James Van Der Beek’s Divorce under way – Family Law News Blog

James Van Der Beek, the main star of the famous television drama, ‘Dawson’s
Creek’ married actress Heather Ann McComb in July 2003 and the parties
separated in July of last year. According to the media, the parties have
settled the issues between them, namely, alimony issues (known as
spousal support in Ontario) and the division of property. Their divorce is to take effect
on June 3, 2010. There are no children of the marriage.

If the couple lived in Ontario….

Spousal Support

According to the press, James earns $50,000.00 per month and Heather is
expected to receive $7,750.00 of that amount per month in spousal support payments.

In Ontario, the courts will take into account factors including but not
limited to, the parties’ length of marriage (seven years), the economic
position of the parties as a result of the separation and the roles that
the parties played during the course of their marriage. The courts will
also consider a marriage contract if there was one in place. Given that
both parties are celebrities, we can assume that neither party suffered
any significant economic hardship from the separation. If Heather makes
a claim for support, she will need to demonstrate that she is in need of
same. Before a court even considers the
quantum and
duration of support that must be paid,
entitlement to support must be positively determined. There are four main principles
respecting entitlement to spousal support, which although at times may
seem contradictory, are found enshrined within the
Divorce Act and the
Family Law Act:

1. The clean break principle;
2. The personal autonomy and choice principle (ie. separation agreement present);
3. The need based principle; and
4. The compensatory principle.

While the court essentially likes to see couples move on with their lives
in an attempt to become self-sufficient (factor #1), the court may in
fact consider other factors (factor #2-4) when making a spousal support
entitlement determination. The court may, for example, give great weight
to a domestic contract that was consensually entered into by the parties
prior to or during their marriage. The court may, on the other hand, look
at other factors, such as whether an individual is financially in need
of the support, or whether an individual has contributed to the marriage
in a non-monetary fashion. Nonetheless, it is important to keep in mind
that the determination of entitlement is highly discretionary and the
judge ultimately has the final vetoing power.

Some of the factors that are taken into consideration when determining the
quantum of spousal support are as follows:

1. the means of the payor;
2. the need of the spouse receiving the support;
3. the length of the marriage; and
4. the function performed by each spouse during the marriage.

The issue of quantum of support is not such a fluid determination as is
entitlement because of theSpousal Support Advisory Guidelines (“SSAG”) that were recently adopted by the Court of Appeal in
Fisher v. Fisher. The SSAG essentially takes the above noted factors and plugs them into
a DivorceMate calculator in order to arrive at a specified range of support
that should be made by a payor spouse. Please note, however, that although
the court in
Fisher essentially adopted the SSAG, these guidelines have not been legislated
or made mandatory in law by any means. Although, it seems that as a result of
Fisher, virtually all courts are now referring to the SSAG in their Spousal Support
decisions. If the court awards spousal support to Heather, it will likely
be for a short period of time given the parties’ length of marriage. For
a marriage of seven years, the courts typically award spousal support
anywhere between three and a half to seven years. It is also important
to note that Heather is still quite young and therefore has a sufficient
amount of time to become self-sufficient if she was not working during
the parties’ seven year marriage.

Division of Property and Marriage Contracts

According to the media, James kept the parties’ home in Hollywood and various
other items such as his scripts, screenplays, stories etc. that were acquired
during the course of their marriage.

In Ontario, the parties will have to account for all the property they
acquired during the marriage. Each party will need to determine their
net family property (NFP) and from these statements the amount that one
spouse may owe the other is determined. The spouse with the greater net
family property will need to pay to the spouse with the lower NFP one-half
of the difference between these two amounts, and this amount would represent
the ‘equalization payment.’ For more information regarding
equalization payments please click here.

In this case, it is questionable as to whether the parties had a marriage
contract (contract) in place (also referred to as a prenuptial agreement
in the U.S.) If there was a marriage contract in place, the parties would
not have been able to contract ownership or possession of the matrimonial
home. The only agreement they would be able to come to with respect to
the matrimonial home would be the equity in same and who will receive
the equity upon the breakdown of the marriage. Therein, the parties may
have also come to an agreement regarding the transcripts, screenplays,
films and so forth as they may have some economic value for James. The
contract may have also taken into account spousal support payments. It
is important to note, however, that in Ontario, it is advisable to obtain
independent legal advice before entering into a marriage contract as it
will make it more difficult to have the contract set aside. The court
will take this into consideration and will also determine whether the
marriage contract is fair and reasonable. If the courts believe that it
is not reasonable, they may set the contract aside in whole or in part,
which could in essence void the contract.