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 a Will,  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 prepare and draft a Will.

In this blog, I’ll help answer the common question: is a lawyer required for you to have a Will?

While a lawyer is not legally required for you to have a Will drafted, reviewed, or executed, it is nevertheless in your best interests to do so.  Only a few things are needed in order for a Will to be legally binding and enforceable.  But if you don’t do these basic things properly, the Will may be contested through litigation, which could end up costing thousands of dollars (or more), destroying relationships, wasting years, etc.

In addition to ensuring that the legal requirements of drafting a Will are met and that the specific wishes of the Testator are addressed, a lawyer will typically deal with a number of other issues which could jeopardize the validity of a Will.

First, a lawyer will inquire into the mental state of the Testator.  A lack of capacity to enter into the Will may be grounds to invalidate it.  In Banks v. Goodfellow, 1870 WL 11622 – the English Court of Queen’s Bench famously wrote:

“It is essential to the exercise of (the power of testation) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

If there is a doubt as to the Testator’s mental capacity to enter into the Will (e.g. due to age or physical, mental or emotional illness, etc.), the lawyer may call an approximately qualified medical practitioner to be present at the time instructions are given.  Those instructions may also be video recorded.

Second, a lawyer will also try to make sure that the Testator is not entering the Will as a result of some duress or improper or undue influence from an external force.  The Testator must enter the Will freely and voluntarily or else it may be subsequently contested.  A lawyer will typically exclude interested parties from being present at the time the Testator executes the Will.

Third, a lawyer will be able to discuss with you income tax, probate, and statutory claim considerations.  When you die, you are automatically deemed to have disposed of (immediately before death) all your assets for fair market value under section 70(5)(a) of the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.).  As such, any resulting taxable capital gains have to be included in your income in that year. These capital gains, however, can be deferred through the use of a spousal rollover, which a lawyer can help structure. If you own shares of a qualified small business corporation (which a lawyer can advise you on), you may also be entitled to a lifetime capital gains deduction (which is presently $375,000). With respect to minimizing probate fees, there are a number of legal possibilities which can be canvassed with your lawyer – such as transferring assets into joint ownership, designating beneficiaries of RRSP’s, RRIF’s and insurance policies, establishing an inter vivos trust, and executing multiple wills.  Finally, your estate may be liable to pay your dependents (pursuant to section 58 of the Succession Law Reform Act) and spouse (pursuant to sections 5 and 6 of the Family Law Act, R.S.O. 1990, c. F.3) more than what they would otherwise be entitled to under your Will.  A lawyer can help you address these results.  In the case of your spouse, for example, a lawyer can draft a marriage contract that would preclude your spouse’s ability to entitlements under the Family Law Act.

Finally worth mentioning is that (as will be discussed below), a lawyer is required to act in connection with International Wills.

For all of these reasons, it is generally advisable to contact a lawyer when you need to write or update your will.

written by admin \\ tags: affections, bench, delusion, emotional illness, exercise, goodfellow, medical practitioner, natural faculties, relationships, testator, thousands of dollars, validity

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

Law Firm SEO or search engine optimization is as much about the number and quality of links coming into your website as it is about how your website content has been search engine optimized.  In this blog, I’ll be discussing some of the more important things to keep in mind about inbound links.

In the world of the Internet, links are the relationships or building blocks upon which search engines (e.g. Google and Yahoo) determine the popularity of your website.  Search engines look at the web pages that are linking to your site to determine their relevancy (by examining things like link text, title of the web page, tags, and the URL).  Interestingly enough, you want to make sure that inbound links and websites from which they are coming have the keywords that your are optimizing your website for.  So if you want to target “Toronto auto dealership” (exactly in that order), then you want your inbound links to be written – preferably in bold and in large font – using those words in that order.

You will also want to try to ensure that the inbound link to your website which appears on other websites is not buried deep inside those websites; the more difficult it is to find; the easier the link is to find, the better!

So how do you increase the number of good quality inbound links to your website?  The best way is the most natural: have good quality and regularly updated content that targets your keywords.  You can also set up a link-exchange program or form on your website, where you agree to share links with other relevant websites.  Look at competitor websites or websites that are popular for particular keywords and ask them if they’d be willing to link to your website.

