Mel Gibson Single Again

Mel Gibson and Russian musician Oksana Grigorieva have separated after a one-year relationship. The parties were never married. The media has stated that the parties are not bitter towards one another and that they hope to raise their 5 month old daughter, Lucia, together.

In Ontario, in order to be considered common law partners, parties must either be in a continuous relationship for a period of not less than three years or parties must have been in a relationship of some permanence, if they are the natural or adoptive parents of a child.

Although the parties in this case are not married, they meet the definition of a common law relationship as they have a child together. If the parties had ended their relationship in Ontario, the following legal issues would need to be addressed:

Custody/Access

Custody involves the right to make important decisions affecting Lucia's overall welfare. Decisions with respect to Lucia's healthcare, education, religion, general upbringing and her best interests will be considered by the court. Oksana has stated that the parties' split was amicable and that they intend to jointly parent Lucia. Ontario courts are more likely to award joint custody where the parties have an amicable relationship. This occurs in situations where it can be shown that the parties are able to co-operate with one another and make decisions about the child jointly. If Oksana is being truthful to the media and Mel and Oksana have a good relationship, it is likely that the court will award joint custody of Lucia.

Where Lucia will primary reside may be decided based on who primarily cared for her during the relationship and after the parties separated. Oksana has stated that Lucia is currently residing with her mother in Los Angeles. Assuming that Oksana was the primary caregiver during the parties' relationship, then it is likely that the court will award primary residency of Lucia to Oksana. Since the parties have an amicable relationship, it is also likely that Mel will have generous access with Lucia and Oksana will consent to same.

Child Support

In Ontario, the courts are bound by the Ontario Child Support Guidelines (Guidelines). The Guidelines include a table that shows the child support owed based on the income of the payor and the amount of children. The parties must first determine with whom Lucia will primarily reside with. As noted above, if Lucia will primarily reside with Oksana, Oksana will be entitled to receive child support. Given Mel's hectic and busy career, we can assume that he will most likely agree to this and he will therefore pay Oksana child support pursuant to the Guidelines.

Assuming that Mel earns $5,000,000.00 per year, Oksana would be entitled to $37,144.00 per month in support. If Mel earned $10,000,000.00 per month, Oksana would be entitled to $74,144.00 per month in support. Given that these numbers are so astronomically high, it may affect Oksana's entitlement to spousal support (discussed below).

Given that the amount of child support is so high, the court may use their discretion in determining whether the amounts noted above are appropriate. If the courts are of the view that the amounts are excessive, (which, we believe are excessively high), the court has the discretion to lower the amount owed in child support per month to an amount they deem to be fair.

Spousal Support

Spousal support claims depend on whether one partner (in this case, most probably Oskana) can demonstrate a need for spousal support. Some of the factors that the court considers in order to grant spousal support are: the length of the relationship, the economic position of the parties as a result of the separation and the roles that the parties played during the course of their relationship. In circumstances where the amount of child support paid is astronomically high due to the payor's income, the court will take the child support amount into account when determining spousal support and the need for same. Here, assuming that the court awards Oksana with either of the amounts of child support noted above, it is unlikely that the court will also award Oksana with spousal support as it will be very difficult for her to argue that she is in need of same.

For example, if Oksana was awarded the lower amount of $37,144.00 per month in child support, she would be receiving $445,728.00 in child support per year. This amount can definitely cover the child's needs as well as any needs Oksana may have.

Equalization

An Equalization Payment is the payment that one spouse can be required to make to the other spouse in order to equalize the assets that were acquired during the course of the marriage. Since Mel and Oksana were never married, equalization does not apply to them. 

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