Earlier this week former governor of California and his wife, Maria Shriver announced their separation after 25 years of marriage. This announcement came as a surprise to many, but it has since been reported that Maria may have been planning this split since 2009. In any event, the two have been living in separate homes for a few weeks now. The couple released a statement saying that they are currently living separate so they can work on the future of their relationship. Arnold and Maria have four children together ranging in age from 22 to 13 whom they plan to continue to parent together.
The Law in Canada
If Arnold and Maria separated in Ontario and wanted to resolve all issues associated with their separation, it would be suggested that they turn their minds to the custody and parenting plan for their four children, child support, how their home(s) will be dealt with, equalization of their property and whether spousal support will be an issue. At this time, it seems unclear as to whether Arnold and Maria will actually move forward with a divorce or whether they are simply taking some time apart from each other. Therefore, the most pressing issue for these two currently is the care of and support for their children.
As Arnold and Maria have made it clear that they want to continue to parent their children together, it would seem as though they would agree to having interim joint custody of their children. In Canada, custody refers to the legal decision making for the child(ren) in question. Therefore, the couple would continue to jointly make the major decisions for the children regarding such matters as medical care, education, and religious upbringing. As two of the four of the couple's children are over the age of 18, this would not be an issue with respect to those two as they are of the age of majority and are responsible for their own decision making at this point.
There have been no reports at this time as to where the children are residing. When dealing with parenting arrangements for the children, there are various options that the parties can agree to. One parent could have the children reside primarily with him/her with the other parent having care of the child(ren) for a specified duration, such as weekends. The parents could also share the care of the children whereby neither parent would have the children less than 40% of the time. As there are four children in this matter who are all older, they may decide that the children's residences will be split so that some live primarily with one parent and some live primarily with the other. The fact that two of the couple's children are old enough that they may be attending post-secondary education and living away from home is also a factor to be considered. In any event, if the parties are willing to co-parent their children, there is no reason to assume that they will not be able to also agree about the parenting arrangements for the children.
In Canada, parents have the legal obligation to support their dependant children. Under the Federal Child Support Guidelines, the access parent is responsible for paying child support to the parent who has the primary residence of the child as it is this person who incurs the daily costs associated with caring for the child and the access parent should therefore, contribute to these costs. The Guidelines set out the specific amount that a payor is responsible for based on his/her income and the amount of children. The determination of the quantum of support payable, as per the Guidelines is generally based on the following:
- The number of "children of the marriage"; as defined by the Divorce Act, or the dependants to be cared for when the Divorce Act does not apply; and
- The payor parent's line 150 income as per their annual Income Tax Return.
The payor parent is determined based on who the primary residence parent is. If it is decided that the children are to live primarily with Maria, then Arnold would be the payor parent. The reverse, therefore, would also be true. Although the Guidelines dictate the amount of support to be paid on a monthly basis as outlined above, Courts do have some discretion to vary the amount if one of the following applies:
- The child is over the age of majority;
- The payor parent earns more than $150,000.00 per year;
- Where the child resides with each parent for more than 40% of the time; or
- If the amount to be paid would cause an undue hardship on the payor parent;
In this case, there are two children over the age of majority and this would have to be looked at based on whether the children would still be considered to be "children of the marriage." This is determined by looking at the circumstances and seeing whether the child(ren) have remained in the care and control of their parents due to illness, disability, or education. If the children have decided to pursue post-secondary education, they may still be entitled to support from their parents, at least to the completion of their first post-secondary degree or diploma. However, the children may have significant income of their own through a trust which may mean that they are independent of the parents.
Arnold and Maria's respective incomes are also an additional factor to be taken into consideration in this matter. Both parties are well known celebrities and therefore it is fairly safe to assume that both of their yearly incomes are quite high. As starting point for the purposes of utilizing the Guidelines Table, the annual income of the payor parent, as stated on line 150 of his/her Income Tax Return would be used. Since it is likely that both of their annual incomes on their respective Income Tax Returns are well over $150,000.00, if the court considered that the amount as determined by the Guidelines Table is inappropriate in the circumstances they may order an amount that encompasses:
- the amount as outlined by the Guidelines Table for the first $150,000.00 of income;
- the amount the Court considers to be appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child; and
- the amount for any special and extraordinary expenses for the child.
Again, as it is likely that Arnold and Maria make in excess of $150,000.00 per year, a Court might consider, that a strict approach in using the Guidelines Table amount is inappropriate and instead determine a figure which it believes to be closer to what the payor parent should be paying to support their children each month. It is difficult to estimate the figure that an Ontario court would consider appropriate in this situation, however, in light of the circumstances, it would probably award an amount that is much higher than an average Order would be.
The third factor that would need to be taken into consideration in this case is if the parties decide upon a shared parenting schedule with the children residing equally with both parents, In this instance, the amount of what would be paid in child support would be based on what is known as the "set-off" approach which would be used as the starting point and could be as high as full Guideline Child Support. The Court would look to the following factors as outlined in Section 9 of the Child Support Guidelines in order to determine the appropriate amount of child support to Order:
- the amounts set out in the applicable Tables for each of the spouses;
- the increased costs of shared custody arrangements; and
- the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
It is difficult to determine any Order in this case as the news reports have not been clear on the specifics of how the couple will parent the four children, other than the fact that they have decided to remain cooperative and continue to parent them together.
The fourth factor could occur when there is a split custody regime which means that some of the children reside with one parent and some of the children reside with the other parent. In this situation the "set off" approach would be used to determine the appropriate quantum of child support.
This past week the world learned that during his marriage, Arnold Schwarzenegger fathered a child with a member of his household staff.