Author: Mark-John

10 Tips to Consider When Preparing for Family Mediation

/ Mark-John

Family Mediation is a useful tool to resolve a variety of family disputes without having to adopt the adversarial and costly processes of the traditional court system.

It is the process by which a neutral third party, the “Family Mediator,” assists people to resolve their dispute and reach a voluntary settlement of matters of issue between them relating to their marriage, cohabitation, separation, or divorce.

Consider the following 10 tips when preparing for family mediation to ensure you reap the most benefit out of this approach:

1. Agreement Between the Parties

One of the essential steps when considering family mediation is ensuring that the other party is amenable to accept such an approach.

While the benefits of mediation are extensive, the other party may not wish to commence mediation to resolve the family disputes.

It is advisable to encourage them to read more about the process of mediation before giving a firm answer.

2. Know Your Issues to Settle and Goals to Meet

As mentioned above, family mediation is used to come to voluntary settlements in family matters such as separation, divorce, cohabitation, and marriage.

Other issues include communication issues between the parties, spousal support, child support, division of property, child custody, etc.

To ensure that all your issues to discuss and your goals to achieve are covered in mediation, it is a good idea to write them down.

This will ensure that nothing is left out or forgotten during mediation, thus, resulting in a complete and satisfying settlement.

3. Select a Family Mediator

Selecting a family mediator is an important consideration to ensure that all parties involved have a successful experience.

Begin by making a list of potential mediators and then setting up a quick phone call or a meeting with them to discuss your family matter.

While it is an advantage to select a mediator that you like, know that mediators are an impartial third party who do not choose sides. They are trained professionals to assist the parties in understanding each others’ perspectives and reach a settlement.

4. Gather Relevant Documents

To get a head start in mediation, gather the relevant information that pertains to your list of issues and goals.

For example, if the main issue during mediation is division of family property, it is a good idea to bring financial statements, credit card statements, loan statements, and other relevant documents to your mediation session.

5. Meet with the Mediator Separately

An important element of mediation is for both parties to meet (separately) with the mediator before the first session.

This assists the mediator in getting to know the parties and pin down the primary issue(s) to discuss during the mediation session.

6. Present Your Position Effectively

Mediation is about presenting your position in a way that is clear and concise to the mediator as well as the other party.

If you are unable to explain your perspective, it will be difficult for you to achieve a desired settlement.

To avoid miscommunication, practice presenting your position in an effective manner before your mediation session.

7. Listen to the Other Party

Given that it may not be easy to pour your heart out in front of the other party and the mediator, listen carefully to the other party’s wishes and goals.

If you show respect and understanding towards their dialogue, it is likely that the other party will do the same when it is your turn to speak.

This approach will give maximum results while keeping the costs of the mediation low.

8. Be Receptive

In the course of mediation, you may be in disagreement with some things that are said and heard.

If both parties remained steadfast in their positions, reaching a settlement will be difficult.

Therefore, to obtain successful results, keep an open mind and try to understand the other party’s views.

This may enable the other party to try to understand your position, thus facilitating an agreement.

9. Put Your Agreement in Writing

Once an agreement is reached, the mediator may assist the parties to put it in writing. The parties may also get their lawyers to draft an agreement which reflects the settlement reached in mediation.

Whether an agreement is drafted by a mediator or a lawyer, it is a good idea to have one as, once signed by all parties, it can generally be enforced in courts.

10. Cost of Mediation

Lastly, depending on the number of issues to discuss in mediation, the cost of your mediation sessions can easily accumulate. It is important that you are realistic about your financial circumstances and choose a mediator that you can reasonably afford.

M.J. O’Nions, Lawyer & Mediator, is a qualified family law mediator and a family law lawyer who has many years of experience in resolving family disputes through mediation. Contact us at 604-449-7779 to find out if mediation is right for you.

10 Tips on How to Choose the Right Family Lawyer

/ Mark-John

Choosing the right family lawyer can be stressful and difficult. But with the following tips in mind, we hope that your process in selecting the right family law lawyer is made simpler:

1. Specialty

The prerequisite for finding the right family law attorney is a lawyer that specializes in family law. However, that does not mean that your selected family lawyer must only practice in the family law sector. In fact, you will find that most law firms are dedicated to many areas of law. But, in ensuring that a family law lawyer specializes in family law indicates that he/she is knowledgeable and up to date with the practice of family law.

2. Knowledge and Experience

The right family law lawyer will have the legal knowledge and expertise necessary to handle your family law matter throughout its development.

Do not be afraid to ask the lawyer the number of years they have been practicing in the area of family law for.

3. Convenience and Location

Finding a lawyer in your vicinity is a good idea as, at least in the beginning of your case, you will have to visit their office on several occasions.

