A 'Berry' Amicable Access Dispute

Halle Berry and her boyfriend Gariel Aubry have ended their relationship. The parties have one child together, Nahla, who was born in 2008. Although reports differ about who broke up with whom and how long the couple dated, reporters appear to agree that the parties continue to have an amicable relationship and that they are focusing their attention on what is best for their daughter.

What would happen if Halle and Gabriel lived in Ontario?

Nahla's Best Interest:

Ontario judges would likely approve of the couples' approach to their separation. Berry and Aubry are focused on what is best for their daughter, which is exactly what the courts focus on when determining Custody and Access, pursuant to the legislated Best Interest of the Child test.

Negotiation:

Berry and Aubry are trying to negotiate the issues and avoid the courts, which is very common in Ontario.

Custody:

The couple appears to have agreed upon joint custody, which will likely suit Halle, Gabriel and most importantly Nahla. Joint Custody requires the parents to be able to make important decisions regarding their children together. As Halle and Gabriel appear to get along well, they should be capable of making important decisions regarding Nahla together.

Property:

Equalization of Berry and Aubry's property is not an issue because the parties are not married and, in Ontario, only married couples are required to equalize their property.

Child Support and Access:

The parties have yet to determine a final access schedule, which will, in turn, determine the issue of child support.

If Nahla 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 income and the number of children. Once this amount is determined for each parent, the amounts would be subtracted from one another, and the party who earns more would pay the difference to the other.

For example, if Halle earned $14,000.000.00 (as salary-money.com reports), she would be required to pay roughly $105,000.00 per month in Child Support. If Gabriel earned $11,000,000.00 (as reported by www.zimbo.com), he would be required to pay roughly $82,000.00 per month in Child Support. So, on the set-off approach, Halle would be required to pay Gabriel roughly $23,000.00 ($105,000.00 – $82,000.00) in Child Support per month. However, the courts in Ontario have discretion to depart from this approach and it is possible that no child support would be ordered.

If Nahla spends less than 40% of her time with one parent, that parent would have to pay the full child support amount to the other parent, subject to an argument that the quantum of child support is unreasonable based on each of the parties' high incomes. Fortunately, Berry and Aubry appear to care far more about Nahla than they do about money.

Spousal Support:

Spousal support is awarded in Ontario when (a) one party needs support and/or (b) one party should be compensated for work done during the relationship.

As both parties are capable of supporting themselves, it is highly unlikely that either party would be entitled to spousal support based on need.

However, if either Berry or Aubry did more work to support the other during their relationship (e.g. taking care of Nahla or supporting the other's career), then that party might be entitled to spousal support on a compensatory basis.

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