A Realtor is initially engaged by a buyer to help find the right type of home at the right price.  Once a suitable home has been found, the buyer will ask their Realtor to prepare an offer, which it typically done using the Ontario Real Estate Association’s (“OREA“) standard form Agreement of Purchase and Sale. The Realtor will advise on the comparative market value of the home and discuss negotiation strategy, the responsibilities of the buyer, and various standard and non-standard terms and conditions in the agreement.

As discussed in another blog post, a Buyer Representation Agreement must be entered into at any time prior to an offer being made by the buyer’ Realtor. Also provided with the offer is OREA’s standard form Confirmation of Co-Operation and Representation. This document identifies the buyer, seller, their respective brokerages and Realtors, and the relationship between those parties. It also indicates what and how commissions are to be paid upon closing. Typically, commissions are paid by the listing brokerage to the buyer’s brokerage, and from there to the buyer’s Realtor.

When the offer is finalized and signed by the buyer, the Realtor will call the listing brokerage and verbally register an offer. From here, the Realtor will get in touch with the broker or salesperson who listed the property on MLS. Arrangements will be made between the buyer and seller’s Realtors to deliver or present the offer. Negotiations and counter-offers take place until an agreement is reached or the deal falls through.

More than likely, an offer will be agreed upon with conditions that must be satisfied for the deal to close. At this point, the property is commonly known as being “Sold Conditionally”.  Buyers will often offer to purchase provided they are able to sell their current home or arrange suitable mortgage financing. A buyer may also include a condition to buy the home subject to a satisfactory home inspection, or subject to a zoning change or other municipal approval. To be legally binding, the condition must be specifically written into the offer to purchase.

Conditional offers can effectively reduce risks for the purchaser. They are less attractive to sellers, however, and may not be accepted. For example, in “hot” real estate markets, sellers may not accept conditional offers because they don’t want to wait in uncertainty.

Once the property has been “Sold Conditionally”, the buyer may be required to provide a deposit to the listing brokerage (which is held in trust) as per the terms of the Agreement of Purchase and Sale. Although the deposit may be made by personal cheque, sellers generally request that the funds be certified or be provided a bank draft.

If the conditions are not satisfied within the timelines provided, the parties may mutually agree to extend the timeline by making a written amendment to the Agreement of Purchase and Sale. Alternatively, the buyer may waive their right to these conditions by signing a standard waiver; at this point, the parties have reached what is commonly referred to as a “Firm Deal” because there are no more conditions that must be met.

Assuming the conditions are worded properly to protect the buyer, if the conditions are not met to the buyer’s satisfaction, the offer expires and the deposit is returned in full to the buyer without deduction. In order for the deposit to be released, the buyer, seller, and their respective brokerages must sign a mutual release of liability. This releases all parties from all liabilities and claims arising from the Agreement of Purchase and Sale and directs the listing brokerage to disburse the deposit to the buyer. It may take up to 2 weeks for the buyer to receive their deposit back.

If all of the conditions are met, the buyer must sign a standard waiver indicating that they waive their rights to the conditions; once again, at this stage, the parties have reached a “Firm Deal” because there are no more conditions that must be met.

This generally concludes the Realtor’s involvement in helping a buyer purchase a home.  From here, the Realtor forwards a copy of the Agreement of Purchase and Sale to the buyer’s lawyer, who gets involved to help close the deal.

written by admin \\ tags: buyer representation agreement, buyer seller, commissions, comparative market value, confirmation, negotiation strategy, Negotiations, ontario real estate, ontario real estate association, real estate association, salesperson, suitable mortgage

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

written by admin \\ tags: agreement, assets, bankruptcies, bankruptcy, blog, breach, business, circumstances, confidentiality, contracts, corporation, indemnification, lawyer, lawyers, liabilities, negligence, negotiating, Negotiations, partnership, percentages, relationships, separation, shareholder, shareholders, shareholdings, toronto

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

written by admin \\ tags: accident, accidents, agreement, attorneys, beneficiaries, business, business acquisitions, commercial leases, contracts, criminal, custody, defense, Dynamic Lawyers, family, franchise agreement, fraud, incorporation, incorporators, injuries, injury, investment farm, joint venture toronto personal actions, law, lawyer, lawyers, liabilities, litigants, litigation, marriage, mentality, negligence, negligence cases, negotiating, Negotiations, offence, partnership, personal injury claims, practitioner, preferred strategy, property, revisions, separation, shareholder, shareholders, shareholdings, testator, toronto, toronto attorney, toronto attorneys, toronto business, toronto real estate, Wills and Estates

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).

written by admin \\ tags: accidents and accidents lawyer, court, damages, injuries, injury, judges, lawyer, lawyers, negligence, negotiating, Negotiations, partnership, personalToronto personal injury, report, toronto

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).

written by admin \\ tags: conviction, court proceedings, criminal, criminal criminal defense, criminal code, criminal law lawyer, criminal law Toronto, criminal lawyer, criminalToronto, crown attorney, expert evidence, expert testimony, favour, judges, lawyer, lawyers, lawyers in Toronto, legal advice, negotiating, Negotiations, offence, partnership, plea bargain, precedents, professional assistance, prosecution, report, s, toronto, Toronto criminal law, Toronto criminal law court, witness credibility

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

written by admin \\ tags: accident, accidents, business acquisitions, business lawyers, businessdefense, commercial leases, criminal, custody, family law lawyer, franchise agreement, injuries, injury, investment farm, joint venture agreement, lawyer, lawyers, lawyers in Toronto, litigants, marriage, negligence, negligence actions, negligence cases, negotiating, Negotiations, offence, partnership, personal injury claims, personal injury lawyers, personallawyer, real estate lawyers, separation, shareholder agreement, toronto, toronto motor vehicle accidents, toronto business, toronto personal injury, Toronto real estate Types of Lawyers, trusts and estates, vivos trusts, Wills and Estates

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.

___________

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