Happy SEOing!

written by admin \\ tags: building blocks, competitor, inbound links, internet links, law firm search engine optimization, law firm seo, link exchange program, optimizing your website, relationships, search engine optimization, seo, website content, website search engines

Law Firm SEO – Here we go again… So I’ve been learning all about SEO over the past little while, the tricks and tips.  In addition to what I’ve already mentioned about Law Firm SEO, here are 10 more things you should know that will help improve your organic search engine rankings for your particular keywords (by organic, I am referring to the search results that occur after paid Google ads are displayed):

1. Permalinks: these are permanent links or URLs that points to a specific blog or forum entry after it has passed from the front page to the archives.  You should make sure that you change default links to your specific blog or forum (which may simply contain alpha numeric characters) to permalinks that incorporate your title.
2. Blog Tags: these are keywords and terms that will help describe your page or blog for search engine users to find.  Make sure to fill your website and blog with relevant and popular tags.
3. Related Links: put up links adjacent to your content to encourage users to visit other pages, blogs, etc.  This is great for SEO because search engines love lots of deep linking within websites.
4. Links to other websites: linking to good quality websites will not only make your website a ‘go to’ portal on a particular topic, but it will also create trust among industry players and search engines.
5. No Broken Pages: search engines hate broken pages / URLs and will punish your website if there are page errors, etc.
6. Share Backlinks: allow other websites to link to your page by filling out a form.  When they do so, you will be automatically notified and then you can do the same.  Backlinks are the relationships that search engines use to determine if your website is a good one.  The more good quality backlinks you have, the better.
7. Update Frequently: search engines love to see frequently updated content (because it’s more likely to be relevant to those who are searching for the content).
8. Use ALT Tags for pictures: although search engines cannot see or index the images or words that appear in images, if you describe your images using an ALT tag (which displays when you hover your mouse over an image), then search engines can read those images.
9. Tag your keywords: you should be using tags such as header tags (e.g. H1 through to H6, etc.) to characterize your keywords, as well as bold, italics, and underline.
10. Keep learning and strategizing: there’s always some new way to improve your Google rankings and you should never stop learning about them to take advantage (and leave your competitors wondering how you got on p. 1 of Google for your specific keywords).

Happy SEOing!

written by admin \\ tags: ads, alpha numeric characters, backlinks, blog, competitor, content, deep linking, forum entry, front page, google, keywords, law firm search engine optimization, law firm seo, law seo, lawyer seo, rankings, relationships, search engine rankings, search engine users, search engines, seo, titles, urls

Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to how to write a will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

In this blog, I’ll discuss whether a person needs a lawyer to prepare their will.  The simple answer is no.  The longer answer is: it’s probably in your best interests to have a wills and estates lawyer to draft and/or review your will.

There are only a few things that are needed in order for a will to be valid, binding, and of full legal force and effect.  But if you don’t do these basic things properly, the will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc. (you get the point).

First, in Ontario, for a will to be valid, it must be in writing.  So says the Law Reform Succession Act.  The testator (i.e. the person making the will) must also sign the will before two witnesses, who must also acknowledge that this was done (in the presence of the testator).   The testator’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the will.  Neither of the witnesses can be beneficiaries (and this has been used to challenge wills before).  I say again:beneficiaries under the will must never witness the testator’s signature. While there may be other requirements for a will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the will as litigation-proof as possible.

First, a lawyer will deal with the issue of capacity – i.e. does the testator have sufficient mental capacity to enter into the will.  Does the testator understand the nature and consequences of the will or is their mentality affected by illness, age, etc.?

Next, a lawyer will try to make sure that the testator is not entering the will as a result of some duress or improper or undue influence from an external force.  The testator must enter the will voluntarily or else the will may be later contested.

Next, a lawyer will strive to ensure that all of the information-gathering is completed and due diligence has been conducted with respect to the testator’s income, assets, liabilities, and instructions.

Finally, a lawyer will use the appropriate language and precedents to give clear effect to the testator’s wishes and instructions.

For these reasons, it’s generally advisable to contact a lawyer (e.g. by making a post on Dynamic Lawyers) when you need to write or update your will.

written by admin \\ tags: beneficiaries, concluding words, consequences, do I need ato write a will, educational purposes, how to make a will, how to write a will, lawyer, lawyers, legal advice, litigation, mentality, professional assistance, proof, relationships, signature, simple answer, succession act, testator, thousands of dollars, two witnesses, will and testament, Wills and Estates, writing a will

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 deciding which business structure is best for you, then you are encouraged to seek a professional (e.g. make a post on Dynamic Lawyers).

In this blog, I’ll be discussing general partnerships, which can be distinguished from limited liability partnerships (discussed in another blog)

Defined
Ontario’s Partnership Act governs general partnerships. A general partnership is “the relation that subsists between persons carrying on a business in common with a view to profit”. Here, the word “business” includes “every trade, occupation and profession”.  You may need to consult with a lawyer to determine if you’re already involved in a partnership (without even realizing it!).  In these situations, you may be subject to the Ontario’s Partnership Act and other legislation.

