Until this week, Padma Lakshmi, of Top Chef fame, and her ex Adam Dell
had been working to negotiate a settlement in their separation. The main
focus of these settlement discussions has been the couple’s 11-month-old
daughter, Krishna. This week, Adam filed a lawsuit in New York for full
custody of Krishna. Currently, Krishna lives with Padma and has access
visits with Adam 9 days out of each month.
Adam has claimed that Padma had been trying to convince their daughter
that her current partner, Ted Forstmann, is her father. In addition, Adam
made claims that, as Padma is so focused on her very busy and unpredictable
career, he should have sole custody of Krishna as it would be best for her.
How would this matter be dealt with in Ontario?
There are two main issues in this case as it has been reported: 1)
Child Custody and Access; and 2) Child Support.
Child Custody and Access: In Ontario, when a party seeks sole custody of a child, this pertains
to the major decision making for the child as well as the day-to-day decisions
for the child’s care. Such decision-making would include the issues
regarding the child’s medical treatment, religious upbringing, and
education. As the parent with sole custody, this person would not have
to consult with the other parent prior to making any such decisions.
In the United States, “custody” refers to both the physical and
legal decision making custody of the child. In Canada, as explained above,
“custody” refers to decision-making only. When speaking about
where a child will physically live, we have discussions about “access”
or “primary residence” of a child. In the normal course, when
a parent has sole custody of a child, the child’s primary residence
will typically also be with that parent. The other parent will have access
with the child on a specified schedule which has either been ordered by
the Court or agreed to by the parties.
Before a Court makes a determination regarding the custody of and access
with a child, it will look to the historical parenting patterns of the
family. It is likely that the parent who primarily cared for the child
during the marriage, and since the separation, will be awarded the primary
residence of the child. This is known as the “status quo” and
Courts typically do not like to interfere with this as they wish to ensure
as little disruption as possible to the to the child’s life and routine.
However, please note that a court will only make a decision that is in
the best interests of the child. If a parent is awarded with the custody
and primary residence of a child, as Adam is requesting in this case,
this does not mean that the other parent is not allowed to see the child
on a regular basis. Again, the Court will determine, or the parties will
agree, to a schedule which outlines the times which the child will be
with the other parent.
In this case, Adam is requesting “sole custody” of Krishna. As
discussed, if these parties were living in Ontario, he would be requesting
the sole decision-making responsibilities for Krishna and that her primary
residence be with him. It has been reported that Krishna currently lives
primarily with Padma and her new partner and that Adam sees Krishna 9
days out of each month. With respect to custody, if a Court sees that
these parents are simply unable to work together to make major decisions
for Krishna, they may decide that sole custody is appropriate in this
case. As the child is only 11-months old and the couple split just after
she was born, the current status quo seems to be that Padma has the primary
residence of the child. Again, a Court would have to have a good reason
to change the primary residence of Krishna from Padma to Adam. Adam is
attempting to show the Court that they should do this by claiming that
Padma’s career is very busy and that she has to travel quite often
as a result. Adam is arguing that because of this, he is better able to
provide Krishna with a stable home environment to meet her needs. Along
with this move in residence, Adam is also requesting that he be awarded
with the ability to make major decisions for the child solely. Without
knowing more information about the background in this case, it is very
difficult to determine whether a Court would grant Adam with his requests
and move Krishna from her primary residence with Padma and give him the
custody of her as well.
Child Support: In Canada, parents have the legal obligation to support their dependant
children. Under the
Federal Child Support Guidelines, the access parent is responsible for paying child support to the parent
who has the primary residence of the child as it is this person who incurs
the daily costs associated with caring for the child and the access parent
should therefore, contribute to these costs. The
Guidelines set out the specific amount that a payor is responsible for based on his/her
income and the amount of children.
Therefore, in this situation, if Krishna’s primary residence was with
Adam as he has requested, Padma would be responsible for paying a monthly
amount of support based on her annual income to Adam. The reverse is also
true and if Krishna’s primary residence remains with Padma, Adam will
be responsible for paying support to Padma.