Yours truly was featured in the Lawyers Weekly this past week in an article about lawyers sharing office space.  Lorraine Mallinder spoke to me and another colleague of mine, Toronto Real Estate Lawyer Joel Kadish, about the advantages and disadvantages of sharing office space with other lawyers, as well as our experiences.  Importantly, Lorraine mentioned our soon-to-be-launched Legal Forms + Video Guides project:

Sharing space with a like-minded colleague can get the creative juices going. Carabash and his co-occupant are currently putting together video guides offering legal insights and tips to lay people on everything from small claims forms to power of attorney applications.

Here’s the link to the full article (soon to be a .pdf on Dynamic Lawyers).

written by admin \\ tags: joel kadish, lawyers weekly, legal forms video guides, Michael Carabash, sharing office space, toronto real estate lawyer

written by admin \\ tags: DL blog, legal forms

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.

In this guest blog post, Toronto criminal defence lawyer Craig Penney will discuss bail hearings and specifically what it means to be a SURETY.

If the police refuse to release my client, a Justice will decide at a bail hearing whether to release or detain him. If released, the Justice will impose conditions. Often, the Justice will require someone close to my client to act as a surety. If you are proposing yourself as a surety for my client, here is what you need to know, consider, and expect.

What does it mean to be a surety? A surety monitors the accused person and acts as a financial guarantor. You must ensure that my client shows up in Court, obeys his conditions, and is well behaved. Some Justices refer to sureties as “civilian jailers.” Your financial obligations will be stated on the bail document, the Recognizance of Bail. If my client does not show up in Court or does not follow the conditions, you may be liable to pay the full amount identified on the Recognizance.

Do I qualify to be a surety? Generally, a proposed surety must be a Canadian citizen or a landed immigrant, must not have a criminal record or outstanding charges, and must not be acting as a surety for anyone else. The Justice will consider how long you have known my client, the nature of your relationship, and how often you communicate with one another. An older family member that my client respects, for example, is often an ideal surety. In determining suitability, the Justice will examine your finances, character, background, and community ties.

What if I am a witness or the complainant? Witnesses often cannot be sureties, but there are exceptions. An alleged victim is rarely if ever an appropriate surety. If you are a victim, witness, or complainant, immediately advise my office of this fact.

What should I bring to the bail hearing? Bring photo identification, such as a driver’s licence, passport, or health card. To demonstrate affordability, bring your recent bank, RSP, or GIC statements, bring documents showing the value of your home and mortgage, and/or bring your income stubs or tax assessment. Do not accept a transfer of funds solely to show your new wealth. At best, the Justice will be unimpressed; at worst, this conduct may be viewed as obstructing justice.

Should I speak to your client before the bail hearing? Yes, if possible. One issue at the bail hearing is my client’s willingness to submit to your and the Court’s control. Will he allow you to become his civilian jailer? Discuss your expectations in your new role as surety. Discuss specifics such as where he will live, and whether he will abide by the anticipated conditions. Discuss what hardships the conditions might impose, as the Justice may consider reasonable exceptions. Before you do this, please speak to me, as I will give you a sense of the anticipated conditions. Be sure to ask my client if he understands what will happen if he doesn’t follow your and the Court’s rules. Make note of my client’s answers. You may have to repeat them in Court under oath. In recommending this, keep in mind that my clients are under instructions not to speak about “the case” with anyone except me. This restriction should not hamper you.

Will I have to testify? Perhaps. Be prepared to testify why you are an appropriate surety. If you testify, you will likely be cross-examined by the Crown. The Justice might also ask you questions. You may be questioned about your proposed role or the allegations. To prepare yourself to give evidence in Court, read this webpage carefully, and review my DOs and DON’Ts of testifying.

How does the Justice arrive at a decision? The Justice will release my client if we demonstrate that my client will attend Court, that he obey the Court’s conditions, and that he will stay out of trouble. Some charges are more serious than others. Some cases are more complicated than others. The risks and issues in each case are different. Each must be determined on its own merits. If you want to read a Justice’s reasons for granting bail, read Gordon’s case (the police had alleged that Gordon was in possession of a loaded 45-calibre gun).

What can I expect the conditions to be? The conditions will vary depending on the charges, the allegations, and my client’s circumstances. A child pornography charge, for example, will attract much different conditions than a fraud charge. Conditions may include living at a specified place, reporting to the police, obeying a curfew, counselling, not contacting named persons, and not attending a defined area. One issue you must consider in advance is whether you are prepared to have my client live with you. If not, be prepared to explain why, and to further explain how you intend to monitor my client while he is living somewhere else.

