What would Ontario judges think of this $750 million proposal?

Ontario judges would think that Elin needs to be more specific. The major financial issues in Divorce cases include spousal support, child support, and equalization. So, Ontario judges would require Elin to explain, in detail, whether this $750 million is meant to settle all three of these issues and why she believes she is entitled to this sum of money.

It is also reported that Elin refused to sign a lifetime confidentially clause, which would have prohibited her from speaking publicly about the details of her marriage with Tiger. Although there is likely nothing Tiger could do to stop Elin from speaking publicly about their marriage, Ontario judges might grant him an order prohibiting both parties from speaking disparagingly about each other in the presence or hearing of the children. As the parties’ divorce is highly publicised, this might prevent her from speaking publicly about Tiger in any negative way. However, even if this were ordered, it would be difficult to enforce.

Another option for minimizing the publicity surrounding this divorce is mediation and/or arbitrations. If Tiger and Elin chose to resolve their dispute via mediation or arbitration instead of going to the courts, this would not force her to be silent about their marriage, but it would make this dispute less public. This is because Ontario family law decisions are usually published so that are accessible to the public. Mediation and arbitration are private. So, these alternatives could provide Tiger more privacy than traditional litigation.

How would Tiger and Elin resolve custody and access issues in Ontario?

First it is important to note that ‘custody’ in Ontario refers to the major decisions that affect the overall welfare of the children such as education, religion and the children’s healthcare. It does not pertain to the time spent with the children, access however does.

The Ontario courts are more likely to award joint custody where the parties have a good relationship. Joint custody requires parents to make important decisions about their children together, which is difficult when the parties cannot co-operate. Seeing as how Tiger and Elin are attending basketball games together, we can assume that they are on relatively good terms. An Ontario judge would likely award Tiger and Elin joint custody because they are communicating with one another and thus should be able to make important decisions regarding their children together. Furthermore, there is no evidence to show that Tiger’s infidelities have had any negative effects on his parenting ability, therefore, joint custody will most likely be granted. Primary residency refers to the parent who primarily cared for the children during the marriage and after the parties have separated. Given Tiger’s busy golf schedule, we can assume that Elin was the primary caregiver during the parties’ marriage. If this is the case, then it is likely that the court will award primary residency with Elin. Since the parties have an amicable relationship, it is also likely that Tiger will have generous access with the children, discussed below.

‘Visitation rights’ is what is termed ‘Access’ in Ontario. Access deals with the amount of time a non-custodial parent (here Tiger) has with the children. Access will allow Tiger to visit the children. Tiger and Elin can either come up with an access schedule together, or alternatively, the court may determine same. If this is the case and Tiger has a good parent-child relationship with his children, the court will allow Tiger to have generous/liberal access with the children.

What would happen if Elin decides to move the children to Sweden?

The notion of custody under the Divorce Act encompasses the right to choose the child’s place of residence, absent an agreement or a court order to the contrary. Elin can decide the children’s place of residence subject to Tiger’s rights to oppose the change by seeking a variation of the custody or access terms (if there is an order in place).

If there is an existing custody order in place, Tiger would need to apply for a change in the custody order establishing that there has been a material change in the circumstances affecting the children, namely that Elin would like to move the children to Sweden with her, which will affect Tiger’s access with the children. The court will then consider what is in the best interests of the children. This inquiry does not begin with any presumption in Elin’s favor although her views will be respected and considered as she is the custodial parent.

As outlined in the Supreme Court decision of Gordon v. Goertz, the Court will then consider the following factors:

1. the existing access arrangement and the relationship between the child and the access parent;
2. the desirability of maximizing contact between the children and both parents;
3. the views of the child;
4. the custodial parent’s reason for moving, (only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child); and
5. disruption to the child of a change in custody; and disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

If Elin and Tiger were on bad terms and the Court was of the view that the reason for the move was to frustrate a positive access relationship with Tiger and the children, then motive for the move may be considered by the Court and thus, the Court may not allow Elin to take the children with her to Sweden. The onus would shift to Elin to establish that the decision to relocate is not made in order to undermine Tiger’s access time with the children.

Woods did take blame for his indiscretions in a public statement saying that he is ‘not without fault and is not perfect’. He also insisted that the reports that his wife had domestically assaulted him or had any role in the accident are false and malicious. Police are still speculating as to whether the accident was caused by a fight about the affair. The question for the purpose of this article is what would happen if this matter was before a Family Court in Ontario.

If the Police obtain the medical records regarding Tiger Woods’s attendance at the hospital after the accident and they indicated that he was assaulted then the Police may arrest Elin. If there are charges laid against her by the Criminal court, she may be released on bail. There will be terms associated with her release from police custody. She will not be able to communicate with Woods either directly or indirectly, or be permitted to attend within a certain distance of him. Alternatively, the terms may be that Elin may not be permitted to enter the matrimonial home where he and the children reside. If Tiger Woods is living in the home then she cannot enter the home as it would be in violation of her bail. As the children live in the matrimonial home, she will not be able to see them without an agreement made by her family law lawyer and Tiger Woods or by a Court Order.

