Community of Property: What’s it all about?

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 cohabitation, prenuptial or marriage contracts and agreements, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can contact me directly if you need a lawyer.

So what is “Community of Property” all about? Well, traditionally, the idea used to be that, instead of separating property between married spouses upon a breakdown of their relationship, courts could find that the spouses’ assets had been combined into a unified “community of property“.  Each spouse would own one-half of the community of property on the assumption that they each contributed equally to the economic assets of the marriage.  So if each spouse’s separate assets had been intermingled with property acquired during the period of marriage to the extent that it couldn’t be identified, then a presumption could arise that it became part of the “community of property“.

Now, the question to ask is whether present Ontario courts have the power to view marital assets as a “community of property“.  The answer is, to a large extent: NO.  The Ontario Family Act governs ownership and division of property when married spouses part ways.  It does so through an EQUILIZATION OF NET FAMILY PROPERTY REGIME.  The Act does not create a traditional community of property regime or grant any powers in respect thereof to the courts.  As the Superior Court of Justice held in Braga v. Braga [2006] O.J. No. 2600:

6 The Family Law Act does not create a community of property regime. Chattels are not held in common. Other than s. 9 and s. 10 of the Act the court has no power to allocate property between the parties. The court values the property owned by each. If a dispute as to the ownership and right to possession of specific property arises the court may determine that issue under s. 10 applying the rules for determining ownership which every lawyer learns in first-year property classes. Once the property of each party is valued, then, subject to statutory exclusions and deductions a money judgment is issued in an amount sufficient to equalize the value of each party’s “net family property”. Only after the court has determined the quantum of the payment necessary for equalization does the court have the right to transfer property under S. 9 of the Act in satisfaction of the money judgment.

So what do sections 9 and 10 of the Act say?  Well the gist of section 9 gives the court the power to order a spouse to pay the other spouse an amount owed under the Act.   OK.  So there’s nothing about community of property there.  Furthermore, section 10 allows the court to answer questions between spouses concerning the ownership or right to possess particular property (other than as arising out of an equalization of net family property).  So basically, the court doesn’t give any regard to the old “Community of Property” thinking.  Rather, the court is told by the legislature to follow a structured EQUILIZATION OF NET FAMILY PROPERTY REGIME under the Act.

I’ll discuss an Equilization of Net Family Property regime next…

written by admin \\ tags: community of property, community property, equilization of net family property, Family Law, lawyers, prenuptial agreement

Many people ask: so how is life as a lawyer?  They expect me to say it’s all glamour and gold, but the reality is that that is not always the case.  Being a lawyer essentially means solving people’s legal problems.  This is not an easy thing to do.  Indeed, it is probably the most intellectually stimulating and challenging profession one could aspire for (akin to being a doctor).

People’s legal problems could be very sensitive (e.g. criminal, family, immigration) and hard for people to talk about.  If you’ve ever had a legal problem, you know what I’m talking about: you lose sleep, constantly worry, and want everything to be over fast and before your bank account is drained.  It’s a very stressful situation.

From the lawyer’s perspective, we generally have some idea of what our clients are going through.  We have seen it countless times with other clients.  Sure, the problems are not our own.  But sometimes we become so caught up in our client’s issues that it can’t help but affect our daily life.  Winning their case brings us happiness because we’ve served our clients well and delivered results.  Losing a case is devastating for us.  It happens – no matter how hard we try and we can’t control everything.

Lawyers are problem solvers.  They do not always have the solution right away, but they can find it relatively quickly.  We are quick learners.  We read massive amounts of text in a short amount of time.  We sum up everything and apply it to a new set of facts in order to dispense advice.  We may not always be right, but we try to build arguments that will win our case or weaken the other side.  We also look at things from the other person’s perspective.  This could be a partner in a business, or opposing parties in a lawsuit.  We want to plan ahead and strategize in a way that will help give our clients what they want.  So we need to think about what arguments could be raised against us.

