James Van Der Beek's Divorce Under Way

James Van Der Beek, the main star of the famous televisions drama, 'Dawson's Creek' married actress Heather Ann McComb in July, 2003 and the parties separated July of last year. According to the media, the parties have settled the issues between them, namely, alimony issues (known as spousal support in Ontario) and the division of property. Their divorce is to take effect on June 3, 2010. There are no children of the marriage.

If the couple lived in Ontario....

Spousal Support

According to the press, James earns $50,000.00 per month and Heather is expected to receive $7,750.00 of that amount per month in spousal support payments.

In Ontario, the courts will take into account factors including but not limited to, the parties length of marriage (seven years), the economic position of the parties as a result of the separation and the roles that the parties played during the course of their marriage. The courts will also consider a marriage contract if there was one in place. Given that both parties are celebrities, we can assume that neither party suffered any significant economic hardship from the separation. If Heather makes a claim for support, she will need to demonstrate that she is need of same. Before a court even considers the quantum and duration of support that must be paid, entitlement to support must be positively determined. There are four main principles respecting entitlement to spousal support, which although at times may seem contradictory, are found enshrined within the Divorce Act and the Family Law Act:

  1. The clean break principle;
  2. The personal autonomy and choice principle (ie. separation agreement present);
  3. The need based principle; and
  4. The compensatory principle.

While the court essentially likes to see couples move on with their lives in an attempt to become self-sufficient (factor #1), the court may in fact consider other factors (factor #2-4) when making a spousal support entitlement determination. The court may for example, give great weight to a domestic contract that was consensually entered into by the parties prior to or during their marriage. The court, may on the other hand, look at other factors, such as, whether an individual is financially in need of the support, or whether an individual has contributed to the marriage in a non-monetary fashion. Nonetheless, it is important to keep in mind that the determination of entitlement is highly discretionary and the judge ultimately has the final vetoing power.

Some of the factors that are taken into consideration when determining the quantum of spousal support are as follows:

  1. the means of the payor;
  2. the need of the spouse receiving the support;
  3. the length of the marriage; and
  4. the function performed by each spouse during the marriage.

The issue of quantum of support is not such a fluid determination as is entitlement because of theSpousal Support Advisory Guidelines ("SSAG") that were recently adopted by the Court of Appeal in Fisher v. Fisher. The SSAG essentially takes the above noted factors and plugs them into a DivorceMate calculator in order to arrive at a specified range of support that should be made by a payor spouse. Please note, however, that although the court in Fisher essentially adopted the SSAG, these guidelines have not been legislated or made mandatory in law by any means. Although, it seems that as a result of Fisher, virtually all courts are now referring to the SSAG in their Spousal Support decisions. If the court awards spousal support to Heather, it will likely be for a short period of time given the parties length of marriage. For a marriage of seven years, the courts typically award spousal support anywhere between three and a half to seven years. It is also important to note that Heather is still quite young and therefore has a sufficient amount of time to become self sufficient if she was not working during the parties seven year marriage.

Division of Property and Marriage Contracts

According to the media, James kept the parties home in Hollywood and various other items such as his scripts, screenplays, stories etc. that were acquired during the course of their marriage.

In Ontario, the parties will have to account for all the property they acquired during the marriage. Each party will need to determine their net family property (NFP) and from these statements the amount that one spouse may owe the other is determined. The spouse with the greater net family property will need to pay to the spouse with the lower NFP one-half of the difference between these two amounts, and this amount would represent the 'equalization payment.' For more information regarding equalization payments please click here.

In this case, it is questionable as to whether the parties had a marriage contract (contract) in place (also referred to as a prenuptial agreement in the U.S.) If there was a marriage contract in place, the parties would not have been able to contract ownership or possession of the matrimonial home. The only agreement they would be able to come to with respect to the matrimonial home would be the equity in same and who will receive the equity upon the breakdown of the marriage. Therein, the parties may have also come to an agreement regarding the transcripts, screenplays, films and so forth as they may have some economical value for James. The contract may have also taken into account spousal support payments. It is important to note however, that in Ontario, it is advisable to obtain independent legal advice before entering into a marriage contract as it will make it more difficult to have the contract set aside. The court will take this into consideration and will also determine whether the marriage contract is fair and reasonable. If the courts believe that it is not reasonable, they may set the contract aside in whole or in part, which could in essence voids the contract.

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