While the divorce is proving difficult for both Stephanie and Brant who despite their separation continue to reside together, a greater impact is being felt by the couple’s three children who are being subjected to a custody battle. Brant Junior, 16; Harry, 13; and Lily Margaret, six, have been forced to witness the conflict between their parents as the two duel to determine custody and access provisions. Brant argues that Stephanie is unfit to parent, accusing her of substance abuse. Stephanie contends these allegations, arguing they are merely a ploy to distance her from their children and claims that Brant is guilty of Parental Alienation.

Separation and/or divorce are processes involving many emotions ranging from rage, to depression, to remorse. These feelings are shared by not only the separating couple but also any children who may be involved. Therefore, when a couple makes the difficult decision to separate, it is crucial for them to recognize that their children’s fundamental need for security remains the same as during the time that the parents were married. In the course of a separation and/or divorce, children require that their parents continue to provide them with the same level of emotional support as they did when they were a family unit. In order for a child to feel secure, their parents must demonstrate to them that they are able to manage and get through the rollercoaster of emotions and changes that come with divorce and separation.

When a parent impedes positive contact with the other parent during the separation process they run the risk of alienating that parent. Parental alienation is a significant legal issue and unfortunately, it remains a prevalent matter in many family law cases. Parental alienation occurs when a parent’s behaviour marginalizes the other parent’s involvement with the children. As the void in the relationship between the children and alienated parent continues to grow, the children tend to develop a sense of animosity towards the so-called absentee parent. The alienated parent often responds by lashing out on the alienating parent and thereby creating a vicious cycle that indoctrinates a dislike for the alienated parent in the children.

The late Richard Alan Gardner, a former clinical professor of psychiatry in the Division of Child Psychiatry at Columbia University, described cases of intense rejection of a parent by children after divorce as “parental alienation syndrome” (PAS). He defined this syndrome as a disturbance occurring in children who are preoccupied with depreciation and criticism of a parent and denigration that is unjustified and/or exaggerated. Gardner describes these children as becoming obsessed with harboring feelings of hatred towards the alienated parent.

In view of the grave repercussions parental alienation may have on parties involved in a matrimonial dispute, recently, Ontario courts have adopted extreme measures when dealing with the issue. A growing number of judges have ordered a change in custody from the alienating parent to the alienated parent where alienated parents have been able to show the damaging effect of estrangement on the children.

Further, in Ontario, the Children’s Law Reform Act has recently been amended to reinforce the notion that in most cases, it is in the best interest of the children to have maximum contact with both parents. As such, the law now requires that parents have an obligation not only to allow access, but to facilitate that access.

34 (2) If the court is satisfied that the responding party wrongfully denied the moving party access to the child, the court may, by order,

1. require the responding party to give the moving party compensatory access to the child for the period agreed to by the parties, or for the period the court considers appropriate if the parties do not agree;
2. require supervision as described in section 34;
3. require the responding party to reimburse the moving party for any reasonable expenses actually incurred as a result of the wrongful denial of access;
4. appoint a mediator in accordance with section 31 as if the motion were an application for access. R.S.O. 1990, c. C.12, s. 83.

Period of compensatory access
(3) A period of compensatory access shall not be longer than the period of access that was wrongfully denied. R.S.O. 1990, c. C.12, s. 83.

What constitutes wrongful denial of access
(4) A denial of access is wrongful unless it is justified by a legitimate reason such as one of the following:

1. The responding party believed on reasonable grounds that the child might suffer physical or emotional harm if the right of access were exercised.
2. The responding party believed on reasonable grounds that he or she might suffer physical harm if the right of access were exercised.
3. The responding party believed on reasonable grounds that the moving party was impaired by alcohol or a drug at the time of access.
4. The moving party failed to present himself or herself to exercise the right of access within one hour of the time specified in the order or the time otherwise agreed on by the parties.
5. The responding party believed on reasonable grounds that the child was suffering from an illness of such a nature that it was not appropriate in the circumstances that the right of access be exercised.
6. The moving party did not satisfy written conditions concerning access that were agreed to by the parties or that form part of the order for access.
7. On numerous occasions during the preceding year, the moving party had, without reasonable notice and excuse, failed to exercise the right of access.
8. The moving party had informed the responding party that he or she would not seek to exercise the right of access on the occasion in question. R.S.O. 1990, c. C.12, s. 83.

