Please keep in mind that this is not legal advice.  The information provided herein is for educational purposes only. If you would like to get in touch with a lawyer to help you draft, interpret, negotiate or resolve a dispute about a joint venture, then you are encouraged to seek a professional (e.g. make a post on Dynamic Lawyers).  We have Toronto and Ottawa lawyers who can assist you in this regard (I would know, I’m one of them!).

So this blog will deal with the basics of a joint venture agreement or contract.  In other blogs, I’ll get down to the nitty gritty.

Definition
Plaint and simple, a joint venture is a contract between two or more parties to share resources, knowledge, skills, etc. towards a common objective.

Parties
As usual in these types of agreements, the parties are identified at the get-go (make sure this is done properly or else your contract won’t be worth the paper it’s written on!).

Recitals
This is the background story you want to tell that leads up to the formation of the joint venture.  It could go something like: Party X does Y and has Z.  Party A does B and has C.  The two would now like to join forces to make even more $$$.  So they’re agreeing to have a joint venture in accordance with the terms and conditions set out in the joint venture agreement or contract…

Definitions
It’s a good idea to set out the definitions you’re going to be relying upon near the top of the joint venture agreement (for ease of reference and good organization).  You could include definitions here about “Confidential Information” (assuming there will be confidential information passed between the parties as a result of the joint venture), what constitutes “Force Majeure” (e.g. act of God that relieves a party of liability under the agreement in certain circumstances), etc.

Business Structure
The joint venture agreement or contract will generally state how the joint venture is structured.  Is it simply two separate entities acting in concert through the joint venture agreement or contract?  Will there be a new corporation formed?  Will there be a partnership formed?  Will that partnership be a general or limited liability partnership?  For more discussion about the general forms of business one can structure in Ontario, check out this free information about business structures we’ve been accumulating.

Nature of the Relationship
So will the joint venturers be partners (capable of binding each other), corporate shareholders, or simply joint venturers (i.e. their rights and obligations are limited to the terms of the joint venture agreement or contract).

Term and Termination
How long will the joint venture last for and what events give rise to its premature termination?  Will the parties simply be able to give each other notice?  Will the joint venture dissolve by operation of law, by one party filing for bankruptcy, by one party attempting to illegally assign their interest in the joint venture to a third party, etc.?  Again, you should consult with a lawyer to find out what kinds of things typically go in this section.  Also important is what to do in the even of default.  Does one of the joint venturers become liable to pay the other if they are at fault?  Who determines fault and according to what test (e.g. sole and absolute discretion)?  There’s a lot to think about here…

Joint Venture Assets and Benefits
How will these things be deal with?  Will there be a percentage of ownership?  Will the benefits be based on revenues or profits?  Can these interests be assigned?

Operations
How will the joint venture be operated on a day-to-day basis?  Will the joint venture committee have the power to enter contracts on behalf of the joint venture?  Perhaps the joint venture committee will create a new corporation to take on a certain responsibilities and simply own equally the shares of the new corporation.  That new corporation would operate as a separate business, but its shareholders would be the joint venturers (who would elect the directors, who in turn would appoint the day-to-day officers).  This would be a good place to put reporting and record-keeping requirements too.

Joint Venture Responsibilities
Here, we get to the nitty gritty of who will be responsible for what in the joint venture. Separate paragraphs will be needed for each of the parties.

Joint Venture Management
Will there be a committee?  Will representatives from each of the parties be on the commitee?  Will there be a chairperson?  How will meetings be managed, votes and decision made?  Will there be direction from owners and delegation to the committee?  In my opinion, and as I’ve previously blogged about, businesses should be run as dictatorships with consultants, not as democracies (too many voices means things won’t get done).  

Representations and Warranties
What kinds of true, fair, and complete statements must the parties make to induce the other parties to enter the agreement?  The parties want to know that their joint venturer partners have the authorization and operational wherewithall to do what it is they are about to do.  If these representations and warranties no longer hold true, then what’s the consequence?  Notice?  Termination?  This should be spelled out here…

Liability and Indemnification
Will the joint venturers try to limit their liability from each other in connection with the joint venture?  Will they indemnify each other for their own wrongdoing – whether in contract, tort, negligence, misconduct, breach of statute or otherwise?