These trips include going for initial consultations, intake interview, signing documents, discussing an issue with your lawyer in person, etc.

4. Make a List

Begin making a list of lawyers that practice in the area of family law.

To avoid becoming overwhelmed, limit your list to 3 to 5 lawyers based on their specialty and legal expertise.

5. Best Ratings Do not Equal Best Lawyer

While making your list of lawyers to meet, be wary of using a lawyer’s rating on the internet to determine their legal competence.

It may just be the case that the best rated family law counsel has a large advertising budget to play with while a lawyer with sub-par ratings may be one of the best lawyers you will meet.

Try to make your decision about a family lawyer’s legal aptitude only after either speaking to them or through meeting with them.

6. Call Before Making an Appointment

Keeping in mind that while many lawyers may not have the time to talk to new clients, try to set up a quick phone call with him/her to see whether you like their legal approach.

This step, however, should not be used to discount a lawyer’s legal skills based on a 2-minute phone conversation.

It is merely suggested to assist in excluding lawyers from your list that you believe will absolutely not work.

7. Initial Meeting, Personality, and Alternatives Provided

Your initial meeting with a family attorney is critical in determining whether that lawyer is the right family law lawyer for you.

This is an opportunity for you to evaluate the lawyer and determine whether you will be comfortable dealing with them with respect to your family law matter.

If you find yourself disliking the lawyer’s style and personality at the first instance, it is likely that you may find it difficult to establish an ongoing relationship with them.

In this case, you may wish to consider meeting with another attorney.

If, on the other hand, you are very pleased with their professionalism and competence, that most likely is the right family law lawyer for you.

Another important factor in choosing a right counsel is ensuring that he/she presents with options that do not just include litigation but that may also include mediation, collaborative law processes, and other alternative dispute resolution strategies that may be in your best interest.

8. Lawyer vs. Law Firm

If you believe that a law firm is right for you but the assigned lawyer is not, ask to be referred to a different lawyer at that firm.

If other lawyers at the firm are unavailable, you may also request the law office to refer you to a different lawyer.

9. Cost of Representation

For many of us, one of the major factors in choosing the right lawyer is to determine whether a lawyer’s hourly rate is affordable.

It is important that you are realistic about your financial circumstances and choose a lawyer that you can reasonably afford.

We, at M.J. O’Nions, Lawyer and Mediator, ensure you get the best possible service at a great price.

We understand the growing high cost of legal services and are dedicated to making legal services as affordable as possible.

10. It is Never too Late

If you are unhappy with your selected lawyer, it is best for you to look for a new one.

Dealing with your family law issue is stressful enough and your lawyer should be assisting in reducing that stress, not increasing it.

With over 20 years of experience, M.J. O’Nions, Lawyer & Mediator has the legal expertise and skills to assist you with any family law issue that you are facing. Contact us at 604-449-7779 to set up a consultation.

7 Legal Tips On Incorporating A Business

/ Mark-John

Before incorporating your business you may want to consider these seven legal tips.

  1. Before deciding to incorporate your business, consider whether it is the best option or whether your business would benefit more from another legal structure such as a proprietorship or partnership. Please Read our blog on the Benefits of Incorporating a Business.
  2. One of the considerations you will want to keep in mind when deciding whether to incorporate your business is income tax. Your business will be subject to different tax treatment depending on how it is structured. The tax treatment of corporations is often the biggest driver towards incorporation. Corporations often enjoy a lower tax rate then sole proprietorships. Other tax benefits to incorporating include tax deferral, income splitting, and the lifetime capital gains exemption on a sale of qualified small business corporation shares.
  3. You have the option of incorporating your business in British Columbia, federally, or in another province. Think about where you plan to carry on business. If you plan to carry on business in more than one province, you may want to incorporate federally under the Canada Business Corporations Act (CBCA). Registering your corporate name federally allows you to carry on business under that name in any province.
  4. Choose a unique name for your corporation. A company name must have a distinctive element, a descriptive element, and a corporate designation (i.e. “Limited”, “Limitée”, “Incorporated”, “Incorporee” or “Corporation” or the abbreviations “Ltd.”, “Ltée.”, “Inc.” or “Corp.”). Before registering your corporation, you must run a name search to make sure that name is not already in use. Note that this differs from a trade mark, which is a combination of letters, words, sounds or designs that distinguishes the company’s goods or services from others. A trade mark is registered separately from the corporation’s name and doing so will give you exclusive rights to use the trade mark throughout Canada for 15 years (a term that you can renew).
  5. Who will be the director of your corporation and how many directors will there be? You should consult the governing legislation in your jurisdiction, as most place certain restrictions on who can act as director. For example, the CBCA requires that at minimum, 25% of the directors are residents of Canada. The British Columbia Business Corporation Act does not have a residency requirement.
  6. While there is no requirement to execute a shareholders’ agreement when incorporating a business, you may find it beneficial to have one in place. A shareholders’ agreement is recommended where there are multiple shareholders involved in the financing and day-to-day management of the company. The agreement lays out the relationship between shareholders and can protect minority shareholders’ interests, while also protecting majority shareholders from oppression claims from minority shareholders.
  7. Get familiar with the rights and obligations of your shareholders. They do not directly own the business or its assets, although their shares do give them certain rights with respect to the corporation, such as voting on resolutions. The nature of the shareholders’ rights will depend on the articles of the corporation and shareholders’ agreement, where there is one.

