On September 23, 2011, John Allemang of the Globe & Mail reported that
Kevin O’Leary, the billionaire entrepreneur everyone loves to hate
on CBC’s
Dragon’s Den and
Shark Tank, has separated from his wife of twenty-one years, Linda.
In their candid interview, Kevin O’Leary revealed how often “marriages
are collateral damage in the relentless drive to get rich” and while
he was out gallivanting and promoting himself and his businesses on various
television programs and at social gatherings, his wife was left alone.
His job forced him to be away from home for prolonged periods of time
and while to him it was just work, for his wife it ended up being the
force that drove the couple apart. Kevin O’Leary has no qualms confirming
that his TV career destroyed his marriage and he doesn’t waste his
time pondering what could have been or how he could have saved his marriage.
After all, his own personal philosophy is “be a cold-hearted bastard
and work like hell while the losers you’re about to destroy are nattering
about work/life balance.”
What does this mean in the family law context? Preliminarily, it may mean
that as an individual who is worth upwards of $1.5 billion and who was
in a long-term marriage of over twenty years, Kevin O’Leary may be
ordered to pay indefinite
spousal support to his estranged wife.
The couple will more than likely look to s. 15.2 of the
Divorce Act in order to ascertain Linda’s entitlement to support. The four main
principles enshrined in the
Divorce Act respecting entitlement are found under subsection (6), which states:
(6) An order made under subsection (1) or an interim order under subsection
(2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses
arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from
the care of any child of the marriage over and above any obligation for
the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown
of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of
each spouse within a reasonable period of time.
Based on this subsection, an order for spousal support may lessen the impact
that a divorce may have on a spouse who forewent viable career opportunities
and self-sufficiency in order to care for his or her family.
The Supreme Court of Canada in a 1999 decision revealed that there are
three bases for entitlement to spousal support:
- Compensatory;
- Contractual; and
- Needs-based.
Compensatory entitlement seeks to compensate a spouse for his or her contributions
to the marriage or for sacrifices made as a result of the marriage or
its breakdown. Contractual entitlement stands for the proposition that
where an agreement is available it will generally be deferred to and enforced
by the courts. Lastly, needs-based entitlement allows a spouse to make
a claim for support on the basis of need regardless of whether or not
his or her need is due to the role assumed during marriage. For example,
a spouse who becomes ill or suffers a debilitating injury which is in
no way related to the marriage may be entitled to long-term or indefinite
spousal support.
Once entitlement is established, we look to the
Spousal Support Advisory Guidelines in order to establish quantum and duration. The
Guidelines have not been legislated and are merely advisory; however, the Ontario Court
of Appeal essentially adopted said Guidelines and stipulated that they
should be a starting point when attempting to determine quantum and duration. The
Guidelines provide two important formulas: the with child support formula and the
without child formula. Since we do not know whether the O’Learys had
any children we cannot say which formula would be pertinent to their matter
as of yet. However, for the purpose of comprehension and clarity the with
child support formula factors into any determination the fact that a recipient
spouse may be receiving child support in addition to any order for spousal
support whereas the without child support formula does not.
So, although he continues to enter into lucrative business deals which
makes it seem as though Kevin O’Leary’s separation from his wife
has not made an impact on him, the impact may be felt once an Order is
made or an Agreement is entered into requiring him to pay over substantial
amounts of support to his estranged wife on a monthly basis, in order
to ensure that she is adequately compensated and that her quality of life
does not suffer as a result of the breakdown of the marriage.