Actor Dylan Walsh of the TV show 'Nip/Tuck' has separated from his wife, actress Joanna Going after six years of marriage. The parties have a seven year old child together, Stella. Sources state that the parties will be seeking "joint legal and physical custody" of Stella. Dylan has also offered spousal support to Joanna. This is Dylan's second marriage.
In Ontario, the following legal issues may be considered...
Dylan and Joanna are seeking joint custody of their daughter Stella. In
Ontario, parents who have joint custody of their children both participate
in making important decisions regarding the child's welfare. These
decisions may be with respect to religion, education, medical treatment
and the overall upbringing of the child. It is important to note that
custody does not relate to actual time spent with either Dylan or Joanna.
In the United States, it appears that the term for same is 'physical
custody' which does not exist in Ontario. In Ontario this is referred
to as 'access time or parenting time'.
Stella may spend half her time with Dylan and the other half with the Joanna or Stella may spend more time with one than the other. Joint custody does not impact the amount of time spent with each parent. As noted above, it will provide Dylan and Joanna with the authority to make significant decisions regarding Stella jointly. In order for the Court to award joint custody to Dylan and Joanna, they will need to demonstrate that they are cooperative and willing to communicate with one another regarding any child related issues.
A final access schedule will determine the issue of child support and who will have to pay child support to whom. If Stella spends at least 40% of her time with each parent, then a set off approach to child support may be used. This means that the courts would determine how much child support each parent must pay based on their respective incomes. Once this amount is determined for Dylan and Joanna, the amounts would be subtracted from one another, and the party who earns more (here most likely Dylan) would pay the difference to the other.
Although Dylan has offered spousal support to Joanna, we will discuss the factors considered by the Court when determining whether to order spousal support and the quantum for same. The following factors are considered by the Court:
- 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.
In this case, both parties are actors earning relatively high incomes. There may however be a disparity in the parties' incomes if Joanna can demonstrate that she is in a weaker financial position as she gave up certain career opportunities and this was a result of the marriage. If, for example Joanna can show that she made certain career sacrifices to further Dylan's career which did not allow her to pursue her own career, she may be entitled to compensatory support. We are not told whether Joanna will accept Dylan's offer to give her with spousal support, however, given that both parties are working and the marriage was a six year marriage, Dylan should have thought twice about offering her spousal support as there appears to be no real need for it.