For a low flat fee, M.J. O’Nions, Lawyer & Mediator can incorporate your business for you and advise on how to structure your new corporation to keep costs and taxes at a minimum and prevent future disputes between shareholders. Please contact us at 604-449-7779 for assistance with incorporating your business.

5 Legal Tips on How to Start a Business Partnership

/ Mark-John

If you are interested in forming a business partnership, please review our five legal tips on how to form a business partnership below:

1. Begin by assessing whether a partnership is the best way to structure your business.

One of the principal benefits of a partnership is that it allows you to pool resources together.

However, you should keep in mind that each partner is responsible for all debts and obligations of the business (with the exception of a limited partnership – see below).

Further, a partner may be found liable for the wrongs committed by other partners or the employees of the partnership if those wrongs were committed in the course of the business.

Other options available to your business are a proprietorship and incorporation. Read more about the different options for structuring your business here.

2. Consider entering a limited partnership.

In a limited partnership a single general partner operates the business and holds unlimited liability with respect to the business’ debts.

The general partner is supported by other “limited partners”, whose liability is limited to the amount of capital they contribute to the business.

3. Consider a limited liability partnership as an alternative to a limited partnership or general partnership.

It is similar to a limited partnership except that there is no single general partner with unlimited liability.

All partners have limited liability that matches their contributions to the business. In some provinces, only certain professionals can enter into a limited partnership.

There are no such restrictions under the British Columbia Business Corporations Act.

4. Be clear about how you are financing the partnership.

In some cases partners will provide equal contributions to the partnership.

However, in situations where there are unequal contributions, you may choose for this to be reflected in the share of earnings each partner is entitled once the business turns a profit.

5. Partnership agreements can be beneficial.

While there is no legal requirement that you execute a partnership agreement, you may find it beneficial to have one in place, as it provides greater certainty to each party about their rights and responsibilities with respect to the partnership.

Read more about partnership agreements here.

With years of experience M.J. O’Nions, Lawyer & Mediator can help you set up your partnership, register it, execute a partnership agreement and provide you with advice all along the way. Please contact us at 604-449-7779 for assistance with your partnership.

What Do Business Lawyers Do? Why Do I Need A Business Lawyer?

/ Mark-John

Thinking of setting up a business and not sure where to begin? Conferring with a business lawyer will most certainly make your process of setting up a business easier in the following ways:

Choosing a Business Structure:

One of the initial decisions of setting up a business is deciding whether you are setting it up as an individual, a partnership or a company. One may also be confused about which structure is appropriate in their circumstances. A business lawyer can not only suggest which business structure is appropriate in their client’s circumstances, but also go through the available choices of business structures and any liability issues associated with them. For example, if a person intends to carry a business alone, he/she may set up a business as a sole proprietorship or a company. Whereas, if a person intends to carry a business with 1 or more persons, then he/she may choose from a variety of business structures, namely general partnership, limited partnership, company and limited liability partnership.

Assisting with Incorporation:

Once a decision about an appropriate business structure is made, a business lawyer can then assist you with incorporating your business. Depending on your incorporating jurisdiction, there are many legal requirements to comply with, such as the number of directors that must reside in a given jurisdiction. A business lawyer will inform you of such legal requirements and ensure compliance.

You may also find it useful to discuss other topics with your lawyer, including the name requirements in your jurisdiction and whether you need to protect your name with a trademark. Other topics include understanding compliance with annual maintenance requirements and, if it is a corporation, duties of directors, partners and minority shareholders.

Advising on General and Specific Business Practices/Transactions:

Whether your business is small or large, you should seek assistance from a business lawyer on any matter relating to my business. The earlier the involvement of a lawyer however, the better it is as business lawyers can assist with due diligence, spotting legal issues before they arise and presenting possible solutions to those issues.

Acquiring or Selling a Business or its Assets:

Business lawyers play a critical role in assisting you with acquiring or selling shares of a corporation or a partnership or acquiring or selling assets of a business. The two ways to achieve such a sale or purchase is through a share purchase or an asset purchase agreement. Whether you are the buyer or the seller, a lawyer can assist with conducting due diligence in the transaction, negotiating on your behalf, and carefully draft the agreements to ensure they are reflective of your expectations.

