she posted: “[…] Yay!!! We decided to be boyfriend and girlfriend again and stay married […].”

Throughout her life, her music has been a critical success while her personal life has been marked by difficulty and scandal.

O’Connor’s past includes shoplifting and truancy in her teenage years. Her mother was killed in a tragic car accident when O’Connor was 15. She has been diagnosed with fibromyalgia, bipolar disorder, and attempted suicide on her 33^rd birthday. She has been married three times prior to her marriage to Herridge.

On Friday, January 13, 2012 the troubled artist ended her marriage to Herridge a second time.

What effect, if any, will O’Connor’s and Herridge’s on-again, off-again marriage have on any future claims she may make for a divorce?  Has the clock stopped running?  Will their date of separation change?

If the couple were married in and resided in Ontario, the following laws would apply:

Firstly, Sinead O’Connor could bring an application under s. 8(1) of the Divorce Act for an Order for Divorce.  Provided she satisfied the elements under s. 8 (2) regarding breakdown of marriage the court would be at liberty to grant said Order.  Breakdown of marriage would be established if O’Connor could establish any of the following:

1. Her and Herridge lived separate and apart for one (1) year;
2. Adultery; or
3. Physical or mental cruelty

If she were to bring her application and state one (1) year separation as the reason for the breakdown of her marriage, she would then have to look to s. 8(3) of the Divorce Act for the calculation of the period of separation.  Based on s. 8(3) a couple will be deemed to have satisfied the one (1) year period if:

1. Either of them had the intention to live separate and apart from the other; and
2. The spouses did not resume cohabitation for a period exceeding ninety (90) days.

Therefore, since O’Connor and Herridge’s brief reconciliation did not meet or exceed the ninety (90) day period then when filing her Application for Divorce and other necessary and relevant documents, she would be at liberty to state that December 26, 2011 was her effective date of separation.

By the state law of California, where the unhappy couple filed for “no fault” divorce, Brand could be entitled to half of Katy’s fortune.

Unfortunately for Ms. Perry – one of the world’s biggest musical artists – the duo did not enter into any form of pre-nuptial agreement, and her less famous, but still relatively rich soon-to-be-ex, stands to gain up to $40 million in a lump sum, 50/50 settlement.  This is all according to the Daily Star, a British entertainment news source. We all make mistakes, but $40M is a pretty big mistake.

It was kind of a somber way to spend the holiday season, but Mr. Brand and Ms. Perry spent Christmas thousands of miles apart, as Katy made her way to Hawaii while Mr. Brand was back home in England.  According to TMZ.com, the source of the sourness between this celebrity couple was Ms. Perry’s desire to party and Mr. Brand’s more laid back idea of weekend entertainment.

In spite of that, there is apparently no ill will between the parties and they both agreed that filing for divorce was the right move.

There are rumours swirling to the contrary, however, some even suggesting that Mr. Brand “blind-sided” Ms. Perry with the divorce because he was the one who filed the papers.  TMZ.com has since reported that Mr. Brand did the filing because Ms. Perry was afraid that initiating the proceedings on her own would upset her staunchly religious parents.

The most-talked about issue surrounding this separation is the potentially large payout that Mr. Brand may receive.  For a marriage of such short duration, it seems ludicrous that an already wealthy person would be entitled to half of the couple’s combined fortune.

A few weeks ago, I wrote about Jennifer Lopez and Marc Anthony and how equalizing net family property works in Ontario.  The same formula and procedure may apply to Russell Brand and Katy Perry; however there is a mechanism in place to protect Ms. Perry from having to make a gargantuan equalization payment.

Section 5(6)(e) of the Family Law Act reads as follows:

Variation of share

The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years.

The laws of California may not contain a similar clause, but given the extremely short duration of their marriage and imagining for a minute that Mr. Brand and Ms. Perry were residents of Ontario, a judge has the discretion to decide that giving Mr. Brand upwards of $40 million would be unconscionable.

Hopefully, this information puts all the extremely wealthy engaged people out there at ease.  There are never any guarantees when you walk into a courtroom, but the legislation above would certainly make it difficult for someone in Ontario to get a divorce within the first five years of their marriage and secure a half interest in the assets of their spouse, wealthy or otherwise.

According to TMZ.com, Bryant’s soon to be ex-wife Vanessa was given an abundance of information from the wives of other players around the league to whom Kobe had bragged about his many sexual exploits.  Ms. Bryant was well aware that her husband has not always been faithful or even a gentleman  (you may recall that Kobe was charged with sexually assaulting a 24-year old Colorado woman in 2003), but apparently his extra-marital activities have increased to new, unbearable levels.

The divorce papers were filed on Friday December 16, 2011, and Ms. Bryant cited “irreconcilable differences” as the grounds for the divorce.  The couple married on April 18, 2001.  Ms. Bryant has asked for joint custody, but would like the children to reside with her most of the time.  Ms. Bryant has also asked for child and spousal support, which Kobe says he will pay.  In fact, he is still making efforts to save the marriage.  No word on how, but maybe he’s offered a rollback on mistresses now that his salary, too, has been rolled back as a result of the recent NBA labour negotiations.

