Tabloids, talk shows, and even CNN, have been covering Jon and Kate Gosselin’s
messy separation. There have been all sorts of drama for this highly publicized
couple since they announced that they were getting divorced in June of
2009. Most recently, Kate has accused Jon of taking roughly $200,000.00
from the couples’ joint bank account and Jon has accused Kate of barring
him from their twin daughters’birthday party. Virtually every detail
of these events have been covered by the media, but what would the Family
Courts of Ontario make of all this?
The Money Battle
The couple agreed to settle their matrimonial dispute through arbitration
to avoid the publicity of a trial. Unfortunately, the Gosselins have been
unsuccessful in avoiding court. In early October of 2009, Kate applied
to the courts to force Jon to return a large amount of money that he took
from their joint account.
According to Kate, Jon removed $232,000.00 from the couple’s joint
account in direct violation of the arbitrator’s orders. The court
ordered Jon to return $180,000.00 to their joint account. Jon claims to
have spent the remaining $52,000.00 on household expenses. Jon has until
October 26, 2009 to put the $180,000.00 back into the joint account and
the judge ordered both parties to provide the court with documentation
regarding their household expenses.
The Ontario courts would likely approve of the judge’s decision to
order the money’s return until the arbitrator can make a final determination.
This will help ensure that Jon does not spend the money before this issue
can be decided on a more permanent basis. Another option is for the court
to order that the $180,000.00 be held in trust by the court until a full
determination regarding this money is made.
The Birthday Battle
Kate was looking forward to baking a cake for Cara and Mady’s birthday
on October 8, 2009 and, according to Jon, she was also looking forward
to preventing Jon from seeing the twins on their birthday for more than
two hours. Jon response: “She’s trying to prevent me from seeing
my kids on Mady and Cara’s birthday…That’s like giving her full
custody by obeying her. She can’t tell me what to do. I’m not
going to allow it. I’m just going to stay. I own the house so I can
do what I want.”
Although Ontario courts would likely disagree with Jon’s tone in this
statement, according to family law in Ontario, he’s right.
In Ontario, the status quo has a huge impact on determinations of custody
and access. Although missing a few hours of one birthday party is unlikely
to make much of a difference in terms of custody and access orders, if
Jon spends much less time with the children than Kate does, the children
will be more likely to primarily reside with her. If Jon spends less than
40% of the time with the children, he will be responsible for making child
support payments to Kate, but she will have no obligation to make child
supports payments to him. It is likely that Kate will be making far more
than money than Jon in the future because he is no longer part of the
show. Kate’s new show, Kate Plus Eight, is scheduled to start on November
2, 2009. So, if Kate lived in Ontario, it would be very important to her
to spend as much time with the children as possible, not just because
she loves them and it takes a lot of time to take care of eight children,
but also because she would likely have to pay Jon a large amount of money
in child support otherwise.
Jon is also correct in stating that he can stay in his house as long as
he likes. In Ontario, both parents have an equal right to possession of
the Matrimonial Home, regardless of whose name is on title. This means
that neither Jon nor Kate can legally refuse the other entry to the home,
unless an Order for Exclusive Possession has been made. An Order of Exclusive
Possession grants full rights of possession of the Home to one parent
and denies the other parent entry to the Home.
The factors that the courts consider when deciding whether to award one
spouse exclusive possession of the Matrimonial home include (a) the best
interests of the children; (b) any orders made, (c) the financial position
of the parties, (d) any written agreement between the parties, (e) the
availability of other accommodation, and (f) any violence committed by
one party against the other or against the children.
Although Jon should not have any problems finding alternative accommodation
if he were excluded from the Matrimonial Home, it is unlikely that Kate
would be granted exclusive possession because there are no allegations
of violence, the parties had previously agreed that they would both attend
the Matrimonial Home to care for the children, and it is highly unlikely
that a judge would decide that it is in the children’s best interest
not to see their father on their birthday.