Resolving Disputes:

A dispute can arise in the lifetime of a business among different individuals involved in that business or between other businesses that it deals with. A role of a lawyer in resolving a business dispute is strategic in that he/she will consider every option that is available to resolve that dispute efficiently including, litigation if necessary.

Drafting Contracts:

Business lawyers are equipped at reviewing and drafting contracts and agreements to ensure they accurately reflect the intentions of the parties. Such agreements include shareholders’ agreements, partnership agreements, sales contracts, employment agreements, non-disclosure agreements, sub-contractors’ agreements, financial agreements, etc.

Conclusion:

As mentioned earlier, involving a lawyer from the outset of your business will ensure that legal compliance with the incorporating jurisdiction is met, annual maintenance requirements of the business are adhered to, and any potential disputes are discovered and prevented as much as possible. However, engaging legal counsel at any point during business planning, completing a business transaction, or resolving a dispute is always an option that is available to businesses.

We hope this article helps answer your questions about the role of business lawyers and why you need one.

If you have further questions or need legal assistance with incorporation, or drafting a general business contract, partnership agreement, shareholders’ agreement or purchasing or selling a business, please do not hesitate to contact MJ O’Nions Lawyers & Mediators at 604-449-7779.

 

How to Incorporate a Small Business in British Columbia

/ Mark-John

Incorporating a small business can be done fairly quickly with the help of a lawyer. While there are a number of steps involved, M.J. O’Nions Lawyer & Mediator has streamlined the process so that from the time of the initial appointment with our firm, the incorporation can be completed within one day. The steps involved in incorporating a business generally are as follows:

Consider whether incorporating your company will help you meet your business goals or whether another business structure may be better suited, such as a proprietorship or general partnership.

1. Decide which jurisdiction you would like to incorporate under: British Columbia, federal or another province. This decision will depend primarily on where you plan on carrying on business and whether you will be carrying on business in more than one province.

2. Perform a corporate name search to ensure the name you want for your corporation is not already in use. Submit your name choice, along with two back-up choices to the Registrar of Companies for approval. A company name must have a distinctive element, a descriptive element, and a corporate designation (i.e. “Limited”, “Incorporated” or “Corporation” or the abbreviations “Ltd., “, “Inc.” or “Corp.”).

3. Decide on a share structure, including the number of shares to be issued in each class and the issue price per share. Issue share certificates and obtain written confirmation of payment for incorporator’s shares.

4. Select the director(s) and obtain written consent to act as director. The director will be responsible for overseeing the officers who are in charge of day-to-day operations and the corporation’s employees. The number and qualification of the directors should comply with the Business Corporations Act. Update the Register of Directors with the names and addresses of the newly appointed directors.

5. Draft an incorporation agreement, incorporation application, and notice of articles, and articles. The terms of such documents are typically fairly standard, however you may wish to make changes to provisions regarding quorums for general meetings, rules about notice and conduct of general and class meetings, rules relating to appointment or removal of directors, etc.

6. Draft the director’s resolutions and incorporator’s resolutions, which authorize the incorporation, and have them signed by the appropriate individuals.

7. Register the corporation with the Corporate Registry online.

8. Prepare a minute book that contains all company records that are required to be stored at the records office under s. 42 of the Business Corporations Act.

While the process for incorporating a company is streamlined, you will have to make a number of important decisions along the way about how you would like to structure your business.

Included in our flat fee, M.J. O’Nions, Lawyer & Mediator can advise you on how to make decisions that will benefit your small business in the long-term and encourage your business to grow. Please contact us at 604-449-7779 for assistance with incorporating your business.

How long do you have to be married to get spousal support?

/ Mark-John

Your entitlement to spousal support is dependent on several factors, including whether you are considered a spouse under the law. One is considered a spouse if he/she is:

  • Married; or
  • Unmarried but have lived together with his/her partner in a marriage like relationship for at least 2 years; or
  • Unmarried but have lived together with his/her partner in a marriage like relationship for less than 2 years but have a child together.

As a result, you could be entitled to spousal support if you have been married only for a short period of time. But, the longer you have been married, the more likely you are to receive a higher amount of spousal support and for a longer period of time. Moreover, one does not necessarily have to be married to get an order for spousal support – even living together for at least 2 years in a marriage like relationship can entitle one to spousal support.

The amount of spousal support you may be entitled to will depend on the length of your relationship, the difference between you and your ex-spouse’s incomes, whether your ex-spouse stayed home or worked outside the home during the relationship, whether there are children involved, etc. For an estimate of how much spousal support you may be entitled to, please visit our Spousal Support Calculator.  For a more accurate figure that takes into consideration your unique circumstances, we encourage you to contact our firm for a consultation.