Can someone pay me to act as a surety? No. Accepting a fee to act as a surety is an offence contrary to section 139(1)(b) of the Criminal Code. Both you and the person paying you could be charged for obstructing justice.

If I pay a cash deposit, will that money be returned to me? No. In some cases, a cash bail may be required. Anyone may make the deposit to the Court, but the money is paid on my client’s behalf. Once paid, it becomes my client’s money, held by the Court. At the end of the case, if there is no breach, a cheque will be mailed to my client. You as a surety will not receive any refund.

Will I have to pay money if your client disobeys the conditions? Maybe. If my client fails to show up in Court and/or fails to follow his conditions, you and my client may have to pay the full amount outlined in the Recognizance of Bail. If that occurs, you should immediately seek independent legal advice. Note that any agreement by any person to reimburse you for this potential liability is an offence contrary to section 139(1)(a) of the Criminal Code. Both you and that person could be charged for obstructing justice.

What should I do if your client disobeys the conditions? It is a criminal offence for my client to disobey his conditions. As a surety, you are expected to immediately report any breach to the police. If you fail to do so, and the Crown later seeks payment from you, the Court will consider your inaction in determining your financial liability.

Can I be charged criminally if your client disobeys the conditions? Yes. If my client breaches a condition and the police believe that you participated in the breach, you could be charged as a party to the breach. Even if you are not involved in the breach but simply failed to report the breach, there is a risk that you could be charged criminally.

How long will I be a surety? A surety’s responsibilities continue until the case is over. This may be as short as two months or as long as two years.

What if I no longer want to be a surety? At any time, for any reason, you may attend the same office where you signed the bail to be relieved of your obligations. If you do that, you will no longer be a surety and a warrant will issue for my client’s arrest. Of course, I would prefer that you contact my office so that we can discuss substituting another surety. Section 767.1 of the Criminal Code allows a Justice to “substitute any other suitable person.”

What will happen to your client if he disobeys the conditions? My client can be criminally charged for “breaching his recognizance.” The Crown may also apply to revoke his bail, and seek payment of the bail amount. My client may later obtain bail again — most likely with another surety — but the conditions will usually be stricter and the bail amount higher.

If I am paying your retainer, can I provide you with instructions? No. You are not my client. Payment of my retainer comes with only two conditions: that the money be used for services and expenses relating to the case and that, if there is any refund owing, I will return the unused retainer to the person who paid the money.

As a surety, what control do I have over the case? None. You cannot provide any instructions regarding the case.

Can there be more than one surety? Yes. If you feel that you cannot monitor my client on your own or that you might not qualify financially, you and another person may propose yourself as sureties together.

Are our communications protected by solicitor-client privilege? No. Your communications with me and my client are not protected by lawyer-client privilege. You are free to discuss them with anyone. While testifying, you must disclose those communications if asked to do so.

Can you provide advice to me as the surety? No. While we may be working together to obtain my client’s release, I am not your lawyer and cannot provide you with legal advice. I am there to protect my client’s interests, not yours. If your require legal advice about your risks, rights, and obligations, consult another lawyer. If necessary, I may be able to assist you in finding independent legal advice.

written by admin \\ tags: bail, craig penney, surety

It’s coming to the wire.  Which basically means that Dynamic Lawyers is almost ready to usher in a new era of legal services through the launch of Legal Forms + Video Guides.  Lawyer-prepared.  Easy to customize.  Simple to read.  With a ton of free bonuses (guides and updates).  This is going to be a big hit, I’m sure.  We put in a ton of time, resources, and effort to make this available to the public.  This will be the last blog before the official launch (barring any unforeseen catastrophes, most likely: next week)!!!!  Excited?  I am….

written by admin \\ tags: countdown, legal forms, video guides

Omar Ha-Redeye and Mitch Kowalski of the National Post picked up on Windsor Law Class of 2009′s video about OCIs (On-Campus-Interviews).  Law students know these all to well.  The process.  The interviews.  The stress.  It’s all here in this fantastic and very professionally-done video:

written by admin \\ tags: oci windsor law class of 2010

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As a follow up to my two other blogs on the topic of “Is My Legal Form Valid and Enforceable”, in this blog I’ll be discussing the various ways in which a party can challenge a legal form based on the process it was entered into.  Typically, a party will make an argument that there wasn’t sufficient consent or the agreement was not entered into freely or voluntarily.  This may be based on threats, special relationships, or an imbalance of power that allows a party to take advantage of the other party.  A party may also claim there was a mistake or misrepresentation which caused it to enter into the agreement.  So without further adieu, let’s get into it…

