Allen Iverson, a famous basketball player for the Philadelphia 76ers decided not to return for the remainder of the season, meanwhile his wife has filed for divorce. The couple were married for 8 1/2 years. They have five children. Iverson's wife is seeking sole custody of the couple's children, child support, and spousal support.
If Iverson's divorce took place in Ontario, these are some of the issues that would need to be canvassed.
In Ontario, custody and access issues are always determined based on what is in the child's best interests. According to section 24 of the Children'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.
It is important to note that custody is about allocating decision making authority to a parent(s). However, access deals with the amount of time a non-custodial parent has with the child. In order for Iverson's wife to get sole custody of the children, she needs to show that she is the primary caregiver of the children, and it is in the children's best interest that she is the custodial parent. Additionally, sole custody becomes more suitable when the parties are acrimonious, and cannot cooperate in co-parenting.
Child Support/Special Expenses
Child support is money that is payable to the parent who has the children in their primary care. 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. If Iverson's children primarily reside with his wife, Iverson would be paying child support.
The special expenses are determined based on whether such expenses are in the child's best interest and the reasonableness of such expenses in relation to both parent's ability to pay for such expenses. For more information on special expenses, please refer to our Child Support Guidelines.
Spousal support has two parts. Firstly, the Court will look at whether one is entitled
to spousal support, and secondly, if there is entitlement, what amount
and duration of spousal support is necessary. In order to be entitled
to spousal support, Iverson's wife must demonstrate a need for spousal
support (e.g. in order to maintain her standard of living that she had
prior to separation; compensate her for taking the caregiver role and
supporting his career). Once the need is shown, Iverson's wife would
claim that Iverson has the means to support her. Iverson's means of
paying spousal support (if entitlement is found) may be questionable given
he has announced that he will not return for the remainder of the season,
and hence his income will be affected. In this situation, the Court would
be able to impute income to Iverson if they believe that Iverson is intentionally
under-employing himself. Moreover, the income he is claiming (or the lack
thereof) is not accurately reflective of Iverson's true earning capability.
If entitlement is determined, the amount and duration of spousal support is based on the Court's discretion. Some factors to consider are the payor's income and the length of marriage. The Court may consider the amount of the equalization payment made by Iverson, and if it is a substantial amount that would not warrant the need for spousal support, the Court may not grant Iverson's wife spousal support.
Given Iverson was married; an equalization payment would be sought in Ontario in order to divide the couples' assets.