Motion re failure to exercise of right of access, etc.
(5) A person in whose favour an order has been made for custody of a child and who claims that a person in whose favour an order has been made for access to the child has, without reasonable notice and excuse, failed to exercise the right of access or to return the child as the order requires, may make a motion for relief under subsection (6) to the court that made the access order. R.S.O. 1990, c. C.12, s. 83.

Order for relief
(6) If the court is satisfied that the responding party, without reasonable notice and excuse, failed to exercise the right of access or to return the child as the order requires, the court may, by order,

1. require supervision as described in section 34;
2. require the responding party to reimburse the moving party for any reasonable expenses actually incurred as a result of the failure to exercise the right of access or to return the child as the order requires;
3. appoint a mediator in accordance with section 31 as if the motion were an application for access. R.S.O. 1990, c. C.12, s. 83.

There is a Kenyan proverb that states “when two elephants fight it is the grass under their feet that suffers”. Likewise, as in the Seymour and Brant divorce, the dispute over custody and access of the children is proving most enduring on the children. The effect that such conflict has on the children has been found to be tantamount to emotional abuse of the children. As the judiciary becomes more cognizant about the damaging effects had on children caught in the battle of alienation, the Courts are being forced to take acute action to help prevent or remedy the potentially scarring effects of separation. As such, in more and more cases where the Court finds that one parent has conducted a consistent and overwhelming campaign to alienate the other parent from the children, granting the alienated parent sole custody is found to be an appropriate and least harmful remedy to parental alienation.

People Magazine is reporting that Hines’ rep has told E! Online that the couple, “will remain extremely close friends and will raise their daughter together.” The couple reportedly plans to share custody Catherine Rose.

How would this case play out if the two lived in Ontario?

If this were to come before the Courts in Ontario, there would be four main issues that would have to be dealt with; custody/access of Catherine Rose, Child Support for Catherine Rose, the Matrimonial Home, Equalization of the Net Family Property, and the potential for Spousal Support.

Custody/Access and Child Support

Because this is a case from the United States, the quote pertaining to the couple planning on sharing custody of Catherine Rose should be read critically. In Ontario, custody does not relate to which parent the child resides with. Custody is about who makes the major decisions for the child; medical, religious, schooling, etc.

Keeping the above in mind, because it seems as though Cheryl and Paul are speaking to each other and have a relatively good relationship, if they were in Ontario, it is likely that they would agree to share custody (read: decision making responsibility) of Catherine Rose.

As for who the child would reside with, again because they have said that they will “share custody” of their daughter, in Ontario that would be considered to be a shared parenting schedule and Catherine would spend at least 40% of her time with each parent. On the chance that this case became acrimonious, the Court would have to decide based on submissions regarding what would be in the best interests of Catherine, who would be the primary residence parent, and who would care for her based on a set schedule.

If the Court or the parties decided upon a shared parenting schedule with Catherine residing equally with both parents, 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.

Also of note in this scenario is the fact that both are high income earners as Cheryl is an actress and Paul, a producer. The table amount shown for their respective incomes must be carefully considered to determine if it would adequately provide for the child with respect to the conditions, means, needs and other circumstances of each parent and Catherine Rose.

The parties would also have to determine how any extraordinary expenses such as extracurricular activities, schooling, and health expenses would be paid for. In a case of shared parenting, these expenses would be divided per the respective percentage of support required to be paid by each parent.

The Matrimonial Home

In Ontario, the Family Law Act holds 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 and 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, exactly what will be done with the home is a matter for the parties to decide amongst themselves, however, the value of it would be included as part of an equalization calculation as will be discussed.

Equalization of Net Family Property

In Ontario, when a couple separates there is a process known as equalization whereby a calculation is done that determines how much the spouse with more assets is obligated to pay the other. Not knowing which spouse in this situation earns more, or anything about how 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 http://www.separation.ca/family-law/equalization-payments.php.

Spousal Support

In Ontario, entitlement to support is the first hurdle that they would have to overcome. A court would look to such factors as whether a spouse is in need of support, or if they made a contribution to the marriage that they should be compensated for in some way. As this is a case with two very high income earners, the need for support does not exist and it is unlikely that spousal support would be an issue to be dealt with. For more information on spousal support, please visit http://www.separation.ca/family-law/spousal-support.php.

Although this case is taking place in the U.S., we can analyze it in accordance with the laws of Ontario.