General Terms and Conditions
This section of the Joint Venture Agreement will deal with things like (which I’ve previously touched on in teh context of an independent contractor agreement):

• Notices
• Entire Agreement
• Governing Law
• Interpretation
• Assignment
• Waiver
• Cumulative Remedies
• Counterparts
• Enurement
• Entire Agreement
• Time of Essence
• Independent Legal Advice
• Force Majeure
• Severability
• Survival
• Currency

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There are over 17,000 individuals in Toronto who can call themselves a Toronto attorney.  Each Toronto attorney typically has his or her own specialty.  The day of the general practitioner is not as it once was (and is slowly fading away).  In fact, specialization is a preferred strategy to earn above-average returns in any given industry.  Besides, think of how hard it would be for a lawyer who ‘does it all’ to keep up to date with the changing laws in every given legal area.  It’s way too difficult and that’s where negligence cases may arise.

In any event, I thought I’d spend some time discussing the various types of Toronto attorneys that you can come across on a day-to-day basis.  Here’s the first breakdown of types of Toronto attorneys (please keep in mind that this list of the types of lawyers out there is not exhaustive):

• Toronto Real Estate Attorneys: help you buy and sell residential, investment, farm, cottage, recreational, condominium, and cooperative properties.  They also you get a mortgage financing and refinancing as well.

• Toronto Personal Injury Attorneys: help you litigate, settle, or otherwise resolve claims arising from:
  • accident benefits claims
  • dog bites
  • disability claims
  • medical malpractice
  • motor vehicle accidents
  • negligence actions
  • personal injury claims
  • product liability
  • slip and falls

• Toronto Business Attorneys: help you to incorporate and organize, merge/amalgamate, and dissolve your business.  They can help prepare, review, interpret, revise, negotiate, litigate, and resolve the following business documents:
  • shareholder agreement
  • partnership agreement
  • joint venture agreement
  • franchise agreement
  • commercial leases
  • business acquisitions
  • regulatory compliance
  • constructions contracts
  • employment agreements

• Toronto Wills and Estates Attorneys: they offer services from a basic will and powers of attorney  to more complicated tax-planning structures, such as inter-vivos trusts and estates freezes.  They can also help personal representatives in the administration and distribution of estate assets.  Finally, they can litigate on behalf of beneficiaries or the estate trustee on issues such as mental capacity of the testator, validity of a will, etc.

• Toronto Family Attorneys: they can help you with your marriage breakup by drafting a separation agreement.  They can also help you with issues such as divorce, spousal and child support, child custody, possession of the matrimonial home, and the equalization of net family property.
  

• Toronto Criminal Defense Attorneys: they can help represent you against government bodies that have charged you with criminal or provincial offences (e.g. careless driving), including:
  • DUI (driving under the influence)
  • assault
  • sexual assault
  • fraud
  • theft

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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 retaining a personal injury lawyer, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto personal injury lawyers registered on the website who can assess your situation and, if need be, represent you in court proceedings or help settle your case.

Personal Injury Lawyers in Toronto: who are they?
A personal injury lawyer is trained to represent parties (e.g. individuals, corporations, partnerships, etc.) in a civil dispute.   In civil cases, unlike criminal cases (where the state or government is the party that is prosecuting an accused person), one or more parties sue each other and the state is typically not a party to the proceedings.

