Academy Award winning actress, Kate Winslet has separated from her Academy
Award winning director husband, Sam Mendes. The parties married in 2003
and have a six year old child together. Reports state that the parties
separated earlier this year. According to a statement by the couple’s
lawyer, ‘the split is amicable and by mutual agreement’. The parties
intend to jointly parent their son.
If the parties resided in Ontario…
Joint Custody and Access
In Ontario, custody involves the right to make important decisions affecting
the child’s overall welfare. Decisions with respect to the child’s
healthcare, education, religion and general upbringing are considered
and the child’s best interests are always of utmost importance.
Sources state that in this particular case, the parties split amicably
and intend to jointly parent their son. Ontario courts are more likely
to award joint
custody where the parties have an amicable relationship. This is because joint
custody requires parents to make important decisions about their children
together, which is difficult, if not impossible, when the parties cannot
co-operate. An Ontario judge would likely award Kate and Sam joint custody
because they appear to be able to cooperate with one another and thus
should be able to make important decisions regarding their child together.
With respect to primary residency, the courts will often award same to
the parent who primarily cared for the child during the marriage and after
the parties have separated. If Kate was the primary caregiver during the
parties’ marriage, then it is likely that the court will award primary
residency with her. Since the parties have an amicable relationship, it
is also likely that Sam will have generous access with the child.
Child Support
Child support in Ontario is based on the
Federal Child Support Guidelines (Guidelines). Child support is payable to the parent who has the child
in his/her primary care. In this situation, the court will consider who
spends the majority of the time with the child. If Sam is granted with
a shared parenting regime, which means that he is awarded with at least
40% of the time with the child, then the starting point for child support
will be based on the set off approach.
The Set off approach takes into account each parties’ income and the
number of children. The court will consider how much each party would
pay in child support pursuant to the Guidelines. The respective numbers
are then ‘set off’ one another and the party with the higher guideline
amount would pay the other parent the set off amount.
The court need not use this approach and has discretion to deviate from
the set off by either making one person pay more or less than the set
off amount would require. In this particular case, given that both Kate
and Sam make a significant amount of money and both have relatively high
and similar income amounts, the court may use the set off approach in
determining child support.
It is also possible that the parties would agree not to require either
party to pay child support. This could only occur if each parent had the
child more than 40% of the time. However, the parties must persuade a
court that this would meet the objectives of the Guidelines in order to
be granted a Divorce by the court.
Spousal Support
In Ontario,
spousal support will be awarded to party who can demonstrate that they are in need of
same. The length of the marriage will also be taken into account. The
parties are both very famous celebrities earning relatively high incomes.
It is highly unlikely that either party will make a claim for support
given that both parties’ incomes are in the millions. The party that
earns less then the other may be entitled to support; however, if he/she
was awarded support, it would be for a short period of time, given the
length of the marriage. It would be very difficult for either party to
suggest that they are in need of spousal support and spousal support would
most likely not be awarded by a court.
Equalization of Net Family Property
Equalization of net family property allows spouses to share equally the value of assets acquired during the
course of their marriage. Each party will need to take into account all
the property/assets they acquired during the marriage. The spouse whose
net family property is the lesser of the two is entitled to one half of
the difference between them.
In this case, it is unknown who will have to pay an equalization payment
to whom given that the parties both make fairly high incomes.