Advantages
The partnership structure offers the advantage of having someone to brainstorm your cases with, share the expenses, and expand your database of clients. Partnerships typically generate a great deal more money than sole practices. The larger the law firm, the more likely it is that a practitioner will be handling large cases for large clients who generate large legal fees (see Judge William Huss, Start Your Own Law Firm: A guide to all the things they don’t teach in law school about starting your own firm, (Illinois, U.S.A.: Sphinx Publishing, An Imprint of Sourcebooks, Inc., 2005), p. 14)

Felicia S. Folk points out the advantages of the general partnership in Getting Started: Opening Your Law Office (updated September 2004), Law Society of British Columbia, p. 6: online: Law Society of British Columbia:

• shared financial risk;
• continuity of cash flow when you are on vacation or ill;
• additional sources of capital and clients;
• broader management base;
• division of labour;
• ability to discuss all files with your partner;
• ability to provide clients with different areas of expertise; and
• sharing cost of associates and support staff.

Disadvantages
Felicia S. Folk points out the disadvantages of the general partnership in Getting Started: Opening Your Law Office (updated September 2004), Law Society of British Columbia, p. 6: online: Law Society of British Columbia:

• divided authority;
• hard to find suitable partners;
• conflicts among partners;
• liability for partners’ actions; and
• less freedom to choose clients.

Ease of Creation
Ontario’s Business Names Act provides that “[n]o persons associated in partnership shall carry on business or identify themselves to the public unless the firm name of the partnership is registered by all of the partners”. In addition to registering the general partnership’s name in the same manner as a sole proprietorship’s, the partners will generally enter into a partnership agreement to modify the default rules prescribed by the Partnership Act. This partnership agreement will usually outline the relationship of the partners to each other and to third parties.  The partnership agreement will also deal with issues such as “term of the agreement, names of the partners, who owns which of the assets, name of the partnership and who owns the name, capital contributions if any, how profits are to be shared, how the partnership is to be managed, how holidays and illnesses are to be handled, liabilities and disability insurance, admission and withdrawal of partners, how the partnership is to be run and conditions and mechanics for dissolution of the partnership” (Wendy E. Oughtred, Going It Alone: A Start Up Guide for the Sole Practitioner, (Aurora, Canada: Canada Law Book Inc., 1995), p. 51.)

The partners must also establish standards for fee distribution within the firm, including the means of rewarding lawyers for bringing business ot the firm, as well as the lawyers who actually work on cases (Judge William Huss, Start Your Own Law Firm: A guide to all the things they don’t teach in law school about starting your own firm, (Illinois, U.S.A.: Sphinx Publishing, An Imprint of Sourcebooks, Inc., 2005), p. 18).

Continuity
Unless the partnership agreement provides otherwise, a general  partnership can be dissolved in a number of ways, including:

• At the expiration of the partnership’s term, adventure, or undertaking (if specified);
• By the death or insolvency of any of the partners;
• By the happening of an event which makes it illegal for the partnership to continue; and
• On application by a partner in respect of prescribed circumstances.

Liability
In a general partnership, all partners are jointly and severally responsible for the liabilities of the partnership up to the total value of their personal assets.

Taxation
A general partnership is a flow-through entity, which means that income earned by the partnership is passed onto the partners without being taxed at the partnership level. If a partnership earns dividend income, taxable capital gains, or realizes a business loss, these sources would be received as dividend income, taxable capital gains, or business losses in the hands of the partners. The income, losses, and tax credits of the firm is first  determined and then allotted to the individual partners in accordance with their equity interest in the partnership (as per the partnership agreement). The income earned by the individual partners will be fully taxed at their personal income tax rate. The fiscal year end of the partnership will be same as the individual partners – namely, December 31st of each year.

written by admin \\ tags: advantages of business structure, association, associations, best legal structure, blog, continuings, general legal structure, insolvency, judges, lawyer, lawyers, losses, money, partnership, practitioner, publicity, relationships

The Do’s

As a family lawyer I’ve seen lots of families work to adjust to a new life with two households. It’s hard for everyone but kids really need help to adjust to their new reality. Here are 11 do’s and don’ts that you can use to help your kids adjust:

1. Do take care of yourself! This is the most important tip for you. Divorce is hard; it is easy to let good habits slide. Make yourself eat well, try to get enough sleep, and call a friend to schedule something fun to do. Better yet, call 3 friends and schedule 3 fun things to do.