What Toronto Personal Injury Lawyers can do for you
Some of the things which personal injury lawyers in Toronto can assist you in include (but are not limited to) the following:

1. Determining and advising you on your rights and whether you have a claim (e.g. for damages, for declaratory relief, for an injunction, for equitable remedies, etc.).
2. Explain the civil law process from the time you believe a claim arises through to trial, and finally to a court order and (perhaps) appealing a court order (if it gets there).
3. Negotiating with the opposing counsel to reach a settlement.
4. At trial, challenge witness’ credibility and testimony.
5. At trial, present expert evidence in the form of expert testimony and reports that are favourable to their client.
6. At trial, point out past cases (called precedents) that are in their client’s favour and draw analogies and parallels, while trying to distinguish unfavourable precedents.
7. At trial, protect their clients from answering inappropriate or irrelevant questions (e.g. questions that would tend to self-incriminate a party, questions which have nothing to do with the trial, or questions which makes the party give testimony which they are not competent or otherwise qualified to give, etc.).

The onus of proof
In Ontario civil trials, parties must generally establish the elements of their case on a balance of probabilities.  This means 50% + 1 %.  Hence, to establish that a party was negligence or breached a contract, it must establish that that party was more likely than not to have done so.   If, however, the elements of the offence are established, then a judge or jury may still find no liability or reduce damages accordingly if the other party had some type of justifcation or excuse (e.g. undue influence, duress, etc.).

When to consult with or hire a Toronto Personal Injury Lawyer?
Immediately on becoming aware of the fact that you have been injured or suffered damages, you should consult with a personal injury lawyer in Toronto.  They can help take away your stress by explaining the law (e.g. your rights, your obligations, your entitlements, etc.), helping to formulate a proper strategy, and telling you about how the civil law process works from start to finish.  Again, if you need legal advice with respect to retaining a Toronto personal injury lawyer, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

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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 retaining a criminal law lawyer, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto criminal law lawyers registered on the website who can assess your situation and, if need be, represent you in court proceedings or help settle your case.

Criminal lawyers in Toronto: who are they?
A criminal lawyer is trained to defend parties (e.g. individuals, corporations, partnerships, etc.) who have been charged with an offence under the Criminal Code.  In criminal cases, the state or government is the party that is prosecuting an accused person.  This differs from civil cases, where one or more parties sue each other and the state is typically not a party to the proceedings.  Hence, in criminal cases, even if one party does not want the prosecution to continue, it’s really up to the Crown Attorney representing the state or government to make that call.

What Criminal Lawyers in Toronto can do for you
Some of the things which criminal lawyers in Toronto can assist you in include (but are not limited to) the following:

1. Determining and advising you on your rights and whether they were violated.
2. Explain the criminal law process from the time you are investigated and charged, through to trial, and finally to conviction and appealing a conviction (if it gets there).
3. Negotiating with the Crown Attorney on your behalf to reach a settlement (called a plea-bargain because people typically agree to plead guilty of a lesser offence in return for not being prosecuted for a more serious offence).
4. At trial, challenge witness’ credibility and testimony.
5. At trial, present expert evidence in the form of expert testimony and reports that are favourable to their client.
6. At trial, point out past cases (called precedents) that are in their client’s favour and draw analogies and parallels, while trying to distinguish unfavourable precedents.
7. At trial, protect their clients from answering inappropriate or irrelevant questions (e.g. questions that would tend to self-incriminate a party, questions which have nothing to do with the trial, or questions which makes the party give testimony which they are not competent or otherwise qualified to give, etc.).
8. At trial, ask for relief in case Charter Rights and Freedoms have been violated (e.g. this may result in costs being awarded in limited circumstances or evidence being rendered inadmissible).

The standard to convict
In criminal trials, the prosecution (i.e. the Attorney General) must establish that an accused committed all parts of an offence – which is typically broken down into the guilty act and the guilty mind – beyond a reasonable doubt.  In other words, if a reasonable doubt exists as to whether an accused had committed a guilty act or, in some cases, whether an accused had a guilty mind (because you don’t have to prove a guilty mind in all cases), then a judge or jury should not convict the accused.  If, however, the elements of the offence are established, then a judge or jury may convict the accused absent some type of justification or excuse (e.g. provocation, self-defence, necessity, etc.).

