TomKat Settles - How Anticlimactic

Wow. The third divorce of the highest paid actor in Hollywood is already settled. Tom Cruise and Katie Holmes reach a lightning fast agreement. Best thing for their 6-year-old daughter, Suri.

I predicted that they would settle on Steven Skurka's radio show, "Closing Arguments," Sunday, July 8, 2012. The very next day, they settled. Even I was surprised by the speed at which this case moved. The drama barely lasted two weeks. I guess Tom is reserving drama for his movies.

Celebrity breakups rarely end so quickly or cleanly. When was the last time you remember thinking, "wow, that celebrity couple really handled their divorce with dignity and maturity."

How could this happen so fast, you ask? Well, Cruise and Holmes had a prenuptial agreement governing the distribution of assets; accordingly, Holmes is apparently entitled to $3 million for every year of marriage to Cruise, as well as their Montecito, California, home. So, talks between the two sides largely centred on who would have legal custody of Suri, and how physical custody would be shared.

The question now becomes: will the TomKat settlement last? Let's look at it more closely.

On Monday, July 9, 2012, Tom and Katie released this joint statement:

We are committed to working together as parents to accomplishing what is in our daughter Suri's best interest. We want to keep matters affecting our family private and express our respect for each other's commitment to each of our respective beliefs and support each other's roles as parents.

Although neither Tom nor Katie personally released a comment, Tom's lawyer, Bert Fields, stated that "Tom is pleased we got here, and so am I." Katie's lawyer, Jonathan Wolfe, stated: "the case has been settled and the agreement has been signed. We are thrilled for Katie and her family and are excited to watch as she embarks on the next chapter of her life."

As is common in Hollywood divorces, the settlement was made in such a way that none of the terms would be contained in publicly available court documents. According to TMZ, what turned the aggressive battle between the spouses around was a "series of conversations that Suri would be irreparably damaged by parental warfare." According to the source, this registered "big time" with both Tom and Katie.

Although the contents of the settlement are largely unknown, the couple's representatives told People Magazine that Suri will likely live with Holmes in New York (as opposed to with Tom in Los Angeles). According to TMZ, Holmes will "have what amounts to primary physical custody, but Tom [will have] significant custodial time with his daughter." The source reported that one condition Tom had for settling was "meaningful, significant" contact with Suri.

TMZ also reported that the issue of religion, perhaps the most contentious issue, is restricted to the settlement agreement and will not be divulged. Nevertheless, a source told RardarOnline that "under the terms of the settlement, Suri isn't permitted to be exposed to anything Scientology-related and this includes going to any Scientology churches, parties, etc. Katie made sure that this was ironclad in the agreement."

Although Tom seems to have won significant access time, a report from the Los Angeles Times seems to indicate that Katie has won legal custody (decision making power). According to that source, the agreement "gives Holmes the lead role in choosing how Suri will be educated." This is significant given that Tom allegedly wanted to send Suri to Scientology school.

Religious instruction and children in Canada, the US

In the United States, family law judges look to ensure that the interests of children are protected in matters, such as housing and medical care; in contrast, the courts try to give both parents broad leeway in choosing a religious upbringing.

While the issue of religion was touched on briefly in last week's blog, it bears further consideration.

In the US, courts generally will defer to the parents unless the consequences are truly detrimental to the health of the child. Jeffrey Shulman, a professor of law at Georgetown University, argues that this standard doesn't sufficiently protect children.

In Ontario, the role of the access parent varies with respect to the issue at hand. In general, when it comes to the broader rights of parents to talk about religion, the courts try to remain neutral, but inevitably they say something about the place of religion in the state in doing so.

Droit de la Famille 1150 and Young v Young (1993) were Supreme Court of Canada decisions for which judgement was released on the same day with contradicting results; the issue before the court was whether a mother could get a court order restricting a father from engaging their child in religious practices and discussions in religion during his visit.

The ultimate test in matters of access is the "best interests of the child." In Young v Young, the court held that s. 16(10) of the Divorce Act regarding the "best interests of the child" does not violate the Canadian Charter of Rights and Freedoms right to religious and expressive freedom.

In that case, Justice McLachlin and Justice Sopinka debated that test for imposing restrictions on an access parent's ability to engage in religious practices. Justice McLachlin asserted that the test was whether there was "risk of harm" to the child, but not necessarily actual harm. In contrast, Justice Sopinka argued that the broader Charter rights should be respected and so a parent's right to restrict freedom of religion should be limited to cases of "substantial harm."

Although the test remains somewhat uncertain, courts have tended to follow McLachlin's "risk of harm" analysis. In cases where a parent is said to have a "fanatical zeal," such as a Jehovah's witness taking a child door-to-door, the courts may restrict certain activities, but will not ban the parent from discussing religion with the child (Droit de la Famille 1150).

Thus, while Tom might not have the ability to send Suri to Scientology school, it is unlikely that the courts will prevent him from continuing to discuss Scientology with his daughter, or bringing her to Scientology functions.

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