2. Do encourage your kids to love your former partner and encourage their relationship with him or her, no matter how difficult that is. Kids want contact and love from both of their parents. Prompt them to call him or her and let them have a decent amount of time with him or her, including precious holiday time so they can see their grandparents, aunts, uncles and cousins from the other side of the family.

3. Do reassure your kids that they are not to blame. Sometimes kids feel responsible for the family breakdown. Also explain that while adult love may die, your love for them will not die.

4. Do live close to your ex if at all possible. You may wish the ex would move to Timbuktu so that you’d never see him or her again, but the exact opposite is what’s best for your kids. If they forget their homework or their skates or their favourite sweater, this can be a big problem if you live far apart or even across town. But if you live a couple of blocks apart, it’s easy for them (or you) to pop over and pick up the forgotten item. It also means that if the kids want to come say hi to you when they are with the other parent, it’s no big deal. They can just ride their bike over for a few minutes. It’s hard to overstate how good it is for kids to have ease of movement between their homes.

5. Do maintain basic communication with your ex-spouse. It teaches your kids a lot about being civil even in difficult circumstances and it will make your life easier. Some basic examples:

• It makes organizing access and coordinating schedule changes much easier if you can email or phone each other
• It helps you coordinate gift-giving. If you’re not talking to your ex, odds are pretty high you’ll both give one of the kids the same gift at Christmas or on a birthday
• It prevents the kids from playing the two of you off against each other
• It makes it easier to ask for a favour when you need it. And you will need them when you’re sick, have a family emergency, need to travel for business, want to go to your high school reunion or – here’s hoping – want to go on a romantic get-away with a new love.

6. Do spend special time alone with each child. Creating these happy moments and memories is especially precious to them when their family is breaking up.

And now the don’ts:

7. Don’t let your kids hear you criticizing their other parent. They will feel conflicted and, eventually, very resentful if you criticize someone they love. If you need to vent, take it to your adult friends when the kids can’t hear.

8. Don’t press your kids for information about what goes on when they are with your ex. That is their time with him or her. If they want to tell you about it they will but otherwise let them enjoy their relationship without feeling like you are scrutinizing it.

9. Don’t use your kids as confidants and don’t let your kids become your caregiver. Divorce is hard; when you need help, ask the adults in your life. And remember – most people like to help.

10. Don’t ask your children how they want to divide their holidays, how much they want to see their other parent or any other question that forces them to choose between their parents . You and your ex are the parents; it’s your job to make those decisions.

11. And finally, don’t over-indulge your kids. This may be tempting because of guilt about the separation or because an unhealthy competition develops with your ex-spouse about who has the best toys or who takes the kids on the best trips. Don’t fall into this trap. Kids need limits.

It may be hard to do all this but if you try, your kids will benefit. Good luck!

written by Ingrid van Weert \\ tags: adjusting to separation and divorce, family, Family Law, lawyers, opposition, parents, relationships, separation

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

Unbundled legal services are the new big thing in the U.S., and I’m sure it’s going to creep up here too (if it hasn’t already).

Basically, the term “unbundled” means breaking down something complex into smaller and simpler components.

Take, for example, incorporating your business.  Incorporating generally involves preparing and filing articles of incorporation with the appropriate government institution (e.g. Ontario Ministry of Consumer and Business Services).  But incorporating also requires the drafting and passing of corporate by-laws, director/shareholder resolutions, and minutes.  So unbundled legal services for incorporating could involve one of these services rather than the full gamut; making sure that everything is in order would be up to the client, not the lawyer (who is on a limited retainer).

The benefits to unbundled legal services are quite evident: lower costs and more ownership over decision-making for clients.   Hourly rates are exchanged with fixed rates, thereby giving the client certainty and comfort over the cost of legal services.  For lawyers, it makes their services (albeit in limited fashion) more accessible to a larger market. Not all lawyers will be able/willing to offer unbundled legal services.  Most likely, those lawyers involved in high volume, transactional work will be better prepared to offer it as opposed to lawyers who have long-term relationships (e.g. involving litigation) with their clients.

The disadvantages to unbundled legal services are also obvious: given their lack of knowledge, skills, and experiences with the entire legal process, clients may make costly mistakes.   Documents may not be properly filled out or filed if clients try to do it all themselves.  Clients may also end up doing more harm to their case by being ill-prepared and presenting a poor case before a judicial authority.

Overall, there’s no denying that unbundled legal services may end up being at the forefront of new trends for the masses who cannot otherwise afford to hire a full fledged lawyer to represent them.

written by admin \\ tags: lawyer, lawyers, litigants, litigation, relationships, retainers, self-represented, shareholders, unbundled legal services, unbundling, unrepresented