When to consult with or hire a Toronto Criminal Lawyer?
Immediately on becoming aware of the fact that you are being investigated, about to get charged, or have been charged, you should consult with a criminal lawyer in Toronto.  They can help take away your stress by explaining the law (e.g. your rights, the offence – i.e. its elements and consequences), helping to formulate a proper defense strategy, and telling you about how the criminal process works from start (i.e. being investigated) to finish (i.e. being sentenced and/or appealing a conviction).  Again, if you need legal advice with respect to retaining a Toronto criminal law lawyer, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

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Types of lawyers.  There are lots in Toronto (as in every major city across North America).  Each has his or her own specialty.  The day of the general practitioner is not as it once was (and is slowly fading away).  In fact, specialization is a preferred strategy to earn above-average returns in any given industry.  Besides, think of how hard it would be for a lawyer who ‘does it all’ to keep up to date with the changing laws in every given legal area.  It’s way too difficult and that’s where negligence cases may arise.

In any event, I thought I’d spend some time discussing the various types of lawyers that you can come across on a day-to-day basis.  Here’s the first breakdown of types of lawyers in Toronto (please keep in mind that this list of the types of lawyers out there is not exhaustive):

• Toronto Real Estate Lawyers: help you buy and sell residential, investment, farm, cottage, recreational, condominium, and cooperative properties.  They also you get a mortgage financing and refinancing as well.

• Toronto Personal Injury Lawyers: help you litigate, settle, or otherwise resolve claims arising from:
  • accident benefits claims
  • dog bites
  • disability claims
  • medical malpractice
  • motor vehicle accidents
  • negligence actions
  • personal injury claims
  • product liability
  • slip and falls

• Toronto Business lawyers: help you to incorporate and organize, merge/amalgamate, and dissolve your business.  They can help prepare, review, interpret, revise, negotiate, litigate, and resolve the following business documents:
  • shareholder agreement
  • partnership agreement
  • joint venture agreement
  • franchise agreement
  • commercial leases
  • business acquisitions
  • regulatory compliance
  • constructions contracts
  • employment agreements

• Toronto Wills and Estates Lawyers: they offer services from a basic will and powers of attorney  to more complicated tax-planning structures, such as inter-vivos trusts and estates freezes.  They can also help personal representatives in the administration and distribution of estate assets.  Finally, they can litigate on behalf of beneficiaries or the estate trustee on issues such as mental capacity of the testator, validity of a will, etc.

• Toronto Family Lawyers: they can help you with your marriage breakup by drafting a separation agreement.  They can also help you with issues such as divorce, spousal and child support, child custody, possession of the matrimonial home, and the equalization of net family property.
  

• Toronto Criminal Defense Lawyers: they can help represent you against government bodies that have charged you with criminal or provincial offences (e.g. careless driving), including:
  • DUI (driving under the influence)
  • assault
  • sexual assault
  • fraud
  • theft

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1. Come prepared.  A pound of pain can be avoided with but an ounce of preparation.

2. Know who you’re talking to.  What role is the other party playing?  What powers do they have (or are lacking)?  This helps focus the meeting so that you only ask for what you know you can get.  Otherwise, you’re wasting your time because you’re talking to the wrong person.

3. Know your objective.  What is it that you want to achieve by the end of the meeting?  Always work towards that in the back of your mind.  That’s why you should always have an agenda that will allow you to better achieve your objective.

4. Identify your issues and prioritize them.  This will help all parties know what the other wants and how badly they want it.  This also facilitates creative solutions because you can trade off a low-priority issue for a higher one (especially when the opposing parties’ priorities are the reverse of your own).

5. Don’t waste time on the nitty-gritty.  If you get stuck for the trees, move back to the forest.  Make a note of where you got stuck and then move on.

6. Deal with the easy things first; leave the contentious issues until later.  This strategy helps move the meeting along and makes the parties ease up until contentious issues are

7. Mention your position briefly, but talk about the interests that you’re trying to satisfy.  If these interests can be satisfied in creative ways, then parties’ positions will melt away.