We research and we prepare.  We are trained to do so.  We are also trained and gain experience in presenting our arguments in writing or orally.  We try to make our statements memorable and convincing to other parties, judges, juries, etc.  We study the ways of how to influence others.  We learn tips (e.g. be brief and impactful) and avoid traps (don’t be boring or long-winded).  We do all of this on a regular basis and that’s why it’s best to use lawyers if you need to.  Everyday folk don’t go through the types of negotiations that we go through.  They go about their days, but they don’t have people paying them to solve their complex legal problems.  We do.  And we learn from it.  And we apply our knowledge, skills, and experiences to each new case.

So why do we charge the way we do (hundreds of dollars per hour)?  It’s a combination of a few things.  First, we have to be in business to survive and thrive (we need to make profit).  There are overhead costs.  There is labour and advertising, etc.  So we need to generate revenue to pay for those costs.  Then there’s the idea that our skills are very unique and in high demand.  It took 7 years of intense university, plus articling, plus passing the bar admissions course to become a lawyer.  Many lawyers are still in debt (over $100K) because of all the schooling they did.  We constantly study through continuing legal education on how to be better lawyers.  Being a lawyer is also expensive: we need to buy books, bookkeeping software, client-management software, hire clerks and bookkeepers, subscribe to expensive legal databases, etc.

We are also professionals and held to higher standards of care than everyday business people. We are put in positions of trust with our clients and their money.  We have obligations to them and others (e.g. courts, other lawyers, other parties, the media, etc.).  Finally, there is a segment of the population that can afford to pay lawyers and does so.  So, if a lawyer is busy serving those who needs them and can afford them, why should they go out of their way to reduce their hourly rates so that more people can simply afford him or her?  There is little incentive to do so…unless the lawyer believes that he or she can service enough people in the same amount of time (and with no increase in stress or work) and earn the same amount of money as they would have otherwise.  But this is not always easy.  It depends on marketing your services to the proper demographic and then being internally set up to handle more volume.  Lawyers don’t generally think about these things (they often just take what falls in their lap) and therefore there is no clear strategy to go after this market segment or that…

What about advertising?  Well, lawyers are not traditionally the best known for advertising.  Park benches, newspaper ads, and TV commercials are often just plain tacky.  Only recently have lawyers realized that they can use the Internet as an affordable and effective means of advertising their services.  But, since most lawyers get their clients through word-of-mouth referrals, they may not see the benefit of investing in a high quality and regularly updated website.  Ah well…that leaves the internet for the Dynamic Lawyers of the world…

Just a few thoughts on being a lawyer by one who lives that title daily…

written by admin \\ tags: amount of time, being a lawyer, countless times, family immigration, gain experience, glamour, gold, happiness, juries, lawyers, learners, massive amounts, perspective, problem solvers, sleep, stressful situations, traps

Just finished being interviewed by the Globe and Mail about all things Dynamic Lawyers.  I talked about the changing nature of the legal services industry, our legal forms + video guides, and our plans for future expansion.  I’m told that the story will likely be coming out sooner rather than later…. stay tuned…

written by admin \\ tags: globe and mail, lawyers, legal forms, legal services industry, video guides

Richard Susskind – the man who influenced me to build and develop Dynamic Lawyers into what it is today – wrote a part in his book (“The End of Lawyers?”) that I want to discuss here for a moment.  That book is almost like a blueprint for me.  Heck, I even take that book when I go to media interviews.

There’s a part in that book that talks about online legal guidance.  He defines this as a disruptive technology that creates a paradigm shift.  Now you’re probably thinking: “What’s a disruptive technology and what’s a paradigm shift?”  Let me explain…  A disruptive technology, as Richard states in his book, is a technology that will disrupt the law firm (not the client).  This technology is new, innovative, and periodically emerge and fundamentally transform companies, industries, and markets.  A paradigm shift is a fundamental shift, transformation, evolution, etc. in the way something is done.  So with those definitions in mind…   Let’s get to the paradigm shift…

Before you would have to have face-to-face consultation with a lawyer (typically at their hourly rate).  So lawyers would have a monopoly over their knowledge and services.  Now, however, online legal guidance can be provided in a way that gives multiple people simultaneous access to a lawyer at a fraction of the cost.  Richard mentions a few examples, such as Linklaters, Clifford Chance, and American pioneer of online legal self-help, Rirchard Granat.

