Famous Actor, Dennis Hopper has filed for divorce from his fifth wife Victoria Duffy. The parties were married 14 years and have one child together, Galen who is 6 years old. Dennis has been battling with prostate cancer since last fall. He is currently undergoing chemotherapy treatment. It is unknown how much time Dennis has to live, but according to the press, he is currently in the hospital and only has one month to live.
The court documents state that Dennis insists on joint legal custody of their daughter, Galen.
How would this matter be dealt with in the Ontario Court?
In Ontario, custody involves the right to make important decisions affecting the child's welfare on matters such as health, religion, education and general upbringing. Although each case is typically decided on its individual merits, in determining who gets custody and who will have access of the child, the Court will consider theoverall best interests of the child.
Given that Dennis only has one month to live, the Court would most likely not address joint custody of the child. Alternatively, the Court would consider an access schedule for the child. An access schedule will give Dennis rights to visit his child and to be visited by his child. It also allows him to make inquires and be given information regarding his child's health, education and overall well-being.
The duration and of time spent with the child will be determined by the Court. Here, assuming that Dennis has had a good parent-child relationship with his daughter and assuming that he has played an active role in her life, the court will likely allow Dennis substantial access with his daughter. The court may grant him additional time taking into consideration his failing health and the limited amount of time he has left with his daughter.
Equalization of Net Family Property
Equalization of net family property is defined under the Family Law Act (FLA). It allows for spouses to share equally the value of property acquired during the course of a marriage. Both spouses calculate the value of assets they have on leaving the marriage less any debts and liabilities, less the value of the assets they had upon entering the marriage, subject to certain exceptions. The spouse who's Net Family Property is the lesser of the two, is entitled to one-half of the difference between them.
There are provisions in the FLA that deal with equalization of net family property on the death of a spouse. Typically, entitlement to equalization of net family property is personal in nature, in that it is between the two parties involved. However, there is an exception which allows Victoria to make a claim against Dennis's estate. This means that Victoria can continue the proceeding and her potential entitlement to equalization even after Dennis passes away.
If Victoria does not commence an Application before Dennis passes away, she will have six (6) months after his death to commence the Application against the estate. It would therefore be imperative for Victoria to file an Application for equalization of her net family property as soon as possible. If she does not do so within 6 months of his death, she may not be able to pursue a claim for equalization at all. There may be very special circumstances where the Court will hear a claim for equalization made after the 6 month limitation; however, this is rarely the case.
This provision also works in reverse. In the event that there is equalization owed by Victoria to Dennis (which is highly unlikely), then his estate would be able to pursue a claim for equalization against her so long as her estate has commenced the Application within the 6 month limitation period after he has passed away.
If you are terminally ill, you should commence your Application for equalization sooner rather than later.