Patricia Arquette has separated from her husband Thomas Jane. The star
of the television show
Medium is asking the court for primary physical and legal custody of their seven
year old daughter Harlow. Sources say that they are on amicable terms
and they want their primary focus to be about their daughter, Harlow.
Patricia is also asking that the court deny any
spousal support claims made by Thomas.
Although this case is taking place in the U.S., we can analyze it in accordance
with the laws of Ontario.
Custody and Access in Ontario
The Ontario courts will always take into account Harlow’s best interests
when making decisions regarding custody and access. As noted above, sources
indicate that the separation was amicable but that Patricia would like
physical and legal custody of Harlow. Sole custody would mean that important
decisions, including but not limited to Harlow’s overall welfare,
healthcare, education and religion would be made solely by Patricia. In
Ontario, the terms ‘physical and legal custody’ do not apply in
the same fashion as the United States.
The courts will award primary residency to the parent who primarily cared
for Harlow during the marriage and after Patricia and Thomas separated.
If for example, Patricia was working for the majority of Harlow’s
upbringing throughout their marriage and Thomas was the primary caregiver,
then it may be likely that the court will award primary residence to him
if this is what he is seeking from the court. This does not mean that
Patricia will not be able to spend a sufficient amount of time with Harlow,
as the parties could arrange for Patricia to have generous access of Harlow,
meaning, she can see Harlow as she wishes. It is important to note that
as an access parent Patricia may not be granted the authority to make
any important decisions regarding Harlow’s upbringing. This will depend
on the custody arrangement between the parties. If a disagreement arises
between Thomas and Patricia, the custodial parent will make the final
decision. Since we are told that Patricia and Thomas are on good terms,
perhaps the parties will not require the intervention of the courts and
they will be able to resolve their custody and access issues through their
respective lawyers.
Child Support
Normally, the parent who is granted primary physical residence of the child
(here, assuming it is Thomas due to Patricia’s work schedule) is the
one who will probably be incurring the daily expenses associated with
raising Harlow and as a result, he may be compensated so to lessen the
burden/effect that these expenses could have. All dependent children have
a legal right to be financially supported by their parents and the right
to benefit from the financial means of their parents. Patricia as the
access parent will probably be paying child support to Thomas. Child support
in Ontario is based on the
Federal Child Support Guidelines (Guidelines). Child support is the amount set out in the Guidelines according
to the number of children under the age of majority to whom the order
relates to and the income of the spouse against whom the order is sought.
If we are wrong, and Patricia is granted with primary residency of Harlow,
then Thomas would be required to pay child support to Patricia.
Spousal Support
If Thomas finds that he does not have the financial means to support himself
then he may be entitled to spousal support for either a definite or indefinite
period of time depending on their circumstances. Generally, the spouse/partner
who finds himself or herself in a better position financially will be
required to pay support to the other. The courts will of course take into
account the length of marriage and the need for support. Spousal support
may help Thomas to maintain the standard of living to which he has become
accustomed to, to have access to finances while searching for an employment
position (if he does not have a job), or even possibly to pay tuition
fees associated with education or training so that he may eventually become
self-sufficient. We are not given the facts of the parties’ respective
financial positions in this case, however assuming that Patricia was the
higher income earner, if Thomas can demonstrate a need for support, then
he may be entitled to same.