Singer and actress Ashlee Simpson filed for divorce on Wednesday from her rock star husband Pete Wentz after less than three years of marriage. Tabloids report that Simpson could not deal with Wentz's infidelity anymore and on August 19, 2010, ultimately told Wentz that their relationship was over and there was no need for him to come home.
Simpson, younger sister of Jessica Simpson, and Wentz married in May 2008, and by that November welcomed their child, Bronx Mowgli Wentz. Now that the couple is separating, the issues of child support and spousal support are among the many issues that must be dealt with.
In Ontario, the Family Law Act, as well as the Divorce Act if the parties are married,dictate that all dependent children have a legal right to receive financial support from their parents. When parents live together with the children their costs are assumed to be inter-related and so, any money the parent with custody spends on the household will also benefit the child. Upon separation, however, support becomes an issue, the outcome of which is dependent on the living arrangements determined to be in the child's best interests. The child can either reside somewhat equally with each parent, or one parent may have primary care of the children. When the children remain in the primary care of one parent, that parent is said to have primary residence of the child. As such, the parent with primary residence has the main responsibility for the day-to-day care of the child. Therefore that parent has most of the ordinary expenses of raising the child. The other parent must help with those expenses by paying money to the parent with custody.
In the case of shared parenting, the child resides with each parent no less than 40% of the time. Therefore, in this residence arrangement it is typical for Courts to "set-off" the parties' respective child support obligations such that the party with the higher income pays to the party with the lower income the difference between their individually owed child support payments.
In view of the law regarding child support in Ontario and assuming Bronx remains in the primary care of Simpson, she will be entitled to receive child support from Wentz.
In Ontario, many family law practitioners would probably agree that entitlement to spousal support is one of the most fluid areas in family law. In stark contrast to the area of equalization and property sharing where technical rules are rigidly applied and adhered to, the area of law dealing with spousal support witnesses a tremendous deal of fluidity and judicial discretion.
In an attempt to alleviate some of the uncertainty surrounding the issue of spousal support, in January 2005 the Justice Department released a draft proposal titled Spousal Support Advisory Guidelines ("SSAG"). While the circumstances surrounding every divorce depend on the specific facts and arrangements of the particular marriage, the Spousal Support Advisory Guidelines provide the courts with a cursory formula, or series of formulas, to guide them through the support allocation process. It is very important to note, however, that unlike the Federal Child Support Guidelines, the Spousal Support Advisory Guidelines are not legislated and are only discretionary.
Under the federal Divorce Act, a Canadian family court will look at four heads when determining whether to order spousal support and how much to order. These four are
- to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses;
- to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- in so far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. If a spouse is unable to support him or herself or if there is a big difference between the incomes of each spouse, he or she may have a claim for support against the other spouse.
The right to spousal support may be waived by way of an agreement. However, in order to be a full and final release, the clause in the agreement must be carefully worded and it must be clear that no change in circumstances will warrant a review of spousal support obligations. In some cases, a party's waiver of spousal support is contingent on the potential payor's undertaking to provide ongoing financial disclosure. That is, if ever the potential payor is found to be in a financial position to afford spousal support payments, the support obligation will commence. The latter is not an absolute release from the duty to provide support and as such, legal advice should be sought in order to ensure that the party's agreement clears the potential payor from any future claim.
In this case, since Simpson's career has had to take the back burner to Wentz's there is likely to be some disparity in the incomes of both parties, if Simpson can show that her weaker financial position was caused by her marriage to Wentz, she may be entitled to support, a right she may or may not wish to waive.