8. Spend most of your time coming up with creative solutions.  Expand the pie!  Find commonalities!  Brainstorm creative and mutually-beneficial solutions!  Everything else about the meeting is just a lead-in to this part.  You should spend at least 75% of your time coming up with solutions to give all parties something.  Evaluate alternatives based on objective criteria that are acceptable to all parties.  These criteria could be time, money, effort, publicity, etc.

9.  Put everything in paper before, during, and after the meeting.  Visual meetings are the best.  Parties are better focused on the task at hand when they have been notified ahead of time of the agenda, objective, issues (listed and prioritized), and proposed alternatives.  This way, time isn’t wasted coming up with these things during the meeting.  During the meeting, use a pad of paper or the chalkboard to show the progress that has been made throughout the meeting.  Finally, make sure to write a summary and next steps (discussed below).  Remember: he/she who controls the language of what is ultimately written and agreed upon will usually have power over the other party.

10. Summarize the meeting and note next steps.  Make sure you record who is going to take action, what action they are going to take, and when they are planning to complete the action.  You’ll need this in writing to make the parties accountable.  At the next meeting, these notes should be reviewed to determine whether action items were satisfied.

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Please keep in mind that this is not legal advice.  The information provided herein is for educational purposes only.  If you believe you require assistance in reviewing, drafting, negotiating, etc. a Confidentiality and Non-Disclosure Agreement, then you are encouraged to seek a professional (e.g. make a post on Dynamic Lawyers).

Confidentiality and Non-Disclosure Agreements (also known as NDAs) are nothing more than ordinary contracts with specific terms related to the idea that one party (disclosing party) is going to provide information of a confidential nature to the other party (receiving party).  Breach of a Confidentiality and Non-Disclosure Agreement may result in a claim that can be enforced by going to court, through equitable remedies such as an injunction, or as otherwise set out in the agreement itself (e.g. arbitration, etc.).  In what follows, I’ll provide some general issues that are dealt with in these types of agreements.

1. Consideration
Like all commercial agreements, a Confidentiality and Non-Disclosure Agreement requires something that’s called “consideration”.  Consideration is something of value given by both parties to a contract that induces them to enter into the agreement.  Consideration is typically something like money for goods or services, etc.  One party receives something of value and the other party receives something of value.  This makes the contract valid, binding, and enforceable.  For a Confidentiality and Non-Disclosure Agreement, the consideration will likely be part of the overall agreement (e.g. I will give you confidential information to do something and then I’ll pay you in exchange for that something).

2. Definition of Confidential Information
Defining confidential information is of utmost importance.  The disclosing party will cast the net wide here to increase the receiving party’s obligations and liability with respect to the information it receives; the opposite is true of the receiving party (who wants a narrow definition of confidential information). Examples of types of confidential information include trade secrets, proprietary information, know-how, or information described in a Schedule. Use of a Schedule should still include an accurate definition of confidential information.  Sometimes, a disclosing party will also say that anything it labels confidential will be considered confidential information as well.

3. Exclusions from Confidential Information
Most confidentiality agreements will normally contain various exclusion clauses which outline the types of information which are deemed not to be confidential within the terms of the agreement.  Generally, these types of exclusions will include:

• information which is publicly available (i.e. information in the public domain);
• information which is already known to the recipient at the time of its disclosure to the recipient by the information provider;
• information which is received by the recipient from a third party who is not in breach of any confidentiality obligations to the information provider;
• professional expertise which the recipient had at the time of disclosure or which the recipient developed or enhanced as a result of reviewing the information or material provided; and
• information which the recipient is required by a court or regulatory body to disclose.

4. Limitations on Use of Confidential Information
The uses the receiving party is permitted to make of the confidential information should be clearly specified in the agreement. This will ensure that the recipient does not use the information for any other purpose.