In any event, Ms. Bryant’s filing gives me the opportunity to draw your attention to some terminology that confuses a lot of people:  joint custody.  What does this actually mean in Canadian Family Law?

To the average person, when they hear the words “joint custody,” the assumption is simply that the child or children affected by the separation spend equal time with both parents and both parents are equally responsible for all matters related to the upbringing of the children.

In reality, having custody over a child differs from access time with a child or joint residency.  The custodial parent has the power to make important decisions about the care and upbringing of the children with regard to things like:  religion, schooling, and medical treatment.

When parents have joint custody, they make decisions of this nature together.

When the children reside equally with both parents, decisions are not made together unless the parents also have joint custody.

Furthermore, it is possible for a parent to have sole custody, but to also spend less time with the children than the other parent.  Frequency of access is not determinative insofar as making important life decisions goes.  The custodial parent(s) make the final decision.

Therefore, if Mr. and Ms. Bryant end up with joint custody, as Ms. Bryant is hoping, then they will have to make decisions about their two children, namely Natalia and Gianna Bryant, together, no matter where and with whom the girls are living.  So, for example, when the time comes to make a decision about what the girls should do after high school, both parents would be involved in that decision, not just the parent they are living with.

Hopefully, the Bryant family will have a speedy separation agreement, because it doesn’t look like a $4 million diamond ring, bought by Kobe as “apology gift,” is going to keep them together this time.

According to the Times of India (I read a lot) Lopez and Anthony, who separated back in July after seven years of marriage are working towards negotiating a settlement before filing for divorce. There’s a lot at stake, but if you have the time and patience (and if you can stand to be in the same room as the person you are separating from) then negotiating a resolution in an amicable fashion, without using the Courts, can be mutually advantageous.

In Ontario, particularly in the Central East Region, the Court are very backed up, so separating couples often need to wait months before they can attend their first substantive Court date – which is usually a Case Conference. In the interim, negotiations and settlement meetings are encouraged to help narrow down the issues between the parties. In the event that the parties do end up in Court, in Ontario anyway, judges look favorably on those who make serious attempts to resolve their issues prior to pursuing litigation.

While there are a lot of assets to deal with in their matter, one big hurdle they have climbed is that they have agreed on their date of separation. That makes dealing with the financial aspects of the divorce a lot easier.

In Ontario, divorcing spouses generally equalize their net family property. The net family property calculation, in simple terms, is as follows: take the value of all assets owned by a party as at the date of separation (other than excluded property, for example a gift received from a third party during the marriage); subtract all liabilities as at the date of separation; and subtract your net worth as at the date of marriage (which does not include the value of the matrimonial home). The balance is an individual’s net family property. The spouse with the lower net family property receives half of the difference between each person’s total net family properties.

With J-Lo and Marc Anthony, we are probably looking at some hefty numbers. They own several homes and businesses, and they are also minority owners of the Miami Dolphins, who recently fired coach Tony Sparano.

Sources say once the former couple works out the property and asset division, they will file for divorce in California, because you can file for divorce there without placing any party at fault—the so-called “no fault” divorce. The divorce would be legally finalized six months after they file.

In Ontario, we also have no fault divorce, but it is just referred to using different terminology. In order to finalize a divorce, a couple has to be “living separate and apart for one year.” The difference then becomes the time it takes to finalize the divorce. In Ontario, you must wait a full year after filing an Application for divorce before it is final.

Under California law, fraud represents one of several valid grounds for an annulment. Others include, but are not limited to: bigamy; incest; force; or if the couple are under the age of consent.

To clarify, an annulment essentially voids a marriage, making it as if that previous marriage had never occurred.

A divorce, on the other hand, terminates a marriage and the legal rights and obligations that occur as a result of the union of two individuals.

In Ontario, an annulment is not easily obtained. To be successful, an individual seeking an annulment must prove to the court that some defect or disability existed at the time of the marriage ceremony, and as such, prevented the marriage from coming into existence. The proper procedure to follow is to apply to the court and show that there was a defect in either the “formal validity” or “essential validity” of the marriage.

A defect in the “formal validity” refers to a legal defect in the marriage ceremony, due to the fact that the individuals wanting to marry failed to comply with the provincial rules regarding formalities of ceremony. For example a defect could be that the individuals did not publicize their banns, their marriage was solemnized by an individual not authorized to do so, or there was in irregularity in the issuance of their licence.

A defect in the “essential validity” generally means that one of the two individuals entering into the marriage lacked the proper capacity to do so, and as such, the marriage is void. Generally, a defect in the essential validity of a marriage may consist of the following:

• An inability to consummate the marriage;
• The parties are within the prohibited degrees of consanguinity or affinity as defined in s.2 and s.4 of the Marriages (Prohibited Degrees) Act (in other words, the spouses are too closely related by blood/genetics);
• One of the individuals has a prior-existing marriage;
• age; or
• one of the individuals lack the appropriate consent due to:

1. mental incapacity;
2. duress;
3. fraud; or
4. mistake

Based on the high threshold that must be met in order to obtain an annulment, it is rare that they are granted. This being the case, it seems that Kris Humphries may be out of luck!