Custody and Access in Ontario

The Ontario courts will always take into account Harlow’s best interests when making decisions regarding custody and access. As noted above, sources indicate that the separation was amicable but that Patricia would like physical and legal custody of Harlow. Sole custody would mean that important decisions, including but not limited to Harlow’s overall welfare, healthcare, education and religion would be made solely by Patricia. In Ontario, the terms ‘physical and legal custody’ do not apply in the same fashion as the United States.

The courts will award primary residency to the parent who primarily cared for Harlow during the marriage and after Patricia and Thomas separated. If for example, Patricia was working for the majority of Harlow’s upbringing throughout their marriage and Thomas was the primary caregiver, then it may be likely that the court will award primary residence to him if this is what he is seeking from the court. This does not mean that Patricia will not be able to spend a sufficient amount of time with Harlow, as the parties could arrange for Patricia to have generous access of Harlow, meaning, she can see Harlow as she wishes. It is important to note that as an access parent Patricia may not be granted the authority to make any important decisions regarding Harlow’s upbringing. This will depend on the custody arrangement between the parties. If a disagreement arises between Thomas and Patricia, the custodial parent will make the final decision. Since we are told that Patricia and Thomas are on good terms, perhaps the parties will not require the intervention of the courts and they will be able to resolve their custody and access issues through their respective lawyers.

Child Support

Normally, the parent who is granted primary physical residence of the child (here, assuming it is Thomas due to Patricia’s work schedule) is the one who will probably be incurring the daily expenses associated with raising Harlow and as a result, he may be compensated so to lessen the burden/effect that these expenses could have. All dependent children have a legal right to be financially supported by their parents and the right to benefit from the financial means of their parents. Patricia as the access parent will probably be paying child support to Thomas. Child support in Ontario is based on the Federal Child Support Guidelines (Guidelines). Child support is the amount set out in the Guidelines according to the number of children under the age of majority to whom the order relates to and the income of the spouse against whom the order is sought. If we are wrong, and Patricia is granted with primary residency of Harlow, then Thomas would be required to pay child support to Patricia.

Spousal Support

If Thomas finds that he does not have the financial means to support himself then he may be entitled to spousal support for either a definite or indefinite period of time depending on their circumstances. Generally, the spouse/partner who finds himself or herself in a better position financially will be required to pay support to the other. The courts will of course take into account the length of marriage and the need for support. Spousal support may help Thomas to maintain the standard of living to which he has become accustomed to, to have access to finances while searching for an employment position (if he does not have a job), or even possibly to pay tuition fees associated with education or training so that he may eventually become self-sufficient. We are not given the facts of the parties’ respective financial positions in this case, however assuming that Patricia was the higher income earner, if Thomas can demonstrate a need for support, then he may be entitled to same.

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.

The singer’s ex-boyfriend, Lou Al-Chamaa, is now requesting 1.5 million pounds, which is roughly equivalent to $2.25 million dollars, as a settlement for the role he played in her rise to stardom. He cites his encouragement of Lewis to “fulfill her potential”, as well as the fact that he filled out the X-Factor application for her, as proof of his entitlement to the monetary settlement. Lewis has reportedly offered him their home in London, however, he does not believe that it is enough as he believes that he has the rights of a common-law husband.

How would this be dealt with if the two lived in Ontario?

Essentially there are two main issues that need to be dealt with in this case. The first is whether the couple can be considered to be common law partners. The second would be whether Lou could obtain the settlement money that he is demanding.

Were Lou and Leona in a Common Law Relationship?

Lou has claimed that he believes he has the rights of a common-law husband. However, this would have to be proven before his claim to the monetary settlement would be dealt with.

With respect to common law relationships and support obligations, in Ontario s. 29 of the Family Law Act states that the definition of “spouse” (read: common law partner) “includes either two persons who are not married to each other and have cohabited,

1. continuously for a period of not less than three years, or
2. in a relationship of some permanence, if they are the natural or adoptive parents of a child.”

Since the couple did not have any children together, the second part of the definition would not apply. In this situation the amount of time that the couple cohabited has not been disclosed. If the two were not residing together for at least three years, the fact that their relationship spanned over 10 years would not change the fact that the two would not be considered to be “spouses” and therefore, Lou would not be entitled to any of the $2.25 million that he has claimed is rightfully his.