So onto my point…Dynamic Lawyers is offering legal guidance in various ways to compliment traditional legal services for those people who cannot otherwise afford a lawyer.  First, there’s the Craigslist.org-like make a post, get free quotes form local lawyers.  Lawyers compete so you win.  That’s a disruptive technology.  It sure beats having to go through the yellow pages or having to explain yourself on the phone to a lot of different lawyers. Next, there’s the free legal info that’s being provided through the DL Blog, the Legal Areas, the Stats and Reports, and through our affiliations with other websites (e.g. Legalline.ca, AdviceScene.com, IsThatLegal.ca, LegalTree.ca, etc.).  So prospective and actual users of legal services are becoming better educated.  Next, there’s the FREE Legal Health Checkup, an innovative way to check your legal health (and hopefully avoid nasty surprises later on).  Finally, our new Legal Forms + Video Guides project offers customizable and lawyer-prepared legal forms with a ton of guidance!

So there you have it!  We’ve got lots of more ideas, but we’ll focus for the time being on making the ones above even better!

DynamicLawyers truly is a disruptive technology that’s taking advantage of the paradigm shift we’re currently experiencing in the legal industry.

written by admin \\ tags: disruptive technology, dl, fundamental shift, lawyer, lawyers, media interviews, paradigm shift, Richard Susskind

As a follow up to my last blog about small claims court matters, let’s keep going…Remember: this isn’t legal advice.  It’s legal information.  If you’re looking for a small claims court lawyer in Ontario, make a post on Dynamic Lawyers.

Valuing the Claim
Remember: the amount of damages you suffered must be less than $25,000. If it is over this amount, you will have to reduce your claim to $25,000 exclusive of interest (pre and post judgment) and reimbursement of court costs or legal fees. If you are not prepared to reduce your claim to this limit, then you need to take your case to the Superior Court.

If you claim for more than $25,000 or if you split your claim into smaller portions, each under $25,000 but which altogether are over $25,000, you run the risk of having the Small Claims Court reject your claim, or a party challenging it.

The next question is how to quantify your claim. If your claim is based on an invoice or a contract price or a specific damage that is ascertainable, then you know the value of your claim. Enter this amount on the space provided on page 3 of the Plaintiff’s Claim that says “How Much?” Along with entering the amount of your claim, there is also a space on the form to claim interest. Interest may be based on an agreed upon amount (e.g. as per a contract) or in accordance with the current court rate (as per Courts of Justice Act).

If your claim is not based on an invoice or a contract price and is not readily ascertainable, then you can put down your best estimate of what your total damages will be when the dust settles up to the maximum $25,000. You can also claim interest on this types of damages.

When calculating your damages, some things to keep in mind are: out-of-pocket expenses, lost income, lost opportunities, loss of reputation, loss of value to property, etc. Emotional distress and psychological harm are not easily to quantify and there are stringent legal tests that must be met in order for a court to award damages on that basis. Besides, if you claim these latter types of damages, you may expose yourself to having to open up your medical history through the litigation.

…Next Up: Schedule A…

written by admin \\ tags: best estimate, contract price, court matters, courts of justice act, emotional distress, interest interest, invoice, judgment, lawyer, lawyers, legal advice, legal information, legal tests, plaintiff, pocket expenses, psychological harm, reputation, small claims court, superior court, types of damages

Thanks goes out to Marc Saltzman (tech guru; CFRB1010 host; guy who talks about new tech products before your movie starts in the theatre, etc.) for his great profile on Dynamic Lawyers.

Here’s the link on Marc’s Sync-Blog profile about Dynamic Lawyers.  Marc basically asked me the following 5 questions:

1. What is DynamicLawyers.com?
2. Please walk us through how the process works from start to finish.
3. How is this process better than traditional ways of seeking legal help?
4. If it’s free to the consumer, what’s the business model?
5. Finally, what’s your plans for expansion?

