Usher Raymond IV who is typically known as Usher by many of his R&B
and hip hop fans had filed for divorce back in June of this year. However,
it appears that Usher may have officially ended his marriage of almost
two years with Takeka Foster Raymond, his former stylist. Sources speculate
that as of today, the Court status of the divorce has officially changed
to “disposed” which connotes the divorce is final. The couple
have two children, a 10 month old and 1 year old. Reportedly, the couple
have been living apart for over a year since the initial filing for divorce.
In the interim, Usher was seeking joint custody of their minor children.
Through various sources, the biggest battle and most contentious issue
seems to be the children.
Many Canadians, moreover Ontarians are wondering what would happen if this
American celebrity couple lived in Ontario?
Custody and Access
In Ontario, custody and access is based on the principle of best interests
of the child. When the Court is determining what is in the best interests
of the children, the Court considers various factors such as:
-
Status Quo – this means the Court considers the existing custody arrangement. The
Court considers where the children’s school is, and what the children’s
routines and activities are like. This factor is highly relevant in determining
custody and access issues because the Court is unwilling to disrupt the
status quo as this may adversely affect the children’s routine and well-being,
and essentially their best interest. This is one of the reasons, Usher
upon separation, immediately asked for joint custody of his children so
that he may preclude a disruption of the
status quo. When there is more than one child of the marriage, as in Usher’s
case, the Court is also reluctant to separating the children as this would
work to disrupt the
status quo. - Consider the Children’s preference and emotional ties with parent(s)
– depending on the ages of the children, the Courts do consider the wishes
of the children, in terms of who they want to live with. If there is evidence
that the children have a close bond and/or emotional attachment to one
parent or both, the Court considers this when determining sole versus
joint custody respectively. Typically, the primary caregiver has an easier
job in showing that the child would prefer and has developed emotional
ties to him/her as they are primarily involved in raising the children.
Since Usher is claiming joint custody of his children, he has the onus
of proving that he too has a primary role in the children’s lives
and expects to have custodial rights. Given the children are in tender
years, the Courts would not expect the children to be able to express
their true wishes regarding parental arrangement. - Proposed Parenting Plan -The Court wants to ensure that the children’s
best interests are taken care of. This plan typically includes the residential
schedule that outlines where the children should live, and allocating
decision making authority regarding the children’s education, health,
and upbringing. Since Usher is seeking joint custody of his children,
he must show the Court that he has a place for his children to live, which
surely his finances permit him to do. Additionally, Usher would have to
show that he has always had a decision making role in the children’s
lives regarding the above. - Parent’s Relationship with one another – This factor is especially
important when the Court is willing to grant joint custody. The Court
cannot grant joint custody of the children when parents cannot amicably
communicate, and hence when there is question of domestic violence or
the fitness of the parent, the chances of joint custody are very slim.
Also, if one parent deliberately attempts to alienate the other from the
children, a joint custody arrangement would not work. In Usher’s case,
if the Court determines that despite the marital breakdown, both parents
are able to productively work together in parenting, the Court will support
joint custody.
Child Support
In determining who pays child support, it is the party who is the non-custodial
or non-primary resident parent. Child Support payments in Ontario are
based on the
Federal Child Support Guidelines (Guideline) that consider the payor’s income and the number of children
for whom the payor supports. In Usher’s case, if granted joint custody,
the child support is not so clear cut. Custody has to do with who makes
the major decisions in the children’s lives. However, child support
considers who spends most of the time with the children. If Usher is granted
shared parenting (when the parent spends at least 40% of the time with
the children), the Court’s starting point in determining child support
is through the set off approach. The set off approach uses the Child Support
Guidelines which considers the number of children and each parent’s
income. Basically this approach would take Usher’s income and determine
what he would pay based on the Guideline amount. Then the Court would
take Usher’s wife’s income and determine what she would pay based
on the Guideline amount. Finally, the Court would set off the two Guideline
amounts and the person who has the higher Guideline amount would pay the
other parent the set off amount. However, a Court will depart from the
set off approach if it is inappropriate (e.g. when there is a great income
disparity) in light of the following factors:
- the increased costs of shared custody arrangements and
- the conditions, means, needs and other circumstances of each party and
the children.
With the above factors, this allows Courts not only to depart from the
set off approach, but the Court uses more of their discretion in determining
the quantum of child support in a shared parenting plan.
Based on various reports confirming the couples divorce, it is only a matter
of time that the legal issues pertaining to their children will surface.