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Contract Disputes – Find out Your Legal Rights

Contract Disputes – Find out Your Legal Rights

Posted by on Dec 8, 2016 in blogs | 0 comments

Every day people enter verbal agreements. They often do so without awareness of the risks involved. Commercial reality can make it expensive or inconvenient to have lawyers review every agreement. Even when agreements are written, it is not uncommon for people to overlook the fine print and be unpleasantly surprised. A vast quantity of cases end up in our court system because parties have not been diligent and did not draft agreements that work in their favour or cover all anticipated outcomes. Conflicts arise because some terms are unwritten and the full expectations of parties are not codified. It is always best to be thorough. It is always better to draft terms for all of ones expectations rather than leaving agreements open to interpretation. To make a valid contract, people should be aware of the following. Firstly, contracts should be in writing; they should contain what is being offered and the conditions of acceptance. Secondly, contracts should be signed by parties in the presence of witnesses. Thirdly, contracts should be accompanied by consideration – that is to say, a benefit must be exchanged by the parties in addition to the signing of the agreement. Lastly, parties should have independent legal representation so that claims of duress, undue influence or unconscionability can be circumvented. Agreements entered with friends and relatives can  benefit from the formal conditions referred to above. This is because people’s expectations can change over time and disputes over agreements can destroy relationships. In some ways, it is careless to enter agreements with people close to you without respecting the formal conditions above. Human nature being what it is, however, people will continue to enter informal agreements as they have since time immemorial. They will continue to be disappointed by expectations and will the need for lawyers to navigate their disputes remains. At David H. Nuri, Barrister & Solicitor, we litigate your contract disputes through negotiation, arbitration and the courts. We help you secure your expectations. Please visit our website at www.nurilaw.ca or call David H. Nuri, Barrister and Solicitor at (416) 323-5092 to find out more about your contractual legal rights. Contact us Today! The information contained...

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Cohabitation and Common Law Couples

Cohabitation and Common Law Couples

Posted by on Oct 27, 2016 in blogs | 0 comments

What does it mean to cohabit? To cohabit means “to live together in a conjugal relationship, whether it be within or outside of marriage.” In Ontario, this includes same sex couples. To be considered a common law spouse in this province, you must either live together for 3 years or be in a relationship of some permanence where the parties are natural or adoptive parents of a child. It is important to note that you do not necessarily need continuous daily cohabitation to be considered a common law spouse (Campbell v Szoke, 45 R.F.L. (5th) 261 (Ont. C.A.)). You can have separate residences and still be considered a common law spouse. Of the many differences between married couples and common law couples, the most pronounced is the statutory rights regarding property that are afforded to married couples but are withheld from common law spouses.  Ontario’s Family Law Act does not extend property rights to common law spouses. So then, what property rights do I have? Although property rights are not extended to common law couples under the Family Law Act, common law couples do have remedies under the law of resulting trusts and constructive trusts. For a member of a common law couple to make a claim relating to property based on the law of trusts, they must be able to show the following three things: that the Defendant has been enriched; that they have suffered a related deprivation; and that there is an absence of a juristic reason for this enrichment. So what does this mean? Lets take the example of Kelly and John. Let us assume that Kelly and John have lived together for 10 years. Kelly owns a home. Throughout their years together, John helps pay bills, takes out a loan and makes some of the mortgage payments, uses his own money to repair sections of the house, and contributes to the upkeep of the property.  After 10 years the parties separate. Upon doing so, John brings a claim in the Ontario Superior Court of Justice for a monetary award because: Kelly’s property increased in valued over the past 10 years; John contributed extensively to that...

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Entitlement to Spousal Support

