Aside from the custody arrangement that is to be determined by the couple, there are other remaining legal issues the couple need to deal with upon their marital breakdown.

In order to satisfy the curiosity of many Ontarian minds, let’s take a look at what would happen had the celebrity couple preceded with a divorce in Ontario.

Equalization

In very general terms, equalization is the payment owed from one spouse to the other because one spouse has a greater net worth on the date of separation. The equalization payment is calculated by taking the net value of each spouse at the date of separation, less the net value of each spouse’s property at the date of marriage, and this becomes the net family property (NFP). The spouse with the higher NFP pays the other spouse one-half the difference between the two. Hence, this becomes the equalization payment. The Court is able to vary the equalization payment if it is considered unconscionable. One of the circumstances that would be considered unconscionable is when the couple has been together for less than five years which is the case here. For a more detailed explanation on equalization payment please read this page.

There are certain exclusions within the equalization payment (e.g. inheritances and damages deriving from personal injury settlements). It is important to note that equalization is not a physical division of the property.

Another contentious issue when dealing with equalization is the determination of the separation date. This date needs to be definitive because this is where assets and liabilities are valued. Hence, this is the reason that the separation date is also known as the valuation date.

In Usher’s situation, one is only to watch an MTV episode of Cribs where they view the celebrity’s homes and vehicles, and it is safe to say that Usher had an assortment of vehicles with an extravagant home. Based on the fact that Usher is a wealthy celebrity and his wife being his former stylist, it is likely that he would owe his wife an equalization payment.

Matrimonial Home

The matrimonial home is a special type of property that requires different treatment upon martial breakdown. If both parties are on title of the matrimonial home, the net worth of the matrimonial home is equally divided between the parties. However, if one spouse bought a home before or at the date of marriage and it is the matrimonial home on the valuation date, then the owner spouse cannot deduct the marriage date value of the matrimonial home in the NFP statement. The value of the matrimonial home is included as a valuation date asset, but without any deduction.

In Usher’s case, the home that the couple and their children lived in until the date of separation is considered their matrimonial home. Irrespective of who has title of the matrimonial home, both parties have equal rights to the possession of the matrimonial home. Basically, Usher would be precluded from throwing out his wife from the matrimonial home. This right would continue until the parties are no longer spouses or until an agreement or court order states otherwise.

Spousal Support

The issue of spousal support is extremely fact driven. The circumstances, condition, and role of the spouse within the marriage are all significant factors in determining a spouse’s entitlement to spousal support. Also, the length of the marriage and each party’s earning capacity is considered by the Courts. The purpose of spousal support is to make individuals cognizant of the implications of entering the martial institution or a relationship with some permanence. Spousal support is meant to identify and monetarily accommodate the disadvantages spouses encounter from their marriage or its breakdown. In determining the duration of spousal support, the Courts consider the length of the marriage/relationship and the amount of time that would be required to allow the disadvantaged spouse to overcome the economic hardship. The termination of spousal support seems appropriate when the spouse becomes economically self-sufficient as far as reasonably practicable.

In Usher’s case, since his marriage was short lived (they were married for almost two years), and his wife is young and able to work, it would be difficult to convince the Court that Usher’s wife needs spousal support. However, Usher’s wife may claim that she is entitled to spousal support in order to sustain the standard of living that was present during the marriage and prior to its breakdown. With this said, the Court takes a holistic approach, basically they consider all of the above factors in order to determine entitlement, quantum, and duration of spousal support. Also, in determining spousal support, the Court uses its discretionary power. The Court may consider the amount of the equalization payment made by Usher, and if it is a substantial amount that would not warrant the need for spousal support, the Court may not grant Usher’s wife spousal support.

Many Canadians, moreover Ontarians are wondering what would happen if this American celebrity couple lived in Ontario?

Custody and Access

In Ontario, custody and access is based on the principle of best interests of the child. When the Court is determining what is in the best interests of the children, the Court considers various factors such as:

1. Status Quo – this means the Court considers the existing custody arrangement. The Court considers where the children’s school is, and what the children’s routines and activities are like. This factor is highly relevant in determining custody and access issues because the Court is unwilling to disrupt the status quo as this may adversely affect the children’s routine and well-being, and essentially their best interest. This is one of the reasons, Usher upon separation, immediately asked for joint custody of his children so that he may preclude a disruption of the status quo. When there is more than one child of the marriage, as in Usher’s case, the Court is also reluctant to separating the children as this would work to disrupt the status quo.
2. Consider the Children’s preference and emotional ties with parent(s) – depending on the ages of the children, the Courts do consider the wishes of the children, in terms of who they want to live with. If there is evidence that the children have a close bond and/or emotional attachment to one parent or both, the Court considers this when determining sole versus joint custody respectively. Typically, the primary caregiver has an easier job in showing that the child would prefer and has developed emotional ties to him/her as they are primarily involved in raising the children. Since Usher is claiming joint custody of his children, he has the onus of proving that he too has a primary role in the children’s lives and expects to have custodial rights. Given the children are in tender years, the Courts would not expect the children to be able to express their true wishes regarding parental arrangement.
3. Proposed Parenting Plan –The Court wants to ensure that the children’s best interests are taken care of. This plan typically includes the residential schedule that outlines where the children should live, and allocating decision making authority regarding the children’s education, health, and upbringing. Since Usher is seeking joint custody of his children, he must show the Court that he has a place for his children to live, which surely his finances permit him to do. Additionally, Usher would have to show that he has always had a decision making role in the children’s lives regarding the above.
4. Parent’s Relationship with one another – This factor is especially important when the Court is willing to grant joint custody. The Court cannot grant joint custody of the children when parents cannot amicably communicate, and hence when there is question of domestic violence or the fitness of the parent, the chances of joint custody are very slim. Also, if one parent deliberately attempts to alienate the other from the children, a joint custody arrangement would not work. In Usher’s case, if the Court determines that despite the marital breakdown, both parents are able to productively work together in parenting, the Court will support joint custody.

Child Support

In determining who pays child support, it is the party who is the non-custodial or non-primary resident parent. Child Support payments in Ontario are based on the Federal Child Support Guidelines (Guideline) that consider the payor’s income and the number of children for whom the payor supports. In Usher’s case, if granted joint custody, the child support is not so clear cut. Custody has to do with who makes the major decisions in the children’s lives. However, child support considers who spends most of the time with the children. If Usher is granted shared parenting (when the parent spends at least 40% of the time with the children), the Court’s starting point in determining child support is through the set off approach. The set off approach uses the Child Support Guidelines which considers the number of children and each parent’s income. Basically this approach would take Usher’s income and determine what he would pay based on the Guideline amount. Then the Court would take Usher’s wife’s income and determine what she would pay based on the Guideline amount. Finally, the Court would set off the two Guideline amounts and the person who has the higher Guideline amount would pay the other parent the set off amount. However, a Court will depart from the set off approach if it is inappropriate (e.g. when there is a great income disparity) in light of the following factors:

1. the increased costs of shared custody arrangements and
2. the conditions, means, needs and other circumstances of each party and the children.

With the above factors, this allows Courts not only to depart from the set off approach, but the Court uses more of their discretion in determining the quantum of child support in a shared parenting plan.

Based on various reports confirming the couples divorce, it is only a matter of time that the legal issues pertaining to their children will surface.