5. Who Should be Bound by the Confidentiality Agreement
A Confidentiality and Non-Disclosure agreement may need to bind all relevant parties (e.g. parent companies, subsidiary companies, directors, officers, employees, representatives, etc.).  In many cases, it is not practical or necessary to obtain signatures from all relevant parties; in these cases, the receiving party should acknowledge and assume responsibility for making sure that these relevant parties comply with the agreement.

6. Required Protective Measures to be Taken by Recipient
The Confidentiality and Non-Disclosure agreement may include a provision requiring the receiving party to take all reasonable measures available to it to keep the confidential information in the strictest confidence.  Such reasonable steps may include:

• Electronic security (e.g. confidential information may be stored on a computer, server, network, cell phone, etc.);
• Physical security (e.g. confidential information may be in a filing cabinet, on a desk, in a box, etc.);
• Visitor control;
• Controls over photocopying confidential information; and
• Document and computer network control systems which limit access to the confidential information to those who are cleared for such access.

7. Return of Confidential Information
The Confidentiality and Non Disclosure Agreement may need to specify that, upon request, all of the confidential information, in whatever format, should be returned to the information provider and that all memoranda or other ancillary documents prepared by the recipient and based on the confidential information be destroyed.

8. Injunctive Relief
An injunctive relief clause may be included wherein the receiving party acknowledges that monetary damages may be an insufficient remedy and that the disclosing party should be entitled to injunctive or other equitable relief for any breach of the Confidentiality and Non-Disclosure agreement. In most cases where confidential information is being disclosed, the disclosing party cannot wait until a court determines the amount of monetary damages suffered. Here, the disclosing party will want to immediately apply for an injunction prohibiting any further disclosure of the confidential information.

9. No Liability Regarding Information
The agreement should make it clear that the disclosing party is making no warranty or other commitment regarding the accuracy or completeness of any information provided, and that there is in fact no obligation to provide any particular information to the other party.

In case you’re looking for an Ontario Mutual or One-Sided Confidentiality Agreement, then look no further:

Confidentiality and Non-Disclosure Agreement (Mutual)

This Agreement can be used to restrict both parties’ use and disclosure of confidential information that is being provided to it. If only ONE party is sharing confidential information and want to restrict the other’s use and disclosure of that information, then you can purchase a ONE-SIDED Confidentiality and Non-Disclosure Agreement:

Confidentiality and Non-Disclosure Agreement (One-Sided)

Here’s the sample Video Guide that comes with the Confidentiality and Non-Disclosure Agreement (Mutual):

Here’s the sample Video Guide that comes with the Confidentiality and Non-Disclosure Agreement (One-Sided):

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!

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As with lawyers, the end of Realtors is often prophesized through the advent of sell-by-owner websites that cut out the 6% commission which Realtors and brokerages charge for a typical transaction.   The idea behind the website is simple: allow owners and sellers to negotiate a purchase and sale agreement for property without involving the middlemen.  This  trend has been ongoing for some time now and there are a number of websites dedicated to squeezing out Realtors, such as For Sale By Owner.

It is interesting to note that although this trend is currently being experienced in its infancy in the legal industry (i.e. where disruptive technologies like Dynamic Lawyers, automated document generation, etc. are making legal services more accessible, affordable, and expedient), there are many difference between Realtors and lawyers which would make Realtors in their traditional form much more obsolete and faster.

To begin, the barriers to entry to becoming a lawyer are much greater than they are to becoming a Realtor (which does not require years spent at university, articling, etc.).  Second, there is a real access to lawyer problem: affordable lawyer specializing in certain legal areas are somewhat hard to find (e.g. Lawyer Referral Service? YellowPages?  Friends and Family?  Who do you turn to?).  There is no such access to Realtors problem: everyone and their uncle knows of a realtor they can turn to in order to sell their home or help them buy a new one.  Moreover, Realtors spend an exuberant amount of money advertising their services in a cut-throat market.  Third, lawyers must often specialize in certain complicated legal areas which take years of experience and know-how to develop expertise in.  For the most part, all Realtors can provide the same basic services – whether it be assisting clients in buying, selling, or leasing a home, commercial office, farm, etc.  If there is specialization in the real estate industry, it is likely confined to geographic areas and types of homes; this doesn’t take away from the fact that all Realtors are capable of doing the same thing (i.e. filling in paperwork, negotiating, and finalizing a deal).  These three differences reveal that lawyers – particularly those who specialize in a complicated legal area such as tax litigation or commercial law – are and will continue to be in high demand and, as such, safe and secure from disruptive technologies that will take business away from other types of lawyers.

