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.