Who qualifies for spousal support:

Generally speaking, courts are willing to make an order for spousal support to help equalize economic burden for the spouse who, for example, earned less during the relationship or forewent employment to take care of children. A financial need, as the courts recognize, is therefore important in the entitlement to spousal support, but at the same time, the courts encourage the spouse receiving spousal support to become self-sufficient in a reasonable period of time.

How is spousal support calculated?

Judges often refer to the Spousal Support Advisory Guidelines (SSAG) when determining the amount of spousal support to be paid, but are not bound to follow these guidelines. The SSAG is a great tool for both you and the court to figure out the amount you may be entitled to. To calculate your potential spousal support, you need your and your ex-spouse’s income, the length of your marriage and whether there are children involved.

How long can I receive spousal support for?

According to SSAG, you may be entitled to receive spousal support for a length that is either half or the whole length of your marriage-like relationship. For example, if you have been married for 10 years, you may be entitled to receive spousal support for 5 to 10 years. However, the amount is also dependant on age. If, for example, one is 60 years of age and has been married for 30 years, he/she may be entitled to support for an indefinite amount of time, that is for more than 30 years (or until the date of their death).

For a calculation of your spousal support entitlement, we suggest you seek advice from one of our experienced family law lawyers.

We hope this article “How long do you have to be married to get spousal support” helps answer your questions about spousal support. If you have further questions or need legal assistance with your divorce, separation, or getting an order for spousal support, please do not hesitate to contact MJ O’Nions Lawyers & Mediators at 604-449-7779.

What is a Prenuptial or a Marriage Agreement?

/ Mark-John

A “Prenuptial Agreement” or “Marriage Agreement” is a written contract between two parties that addresses how matters such as division of family home, debts, and pensions, etc. are to be dealt with when parties separate or are divorced. A Prenuptial Agreement is generally used to refer to agreements that are made prior to couples marrying while Marriage Agreement could be used to refer to agreements that are made before or during the marriage.

A marriage agreement specifies how family property, such as real estate, and other possessions, such as household items and furnishings, are to be divided upon separation. How debts will be divided upon termination of the relationship is also detailed in a marriage agreement. Some couples may even choose to add clauses that detail how matters are handled during the marriage: for example, who the responsible party will be for the upkeep of the family residence and how utility bills (heating costs, electricity charges, etc.) are to be split between the parties. Whether a party will receive spousal support or “alimony” is also addressed in a marriage agreement.

How to Write a Prenuptial Agreement:

A major part of writing a prenuptial agreement is providing and sharing relevant information with each other. This includes sharing information about your financial accounts, assets and debts with your partner and which information is also written in the marriage agreement. If one of you does not provide full and true information to your spouse, the other spouse, upon separation, could challenge the agreement in court to get the family property and debt divided according to the law at that time.  Therefore, it is best for both parties to disclose all relevant information for the agreement so that matters may be handled according to your marriage agreement, instead of the applicable law at that time.

You should also discuss and write down your agreement about spousal support, division of property and debts, and other matters discussed above. After the agreement is made, both of you should retain different lawyers to get independent legal advice to ensure your legal rights are protected.

If you are confused about where to start and how to write an agreement, you should speak to a lawyer.

Why choose us to write your family agreement?

We have expertise in drafting all types of Family Law Agreements such as Marriage Contracts, Prenuptial Agreements, Cohabitation Agreements and Separation Agreements. We will do this in a cost effective manner while providing high quality professional service. Just give us a call at 604-449-7779 to schedule an appointment so we can be of assistance.

Estate Planning – What is Estate Planning and How to Plan Your Estate

/ Mark-John

What is Estate Planning?

Have you ever questioned what will happen to your property upon your death or how it will be managed in the event that you become incapable of handling your own affairs? If yes, preparing a will and planning your estate is the route you should take to put these speculations to rest.

Estate planning involves determining what happens to your property upon your death or in the event that you become incapable of dealing with your affairs. Estate includes your assets, possessions, and money. An estate plan consists of a few legal documents stipulating your wishes upon your death or incapability regarding how you want your estate, financial affairs, and health wishes to be managed. These include:

Wills: A Will is created to ensure that your property is distributed according to your wishes on your death. A Will also specifies the person who will administer your estate, known as an executor. Having appointed an executor saves the cost of having a family member make an application to court to be appointed administrator of your estate. In addition, if you have children, your Will can specify who their guardian will be.

Power of Attorney: A Power of Attorney gives a person of your choice the authority to act on your behalf on legal and financial matters. An enduring Power of Attorney gives your Attorney the authority to manage your affairs beyond the point that you are no longer capable of managing your affairs.

