After a year of rumours of this couples’ separation, it appears as
though Avril Lavigne filed for divorce from her husband, Deryck Whibley,
in Los Angeles in October of 2009.
Both Lavigne and Whibley are Canadian citizens, born in Ontario. So why
did this famous Canadian couple not file for divorce in Ontario? Here
are a few possible reasons.
Jurisdiction
In order to apply for Divorce in Ontario, you must ordinarily reside in
Ontario for at least one full year. Avril moved to Manhattan when she
was 16 years-old, she has a home in California, she may still own a home
in Toronto, and she is currently on a world tour.
As such, any attempts to apply for divorce in Ontario could lead to a battle
over jurisdiction as it is difficult to determine whether she is ordinarily
resident in Ontario when she has lived in and traveled to so many places.
Grounds for Divorce
When Avril filed for divorce, she filed on the grounds of “irreconcilable
differences”. This is not a ground for divorce in Ontario. Instead,
she would have to choose between adultery, cruelty, and separation.
Despite rumours of Whibley being spotted holding hands with an unknown
woman, and rumours of Avril dating actor Brandon Davis, the couple maintain
that they are still good friends. So, Avril would likely have chosen the
non-fault ground of separation, which basically means that the parties
have been apart for a year or more and have no plans of getting back together.
Seeing as the couple separated in September of 2009, they would have quite
the wait ahead of them before they saw a Divorce Certificate if she filed
for divorce in Ontario.
Spousal Support
It is rumoured the Avril is not seeking
spousal support nor does she want to pay any to Whibley.
According to avrilgroupie.com, Whibley’s career has faded since Avril’s
took off. Instead, Whibley spends most of his time partying and drinking,
and little time focussing on his career.
Whether a party is entitled to spousal support in Ontario is based on four
different principles:
- The Clean Break Principle, which states that parties should be able to
end all commitments to each other after they are divorced, including their
commitment to support each other; - The Personal Autonomy and Choice Principle, which states that any Separation
Agreement or Marriage Contract should be considered in deciding whether
a party is entitled to spousal support; - The Needs Based Principle, which states that parties in need should be
supported by their ex-spouses; and - The Compensatory Principle, which states that parties should be compensated
for contributions they made to the other party’s career or other
accomplishments during their marriage.
The Clean Break Principle always supports no entitlement to spousal support.
There are no reports of any agreement or contract between Lavigne and
Whibley, so the Personal Autonomy and Choice Principle does not apply.
It is unlikely that Whibley would be entitled to spousal support under
the Needs Based Principle because famous musicians tend to make fairly
good money, especially those who own large mansions in California. This
just leaves the Compensatory Principle.
It could be argued that Whibley is not focusing on his career because he
is supporting his wife in hers. There are reports the he has been traveling
through Asia, performing with his wife and helping her promote her new
fragrance, Black Star. If this is the case, there is a chance that he
would be entitled to spousal support if Avril applied for divorce in Ontario.
Equalization
In Ontario, separating spouses are entitled to an Equalization Payment.
This means that the more affluent spouse must pay the other spouse an
amount of money depending on who owned what when. You can find more information
on how to calculate
Equalization Payments here.
Los Angeles family law also mandates a division of property for separating
spouses, but Avril may have filed for divorce in California because she
prefers their division of property regime.
Of course, all of this may be a moot point because there are also rumours
that Whibley denies that he and Lavigne are divorcing and that reports
of their divorce are just the result of an incorrect
National Enquirer article taken far too seriously.