See my answers by checking out Marc’s blog.

written by admin \\ tags: business model, guru, lawyers, legal help, marc saltzman, new tech products, sync

Dynamic Lawyers is pleased to announce that it has issued a brand new report on the Victoria, B.C. lawyer, Lloyd Duhaime of Duhaime.org.  The latter is a free legal information website (it’s got a legal dictionary, history of Canadian law, crazy laws, how to guides, etc.).  Lloyd is a law + technology guru, a social entrepreneur, and an access to justice advocate.  You can check out the full profile report here:

written by admin \\ tags: lawyer lloyd duhaime, lawyers, profile report, victoria

Dynamic Lawyers is looking for a GTA real estate lawyer to respond to a new post (i.e. someone is looking for a GTA/Toronto real estate lawyer to help them with: assignments, double closings, lease option/sandwich lease options).  Here is the public post. If you are or know a GTA/Toronto real estate lawyer who does this type of work, please give me a shout at michael@dynamiclawyers.com or sign up here.  Remember: Dynamic Lawyers is currently having a 1 month free trial period for new lawyers who sign up today.  There’s no risk and no obligations!  What are you waiting for?  Register today!

written by admin \\ tags: free trial period, lawyers, lease option, lease options, real estate lawyer, sandwich, toronto real estate

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 non-compete agreement, questions about their validity and enforceability, or resolving disputes about non-compete clauses, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Ontario independent contractor agreement lawyers registered on the website who can assess your business needs and help you draft, understand, negotiate, and resolve disputes involving non compete agreements and clauses – I should know, I’m one of them!  If you want to speak with me directly, you can contact me at michael@dynamiclawyers.com.

In this blog, I’ll be discussing non-compete or non-competition clauses in Ontario.  In the next blog, I’ll be discussing some Ontario caselaw dealing with non-compete clauses.

Non-Compete Clauses Generally
Non compete clauses or a covenant not to compete appear in commercial contracts and are designed to protect one party by preventing the other party from competing during and after the term of the contract for a set period of time.  The idea is that a party which is privy to the confidential information of another party should be prevented from simply leaving that party’s employ or partnership or engagement and competing with all the benefit of such information.  Therefore, parties relying on non compete clauses want to provide themselves the right to bring an interlocutory injunction (think of it like a mini trial prior to the trial) to the court to require the allegedly offending party to stop competing (due to the irreparable harm they caused) until the entire matter is disposed of at trial.

Validity and Enforceability of Non-Competes
Since the non-compete is a contractual provision, the principles of contract law apply to its validity, interpretation, and enforceability.  In Ontario, this means that this particular provision must be clear and certain enough (i.e. not too vague or missing information) to be enforceable.

There must also be “consideration”.  “Consideration” is a necessary element for every valid and enforceable contract.  It is a fundamental exchange.  Consideration is generally defined as an act, forbearance (i.e. not doing something the forbearer is legally entitled to do), or promise by the promisee undertaken in exchange for the promise.  Consideration requires that some benefit flow from the promisor 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.

Finally, even if the non compete is clear and certain enough to be valid, arguments may challenge its enforceability on the basis that:

• the party agreeing to the provision did not have legal capacity (e.g. they were a minor or mentally incapacitated) to enter into the non-compete agreement;
• the party agreeing to the provision was under duress or undue influence;
• the non-compete was unconscionable (i.e. substantively and procedurally unfair);
• the party agreeing to the provision relied on a misrepresentation (e.g. fraudulent, negligent, etc.) made by the other party; or
• the party wanting to rely on the non-compete had fundamentally breached the agreement;
• the non-compete is contrary to public policy;
• the non-compete is not justifiable;
• etc.

Non-Compete template langauge
I’ve come across a lot of non-compete provisions.

They basically say that the same thing…something along the lines of:

That Party X shall not, during the term of the agreement and for a period of X years after the expiration or termination of the agreement (irrespective of the time, manner or cause of the termination), either directly or indirectly, as principal or agent of any party, in any manner whatsoever (e.g. as employee, partner, shareholder, manager, independent contractor, joint venturer, etc.) compete in the business of Party Z within a certain geographic area.