Representation Agreement: A representation agreement gives a person of your choice the power to represent you in health or personal care decisions, or to manage your financial affairs in the event that you become incapacitated. We recommend that you use a Representation Agreement to appoint a representative for health and personal decisions only as your financial affairs can be dealt via a Power of Attorney.

Advance Directive: An Advance Directive specifies your wishes regarding health care in the event that you become incapable of providing these yourself. This document also indicates your preferences regarding treatment if you are faced with serious illness or accident.

How to Plan Your Estate – Estate Planning Checklist

  • Decide who your executor, a person who administers the Will, is going to be
  • Figure out how your estate will be distributed and who it will be distributed to
  • If you wish to make any cash gifts or charitable gifts, decide who the recipient will be
  • If you have a minor child, you may wish to appoint a guardian for your child in your Will
  • Mention any funeral wishes in your will (cremation or burial arrangements)
  • Decide who you will name as your attorney for a Power of Attorney (the term ‘Attorney’ is not to be confused with a lawyer)
  • Decide the person you will name as a Representative in your Representation Agreement

Estate Planning Attorney

If you are unsure about where to begin in the estate planning process, book a consultation here with Mark O’Nions. Mr. O’Nions has the expertise and knowledge to help you develop a comprehensive estate plan that meets your goals and objectives.

We hope this article helps answer your questions about how to make an Estate Plan. Should you have any questions or require help with drafting a will or estate planning documents, please contact us at 604-449-7779.

What You Should Know About Business Partnership Agreements

/ Mark-John

If you have entered into a business partnership or are contemplating one, you may be wondering whether you need a partnership agreement.

Small Business Partnership Agreement

A partnership agreement is a written agreement of two or more individuals who have decided to carry on a for-profit business. The agreement sets out the rights and responsibilities of each partner with respect to the business but can also provide for certain procedures, which may include among other things, the election of a managing partner, how partnership meetings will be conducted, and how the partnership can be terminated. Many aspects of a partnership, including the rights and duties of the partners are governed by the Partnership Act, but the Act is not comprehensive. You may wish to enter into a Partnership Agreement to deal with aspects of the partnership that are not covered under the Partnership Act or to opt out of the Act and establish your own set of terms that will govern your partnership.

Although it is not mandatory to have a written partnership agreement, there are benefits to having one in place, including being assured that you and your partner are fully aware of your respective rights and duties with respect to the business, which in turn may help avoid future disputes.

50/50 Partnership Agreement

If you and your business partner would like to equally share responsibilities for the business, you may choose to structure your agreement as a 50/50 partnership agreement. Under a 50/50 partnership agreement each partner shares equally in any profit or loss generated by the business, regardless of whether you have equally contributed to the business. Under these agreements, each partner also has equal decision-making power.  A 50/50 partnership is not your only option however. You could for example, decide on a division that reflects your individual contributions to the business.

How to Write a Business Contract Between Two Parties

As explained above, a partnership agreement can cover a host of issues. Further, it can be tailored and customized to fit your specific needs. Before drafting an agreement, some issues that you may want to consider include:

  • the name of the partnership;
  • specific contributions by each partner to the partnership;
  • each partner’s authority to bind the partnership to debt or contracts;
  • specific duties of each partner;
  • the liability and indemnification of each partner;
  • how to resolve disputes; and
  • how decisions get made.

If you are unsure how to answer any of these questions, or if you are wondering how to legally sell your business, you may want to consult with a lawyer. MJ O’Nions will draft your Partnership Agreement for a low flat fee and provide you with the information and advice you need to confidently execute an Agreement that you and your partner understand and can rely on throughout your business dealings. Please contact us at 604-449-7779 for assistance.

Contesting A Will – How To Contest A Will

/ Mark-John

In British Columbia the governing legislation dealing with matters of wills and estates is the Wills, Estates and Succession Act (WESA).

What are the grounds for challenging a will?

By virtue of s. 60 of WESA, where the deceased fails to ‘make adequate provision for the proper maintenance and support of the will-maker’s spouse or children,’ the courts may order that provisions it thinks are adequate, just and equitable in the circumstances, be made out of the will-maker’s estate. In other words, if a child or spouse believes that the will does not adequately provide for their proper maintenance and support, he/she may ask the court to vary the will seeking a redistribution of the deceased’s estate.

Can family members contest a will?

Yes, pursuant to s. 60 of WESA, will variation claims can be made by children or spouses of the deceased. Spouses, for the purposes of the legislation, include common law partners. Children, for the purposes of the legislation, include adopted children.

