Only days after golf superstar Tiger Woods gets into a car crash outside
of his home in Florida, allegations spread all over the media claiming
that his wife, Elin, had beaten him with a golf club because she had found
out about his extra marital affair with night club owner, Rachel Uchitel.
Woods did take blame for his indiscretions in a public statement saying
that he is ‘not without fault and is not perfect’. He also insisted
that the reports that his wife had domestically assaulted him or had any
role in the accident are false and malicious. Police are still speculating
as to whether the accident was caused by a fight about the affair. The
question for the purpose of this article is what would happen if this
matter was before a Family Court in Ontario.
If the Police obtain the medical records regarding Tiger Woods’s attendance
at the hospital after the accident and they indicated that he was assaulted
then the Police may arrest Elin. If there are charges laid against her
by the Criminal court, she may be released on bail. There will be terms
associated with her release from police custody. She will not be able
to communicate with Woods either directly or indirectly, or be permitted
to attend within a certain distance of him. Alternatively, the terms may
be that Elin may not be permitted to enter the matrimonial home where
he and the children reside. If Tiger Woods is living in the home then
she cannot enter the home as it would be in violation of her bail. As
the children live in the matrimonial home, she will not be able to see
them without an agreement made by her family law lawyer and Tiger Woods
or by a Court Order.
Thus, Woods would have ‘defacto’ custody of the children, which
means that by default he will be have custody until the issue of custody/access
is determined by a court Order or agreement between the parties. The term
‘defacto’ means that the children will, by default live primarily
with him in the matrimonial home as Woods will have defacto exclusive
possession of the home until the issues are settled by the court Order
or Agreement. Any communication between the parties would need to be done
through the parties’ lawyers. In most cases the parties can agree
to a mutual third party to do the exchange of the children if the parties
could agree to an access schedule for Elin to visit the children. Of course
Elin would take the position that she has been the primary caregiver of
the children and that she should continue to be the primary caregiver
of the children. If Tiger Woods would not agree to this position then
she would most likely commence a legal Application.
If the parties cannot agree as to a schedule for the children then, Elin
would most likely commence an Application as set out above and she would
bring an Urgent Motion for Custody or in the alternative for the children
to primarily reside with her. In Order for Elin to be successful on her
Urgent Motion she must first establish that the matter is of an urgent
nature. The court may not even hear the matter if they do not believe
that it is of an urgent nature. Urgent motions are heard where it can
be shown that there is a situation of urgency or hardship or where a case
conference is not required. Thus, it would be wise for Tiger to consent
to her to see the children but for him to retain the primary residence
of the children. This may help him argue that Elin does not have any grounds
to meet the test of Urgency and that this matter should proceed to a case
conference first which could take approximately two months to obtain a
court date for a case conference and possibly another two months for her
to have her motion heard. Mr. Woods would use this time to argue that
he is the primary caregiver of the children and that the status quo should
not be disturbed until there is a trial of the matter which could take
at least another year. This would strengthen his argument at trial that
he is the primary caregiver as he would have been the primary caregiver
for the children for well over one year.
Although it is not always easy to understand how urgency can be established,
issues such as child abduction, threats of harm and dire financial circumstances
are some examples of issues that can be addressed prior to a case conference.
There are two steps that Elin should consider before proceeding with an
urgent motion:
- She should inquire as to whether case conference dates are available to
deal with the matter and she should inform the trial coordinator if she
believes that it is a pressing issue. There may be times available for
cases of urgency in order to avoid a motion. If there are no available
dates for several months, it may cause the matter to become more critical
which may allow for an urgent motion. - Elin and Woods should try to engage in settlement discussions regarding
the custody of the children until the case conference date (if it can
be arranged). The focus here would be on reaching a short tem agreement
to get the parties through until the case conference date without bring
a motion. The courts like to see that the parties have at least attempted
to negotiate and if they have not done so, the reasons why. If Woods can
show that he has provided Elin access to the children, it is likely that
the court will not deem the issue as urgent.
If the court hears the motion Elin may try and argue that she has always
been the primary caregiver of the children and that the status quo should
be maintained. She may also argue that given Woods’ busy work schedule
and the fact that he is constantly travelling for work, he will not be
able to care for the children and it would therefore be futile to grant
custody of the children to him.
The court will consider the reason for her arrest and would use its discretion
and any recommendations by the Children’s Aid Society, (if they were
involved out of concern for the children), or any other parties that can
speak to the impact that it may have on the children. The court would
further consider whether Elin having access to the children is in the
best interest of the same, keeping in mind the principle of ‘maximum
contact’. This principle means that the children should have as much
contact with each spouse as is consistent with the best interests of the
children and for this purpose should take into account the willingness
of Woods to facilitate contact between Elin and the children.
Child Support
Child support obligations will be determined pursuant to the
Federal Child Support Guidelines (Guidelines). The amount of child support owed will be based on the payors
income. Woods’ income has been rumored to be as high as $100,000,000.00
per year, while Elin does not work as she has been the primary caregiver
of the two children.
If the children were to primarily reside with Elin, based on the Guideline
formula, Woods may be obligated to pay $1,160,252.00 in child support
per month. However, where the amount of the payors income exceeds $150,000.00,
the courts have the discretion to award an amount lower than the Table formula.
The amount awarded must be balanced fairly, with the recognition of the actual
conditions, means and needs of the children in mind. The families’ lifestyle and expenditure may
also be considered in determining the appropriate amount of support. Given
that Woods’ earnings are astronomically high, it is more than likely
that the courts will not grant the amount contemplated above. Alternatively,
they will reduce the amount to what they deem to be appropriate in the
circumstances keeping the children’s conditions, means and needs in mind.
If the court granted primary residence to Woods, he would not be obligated
to pay Elin child support however, he may be obligated to pay her
spousal support. We cannot address the issue of spousal support at this time as we do
not know the provisions of the party’s marriage contract. It is quite
clear that Wood’s child support obligations will be significant and
from a purely financial basis it would be wise for him to be the primary
caregiver of the children in order for him to avoid paying child support
to his wife. However, the issue of money and the residence of the children
should not be linked and this writer cannot comment on whether Woods would
be motivated by the quantum of child support that he may have to pay or
his views of the best interests of his children. A Judge will be well
aware of this fact. At the return o f the motion whether before or after
a case conference Woods will need to convince a court that it is in the
best interests of the children to reside with him primarily.
According to the press the parties have entered into a Marriage Contract.
It should be noted however that is not always easy to enforce marriage
contracts as they are anticipatory in nature and may not fairly take into
account the financial means, needs or other circumstances of the parties
at the time of the marriage breakdown. Problems may arise where a marriage
contract makes provisions pertaining to the children, such as custody/access
and child support. Although the issue of custody/access and child support
may be addressed in the marriage contract, the courts are not bound to
adhere to the terms therein and in fact they are unenforceable. This is
the case since a marriage contract relates to the future care of the children.
The parties cannot always predict what may be in the best interests of
the children thereby making the provisions unenforceable. The parties
may have simply dealt with the issues of spousal support and property
which Elin may wish to challenge in order for her to obtain a more favourable
settlement.