Duress
DURESS is a legal doctrine that allows a party to challenge an agreement on the basis that they were so seriously coerced by another’s party’s illegitimate exercise of power such that they could not freely consent to entering into the agreement. Examples of duress include threats or acts that are unlawful (e.g. criminal, tortuous, breaches of contract, etc.) or illegitimate (e.g. threatening to refuse to enter into a contract or to terminate a contract lawfully unless…). Basically, if there’s some kind of unlawful or illegitimate pressure that isn’t in the normal course of market forces, then it could amount to duress. Specific examples could include:

• A party threatening another party’s life or limb unless they enter into an agreement;
• A party threatening to sue another party unless they enter into an agreement; and
• A party threatening to call the police on another party unless they enter into an agreement.

Undue Influence
UNDUE INFLUENCE is similar to duress as it is concerned with the adequacy of a party’s consent to enter into the agreement. Unlike DURESS, however, undue influence may exist without violence or threats of violence against a party. Undue influence depends on the RELATIONSHIP between the parties which causes one party to confide in the other and leads the other to take advantage and exert a natural influence over the other. Undue influence can be used to challenge a contract on the basis that a weaker party was dominated by or unduly influenced by the other party. Examples of relationships that could lead to challenging contracts based on undue influence include: doctor-patient, parent-child, trustee-beneficiary, priest-churchgoer, etc. So there’s a special relationship that involves trust, confidence and influence. To get around this type of challenge, a party could try to argue that the other party received full disclosure, had independent legal advice, and had only a minor disadvantage when it came to unequal power.

Unconscionable Bargain
Agreements which amount to UNCONSCIONABLE BARGAINS can be challenged. This doctrine relates to an unfair advantage gained by an unconscionable use of power by a strong party against a weaker party. So there are substantive and procedural elements here. The substance is the contract itself: how fair were its terms? The procedural element has to deal with how it was entered into. The defence of unconscionable bargain may apply to situations where there is no unlawful threat (duress) or domination (undue influence). So to recap: there is an inequality of bargaining power and one party has taken undue advantage of that inequality. That inequality in bargaining power may result from poverty, age, ignorance, emotional vulnerability or mental infirmity of one party. This doctrine is not meant to simply undue bad bargains. It looks at factors such as fairness, relationship between the parties, their respective knowledge and weaknesses, sources of power, conflicts of interest, grossly inadequate consideration in the contract, etc.

Misrepresentation
A MISREPRESENTATION is a material statement which is false and which an innocent party reasonably relies upon to their detriment to enter into the contract. The false statement could have been made fraudulently (i.e. where a party knew it was false, but said it anyways with the intention of having the other party rely upon it as being true), negligently (where a party was careless or reckless in knowing the truth of the statement, but says it anyways), or innocently (a party was innocent of fault in making a misrepresentation). If there has been found to have been a misrepresentation, then the contract can be challenged and rendered invalid and unenforceable (in whole or in part).

So what’s with all the “in whole or in part?” Well, if the contract is not wholly undone or struck down as a result of its defect (and this will depend on how it is challenged and the degree to which that challenge is successful), then parts of it may survive. If you don’t want to leave it up to a judge to make that decision, then be sure to include a SEVERABILITY CLAUSE in your agreement. This clause generally says that it, if part of the contract is found to be invalid and unenforceable, the rest of the contract will still survive and be valid and enforceable.

Mistake
An agreement may be challenged in whole or in part on the basis that there was a mistake. Mistakes get made all the time. Sometimes, only one party makes the mistake (UNILATERAL MISTAKE). Other times, both parties make the same mistake (COMMON MISTAKE). And other times, both parties make mistakes but their mistakes are different (MUTUAL MISTAKE). Interestingly, a contract may actually contemplate that there is a mistake and how it ought to be dealt with. Sometime, the parties claim that there was a radical or fundamental difference between the document they thought they were signing and the document actually signed (in terms of character, contents or otherwise). But the signer cannot raise that defence if they failed to use reasonable care in signing the document.

