Sandra Bullock who recently won an Oscar for Best Actress in her performance in "The Blind Side" reportedly is divorcing Jesse James who is a television celebrity that is heavily tattooed and enjoys motorbikes and death-defying stunts. Bullock recently found out that James was having an 11-month affair with Michelle McGee who is a tattooed model.
Despite the high point in Bullock's career, she is inevitably facing a difficult time in her personal life given she has been married to James for approximately 5 years, and she has been co-parenting James biological daughter, Sunny who is 6 years old. Reportedly, Bullock wants to gain custody of Sunny, given the biological mother is deemed unfit to parent, and James has sole custody of Sunny.
If Bullock were divorcing in Ontario, the issues involving Sunny would be considered as follows:
Custody and Access
Sunny has been living with James and Bullock. Arguably, Bullock is considered a loco parentis for Sunny. This means that Bullock is "in place of a parent." The factors the Court would look at to determine whether Bullock is in the role of the parent includes:
- whether Bullock provided financially for Sunny; whether Bullock disciplined Sunny as a parent;
- whether Bullock has represented to the world (i.e.: family, friends, etc...) that she is responsible as a parent for Sunny; and
- the nature of Sunny's relationship with the absent parent, namely the biological mother.
If the Court were to determine that Bullock is considered a parent to Sunny, the Court would then have to determine which parent(s) could better serve Sunny's best interests. Moreover, the Court will look at what type of custody regime (e.g. sole custody, joint custody, etc...) would be in Sunny's best interests. In Ontario, James being an adulterer would not automatically make him an unfit parent. The Court would have to look at whether his extra-martial behaviour will adversely affect his parenting ability and whether such behaviour has affected Sunny'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:
- 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 love, affection and emotional ties between the child and,
- 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). Whereas, access deals with the amount of time a non-custodial parent has with the child.
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 Sunny were primarily residing with Bullock, James 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.