For the purposes of this blog, we will assume that the couple had, in fact, cohabited for at least three years with their last place of residence being the $900,000 home in London.

Would Lou obtain the $2.25 million which he has demanded?

Because we are assuming that Leona and Lou were common-law spouses, they have an obligation to support one another in accordance with need and to the extent of their ability to do so. In awarding spousal support, which is really what Lou is seeking here, the Ontario courts will look to the Family Law Act as well as relevant case law in order to make their final determination.

Whether a spouse is entitled to the support that they are seeking is an important first step to overcome in any case. The courts will look at factors such as whether there is need for the support or if the spouse contributed to the partnership or marriage in some way and should be compensated for that contribution. In this case, Lou is clearly arguing for a compensatory form of spousal support in the form of one lump sum payment. He is essentially claiming that if it weren’t for his contributions to the relationship (i.e. his encouragement and filling out the X-Factor application) Leona would not be where she is today in her music career.

Once entitlement to the support is determined, the court would focus on the length support should be paid the amount payable by looking at:

1. the means of payor;
2. the need of the spouse receiving the support;
3. the length of the marriage;
4. the function performed by each spouse during the marriage.

Spousal support is a tricky area of the law as the courts have tended to order (or not) support for strikingly different lengths and amounts. Therefore, in this case, it’s difficult to say whether Lou would be awarded the $2.25 million he is seeking. His actual contribution to Leona’s career would likely be heavily scrutinized along with the fact that the two were probably not cohabiting for any significant period of time. Had this case been between a couple who had been together for a much longer amount of time and the spouse was able to prove that he or she had made continuous and significant contributions, by the way of sacrificing their own career for example, then the court would be more likely to award the lump sum support being sought.

Overall though, I suspect that if the court were to make a final determination at all, as the parties will probably reach a settlement between themselves, it would be for a lump sum payment of a drastically reduced dollar amount.

How would their home be dealt with?

Ontario’s Family Law Act is split into 3 distinct parts and each part includes its own definition section on when a couple will be considered to be “spouses.” Part I deals with the Matrimonial Home and protects each spouse’s rights to the home whether or not they have been placed on title. Couples that are not legally married however, are not afforded the same rights. Therefore, if Leona held title to their $900,000 home alone and had not offered the home over to Lou as was reported, then in order to have access to the home or its equity at all, Lou would be required to bring a claim for either a Constructive or Resulting Trust.

Claims for Constructive and Resulting Trusts arose through case law as a means for the courts to rectify situations that seemed to be unjust. In a claim for a resulting trust, the individual who does not hold title to the property attempts to prove that he or she paid or helped pay for the property in question even though he or she had not been added to the title. In this case, assuming that Lou was not on title, if he had assisted with the payment for the home then he might think about bringing this type of claim. If he was successful in proving his contribution, the court could award Lou by making a determination that he has a beneficial interest in the home and Leona be considered a Trustee for his beneficial interest. Thus, Lou would be entitled to the home.

Lou might also bring a claim for a Constructive Trust as a way to share in the value of the property instead of the physical property itself. In order to obtain an order by the Court in this regard, Lou would have to show that he had contributed to the value of the property through work or money and that it would be unfair to allow Leona to obtain the home without compensating him for the value of what he invested into it. The Courts will look at the following factors to determine whether they would award a Constructive Trust:

1. There must have been an enrichment of one of the spouses (i.e. that the non-title spouse worked on the land, put money into the house, did renovations, etc. which ultimately benefitted the title-spouse;
2. The non-title spouse, through his or her contributions to the home suffered some sort of deprivation (i.e. of money);
3. There is no legal or equitable reason for enriching the title-spouse.

If Lou were able to show the three aspects above, then he would have to demonstrate that his contribution was sufficient and directly led to the increased benefit to Leona. As you might imagine, even if Lou decided that he would attempt to obtain the home or value in it through a claim for Resulting or Constructive Trust, there is no certainty that he would be granted this award, and failing this, unfortunately, he would have no rights to the home that she shared with Leona or in any of her other assets.

Of course, if Lou and Leona were both on title to the home, he would have rights to it upon their split and this would be much easier to resolve with either Leona buying out Lou’s equity in the home or the home being placed for sale with the proceeds being divided accordingly.

How does Ontario deal with paternity tests?