So, overall, there are many ways that a contract can be challenged and struck down – in whole or in part. Specific examples include (but are not limited to):

• Vague or missing terms
• Lack of Consideration
• Duress
• Undue Influence
• Unconscionable Bargain
• Misrepresentation
• Mistake

Note, that there are other ways in which a contract can be challenged – for example pursuant to the doctrines of promissory estoppel (i.e. where a party makes a clear and unequivocal promise or representation to another party that it will not insist on its strict legal rights under the contract, and the other party alters its position in reliance on the promise or representation, the first party may be estopped from asserting its strict legal rights) or frustration (i.e. something outside the parties’ control makes it impossible for one or all of them to carry out their obligations in the agreement).

If you have any concerns over the validity and enforceability of your legal form – in whole or in part – based on the principles of contract law outlined above or otherwise, you should consult with a lawyer (e.g. by making a post on Dynamic Lawyers). Remember: an ounce of legal prevention can save you a pound of pain later on.

written by admin \\ tags: canada legal form, canadian legal forms, common mistake, duress, frustration, legal form, legal forms, misrepresentation, mistake, ontario legal form, promissory estoppel, unconscionable bargain, undue influence, unilateral mistake, valid and enforceable

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As a follow up to my previous blog introducing the topic “Is My Legal Form Valid and Enforceable?”, in this blog I’ll be talking about 3 big SUBSTANTIVE issues which could allow a party to challenge an agreement (in whole or in part) and have it struck down by a court.  Those 3 substantive issues have to deal with the actual terms and conditions of the agreement and are: (1) clear, complete, and complete terms, (2) consideration, and (3) against public policy.  So let’s go…

Clear, Complete, and Certain Terms
First, the terms that are in the contract itself must be clear, complete, and certain enough to be enforceable. Long-winded, incomplete, and vague terms can be challenged and perhaps rendered invalid and unenforceable by a court. So if you’re adding provisions of your own to a legal form, always ask yourself: “Is this term or condition clear enough for a reasonable person to understand?” and “Are important terms – such as price, timeline, consequences, etc. – missing”? Worth noting is that an agreement to agree about some critical part of the contract at a future time could also be challenged and struck down by a court. If significant terms are left out of a contract and the parties simply agree to come up with an agreement about them later, then the entire contract may be challenged! An agreement to agree is generally not enforceable!

Consideration
For any contract to be valid and enforceable, there must be an element of what is called “CONSIDERATION”. Consideration means that there has been a real and fundamental exchange between the parties. Consideration is generally defined as an act, forbearance (i.e. not doing something you’re legally entitled to do), or promise by the promisee (i.e. the party receiving the promise) undertaken IN EXCHANGE for the promise. Consideration requires that some benefit flow from the promisor (i.e. the party making the promise) or that there is some detriment to the promisee in exchange for the promise. Consideration must move from the promisee. The party seeking to enforce the promise must show consideration. Motive or desire to make a promise does not constitute good consideration. If a party is already under a pre-existing legal duty to do or not do something, that may be challenged as not being adequate consideration. Similarly, if a party is under a public duty to do something, then that is generally not considered to be adequate consideration. Finally, a pre-existing duty owed by one party to the other may not be adequate consideration unless something new of value is being provided. To wrap your head around it, just think about this example: if I promise to give you $1,000 if you like me more, there is NO consideration. Why? Because liking me more is not something that is recognized as having monetary value by our judicial system. It is not a promise that that can be enforced. So it’s lacking consideration and is not valid. Get it? Here’s another example of an agreement WITH consideration: in exchange for paying you $1,000, I promise not to sue you for the damage you did to my house. This time, I’m promising not to make a claim against you, even though I could. I’m giving up something of benefit in exchange for something valuable from you (i.e. money). There’s a real and fundamental exchange here so this agreement can be valid and enforceable.

Contrary to Public Policy
Contracts – in whole or in part – that are against public policy can be challenged and rendered invalid and unenforceable. Contrary to public policy means that there is some injury to public goods or morals (e.g. violating a statute, obstructing the administration of justice, etc.). There is no definitive list of what constitutes public policy as this is a legal question left for judges to determine. That said, example of contracts that may be contrary to public policy include:

• A party agrees to commit a crime;
• A party agrees to give false testimony; or
• A party agrees to not publish a story in a newspaper that ought to be published.

