Your Rights In A Divorce Case When Children Are Involved

The number one question that people ask me at the start of a divorce case is, usually: what are my rights?

People facing the possibility of divorce want to know what they are entitled to and what their responsibilities are. They need to inform themselves so they can protect their own interests and, if there are children involved, the children’s interests. The best thing someone can do is to speak to a lawyer who practices family law because every case is unique.

When we are talking about divorce, there are three main areas people should be concerned about with regard to their children: (a) custody, (b) access or parenting time, and (c) child support. Custody refers to decision-making and who will be making the decisions concerning the children’s welfare, such as decisions regarding their education, religious upbringing, healthcare and so on. Access or parenting time refers to how much time each parent will spend with the child. Child support refers to the money paid to support the child by the parent with whom the child does not live.

Generally however, until the parties sort out these three issues through a separation agreement or until there is a court order made, both parties have equal rights concerning the children. There is also a presumption of joint custody, meaning both parents parent those children equally. Often, the children will end up residing primarily with one parent and the other parent will have access time with the child. In such a situation, provided that the access parent – the parent whom the child does not reside with – does not have physical custody of the children at least 40 percent of the time, then that parent will have responsibility to pay child support to the other in accordance with the Child Support Guidelines based upon how much income he/she earns each year. The legal test whenever the children are involved is “what’s in the children’s best interest.”


If you, or someone you care about, is dealing with family law issues in York Region, Durham Region or Toronto, contact Feldstein Family Law Group for a consultation.

This article is taken from a November 14, 2008 interview with Michael Wilson, Family Lawyer with Feldstein Family Law Group, a Toronto Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.