Based on the Children’s Law Reform Act (CLRA) there are certain presumptions regarding parentage that, if satisfied automatically make a person a parent. Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person shall be recognized to be the father of a child in any one of the following circumstances:

1. The person is married to the mother of the child at the time of the birth of the child.
2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

McKnight was neither married to Ms.Lee nor was he cohabitating with Ms.Lee at the time of the birth of the child. Claiming that McKnight was the father was a mere allegation that she had made almost 14 years after the birth of the child. The court simply found him to be the father of the child due to his failure to address the lawsuit. McKnight should have taken a paternity test, however he did not do so and as such, the judge made a default ruling in Ms.Lee’s favour. The court has the authority to order blood tests or DNA tests for the purposes of proving parentage, however the judge did not do so in this case.

Given that McKnight did not counter the allegations made by Ms.Lee by taking a paternity test, the judge made a default judgment against him. He subsequently took the paternity test which confirmed that he was not the father. Sources do not confirm what will happen with the $340,000.00 that he has already paid to Ms.Lee for child support.

How is reconciliation of the parties dealt with in Ontario?

Duty of Legal Adviser

In Ontario, under the Divorce Act, the lawyers for the parties have a duty to discuss reconciliation with their clients. The lawyer must confirm with their client the possibility of reconciliation. The lawyer has a duty to inform the spouses of the marriage counseling or guidance facilities known to him/her that might be able to assist the spouses to achieve reconciliation unless the circumstances of the case are such a nature that it would clearly not be appropriate to do so. If for example, the Larry or Shawn had experienced cruelty and abuse by his/her spouse during the marriage, it may not be appropriate for the lawyer to suggest reconciliation to him or her. This may be a judgment call on the lawyers’ part.

When commencing a divorce proceeding it should contain a statement by the lawyer certifying that they have complied with this section in the Divorce Act and that they have advised the parties of this section in the Act. If the reconciliation does not last longer than ninety (90) days, then the parties can resume their divorce proceedings again. This means that the parties may obtain the divorce without taking into account the reconciliation.

For the strict purpose of dividing family property however, the Family Law Act states that the date the spouses separate with no reasonable prospect that they will resume cohabitation is the date that the court will consider as the valuation date. Therefore, if Larry and Shawn decide to separate once again then for the purposes of property division the ninety (90) day rule in the Divorce Act will not apply. Instead, the court will use the subsequent date of separation as opposed to the date when the parties separated before reconciliation to divide assets and equalize the net family property. Consequently, it may be possible in certain circumstances to have two different dates of separation: one pertaining to the divorce and one for the division of the net family property. Bear in mind that the aforementioned may be deviated from if a specific provision is included in a binding and enforceable Separation Agreement.

Duty of the court

It is also the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so. Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court may either adjourn the proceeding to afford the spouses an opportunity to achieve reconciliation. With the consent of the spouses or in the discretion of the court, the parties can then nominate that a person with experience or training in marriage counseling or guidance or in special circumstances, some other suitable person assist the spouses to achieve reconciliation. Therefore, if the matter proceeds to court, the judge also has a duty to facilitate reconciliation between the parties, if applicable in the circumstances.

Split Custody vs. Shared Custody in Ontario

First it is important to note that ‘custody’ does not necessarily refer to physical custody of the children. In Ontario, custody involves the right to make important decisions affecting the child’s welfare on matters such as health, religion, education and general upbringing. Each case is decided on its individual merits in determining who will get custody and who will have access of the child and the Court will consider the overall best interests of the children.

Split custody refers a situation where Melissa would have greater then 60% of the time with one of the twins and Tammy would have greater then 60% of the time with the other twin. Unfortunately when split custody is ordered the children are divided from one another and the courts may be of the view that this is not in the children’s best interests.

With respect to child support in a split custody situation, the courts will look at the Federal Child Support Guidelines. The Guidelines provides a “formula” for determining child support in situations of split custody. The amount that is ordered is the difference between the amounts that each parent or spouse would otherwise have had to pay if a child support order were sought against each of the parents.

In the alternative, Melissa and Tammy may seek shared custody of the children. Shared custody refers to the amount of time the children spends with each parent and it is relevant to child support since it does not affect the custodial parent’s rights and responsibilities with respect to decision-making. If for example, Melissa and Tammy have joint custody of the child (i.e. a joint right to make decisions regarding the children’s upbringing) the access parent may still have shared custody if the child spends at least 40% of the time with him or her (may include weekends, overnight visits and parts of vacations).