Entitlement to Spousal Support

Posted by on Oct 19, 2016 in blogs | 0 comments

Am I entitled to Spousal Support? As a divorced or separated spouse in Ontario, you may be entitled to spousal support depending on your particular financial situation and the circumstances of your relationship. There are two pieces of legislation in Ontario that govern the concept of spousal support. The Divorce Act acts as the relevant legislation for spousal support pertaining to legally married couples about to obtain or who have already been granted a divorce. Alternatively, the Family Law Act applies to couples who have been legally married, but are opting for separation rather than divorce, and common law couples who have cohabited for three years and/or have children. However, irrespective of the applicable legislation in your case, it must be emphasized that entitlement to spousal support is not automatically assumed based solely on satisfying the definition of “spouse”. The present article will briefly outline the legal principles that underpin spousal support and its related issue of entitlement, with an examination of relevant case law. Guiding Principles for Entitlement Entitlement to support is an inquiry that is made prior to looking at quantum and duration (an area that is not the subject of this paper).  Quantum and duration of support is determined by the Spousal Support Advisor Guidelines and in day to day practice, is largely arrived at with the help of support calculating software. Generally, when looking at spousal support, courts are expected to consider the length of the relationship, the parties’ present financial situations, and the familial roles that were undertaken while together. The purpose of support is recognize economic advantages and disadvantages that flow from the marriage and its breakdown; to apportion between the spouses the financial consequences of caring for children; to relieve economic hardships from the breakdown of the marriage; and to promote the self-sufficiency of each spouse. In the case of Bracklow v. Bracklow, [1999] S.C.J. No. 14, the Supreme Court of Canada used these overarching principles to establish three basis for entitlement to support: contractual, compensatory, or non-compensatory. With a contractual basis for support, a court can determine entitlement if any agreements, whether implied or express, between the parties created or negated...

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Importance of Financial Disclosure

Importance of Financial Disclosure

Posted by on Jul 25, 2016 in blogs | 0 comments

Financial Disclosure In family law proceedings, timely and accurate financial disclosure is important to achieve a fair, cost-effective, and lasting result. Without accurate financial disclosure by both parties, resolution is delayed and cost of litigation is needlessly increased. Accurate disclosure is significant. Under the Family Law Act, if a couple reach an agreement that is later discovered to have been entered under inaccurate disclosure, that agreement can be set aside. The article provides a brief overview of financial disclosure, why it is important, and the potential costs of inadequate disclosure to you, the family law litigant. Rule 13 of the Family Law Rules In Ontario, the Family Law Rules (Rules) were designed to ensure that parties provide prompt and comprehensive disclosure well in advance of a proceeding. The Rules were designed so that such disclosure was updated regularly. On May 2, 2015, amendments were made to the Rules to provide for additional requirements for financial disclosure. Rule 13 guides parties in determining what information must be given in claims for property and support. At a minimum, expect in a family law proceeding to do the following: to complete a Form 13/13.1, to provide your most recent pay stub, to provide your three most recent Notice of Assessments, and to provide your three most recent Income Tax Returns. Although not required under the Rules, expect that you may be asked to back-up your financial statements with bank statements, credit card statements, proofs of ownership, and appraisals. If you are a business owner or a high net worth individual, consider retaining an accountant to determine the values of shares, securities, debentures and other debts and assets. You may be asked to produce such reports throughout the process of litigation. Duties Regarding Financial Disclosure It cannot be stressed enough that full and open financial disclosure is explicitly required under the Family Law Rules. If you believe that your former partner’s financial statement is incomplete or does not contain sufficient information, you can ask that party to provide the additional information if it is necessary. If they do not provide such information within seven (7) days, you can bring a motion compelling them...

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An Introduction to Custody and Access

An Introduction to Custody and Access

Posted by on Jun 23, 2016 in blogs | 0 comments

Child Custody and Access If you have a child and experience separation from the parent of the child, it is important you consider the issue of custody and access.  Custody is not only important because it determines who acts as the child’s primary caregiver, it also determines who pays child support. If you want to apply to a court to have your custody and access issues determined there are several things you must consider. Which court? What law? The first issue to consider is your marriage status and the right venue at which to commence your application.  If you are married to the parent of the child, you can apply under the Divorce Act or Children’s Law Reform Act at the Superior Court of Justice or under the Children’s Law Reform Act at the Ontario Court of Justice. If you are not married, then you cannot apply for custody or access under the Divorce Act and are therefore likely to file your application under the Children’s Law Reform Act at the Ontario Court of Justice. Am I entitled to apply? Now that you know which law governs your dispute and at which court you must file your application, consider whether you are even entitled to apply for custody or access. Under the Divorce Act you can apply for custody or access of a “child of the marriage”. A child of the marriage is a child of two spouses or former spouses, who at the time of the application (a) is not a child that is married; (b) is a child that is under the age of majority and has not withdrawn from parental care; or (c) is a child that is the age of majority or over, but is still in the care and control of a parent because he/she is unable to be independent because of illness, disability or a compelling reason. If you apply under the Children’s Law Reform Act, then the rules are more relaxed. You can apply for custody or access as a biological parent, as a step-parent, or as a grandparent of a child.  You can even file for custody or access if you...

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