Schwarzenegger and Shriver Split

Earlier this week former governor of California and his wife, Maria Shriver
announced their separation after 30 years of marriage. This announcement
came as a surprise to many, but it has since been reported that Maria
may have been planning this split since 2009. In any event, the two have
been living in separate homes for a few weeks now. The couple released
a statement saying that they are currently living separate so they can
work on the future of their relationship. Arnold and Maria have four children
together ranging in age from 22 to 13 whom they plan to continue to parent together.

The Law in Canada

If Arnold and Maria separated in Ontario and wanted to resolve all issues
associated with their separation, it would be suggested that they turn
their minds to the custody and parenting plan for their four children,
child support, how their home(s) will be dealt with, equalization of their
property and whether
spousal support will be an issue. At this time, it seems unclear as to whether Arnold
and Maria will actually move forward with a divorce or whether they are
simply taking some time apart from each other. Therefore, the most pressing
issue for these two currently is the care of and support for their children.

Custody

As Arnold and Maria have made it clear that they want to continue to parent
their children together, it would seem as though they would agree to having
interim joint custody of their children. In Canada, custody refers to
the legal decision making for the child(ren) in question. Therefore, the
couple would continue to jointly make the major decisions for the children
regarding such matters as medical care, education, and religious upbringing.
As two of the four of the couple’s children are over the age of 18,
this would not be an issue with respect to those two as they are of the
age of majority and are responsible for their own decision making at this point.

Parenting Plan

There have been no reports at this time as to where the children are residing.
When dealing with parenting arrangements for the children, there are various
options that the parties can agree to. One parent could have the children
reside primarily with him/her with the other parent having care of the
child(ren) for a specified duration, such as weekends. The parents could
also share the care of the children whereby neither parent would have
the children less than 40% of the time. As there are four children in
this matter who are all older, they may decide that the children’s
residences will be split so that some live primarily with one parent and
some live primarily with the other. The fact that two of the couple’s
children are old enough that they may be attending post-secondary education
and living away from home is also a factor to be considered. In any event,
if the parties are willing to co-parent their children, there is no reason
to assume that they will not be able to also agree about the parenting
arrangements for the children.

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. The determination of the quantum of
support payable, as per the
Guidelines is generally based on the following:

1. The number of “children of the marriage”; as defined by the
   Divorce Act, or the dependants to be cared for when the
   Divorce Act does not apply; and
2. The payor parent’s line 150 income as per their annual Income Tax Return.

The payor parent is determined based on who the primary residence parent
is. If it is decided that the children are to live primarily with Maria,
then Arnold would be the payor parent. The reverse, therefore, would also
be true. Although the Guidelines dictate the amount of support to be paid
on a monthly basis as outlined above, Courts do have some discretion to
vary the amount if one of the following applies:

1. The child is over the age of majority;
2. The payor parent earns more than $150,000.00 per year;
3. Where the child resides with each parent for more than 40% of the time; or
4. If the amount to be paid would cause an undue hardship on the payor parent;

In this case, there are two children over the age of majority and this
would have to be looked at based on whether the children would still be
considered to be “children of the marriage.” This is determined
by looking at the circumstances and seeing whether the child(ren) have
remained in the care and control of their parents due to illness, disability,
or education. If the children have decided to pursue post-secondary education,
they may still be entitled to support from their parents, at least to
the completion of their first post-secondary degree or diploma. However,
the children may have significant income of their own through a trust
which may mean that they are independent of the parents.

Arnold and Maria’s respective incomes are also an additional factor
to be taken into consideration in this matter. Both parties are well known
celebrities and therefore it is fairly safe to assume that both of their
yearly incomes are quite high. As starting point for the purposes of utilizing the
Guidelines Table, the annual income of the payor parent, as stated on line 150 of his/her
Income Tax Return would be used. Since it is likely that both of their
annual incomes on their respective Income Tax Returns are well over $150,000.00,
if the court considered that the amount as determined by the
Guidelines Table is inappropriate in the circumstances they may order an amount that encompasses:

1. the amount as outlined by the
   Guidelines Table for the first $150,000.00 of income;
2. the amount the Court considers to be appropriate having regard to the condition,
   means, needs and other circumstances of the child and the financial ability
   of each parent to contribute to the support of the child; and
3. the amount for any special and extraordinary expenses for the child.

Again, as it is likely that Arnold and Maria make in excess of $150,000.00
per year, a Court might consider, that a strict approach in using the
Guidelines Table amount is inappropriate and instead determine a figure which it believes
to be closer to what the payor parent should be paying to support their
children each month. It is difficult to estimate the figure that an Ontario
court would consider appropriate in this situation, however, in light
of the circumstances, it would probably award an amount that is much higher
than an average Order would be.

The third factor that would need to be taken into consideration in this
case is if the parties decide upon a shared parenting schedule with the
children residing equally with both parents, In this instance, the amount
of what would be paid in child support would be based on what is known
as the “set-off” approach which would be used as the starting
point and could be as high as full Guideline Child Support. The Court
would look to the following factors as outlined in Section 9 of the
Child Support Guidelines in order to determine the appropriate amount of child support to Order:

1. the amounts set out in the applicable Tables for each of the spouses;
2. the increased costs of shared custody arrangements; and
3. the conditions, means, needs and other circumstances of each spouse and
   of any child for whom support is sought.

It is difficult to determine any Order in this case as the news reports
have not been clear on the specifics of how the couple will parent the
four children, other than the fact that they have decided to remain cooperative
and continue to parent them together.

The fourth factor could occur when there is a split custody regime which
means that some of the children reside with one parent and some of the
children reside with the other parent. In this situation the “set
off” approach would be used to determine the appropriate quantum
of child support.

Update

This past week the world learned that during his marriage,
Arnold Schwarzenegger fathered a child with a member of his household staff.