Canadian-American actor and comedian Jim Carrey and model and actress Jenny McCarthy have ended their 5 year relationship. The couple have never married and do not have any children of the relationship. However, Jim has a 22 year old daughter from his previous relationship and Jenny has a 7 year old son from her previous relationship. Jim had recently tweeted that their relationship ended and that he is grateful for the many blessings they shared and he wished Jenny the very best. It would seem that the couple have ended their relationship in an amicable manner. Jenny went as far as stating she still wants to be a part of his daughter's life.
Had Jim Carrey ended his common law relationship with Jenny in Ontario, the following legal issues should be considered:
Custody and Access
Arguably, Jim may be considered in loco parentis to Jenny's 7 year old son. This means that Jim is "in place of a parent." The factors the Court would look at to determine whether Jim is in the role of a parent include:
- whether Jim provided financially for Jenny's son;
- whether Jim had a role in disciplining Jenny's son as a parent;
- whether Jim has represented to the world (i.e.: family, friends, etc...) that he is responsible as a parent for Jenny's son; and
- the nature of Jenny's son's relationship with the absent parent.
If Jim is seen as in loco parentis to Jenny's son, the Court would then proceed to determining which parent(s) could better make decisions that would serve the child's best interests. Moreover, the Court will look at what type of custody regime (e.g. sole custody, joint/shared custody, etc...) would be in the child's best interests.
According to section 24 of theChildren's Law Reform Act, the Court will determine the child's best interests by considering:
the love, affection and emotional ties between the child and,
- each person entitled to or claiming custody of or access to the child,
- other members of the child's family who reside with the child, and
- persons involved in the child's care and upbringing;
- the child's views and preferences, if they can reasonably be ascertained;
- the length of time the child has lived in a stable home environment;
- the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
- the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
- the permanence and stability of the family unit with which it is proposed that the child will live;
- the ability of each person applying for custody of or access to the child to act as a parent; and
- the relationship by blood or through an adoption order between the child and each person who is a party to the application.
These factors are looked at holistically and, as such, a decision regarding what type of arrangement would serve a child's best interests is a subjective one. It is therefore difficult to predict what a Judge would Order in any given case.
It is important to note the difference between the term custody and access. Custody is about allocating major decision making authority between the parent(s). Whereas, access deals with the amount of time a non-custodial parent has with the child.
If Jim were considered a parent to Jenny's son and if Jenny's son were primarily residing with her, Jim would be paying child support. The amount of child support payable is based on the Federal Child Support Guidelines ("Guidelines") that considers the payor's income and the number of children the payor supports. There are special rules and considerations that apply to a payor who earns greater than $150,000.00 per annum, and these rules would likely apply to Jim.
Given both actors are financially prosperous due to their respective careers, a spousal support claim would depend on whether one of the party's can show a need for spousal support. Some of the factors to be considered for a court to grant spousal support include:
- the length of the relationship;
- the need for financial support;
- the need to compensate a partner for the economic hardship they endured from the relationship;
- a partner's contributions to enhance the other's career; and
- the need to maintain the same standard of living when the partners lived together.
Based on both of the parties' net worth and their ability to earn an income, it is unlikely one can establish a need for spousal support.
The most pressing issues for Jim and Jenny in a Canadian family law context would include whether Jim is considered a parent to Jenny's son, and if so, all the obligations that flow from being a parent to a child (e.g. establishing a custody and access regime that reflects the child's best interests and child support obligations). There is no equalization payment involved or property division as Jim and Jenny were not married.