Usher Raymond IV who is typically known as Usher by many of his R&B and hip hop fans had filed for divorce back in June of this year. However, it appears that Usher may have officially ended his marriage of almost two years with Takeka Foster Raymond, his former stylist. Sources speculate that as of today, the Court status of the divorce has officially changed to "disposed" which connotes the divorce is final. The couple have two children, a 10 month old and 1 year old. Reportedly, the couple have been living apart for over a year since the initial filing for divorce. In the interim, Usher was seeking joint custody of their minor children. Through various sources, the biggest battle and most contentious issue seems to be the children.
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:
- 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.
- 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.
- 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.
- 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.
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:
- the increased costs of shared custody arrangements and
- 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.