Overall, while there are MANY OTHER WAYS to challenge the actual SUBSTANCE of a contract, some of the more common ways are noted above. It is always recommended to speak with a lawyer (e.g. make a post on Dynamic Lawyers) if you have any questions about the substance of your legal form – particularly if you’re modifying the template yourself! Now onto the PROCESS of entering into the contract in the next blog…

written by admin \\ tags: legal agreement, legal form, legal forms, valid and enforceable

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As part of our forthcoming legal forms + guides release, we will be including a DL Guide that addresses the issue of the validity and enforceability of legal forms.  So you’ve purchased a do-it-yourself legal form and you’re naturally wondering: “If I use this legal form instead of having a lawyer draft it, will it be valid and enforceable?”  The answer to that question, as it usually is in these situations, is going to be: “IT DEPENDS”.  Think of it like this…You download a template.  It is incomplete.  You read it over and finish it.  Perhaps you even add a few provisions of your own to take into account your particular circumstances.  Then you and all the other parties sign it and deliver it to each other.   So, is it a valid and enforceable contract?  Believe it or not, this simple situation still results in the answer: “IT DEPENDS”.

So what does it depend on?  Well, under contract law, for a contract to be valid, there are a number of basic requirements concerning the SUBSTANCE of the contract (i.e. the terms and conditions of the actual contract) and the PROCESS of how the contract was entered into (e.g. was it entered into fairly and freely).  If there are issues with either the SUBSTANCE or the PROCESS of how it was entered into, then the contract can be challenged in whole or in part.  In what is to follow, we’ll be touching on only SOME of the more important issues.  Bear in mind, however, that there ARE MANY OTHER WAYS a contract can be challenged outside of its terms and conditions and the way it was entered into.  For example, a statute may have minimal requirements that need to be met in order for a legal form to be valid.  For example, the Ontario Substitute Decisions Act, 1992 states that witnesses are required for the signing of a Continuing Power of Attorney for Property and specifies who cannot be a witness.  That’s just one tiny example.  At the end of the day, you should always speak to a lawyer about your particular situation to mitigate against potential challenges.  So here we go…

written by admin \\ tags: Dynamic Lawyers, legal form, legal forms, valid and enforceable

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning a cohabitation agreement in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to a cohabitation agreement.

As a follow up to my recent blog on how Cohabitation Agreements in Ontario can be challenged, in this blog I’ll be discussing three interesting topics: (1) the requirement for independent legal advice, (2) what happens if a Cohabitation Agreement is set aside, and (3) how can a Cohabitation Agreement be terminated.

Is Independent Legal Advice Required?
Independent legal advice is not a formal requirement under the Family Law Act (or under the common law) to have a valid and enforceable Cohabitation Agreement. That said, its presence helps to eliminate (except in the most exceptional circumstances) the ability for one party to have a court set aside the Cohabitation Agreement on the basis that it did not understand “the nature or consequences of the [Cohabitation Agreement]” or to set it aside “otherwise in accordance with the law of contract”. Basically, having an independent lawyer gives the impression that the lawyer’s knowledge and understanding is transferred to the party (because of the solicitor-client relationship and because it makes common sense). If it didn’t mean that, then the idea of having independent legal advice would be meaningless. One other thing: it is best not to have a party or their lawyer recommend a lawyer for the purpose of obtaining independent legal advice.

What happens if a Cohabitation Agreement is set aside?
If a court sets aside a Cohabitation Agreement, then that agreement will not govern upon the termination of the parties’ relationship. So what could govern the ownership or division of property and support obligations? To begin, the Family Law Act could apply. Granted, that Act does not address the issue of ownership or division of property for cohabiting parties. That said, if the parties are not married and have cohabited continuously for a period of at least 3 years, then the spousal support obligations may be imposed. Those obligations could also arise if the parties to a Cohabitation Agreement are not married and have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child. With respect to ownership or division of property, one of the parties may be able to assert a right based on the doctrine of CONSTRUCTIVE TRUST. A constructive trust is essentially a trust created by a court to benefit a party that has been wrongfully deprived of its rights. Courts may look at the pre-existing proprietary rights of the parties prior to the dispute to determine whether a constructive trust is an appropriate remedy. Historically, courts have been reluctant to impose a constructive trust in the family law context absent clear evidence and strong arguments to the contrary. Finally, if the cohabitation ends because one of the parties dies, then the Succession Law Reform Act could impose support obligations on the deceased party’s estate. That Act could apply if the parties were spouses (as defined above under the Family Law Act) and the deceased spouse was providing support or was under a legal obligation to provide support immediately before his or her death. Here, if the deceased spouse has not made adequate provision for the proper support of the remaining spouse, the latter could apply to the court for proper support.

