Despite the high point in Bullock’s career, she is inevitably facing a difficult time in her personal life given she has been married to James for approximately 5 years, and she has been co-parenting James biological daughter, Sunny who is 6 years old. Reportedly, Bullock wants to gain custody of Sunny, given the biological mother is deemed unfit to parent, and James has sole custody of Sunny.

If Bullock were divorcing in Ontario, the issues involving Sunny would be considered as follows:

Custody and Access

Sunny has been living with James and Bullock. Arguably, Bullock is considered a loco parentis for Sunny. This means that Bullock is “in place of a parent.” The factors the Court would look at to determine whether Bullock is in the role of the parent includes:

• whether Bullock provided financially for Sunny; whether Bullock disciplined Sunny as a parent;
• whether Bullock has represented to the world (i.e.: family, friends, etc…) that she is responsible as a parent for Sunny; and
• the nature of Sunny’s relationship with the absent parent, namely the biological mother.

If the Court were to determine that Bullock is considered a parent to Sunny, the Court would then have to determine which parent(s) could better serve Sunny’s best interests. Moreover, the Court will look at what type of custody regime (e.g. sole custody, joint custody, etc…) would be in Sunny’s best interests. In Ontario, James being an adulterer would not automatically make him an unfit parent. The Court would have to look at whether his extra-martial behaviour will adversely affect his parenting ability and whether such behaviour has affected Sunny’s best interests. According to section 24 of the Children’s Law Reform Act, the Court will determine the child’s best interests by considering:

1. the love, affection and emotional ties between the child and,

1. each person entitled to or claiming custody of or access to the child,
2. other members of the child’s family who reside with the child, and
3. persons involved in the child’s care and upbringing;

2. the child’s views and preferences, if they can reasonably be ascertained;
3. the length of time the child has lived in a stable home environment;
4. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
5. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
6. the permanence and stability of the family unit with which it is proposed that the child will live;
7. the ability of each person applying for custody of or access to the child to act as a parent; and
8. the relationship by blood or through an adoption order between the child and each person who is a party to the application.

It is important to note that custody is about allocating decision making authority to a parent(s). Whereas, access deals with the amount of time a non-custodial parent has with the child.

Child Support/Special Expenses

Child support is money that is payable to the parent who has the children in their primary care. The amount of child support payable is based on the Federal Child Support Guidelines (“Guidelines”) that considers the payor’s income and the number of children the payor supports. If Sunny were primarily residing with Bullock, James would be paying child support.

The special expenses are determined based on whether such expenses are in the child’s best interest and the reasonableness of such expenses in relation to both parent’s ability to pay for such expenses. For more information on special expenses, please refer to http://familylawnews.ca/familylaw/child-support-guidelines.php.

Would Ontario Courts have made a similar decision?

In Ontario, access decisions are made based on the best interests of the child. Parental hostility is one of the factors that Ontario Courts recognize as having an effect on the best interests of the child. In a recent interview with Howard Stern, Lindemulder explained that she has a voodoo doll of Jesse James’ current wife, actor Sandra Bullock. This clearly shows hostility towards Bullock, who has been helping James care for Sunny. Ontario Courts would likely view this hostility for Bullock as contrary to Sunny’s best interest and this might encourage an Ontario Judge to deny Lindemulder’s request for overnight access.

It is possible that Ontario Courts would also stop Lindemulder’s husband from spending time with the child, depending on the reason why he was sent to jail. If he was convicted for abuse or violent crimes, his presence could be considered contrary to Sunny’s best interests, especially considering that Aikman is not biologically related to Sunny.

In James’ court papers, he accuses Lindemulder of being an unfit mother. Ontario Courts tend to abide by a ‘do no harm’ principle that encourages the avoidance any situation which may have a harmful effect on the child. Depending on James’ credibility and the nature of the allegation, an Ontario Judge might abide by this principle and limit Lindemulder’s access with Sunny to avoid any harm that may result from overnight visits until Lindemulder’s fitness as a parent is determined.

It is important to note that the fact that Lindemulder was sent to prison does not make her an unfit mother according to Ontario Family Law. In Ontario, misconduct of anyone applying for access is only relevant to the extent that it affects that person’s ability to parent. As it is unlikely that cheating on your taxes will inhibit your ability to parent, Ontario Judges would probably not allow Lindemulder’s conviction to affect their access decision. Although, if it is likely that Lindemulder will reoffend, this may affect the stability of the family unit, which is a factor that Ontario Judges can consider.

According to Ontario Family law, the Courts would be determining this custody issue with the principled thinking of what is in Sunny’s best interests. Interestingly, in Ontario, misconduct by a parent in and of itself is insignificant in determining who the better parent is. However, what becomes significant to the Court is whether such misconduct will negatively affect the parent’s ability to care for the child. With this said, James and Lindemilder are both notorious for being celebrities that lead precarious lives. For instance, James is a television celebrity who is heavily tattooed and enjoys motorbikes and death-defying stunts. Lindemilder had a career in pornography, and has recently been released from a six month jail sentence for tax evasion. In comparison, Bullock has shared with a source that she always wanted to have children, but her late mother persuaded her to concentrate on her career instead.

Since Lindemulder has been in jail for six months, Sunny has been living with James and Bullock. Arguably, Bullock is considered a loco parentis for Sunny. This means that Bullock is “in place of a parent.” The factors the Court would look at to determine whether Bullock is in the role of the parent includes: whether Bullock provided financially for Sunny; whether Bullock disciplined Sunny as a parent; whether Bullock has represented to the world (i.e.: family, friends, etc…) that she is responsible as a parent for Sunny; and the nature of Sunny’s relationship with the absent parent, namely Lindemulder.

If the Ontario Court were faced with this high profile custody battle, the Court has to determine which parent(s) could better serve Sunny best interests, Lindemulder or James and Bullock. Although not an exhaustive list of factors, the Court would consider:

1. status quo – in Sunny’s case, she has been living with Bullock and James while Lindemulder has been serving a sentence of six months for tax evasion.
2. the child’s preference and emotional ties with parents – depending on the maturity level of Sunny, the Court may Order the Office of the Children’s Lawyer as a third party that represents and determines the child’s wishes about who they want to live with.
3. the parent’s ability to parent – according to James, Lindemulder’s ability to parent is questionable given that Sunny may potentially be exposed to pornographers, drug addicts, and unsafe environments. Conversely, Bullock’s states, “We do every mundane, normal thing that everyone else does. It’s about enjoying what we have.” This shows that the couple are able to care for Sunny like any other responsible parent(s) and that they do not want to be associated with the stereotypic Hollywood lifestyle.

At the end of the day, the Ontario Court would use the above factors and exercise its discretion in determining which parent(s) would ensure Sunny’s best interests.