Overall, given the low barriers to becoming a realtor, the market prevalence and accessibility to Realtors, and the fact that they can all pretty much perform the same services to assist clients, I envision the end of traditional Realtors happening on a wider scale much quicker than it would for traditional lawyers.

written by admin \\ tags: agreement, continuings, end of realtors, end of s, for sale by owner, lawyer, lawyers, litigants, litigation, money, negotiating, Negotiations, purchaser, referrals, technology, Toronto lawyer Michael Carabash

For most people there is nothing that can take the romance out of an engagement faster than the request for a marriage contract. Somehow marriage contracts seem inconsistent with the commitment that is the essence of marriage. However, sometimes a marriage contract may be a good idea.

A marriage contract defines rights and obligations during marriage or on separation, divorce or death. In the absence of a contract, these rights and obligations are governed by the family law legislation in effect in Ontario. Because it must be applied to many different fact situations, the legislation is not tailor-made. It also gives a lot of discretion to judges, making it quite unpredictable on occasion. Many different judges, with many different points of view, hear family law cases. Finally, the legislation can change. Ontario has had two major revisions of its family law legislation since 1978. The laws that would govern your rights if you were to divorce today may not be the laws that will govern your rights if you divorce in the future.

A marriage contract permits couples to design a tailor-made result rather than being governed by legislation. They may do this because the legislation does not seem fair to them, because it does not suit their needs or because they want to try to avoid litigation if the marriage ends. Seen in this light, marriage contracts are not cynical; they are simply a tool couples use to define and tailor their rights.

For instance…

There are many reasons to contract out of the legislation. In general terms, and subject to some important exceptions, the legislation provides that spouses jointly share their net increase in wealth from the date of marriage to the date of separation or death. If one spouse is very wealthy at the time of the marriage, the legislation could result in a windfall to the other spouse. Through a marriage contract the spouses could agree to an unequal division in the increase in wealth. This does not mean the poorer spouse gets nothing; the spouses can negotiate a fair result. For instance, they could agree that the property division would vary depending on the number of years the marriage lasts.

A couple may also wish to contract out of the property provisions of the legislation if they are both financially independent and don’t want any claim to the other’s assets, or if either spouse has children from a previous marriage. In the latter case a marriage contract can ensure that the majority of the spouses’ assets goes to his or her children and not to the second spouse. As in the first example, this does not mean that the spouse is treated unfairly; the marriage contract can balance the interests of the spouse with the interests of the children.

Marriage contracts do not need to be signed before the marriage. They can be negotiated at any time. Sometimes they actually help couples in trouble make their marriage work. If a couple has experienced troubles in their marriage they may want a marriage contract going forward. Being clear about what would happen if a relationship ends (ie. knowing you will be treated fairly) can help some couples rebuild the trust they need to stay together.

What cannot be contracted

One large advantage marriage contracts have over legislation is flexibility – they can deal with one issue or asset or many issues and all assets. With the exceptions noted below, the potential terms of a marriage contract are limited only by the imagination. However, marriage contracts cannot deal with custody of or access to children or a spouses’ rights to possession of the matrimonial home. Further, any provisions in a marriage contract relating to the support, education or moral training of a child may be disregarded by a court if it believes the provision is not in the child’s best interest.