When does a Cohabitation Agreement terminate?
A Cohabitation Agreement generally provides for the circumstances under which it terminates. These circumstances could include, for example:

• the parties marrying each other;
• one or both of the parties die;
• the parties cease to cohabit with each other (as defined in the Cohabitation Agreement);
• the parties marry each other and enter into a separate written Marriage Contract; or
• after a set period of time or on a particular date.

Interestingly, the Ontario Family Law Act provides that if the parties to a Cohabitation Agreement marry each other, that Cohabitation Agreement (assuming it does not terminate on marriage) “shall be deemed to be a marriage contract”: s. 53(2). But remember: so long as a Cohabitation Agreement deals with a matter that is also dealt with under the Family Law Act, the Cohabitation Agreement will prevail (unless the Family Law Act says otherwise). What does this all mean? Well, unless the Cohabitation Agreement is silent or the parties agree otherwise, a Cohabitation Agreement is not automatically canceled when two cohabiting parties get legally married.

In case you’re looking for a cohabitation agreement  that does not create any financial obligations or rights during or after cohabitation and which terminates upon marriage, then look no further:

Cohabitation Agreement (Ontario) – Terminates Upon Marriage

This Agreement can be used by parties who are cohabiting or who intend to cohabit and want to define their respective rights and obligations concerning support, property, the moral education of children, etc. THIS Agreement terminates upon marriage. If you are looking for a Cohabitation Agreement that does not terminate upon marriage but which essentially becomes a Marriage contract, then you can purchase one of these types of Cohabitation Agreements (Ontario) at Dynamic Lawyers.

All of Dynamic Lawyers‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for?  Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

written by admin \\ tags: cohabit, cohabitation agreement, cohabitation agreement lawyer, ontario cohabitation agreement

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning a cohabitation agreement in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to a cohabitation agreement.

As a follow up to my other blog post about cohabitation agreements (an introduction), in this blog, I’ll be discussing how they can be challenged.

A Cohabitation Agreement can be challenged in various ways relating to the substance (i.e. terms and conditions) of the Agreement or the process in which it was entered into. For more general information about this topic, please refer to the DL Guide entitled “Is My Legal Form Valid and Enforceable?” (which comes with the purchase of the Legal Form + Video Guide below).  That said, the Ontario Family Law Act outlines various ways in which these Agreements can be challenged by a party. Specifically, a party can make makes an application to a court to have a Cohabitation Agreement – in whole or in part – set aside on the basis that:

1. if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
2. if a party did not understand the nature or consequences of the domestic contract; or
3. otherwise in accordance with the law of contract.

Furthermore, with respect to support obligations, section 33(4) of the Family Law Act states that a court may set aside a provision for support or a waiver of the right to support in a Cohabitation Agreement and may set support:

1. if the provision for support or the waiver of the right to support results in unconscionable circumstances;
2. if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or
3. if there is default in the payment of support under the contract at the time the application is made.

Some factors which may become relevant when a party challenges a Cohabitation Agreements include:

• the parties did not have enough time to review financial disclosure or negotiate the Cohabitation Agreement before it needed to be signed;
• one of the parties was pressured or threatened into signing before the period of cohabitation began;
• one of the parties referred the other party to a lawyer;
• the final agreement did not reflect the negotiated agreement between the parties;
• a party failed to make full and accurate financial disclosure; and
• the Cohabitation Agreement contains unclear and complicated terms and conditions.

In case you’re looking for a cohabitation agreement that does not create any financial obligations or rights during or after cohabitation and which terminates upon marriage, then look no further:

Cohabitation Agreement (Ontario) – Terminates Upon Marriage

This Agreement can be used by parties who are cohabiting or who intend to cohabit and want to define their respective rights and obligations concerning support, property, the moral education of children, etc. THIS Agreement terminates upon marriage. If you are looking for a Cohabitation Agreement that does not terminate upon marriage but which essentially becomes a Marriage contract, then you can purchase one of these types of Cohabitation Agreements (Ontario) at Dynamic Lawyers.

All of Dynamic Lawyers‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

written by admin \\ tags: cohabit agreement, cohabitation agreement, cohabitation lawyer toronto, ontario cohabitation agreement