Kate Winslet and Sam Mendes Separate

Academy Award winning actress, Kate Winslet has separated from her Academy Award winning director husband, Sam Mendes. The parties married in 2003 and have a six year old child together. Reports state that the parties separated earlier this year. According to a statement by the couple's lawyer, 'the split is amicable and by mutual agreement'. The parties intend to jointly parent their son.

If the parties resided in Ontario...

Joint Custody and Access

In Ontario, custody involves the right to make important decisions affecting the child's overall welfare. Decisions with respect to the child's healthcare, education, religion and general upbringing are considered and the child's best interests are always of utmost importance.

Sources state that in this particular case, the parties split amicably and intend to jointly parent their son. Ontario courts are more likely to award joint custody where the parties have an amicable relationship. This is because joint custody requires parents to make important decisions about their children together, which is difficult, if not impossible, when the parties cannot co-operate. An Ontario judge would likely award Kate and Sam joint custody because they appear to be able to cooperate with one another and thus should be able to make important decisions regarding their child together.

With respect to primary residency, the courts will often award same to the parent who primarily cared for the child during the marriage and after the parties have separated. If Kate was the primary caregiver during the parties' marriage, then it is likely that the court will award primary residency with her. Since the parties have an amicable relationship, it is also likely that Sam will have generous access with the child.

Child Support

Child support in Ontario is based on the Federal Child Support Guidelines (Guidelines). Child support is payable to the parent who has the child in his/her primary care. In this situation, the court will consider who spends the majority of the time with the child. If Sam is granted with a shared parenting regime, which means that he is awarded with at least 40% of the time with the child, then the starting point for child support will be based on the set off approach.

The Set off approach takes into account each parties' income and the number of children. The court will consider how much each party would pay in child support pursuant to the Guidelines. The respective numbers are then 'set off' one another and the party with the higher guideline amount would pay the other parent the set off amount.

The court need not use this approach and has discretion to deviate from the set off by either making one person pay more or less than the set off amount would require. In this particular case, given that both Kate and Sam make a significant amount of money and both have relatively high and similar income amounts, the court may use the set off approach in determining child support.

It is also possible that the parties would agree not to require either party to pay child support. This could only occur if each parent had the child more than 40% of the time. However, the parties must persuade a court that this would meet the objectives of the Guidelines in order to be granted a Divorce by the court.

Spousal Support

In Ontario, spousal support will be awarded to party who can demonstrate that they are in need of same. The length of the marriage will also be taken into account. The parties are both very famous celebrities earning relatively high incomes. It is highly unlikely that either party will make a claim for support given that both parties' incomes are in the millions. The party that earns less then the other may be entitled to support; however, if he/she was awarded support, it would be for a short period of time, given the length of the marriage. It would be very difficult for either party to suggest that they are in need of spousal support and spousal support would most likely not be awarded by a court.

Equalization of Net Family Property

Equalization of net family property allows spouses to share equally the value of assets acquired during the course of their marriage. Each party will need to take into account all the property/assets they acquired during the marriage. The spouse whose net family property is the lesser of the two is entitled to one half of the difference between them.

In this case, it is unknown who will have to pay an equalization payment to whom given that the parties both make fairly high incomes.

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