Cohabitation agreements

The law in Ontario also recognizes cohabitation agreements. People who are living together, or who intend to live together, may enter into a contract outlining their rights and obligations during or after their cohabitation, or on death. Cohabitation agreements are often a very good idea because the law in Ontario does not do much to protect the property rights of common law spouses. If you are in a common law relationship it would probably be a very good idea to define your property rights by contract. However, these contracts must be drafted carefully because unless it provides otherwise, a cohabitation agreement becomes a marriage contract if the parties marry each other.

In short, if your partner proposes a marriage contract or a cohabitation agreement don’t assume it means they don’t love you as much as they should. There are lots of times such contracts make sense. In fact, you may want to consider one yourself.

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Ingrid van Weert is a compassionate and dedicated family lawyer with extensive experience in both divorce law and in all forms of dispute resolution available in the divorce process – negotiation, mediation, arbitration and litigation. She can be reached at ingrid@ontariodivorcelaw.ca or at 416-214-1501.

written by Ingrid van Weert \\ tags: agreement, arbitration, cohabitation Family Law, contracts, court, custody, engagements, fairness, family, judges, lawyer, lawyers, litigants, litigation, major, marriage, mediator, negotiating, Negotiations, relationships, revisions, separation, what to include in a marriage contract

One of the most common and most damaging misconceptions I hear as a family lawyer is the idea that people in common law relationships have the same legal rights as married spouses do. No, no, no! If you’re in a common law relationship and think you have the same rights as if you were married, you’re wrong. And that mistake could cost you very dearly if your relationship ends.

At the end of a relationship, whether marriage or common law, the five main issues are custody of children, visitation rights for the non-custodial parent, child support, spousal support and division of property. There are many other issues that may come up as well – possession of the matrimonial home, life insurance, immigration status, wills and powers of attorney to name a few – but those are the big five.

In the first three categories there is not much difference between being married and living common law. The law tries to treat all children equally so the rights of children born in common law relationships are generally the same as those born into marriages. However, when it comes to spousal support and dividing property accumulated during a relationship there are very important differences between marriage and common law relationships.

Spousal support

If you are married you can claim spousal support under either the Divorce Act or under the Family Law Act. If you cohabit you don’t have spousal support rights under the Divorce Act. And the difference between the rights of married spouses and the rights of common law spouses under the Family Law Act is apparent right in the definition of spouse. A married spouse is a spouse – and hence has spousal support rights – from the instant they are married. A person is not even considered a spouse in a common law relationship unless they have been cohabiting continuously for three years or they are in a relationship of some permanence and are the natural or adoptive parents of a child. In other words, at the end of a common law relationship you can’t even seek spousal support unless you cohabited for more than three years or you and your partner have a child together.

Property rights

The difference in spousal support rights is minor compared to the difference in property rights between married and common law spouses. This is where I see people seriously hurt by the common assumption that the law treats married couples and common law couples equally.

In Ontario the Family Law Act gives married spouses very specific property rights; it does not give any property rights to common law spouses. A common law spouse can assert a property claim under a doctrine called constructive trust but these claims are difficult and costly to prove and are far less generous than the rights given to married spouses by the Family Law Act. In other words, if you let your partner put all or most of the property in his or her name in a common law relationship you may find he or she gets to keep it all, even if your income and work helped buy it.

The lesson in this is that if you live in a common law relationship you must make sure that you accumulate property in your own name. Don’t let all property go into the name of your spouse on the assumption that if your relationship ends, the property will be divided between you. That is not how the law works for common law relationships. Another solution is to enter into a cohabitation agreement setting out how property will be divided if the relationship ends. But please don’t assume you have the same property rights as your married friends.

Ingrid van Weert is a compassionate and dedicated family lawyer with extensive experience in both divorce law and in all forms of dispute resolution available in the divorce process – negotiation, mediation, arbitration and litigation. She can be reached at ingrid@ontariodivorcelaw.ca or at 416-214-1501.

written by Ingrid van Weert \\ tags: agreement, arbitration, common law, continuings, custody, damages, family, insurance, lawyer, lawyers, litigants, litigation, marriage, mediator, negotiating, Negotiations, parents, property rights, relationships, spousal support