Mel Gibson and Russian musician Oksana Grigorieva have separated after
a one-year relationship. The parties were never married. The media has
stated that the parties are not bitter towards one another and that they
hope to raise their 5 month old daughter, Lucia, together.
In Ontario, in order to be considered common law partners, parties must
either be in a continuous relationship for a period of not less than three
years or parties must have been in a relationship of some permanence,
if they are the natural or adoptive parents of a child.
Although the parties in this case are not married, they meet the definition
of a common law relationship as they have a child together. If the parties
had ended their relationship in Ontario, the following legal issues would
need to be addressed:
Custody/Access
Custody involves the right to make important decisions affecting Lucia’s
overall welfare. Decisions with respect to Lucia’s healthcare, education,
religion, general upbringing and her best interests will be considered
by the court. Oksana has stated that the parties’ split was amicable
and that they intend to jointly parent Lucia. Ontario courts are more
likely to award joint custody where the parties have an amicable relationship.
This occurs in situations where it can be shown that the parties are able
to co-operate with one another and make decisions about the child jointly.
If Oksana is being truthful to the media and Mel and Oksana have a good
relationship, it is likely that the court will award joint custody of Lucia.
Where Lucia will primary reside may be decided based on who primarily cared
for her during the relationship and after the parties separated. Oksana
has stated that Lucia is currently residing with her mother in Los Angeles.
Assuming that Oksana was the primary caregiver during the parties’
relationship, then it is likely that the court will award primary residency
of Lucia to Oksana. Since the parties have an amicable relationship, it
is also likely that Mel will have generous access with Lucia and Oksana
will consent to same.
Child Support
In Ontario, the courts are bound by the
Ontario Child Support Guidelines (Guidelines). The Guidelines include a table that shows the child support
owed based on the income of the payor and the amount of children. The
parties must first determine with whom Lucia will primarily reside with.
As noted above, if Lucia will primarily reside with Oksana, Oksana will
be entitled to receive child support. Given Mel’s hectic and busy
career, we can assume that he will most likely agree to this and he will
therefore pay Oksana child support pursuant to the Guidelines.
Assuming that Mel earns $5,000,000.00 per year, Oksana would be entitled
to $37,144.00 per month in support. If Mel earned $10,000,000.00 per month,
Oksana would be entitled to $74,144.00 per month in support. Given that
these numbers are so astronomically high, it may affect Oksana’s entitlement to
spousal support (discussed below).
Given that the amount of child support is so high, the court may use their
discretion in determining whether the amounts noted above are appropriate.
If the courts are of the view that the amounts are excessive, (which,
we believe are excessively high), the court has the discretion to lower
the amount owed in child support per month to an amount they deem to be fair.
Spousal Support
Spousal support claims depend on whether one partner (in this case, most
probably Oskana) can demonstrate a need for spousal support. Some of the
factors that the court considers in order to grant spousal support are:
the length of the relationship, the economic position of the parties as
a result of the separation and the roles that the parties played during
the course of their relationship. In circumstances where the amount of
child support paid is astronomically high due to the payor’s income,
the court will take the child support amount into account when determining
spousal support and the need for same. Here, assuming that the court awards
Oksana with either of the amounts of child support noted above, it is
unlikely that the court will also award Oksana with spousal support as
it will be very difficult for her to argue that she is in need of same.
For example, if Oksana was awarded the lower amount of
$37,144.00 per month in child support, she would be receiving
$445,728.00 in child support per year. This amount can definitely cover the child’s
needs as well as any needs Oksana may have.
Equalization
An
Equalization Payment is the payment that one spouse can be required to make to the other spouse
in order to equalize the assets that were acquired during the course of
the marriage. Since Mel and Oksana were never married, equalization does
not apply to them.