Thus, Woods would have ‘defacto’ custody of the children, which means that by default he will be have custody until the issue of custody/access is determined by a court Order or agreement between the parties. The term ‘defacto’ means that the children will, by default live primarily with him in the matrimonial home as Woods will have defacto exclusive possession of the home until the issues are settled by the court Order or Agreement. Any communication between the parties would need to be done through the parties’ lawyers. In most cases the parties can agree to a mutual third party to do the exchange of the children if the parties could agree to an access schedule for Elin to visit the children. Of course Elin would take the position that she has been the primary caregiver of the children and that she should continue to be the primary caregiver of the children. If Tiger Woods would not agree to this position then she would most likely commence a legal Application.

If the parties cannot agree as to a schedule for the children then, Elin would most likely commence an Application as set out above and she would bring an Urgent Motion for Custody or in the alternative for the children to primarily reside with her. In Order for Elin to be successful on her Urgent Motion she must first establish that the matter is of an urgent nature. The court may not even hear the matter if they do not believe that it is of an urgent nature. Urgent motions are heard where it can be shown that there is a situation of urgency or hardship or where a case conference is not required. Thus, it would be wise for Tiger to consent to her to see the children but for him to retain the primary residence of the children. This may help him argue that Elin does not have any grounds to meet the test of Urgency and that this matter should proceed to a case conference first which could take approximately two months to obtain a court date for a case conference and possibly another two months for her to have her motion heard. Mr. Woods would use this time to argue that he is the primary caregiver of the children and that the status quo should not be disturbed until there is a trial of the matter which could take at least another year. This would strengthen his argument at trial that he is the primary caregiver as he would have been the primary caregiver for the children for well over one year.

Although it is not always easy to understand how urgency can be established, issues such as child abduction, threats of harm and dire financial circumstances are some examples of issues that can be addressed prior to a case conference. There are two steps that Elin should consider before proceeding with an urgent motion:

1. She should inquire as to whether case conference dates are available to deal with the matter and she should inform the trial coordinator if she believes that it is a pressing issue. There may be times available for cases of urgency in order to avoid a motion. If there are no available dates for several months, it may cause the matter to become more critical which may allow for an urgent motion.
2. Elin and Woods should try to engage in settlement discussions regarding the custody of the children until the case conference date (if it can be arranged). The focus here would be on reaching a short tem agreement to get the parties through until the case conference date without bring a motion. The courts like to see that the parties have at least attempted to negotiate and if they have not done so, the reasons why. If Woods can show that he has provided Elin access to the children, it is likely that the court will not deem the issue as urgent.

If the court hears the motion Elin may try and argue that she has always been the primary caregiver of the children and that the status quo should be maintained. She may also argue that given Woods’ busy work schedule and the fact that he is constantly travelling for work, he will not be able to care for the children and it would therefore be futile to grant custody of the children to him.

The court will consider the reason for her arrest and would use its discretion and any recommendations by the Children’s Aid Society, (if they were involved out of concern for the children), or any other parties that can speak to the impact that it may have on the children. The court would further consider whether Elin having access to the children is in the best interest of the same, keeping in mind the principle of ‘maximum contact’. This principle means that the children should have as much contact with each spouse as is consistent with the best interests of the children and for this purpose should take into account the willingness of Woods to facilitate contact between Elin and the children.

Child Support

Child support obligations will be determined pursuant to the Federal Child Support Guidelines (Guidelines). The amount of child support owed will be based on the payors income. Woods’ income has been rumored to be as high as $100,000,000.00 per year, while Elin does not work as she has been the primary caregiver of the two children.

If the children were to primarily reside with Elin, based on the Guideline formula, Woods may be obligated to pay $1,160,252.00 in child support per month. However, where the amount of the payors income exceeds $150,000.00, the courts have the discretion to award an amount lower than the Table formula.

The amount awarded must be balanced fairly, with the recognition of the actual conditions, means and needs of the children in mind. The families’ lifestyle and expenditure may also be considered in determining the appropriate amount of support. Given that Woods’ earnings are astronomically high, it is more than likely that the courts will not grant the amount contemplated above. Alternatively, they will reduce the amount to what they deem to be appropriate in the circumstances keeping the children’s conditions, means and needs in mind.

If the court granted primary residence to Woods, he would not be obligated to pay Elin child support however, he may be obligated to pay her spousal support. We cannot address the issue of spousal support at this time as we do not know the provisions of the party’s marriage contract. It is quite clear that Wood’s child support obligations will be significant and from a purely financial basis it would be wise for him to be the primary caregiver of the children in order for him to avoid paying child support to his wife. However, the issue of money and the residence of the children should not be linked and this writer cannot comment on whether Woods would be motivated by the quantum of child support that he may have to pay or his views of the best interests of his children. A Judge will be well aware of this fact. At the return o f the motion whether before or after a case conference Woods will need to convince a court that it is in the best interests of the children to reside with him primarily.

According to the press the parties have entered into a Marriage Contract. It should be noted however that is not always easy to enforce marriage contracts as they are anticipatory in nature and may not fairly take into account the financial means, needs or other circumstances of the parties at the time of the marriage breakdown. Problems may arise where a marriage contract makes provisions pertaining to the children, such as custody/access and child support. Although the issue of custody/access and child support may be addressed in the marriage contract, the courts are not bound to adhere to the terms therein and in fact they are unenforceable. This is the case since a marriage contract relates to the future care of the children. The parties cannot always predict what may be in the best interests of the children thereby making the provisions unenforceable. The parties may have simply dealt with the issues of spousal support and property which Elin may wish to challenge in order for her to obtain a more favourable settlement.