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.