The claimant (the one making the claim to have the will varied) has 180 days (6 months) to commence an action from the date the grant of probate is issued. The claimant must also serve the notice on the executor of the will within 30 days after the expiration of the 180-day period.

Chances of successfully contesting a will:

The chances of successfully contesting a will depends on the facts of each case. But, as a general rule, if in fact, the will doesn’t make adequate provisions for the proper maintenance and support for the deceased’s child or spouse, then you have a strong case for challenging the will. Bear in mind, if you plan to commence an action, you must be one of the individuals legally entitled to bring a will variation action (i.e. child or spouse).

To give you a more accurate answer to the likelihood of your success, please contact us for an appointment so that we can assess your situation and advise you accordingly.

Average cost to contest a will:

The average cost will depend on the complexity of the situation. If the matter can be resolved between the parties without proceeding to a trial, this could substantially minimize the costs.

To provide you with an approximate assessment of cost that is specific to your case, please contact us.

Who pays to contest a will?

Generally the claimant bears the cost of challenging a will. If the claimant is successful in getting the cost granted by a judge, it would come out of the deceased’s estate.

Does the executor of a will have the final say?

The judge ultimately has the final say in a wills variation action. However, if the executor and other beneficiaries consent to the will being varied, then a judge would likely uphold the variation of the will.

We hope this article helps answer your questions about contesting a will. Should you have any questions or require help with commencing a wills variation action, please contact us at 604-449-7779.

Do Grandparents Have Any Legal Rights in Canada?

/ Mark-John

Sometimes a parent may decide that a grandparent is not to have any contact with their children. This, however, does not preclude the grandparents from applying to the court to be granted contact time with their grandchild.

So, do grandparents have any legal rights in Canada?

The issue at court usually is not whether the grandparents will be granted access to their grandchild but the duration and terms of the contact time. In fact, many cases have been successful in granting access to the grandchild by grandparents, the success of the application to court depends heavily on the facts of each case.

Some key factors that courts have considered in grandparental contact requests are:

  1. Firstly, the child’s best interest is of paramount importance. Similar to the law on child custody, whether a grandparent will be granted contact with a grandchild profoundly depends on the child’s best interests. In other words, the court must be satisfied that the relationship of the grandparent to the grandchild is important for the child’s well being. For example, in one case, a grandmother was denied access to her grandchild because that child’s psychological assessment revealed that he didn’t want contact with her. While the court took that into consideration to deny contact, the court permitted the grandmother to write letters to her grandson. However, this is an unusual case denying physical contact with a grandchild. In many cases grandparents have received some level of contact time with their grandchild. It is important for grandparents who wish to seek an order for contact with their grandchild to provide evidence of their past involvement in their grandchild’s life. The greater the involvement in the grandchild’s life the greater chance of receiving some contact time.
  2. Secondly, the court provides significant consideration to the custodial parents wishes. If, for example, the parent with custody has reason to believe that contact with the grandparent is not in the best interest of the child, the parent may be correct in denying contact time with that grandparent. However, if the parent is being unreasonable in refusing any contact time with a grandparent, a court may intervene and make an order in favour of the grandparent.
  3. Lastly, the court may refuse to allow contact time for a grandparent where there is a conflict between the parent and grandparent. This is to prevent a child from being placed in the middle of a conflict. The court will consider, however, the possibility of a parent alleging conflict merely to prevent grandparents from getting contact time.

A child maintaining a relationship with grandparents and extended family is often important part of a child’s development. Should you require assistance in obtaining contact time with a grandchild please contact us at 604-449-7779 for assistance.

Child Custody Rights in BC

/ Mark-John

Child Custody or guardianship matters arise when the Court decides who the minor child lives with and which parent or guardian has the rights and responsibilities for making important decisions about the child’s life. When the parents or a parent is living with the child before separation, they’re automatically considered a guardian and have custody, unless a court order is made stating otherwise. Custody matters can be resolved by way of a written agreement between the parents or by applying for a custody order in court.

Child custody rights in BC are focused on the principle of the best interests of the child. For a custody or guardianship order, the judge must be satisfied that the best interest of the child is being considered; if not the court will not uphold already existing custody orders or agreements.

It is usually viewed by the courts that it is in the child’s best interest to have as much parenting time as possible with both parents, unless doing so will somehow harm the child. Therefore, where there is no harm to the child involved, joint custody or guardianship orders are generally more common.

Applying for Custody or Guardianship

In BC, there are two primary laws that govern child custody and guardianship: the federal Divorce Act and the provincial Family Law Act. Married or once married parents can apply for custody orders under the Divorce Act while the Family Law Act applies to all parents regardless of whether they’re married, unmarried, or in a common law partnership. It is important to note that the Divorce Act uses the term ‘custody’ while the Family Law Act uses ‘guardianship,’ but the underlying intent remains the same.

