Like many out there, we at Feldstein Family Law Group were surprised by this week's announcement that Pirates of the Caribbean star, Johnny Depp, and long-time girlfriend, French model and singer, Vanessa Paradis, had decided to call their relationship quits.
In recent months, there have been rumours that the couple's 14-year relationship was on the rocks. However, up until last month both parties persistently denied the rumours. Then, this week, Depp's publicist released the following statement:
They have amicably separated. Please respect their privacy and, more importantly, the privacy of their children.
Depp' and Paradis' relationship seemed distinct from that of other celebrity couples. First, they chose to live in France for the majority of their relationship, outside of the traditional LA/New York celebrity bubble.; Second, they worked very hard to keep their children and relationship details out of the media.; Third, they never actually married.
Although Depp was married once before, to Lori Anne Allison, between 1983 and 1985, Depp and Paradis seemed to feel that a marriage was unnecessary. In an Elle Magazine article, Paradis was quoted as saying, "I love the romance of 'let's get married,' but then, when you have it so perfect...I mean, I'm more married than anybody can be-we have two kids. Maybe one day, but it's something I can really do without."
In recent years, the family began to split their time between their homes in Meudon, in the Paris suburbs, two in Los Angeles, an island Depp bought in the Bahamas and their villa in Le Plan-de-la-Tour, a small town near Saint-Tropez, in the South of France. Depp's estimated net worth is $300 million.
Now, the couple must tackle issues such as custody and access, support and property division. Or do they? Because Depp and Paradis were never married, how is a separation after 14 years of living together different from divorce?
Arguably cohabitating spouses contend with many of the same issues as divorcing spouses.
But in Ontario, the property regime under Part I of the Family Law Act only applies to married spouses. Accordingly, a cohabitating spouse, such as Depp or Paradis, would not be entitled to equalization of net family property. However, custody and access, child support and spousal support remain the same, whether or not the spouses are married.
Where does this leave Paradis, you ask? According to the Daily Mail, Depp has offered to pay Paradis £100 million to keep the split as amicable as possible for the sake of their children. In Ontario, Paradis would also likely have a strong trust argument to make. While Depp was off making blockbusters such as Pirates of the Caribbean and countless Tim Burton films, Paradis largely put her films, albums, and modelling on hold to raise the couple's two children, Lily-Rose, now 13, and Jack, now 10.
The test for whether a court will award a cohabiting spouse a trust interest over property owned by the other cohabiting spouse was most recently discussed in two cases, heard jointly by the Supreme Court of Canada (SCC), Kerr v Berenow and Vanasse v Seguin (2011).
In Kerr v Berenow, the SCC held that entitlement to a constructive trust order pertains to surplus wealth created through joint efforts. First, the nature of the relationship must be a "joint family venture." Second, there must be a link between the claimant's contributions and jointly created wealth. Third, the contribution may be in services, including domestic services. And fourth, the claimant must establish the proportion of wealth created attributable to his or her efforts.
In the case of Depp and Paradis, an Ontario court would likely find that the couple's relationship constituted a joint family venture. Their partnership appeared to be based on mutual effort, economic integration, and it was clear that both parties prioritized the family.
However, there must also be a link between the aggrieved spouse's efforts and the disproportionate accumulation of wealth. Seemingly, Paradis stayed home to give birth and raise the couple's children, somewhat deserting her career for a time. If there was evidence that the couple had an implied arrangement to this effect, then Paradis would have a fairly strong constructive trust argument.
Under the Kerr v Berenow analysis, the claimant may get a monetary or proprietary award (the property iself). Where a claimant's efforts or contribution can be traced to a specific property, the claimant may have a right to a traditional constructive trust over the property in question. Where the claim applies to accumulated wealth as opposed to specific assets (as it likely would in the case of Depp and Paradis), the claimant may be able to get a monetary award for a proportionate share of the increase. The court in Kerr v Berenow also recognized that a claimant must establish that a monetary award would be insufficient in the circumstances in order to grant a proprietary remedy.
Regardless of whether Paradis gets a constructive trust order, she will likely be awarded spousal support on a compensatory basis, due to the couple's traditional style marriage. Under the Spousal Support Advisory Guidelines, Paradis would be entitled to support for a period of between 7 and 14 years, and the court would apply the with-child support formula, as Depp will also likely be responsible for paying child support.