The Federal Child Support Guidelines give the court the discretion to reduce the amount of child support payable once the 40% threshold requirement is met.

Parents should always be aware of the effect of divorce on the children. A divorce can be difficult on them and it is important for Melissa and Tammy to address any questions and/or concerns the children have about the divorce, especially if they are being separated from one another. Given that the children are only 3 years old they may be too young to fully understand the situation, however as they get older signs of the effects of the divorce may surface. If possible, the parties should work together in addressing the children’s concerns and more importantly, they should ensure that they do not expose the kids to adult conflict or speak ill of one another in front of the children.

Custody and Access in Ontario

Sources state that in this case, Kelsey and his wife’s separation was amicable and they intend to jointly parent their children. Ontario courts are more likely to award joint custody where the parties have an amicable relationship because they can make decisions affecting the children without any disputes arising. These important decisions include the children’s overall welfare, healthcare, education and religion. The courts will always take into account the children’s best interests when making decisions regarding custody and access of the children. Although sources do not specify who will be seeking primary residency, the courts will often award same to the parent who primarily cared for the child during the marriage and after the parties have separated. If Kelsey was working the entire time throughout the parties’ marriage and his wife was the primary caregiver during the parties’ marriage, then it is likely that the court will award primary residency with his wife. Since the parties have an amicable relationship, it is also likely that Kelsey will have generous access with the children.

Child Support

Child support in Ontario is based on the Federal Child Support Guidelines (Guidelines). Child support is the amount set out in the Guidelines according to the number of children under the age of majority to whom the order relates to and the income of the spouse against whom the order is sought.

Child support is payable to the parent who has the children in his/her primary care. In this situation, the court will consider who spent and continues to spend the majority of their time with the children. If Kelsey’s wife is granted primary care of the children, then she will be awarded child support from Kelsey.

It is important to note that when the income of the payor of child support is over $150,000.00 (as will certainly be the case with Kelsey), the court has the discretion to an award an amount that the court considers appropriate taking into account the children’s means, needs and other circumstances. However, the amount of child support will be significant.

Spousal Support

In Ontario, spousal support will be awarded to the party who can demonstrate that they are in need of it. The length of the marriage will also be taken into account and here the parties were married for 13 years. Kelsey is a celebrity earning a high income. It is likely that he will not be seeking spousal support from his wife. His wife however, may make a claim for support if she was taking care of the children during their marriage and can demonstrate that she requires financial help. If she was working during the marriage and assuming that she earned less than Kelsey, then she may be entitled to support. However, if she was awarded support, it may be for a short period of time. The court could also deny her spousal support as her entitlement from an equalization payment would most likely be significant and a court could view this payment as being a sufficient sum of money which would defeat her claim for spousal support. For example, if she received a property settlement in the amount of $10,000,000.00 then she may not be in need of spousal support.

Equalization of Net Family Property

It is likely that Kelsey will have to make an equalization payment to his wife. An equalization of net family property allows parties to share equally the value of assets acquired during the course of their marriage. Kelsey and his wife will each need to take into account all the property and all of the assets they acquired during the marriage. The spouse whose net family property is the lesser of the two (which will most likely be Kelsey’s wife) is entitled to one half of the difference between them.

Please note that all of the above mentioned assumptions are being made on the basis that the parties did not enter into a marriage contract.

What is the impact of adultery when parties wish to divorce in Ontario?

In Ontario and pursuant to the Divorce Act (the Act), a court may on application by either spouse, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

A breakdown of a marriage is established only if:

1. the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
2. the spouse against whom the divorce proceeding is brought has since the celebration of the marriage;
   1. committed adultery or
   2. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Here, Twain could bring an Application for divorce based on the one year separation period because the parties separated in 2008 or alternatively, she may bring the application under part i) (adultery) as her husband cheated on her. If Twain wanted the divorce to take effect immediately, she would have to bring the application claiming adultery. However, the evidentiary burden to prove same would of course be higher then demonstrating that you have been separated for one year.

If Twain brought the Application claiming adultery she would not be required to name the other party, Marie Ann Thiebaud, however, she does have the option of making that person a party to the proceeding.

It appears that with the new change in the Act that now permits parties to separate after one year instead of three years (as it was prior to the changes introduced by the 1985 Divorce Act), more parties prefer to separate by making a claim for the no fault grounds for divorce and simply waiting for one year.