The Raymonds were only married for two years, but they managed to conceive two children during that time. They agreed to joint and shared custody after they were divorced. According to TMZ.com, Ms. Raymond has filed court documents seeking an order that Mr. Raymond’s custody rights be removed.

Ms. Raymond claims that Usher has failed to abide by several aspects of their agreement. At the top of the list of indiscretions is Mr. Raymond’s alleged failure to obtain his ex-wife’s permission to travel outside their home state (Georgia) with the children. Tameka has also said that Usher has failed to: get her approval before hiring nannies; give her the right of first refusal to watch the children when he is unavailable during his scheduled parenting time; allow her to take the kids for a 2-week vacation in the summer of 2011; and allow her to have access time with the children during the 2010 Christmas break.

There are other issues at hand for Usher to deal with, such as child support arrears and the quantum of child support, but for now I want to focus on Travel Consent Forms.

Tameka claims that Usher has, on multiple occasions, taken the children on vacation across state lines without her permission. I am not sure what type of agreement the Raymonds have in place, however, if they were residents of Ontario, they would likely have executed a Separation Agreement that deals with, among other things, the procedure for travel with their children.

Most Separation Agreements entered into in Ontario contain a blank Travel Consent Form as a schedule. This form is very important and more necessary than most people realize. Border Services Canada even advises that parents who share custody of their children and are traveling should carry with them copies of legal custody documents and it is recommended that they also have an executed travel consent form. These items are generally presented to the border officer before driving into the United States, or flying internationally.

When mandated by a Separation Agreement, the travel consent form should include all of the following information: the date, time, and place of departure; the date, time, and place of arrival; the mode of transit, including the flight and aircraft number where applicable; contact telephone numbers for the traveling parent that are accessible during the entire vacation; the address of where the children and the travelling parent will be staying; and the address and contact information for the parent executing the form and providing his or her consent to travel.

So, even if your name is “Usher,” you still need the proper travel documents to travel with your children out of the country if you’re separated.

Carrie, who was desperate to discover the identity of her biological father, hired a Private Investigator to track him down and the investigation led to a concert in Boca Raton, Florida, where Jack Wagner was performing with Rick Springfield.

The two instantly connected and have been inseparable ever since. After working in so many soap operas, Wagner now seems to be living in one.

However, the reality of the situation is that despite this amazing connection and the reunion of a father and his daughter, Jack managed to dodge a child support obligation throughout Carrie’s dependent life.

In addition, since Jack is an incredibly high-income earner, he would have been on the hook for a significant amount of money for at least the first 18  years of her life.  But now, Carrie is 23 years old.  Has she missed the boat with regard to a claim for retroactive child support?

The current law in Ontario is that in order to qualify for retroactive child support, the definition of child or child of the marriage must be satisfied under whichever Act, i.e. the Divorce Act or the Family Law Act, you choose to bring your claim.  Therefore, the child must still be eligible for child support.  At 23, Carrie may be independent and therefore no longer eligible for child support.

However, if she is currently enrolled in a full-time educational program at university or college and thus still requires parental support, she, or her parents may be able to bring a claim for retroactive support.

Assuming that she is enrolled in a full-time educational program and therefore satisfies the definition of child of marriage, then the following test would be used by the Ontario courts when making a determination regarding retroactive child support:

• Determine whether a retroactive award is appropriate by considering the following factors:
• The reason for the recipient parent’s unreasonable delay in seeking child support;
• The blameworthy conduct of the paying parent;
• The past and present circumstances of the child; and
• Any hardship imposed by a retroactive award
• Determine what period the amount should cover:
• When did the recipient parent give effective notice, i.e. inform the payor parent of a desire for an award or an increase in an award.  Generally, support will not be made retroactive to a date more than three years before formal notice was given.
• Determine the proper quantum (i.e. amount)

The quantum is determined in accordance with the applicable legislative scheme, i.e. the Child Support Guidelines; or
The courts may choose to alter the time period that the retroactive award captures if doing so would ensure overall fairness.
If, however, Carrie is not enrolled in a full-time educational program and is therefore an independent, neither she, nor her parents may bring a valid and viable claim for retroactive child support.

This is especially so pursuant to an Ontario Court of Appeal decision in 2002 when the claims of two adult children and their mother were dismissed.  They claimed that their father had a fiduciary obligation to make adequate provision for their support and sought compensation for breach of fiduciary duty and unjust enrichment.  The Court of Appeal rejected their claims on the basis that they were claims for retroactive child support and that as the children were grown and no longer “dependents”, there was no basis for same under Ontario legislation. The Court of Appeal therefore concluded that it was “plain and obvious” on the facts of the case that the father did not breach any fiduciary obligation to support his children. The Supreme Court of Canada also agreed with this reasoning in another case.

As such, it may be too little, too late for Carrie to get the child support to which she was entitled throughout her childhood and adolescence.  However, judging by the happiness she is experiencing while getting to know her father, according to TMZ.com, it is probably safe to assume that she doesn’t mind.

The assumptions set out above would apply if she was not adopted.  However, since she was adopted she would have no claim for child support.