January 4th, 2014 — Family
Ontario family laws provide certain legal rights to you and your spouse once you are married. These include the following:
- -the value of the property you acquired during the marriage will be divided in half
- -the increase in the value of the property you brought into the marriage will be divided in half (with some exceptions)
- -both husband and wife have an equal right to stay in the matrimonial home
- -you may be entitled to financial support from your spouse for you and your children upon the end of a marriage
- -upon marriage, your existing will is revoked
September 11th, 2013 — Family
Family law is very specialized and requires the expertise of a Family Law lawyer in order to understand the various laws and regulations governing it. The courts address family law issues such as:
- Divorce and separation
- Child custody and access
- Spousal Support
- Child Support
- Division or equalization of family property
- Treatment of the matrimonial home
- Enforcement of support payments
- Child protection applications
Top Ten Reasons Why You Need a Will
Surprisingly, many people do not have a will. Here’s a list of the top ten reason why you need a will:
1) Appointing an executor: A will allows you to appoint an executor who is responsible for carrying out the intentions in your will. You can appoint an individual (or individuals) that you trust so that you can feel comfortable that your assets will be handled as you wish as opposed to leaving this to the government.
2) Guardianship/Trustee for your children: A will allows you to address the issue of guardianship or a trustee for your children so you have peace of mine in the event anything should happen to you (and your spouse), the legal guardians. Once again, this avoids leavings your children in a precarious situation of being at the mercy of the government.
3) Funeral Arrangements: You can plan your funeral arrangements so that your family does not have to deal with this burden when they are already grieving. They aren’t left confused and burdened with whether you wanted a burial or cremation.
4) Funerals Costs: You don’t leave your family with the burden of the costs to pay for your funeral.
5) Personal Care directives: You can also address health care directives in your will which outline what medical interventions you would like on certain conditions in the event you are unable to communicate. This issue is also often addressed in a power of attorney for personal care which Jane Harvey law firm can help you with.
6) Division of Physical Assets: Important personal items such as paintings and jewellery can also be addressed avoiding any family friction as to who gets what.
7) Property Assets: A will permits you to address how your property will be distributed or divided amongst your heirs especially if you own more than one property.
8) Education/Tuition: A will allows you to set aside certain funds for tuition/education for your children before your assets are distributed.
9) Naming Beneficiaries: With a will, your assets are distributed to the people you want them to go to and not left up to the government to decide. It’s a very complicated process for your spouse and loved ones to get their hands on your assets without a will.
10) Charities: You can leave certain dispositions of money to a charity of your choice.
At Jane Harvey Lawyers, we can help you with your will at a very affordable price. Contact us now to get started.
The Courts in Ontario are faced with a backlog of cases that is only getting longer. The result is that courts are being booked months in advanced and simply cannot cope with the onslaught of cases. In order to limit some the most frivolous of lawsuits from being brought to court, the Ontario government has given judges a new power to declare a litigant vexatious.
A vexatious litigant will have to get court approval before any new action can be filed with the court. A vexatious litigant faces significant hurdles in order to bring any new actions. On the one hand, this is an extraordinary power that severely limits an individuals ability to bring claims to court. On the other hand, this is an essential power that the court needs to limit the most egregious situations.
Because the power is so restrictive, the courts generally do not apply the designation unless it is clearly needed. One example is the case of William Malamas who spent 25 years suing various lawyers for fraud, breach of fiduciary duty and many more claims. The Ontario Court of Appeal affirmed the vexatious litigant designation for Mr. Malamas and ordered him to pay over $60,000 in costs. Mr. Malamas’ case illustrates the extraordinary lengths that a litigant must go to before they will be declared vexatious.
With the vexatious litigant power, the Ontario courts have an extraordinary power to limits access to the courts. They will only use it in rare occasions where the facts clearly show a need.
If you have questions about civil litigation or believe that an action is vexatious, you should contact a trained legal professional. They have the expertise to help you navigate through the court system and ensure a successful result.
The Rules of Civil Procedure govern the procedure for starting a civil law suit in Ontario. This is any legal proceedings between two or more private persons (including corporations). Every lawyer who practices civil litigation will have a copy of the rules in their office. There are dozens of rules with hundreds of sub-rules that govern every aspect of a trial and the process leading up to it. The rules are designed to achieve a fair process through technical requirements. The process is typically long and expensive.
In 2010, the Ontario government introduced a new rule designed to make the process faster and cheaper for any civil law suit claims under $100,000. The simplified procedure, as it was called, eliminates many of the requirements concerning discovery and procedure. This streamlined process provides litigants with an efficient mechanism for resolving their claims.