Types of Custody or Guardianship

There are three different types of custody or guardianship that could be agreed upon by the parents, or if a dispute exists, one of these could be ordered by the court:

  • Sole Custody/Guardianship: Sole custody or guardianship is where one parent has the authority and responsibility for the caring and nurturing of a child. This parent is the one who the child primarily resides with and who makes the important decisions pertinent to the child.
  • Joint Custody/Guardianship: Joint custody or guardianship, as the word indicates, is where both parents have parenting responsibility for the child even though the child may principally live with one parent.
  • Shared Custody/Guardianship: Shared custody or guardianship refers to a parenting arrangement whereby both parents have parenting responsibility and the child lives with both parents equally.
  • Split Custody/Guardianship: Split custody or guardianship is where there is more than one child and where the children are split up with one child living with one parent and the other child living with the other parent.

We hope this article provides insight into Child Custody Rights in BC. Should you have any questions or require help with applying for child custody, divorce or, drafting a separation agreement, please contact us at 604-449-7779.

How Do You Handle Family Conflict?

/ Mark-John

Conflict of any kind can be stressful, frustrating, and damaging to the emotional well-being and health of a person. More is at stake when the conflict involves spouses or common law partners, and children. Therefore, it becomes all the more important to search for ways to combat the effects of a conflict before it proves to be detrimental to your and your family’s overall well-being.

Types of Family Conflicts

Family conflicts can range in intensity from the type of arguments almost all spouses have, even those in happy and successful relationships, to violent incidents that put family members in harm. It is important to evaluate and be honest about the level of conflict in your relationship and its impacts on other family members including children. This is an important first step to resolving your family dispute, as it could signal the need for you and/or your spouse to obtain counselling, but it may also inform you and your lawyer of the family conflict resolution technique that is most appropriate in your case.

Causes of family conflict

Depending on the length of the relationship, the causes of family conflict can be deep-rooted. The most common causes of family conflict include mistrust between spouses, poor communication between spouses, challenges with parenting and disagreements about parenting techniques, difficulty self-managing emotions, financial hardship, and a history of family abuse or violence. While we are here to help you navigate your way through your legal challenges, we recommend a professional counsellor to assist you with addressing the root causes of your family conflict. Often times, individuals are unwilling to compromise on the terms of a separation because they cannot move past disagreements or ways they felt they were hurt during the relationship. Seeing a counsellor can help resolve or alleviate these conflicts and negative emotions. Doing so alongside the legal process for a separation could aid with reaching a more favourable legal outcome to your separation.

Family Conflict Resolution Techniques

While some of us would love to resolve our own conflicts, we often lack the skills and training to reach a resolution suitable for all parties. Some general questions that you might struggle to answer are: Why would my partner agree with my resolution? How do I balance my interests with that of my partner in reaching a just resolution? How do I ensure that I am being fair and mindful to the concerns/interests of my partner and children? An easy answer to address these concerns could be to resolve your conflict by way of alternative dispute resolution methods: Family Mediation, Negotiation, and Collaborative Divorce.

Family Mediation

If reconciliation by yourself is difficult, you could take advantage of having a Family Mediator help resolve the conflict between your family members. A Family Mediator is an independent and unbiased third party who is trained to help people resolve their conflicts. M. J. O’Nions lawyer and mediator assists in resolving disputes relating to marriage, cohabitation, separation or divorce.  A good mediator believes in reaching a voluntary settlement that is sensitive to the interests of all parties involved.

Negotiation

Negotiation involves reaching an agreement and ultimately resolving any conflict by way of direct or indirect communication. Negotiation could be undertaken by mediators, lawyers, or, if possible, by the parties involved in a conflict.

Collaborative Divorce

Collaborative divorce is a peaceful and an equitable process for resolving issues between couples resulting from the end of their relationship without going to court. The process involves the parties and their lawyers signing a “Participation Agreement,” which sets out the terms of the negotiation, including that the parties will act in good faith and with integrity. The process continues with you, your lawyer, your spouse and his/her lawyer working together to reach a settlement that works for the both of you. Besides your family lawyer, other professionals such as divorce coaches, financial specialists or child specialists could also provide support.

If none of the above alternatives to dispute resolution is of assistance to your case, litigation is also available. Litigation is where an arbitrator or a judge makes a decision for you based on the facts and evidence provided. Litigation is adversarial, expensive and based on a win-lose methodology but is sometimes the only option, especially if your spouse refuses to consider any of the alternative dispute resolution methods.

We hope this article helps answer your question, “How Do You Handle Family Conflict?” Should you have any questions or require help with obtaining a resolution in your family law matter through alternative dispute resolution methods or through litigation please contact us at 604-449-7779.