Here, the word “compete” can be embellished upon in very specific or very general wording.   For example, the business of Party Z could be defined in the recitals of the agreement.

Right after the non-compete, you also typically find acknowledgments by Party X saying that the non-compete is fair and reasonable in all respects, having regard to Party Z’s business within the geographic area.

In case you’re a Client and looking to engage the services of an Independent Contractor in Ontario, look no further:

Independent Contractor Agreement (Client) – No Statement of Work

This Agreement can be used by a Client who wants to engage the services of an Independent Contractor (e.g. a consultant, a professional, a general worker, etc.) without creating an employment relationship. The “Client” means that this Independent Contractor Agreement favours the Client – for example, through notice, termination, standards of care, and restrictive covenants, etc. The “No Statement of Work” means that the services to be performed by the Independent Contractor are dealt with in the actual agreement and not in a Schedule (attached and incorporated into the agreement as a “Statement of Work”). There will be different versions of this agreement which favour both the Client and the Independent Contractor and which may include Schedules. Schedules aren’t absolutely necessary. They’re just one way of having an agreement instead of writing things out in the actual agreement, you simply modify the Schedule. Here’s the sample Video Guide that comes with this Independent Contractor Agreement (Client) – No Statement of Work:

Now, if you happen to be looking for an Independent Contractor | Consulting Agreement with a Statement of Work, then you’re in luck. Just go here and scroll down and, voila! The “Statement of Work” means that there is a schedule in this particular Independent Contractor Agreement to describe the services (instead of writing everything out in the actual agreement, it’s included in a Schedule). Here’s the sample Video Guide that comes with this Independent Contractor Agreement (Client) – With Statement of Work:

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!

FYI, in case you’re looking for an Ontario, lawyer-prepared, customizable, downloadable and AFFORDABLE Non-compete Agreement, then look no further:

NON-COMPETE | NON-COMPETITION AGREEMENT

You can use this form to prevent a party from competing with you in a business during and after the term of an agreement. If you’re an employer hiring an employee, you can purchase an Employment Agreement (indefinite term), which comes with non-compete clauses in it. If you’re an employer and you are terminating an employee, you can find non-solicitation clauses in this Employee Termination Agreement. If you’re a client and wish to engage an independent contractor, you can purchase an Independent Contractor Agreement, which also comes with non-compete language in it. If you’re just doing a business deal with a party (e.g. sharing information, joint venture, partnership or shareholders, services, etc.) and want to prevent them from competing, then you need one of these agreements!

The Video Guide (below) is just a sneak peak of the video guide that comes with the Non-Compete Agreement Legal Form + Video Guide

Also, in case you were looking for a NON-Solicitation Agreement, you’ve come to the right place:

Non Solicit | Non-Solicitation Agreement Ontario

This legal form can be used to restrict one party’s ability to solicit the customers and employees of another party. If you’re looking for Non-Compete Agreements, Confidentiality and Non-Disclosure Agreements, you can purchase them as well on Dynamic Lawyers.

If you’re an employer hiring an employee, you can purchase an Employment Agreement (indefinite term), which comes with non-solicitation clauses in it. If you’re an employer and you are terminating an employee, you can find non-solicitation clauses in this Employee Termination Agreement. If you’re a client and wish to engage an independent contractor, you can purchase an Independent Contractor Agreement, which also comes with non-solicitation language in it. If you’re just doing a business deal with a party (e.g. sharing information, joint venture, partnership or shareholders, services, etc.) and want to prevent them from soliciting customers or employees, then you need one of these!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

written by admin \\ tags: caselaw, commercial contracts, contractual provision, independent contractor agreement, interlocutory injunction, irreparable harm, lawyers, non compete agreements, non compete clauses, period of time, professional assistance

The podcast of my 30-minute radio interview with Dale Goldhawk on Goldhawk Fights Back (AM740) is now available here.  Just scroll down to the bottom.  Recall that this live interview dealt with Dynamic Lawyers, legal fees, access to justice, contingency fees, what to discuss with a lawyer at the initial consultation, etc.

written by admin \\ tags: dale godlhawk, goldhawk fights back, lawyers, legal fees, podcast