The important elements of the simplified procedure are:
- The is no discovery or cross-examination
- There is automatic dismissal for delay
- There is a lower threshold for summary judgment
Litigants should be aware that the simplified procedure is mandatory for any action for less than $100,000. Failure to comply with the rule will result in cost consequences. This is designed to streamline the court system so that small claims do not clog up the system. Litigants should also be aware that the simplified procedure does not apply to class proceedings, construction lien actions, case managed actions, family law actions, small claims court actions and applications to the court. A claim under the simplified procedure can be filed with the Superior Court of Justice.
If you feel that you have a claim under the simplified procedure you should seek legal advice from a lawyer who practice civil litigation. They are experts on the rules of civil procedure and can help you resolve your claim in a timely and cost effective manner.
Anyone who thinks that they may have a claim should be wary of the relevant limitation period in bringing that claim. The Limitations Act imposes restrictions on the period of time after which a claim cannot be advanced. This legislation has undergone significant changes over time and has a number of exceptions that go beyond the scope of a simple blog posting. If you believe you have a claim, you should seek legal advice as soon as possible in order to avoid running afoul of the appropriate limitation period.
The following are some general guidelines only and not to be construed or interpreted as a limitation period in your case without consulting a lawyer first. Generally speaking the basic limitation period in Ontario is two years for things like torts and simple contracts. The two years begins to run when the potential claim is discovered or ought to be discovered. This is somewhat vague and can confuse a number of people. Particularly, the time when a claim ought to have been discovered can be difficult to determine. The court will look at the facts through an objective perspective to determine what is reasonable under the circumstances. That is to say, discoverability can be debatable.
In Family actions/applications, the equalization of net family property is 2 years after divorce, 6 years after separation and 6 months after death of a spouse (see Family Law Act, s. 7(3). When it comes to spousal support, there is no limitation period,Family Law Act, s. 50. In estate matters, the limitation period is 2 years for executors and administrators, Trustee Act, s. 38.
There is also the “Ultimate Limitation Period” which is the 15 year limitation period in Ontario. This is a catch all that prevents claims from being advanced 15 years after the act or omission (subject to certain exceptions which include age of minority and incapacity), Limitations Act, 2002, s.15. This ultimate limitation does not depend on whether the claim was discoverable or not. It is as simple as counting 15 years from the date of the act or omission in order to see if a claim can still be advanced.
There are a number of exceptions to the limitation periods that can extend the period in which a person can advance a claim. Certain claims have no limitation period, such as family law claims for support or for the Crown to recover taxes and penalties. There are also specific statutory limitation periods that are not under the Limitations Act. These include construction lien claims, Securities Act claims and many more.
Limitation periods are important considerations when a person is considering making a claim. There are a number of statutes that overlap and impose limitations above and beyond what the Limitations Act itself imposes. The act has multiple rules that must be considered. These issues are complex and involve significant legal expertise.
If you feel that you have a possible claim, you should be aware that there may be limits on when you can bring a claim. The sooner you seek legal advice the sooner you can determine the best course of action. By consulting a lawyer, you can get the appropriate advice in order to preserve and possibly advance you claims before time runs out.
July 20th, 2013 — Family
One of the most basic elements of family law in Ontario is the distinction between custody and access. However, many people still don’t understand the fundamental difference between the two concepts. This blog post will address the distinctions between custody and access as they relate to the children of a couple after separation.
Custody, in its most basic form, is the decision making power over the child. This can be anything from decisions on what school the child will attend to more mundane day to day decisions. Custody gives the parent legal authority to make decisions. There are two basic types of custody arrangements. Sole custody, as the name suggests, is when only one parent has custodial powers. Joint custody is when both parents have custody. Finally, shared custody is the last type of custody arrangement. A shared custody situation will give both parents custodial powers but their spheres of power will be much more defined. Shared custody is often used in situations where sole custody is not appropriate and the parents do not communicate well enough to have joint custody.
Access is the ability to spend time with the child but it does not give any legal decision making power. A custodial parent has access through their custody but a non-custodial parent must have an access order or access agreement. As with custody, there are many different types of access. An access parent will typically be entitled to information about their child such as their health, well-being, and education. It is relatively rare for a non-custodial parent to be completely denied access. In typical sole custody arrangements, an access order will allow the non-custodial parent ample access to their child.
Increasingly the courts and family law lawyers are moving away from the rigid distinctions between access and custody. Court orders may not even address these issues formally, preferring to let the parents to make the appropriate arrangements. However, in some instances, such as applying for a passport, the legal distinctions between access and custody play an important role.
If you are currently faced with child custody or access problems you should seek legal advice from a lawyer. An experienced family law lawyer will be able to resolve your legal issues in an efficient and effective manner. You can contact us and call us at (416) 961-1981.