Category: Blog

Challenging the Validity of a Will

/ Mark-John

What is challenging a Will?

If you believe a loved one wrote a Will while lacking the proper mental capacity to fully appreciate their actions, or if you believe that someone interfered in the writing of the Will, you may be able to challenge the validity of the Will to have the Will set aside.

Who can challenge a Will?

Only a spouse or child of the deceased can apply for a Wills Variation Action to vary a Will. However, anyone can apply to the courts to challenge the validity of a Will.

How can I challenge a Will?

A Will can generally be challenged for three reasons: invalid execution, testamentary incapacity, or undue influence.

A Will can be found to be invalidly executed if it does not conform to the rules set out in the Wills, Estates and Succession Act. For instance, a Will must be in writing, signed and witnessed by two individuals who are not beneficiaries of the Will.

Arguing testamentary incapacity means arguing that a Will is invalid because the will-maker lacked mental capacity and was not well enough to understand the nature of their actions in executing the Will. For instance, a loved one suffering from dementia may have lacked the proper mental awareness to have executed a valid Will.

Arguing undue influence means arguing that someone interfered in the will-maker’s autonomy and independence in drafting the Will, such that the Will does not reflect the true and free intentions of the will-maker.

What happens if I challenge a Will?

If the validity of a Will is successfully challenged, any previous Will written by the deceased will come into effect. If there are no prior Wills, the estate will be distributed in accordance with the Wills, Estates and Succession Act as if the will-maker died intestate, which means without a Will.

We hope that this article has given you a better understanding of the legal advantages of challenging a Will. Should you have any questions regarding your rights with regards to being left out of a Will, please give us a call at 604-449-7779 or fill out our general intake form and we will be more than happy to assist you.

What are your legal rights if you move out of the family home after separation?

/ Mark-John

If you and your spouse are separating, one of the most difficult and pressing issues is deciding whether one of you will move out of the family home. This is especially true if there are children involved, or if you are concerned about being able to afford the expenses that come with an additional residence. There are a lot of misconceptions people have about what will happen if they move out. This article seeks to help you better understand your legal rights if you move out of your family home after separation.

Ownership of the Family Home

Moving out of the home does not mean that you are forfeiting any of your legal rights to ownership of the family home. If your name is on title or the family home is considered family property, you are still entitled to your fair share of the home regardless of whether you move out. The same applies to your rights to any of the household items. If you would like to read further on what your entitlement to the family home may be, check out our article on excluded property and the family home.

Family Home Expenses

If your name is on the property, mortgage or lease, you are still legally responsible for these expenses even if you move out. This is because a mortgage or a lease is an agreement with a third party such as a bank or a landlord. In many cases this may be unfair to the spouse who is moving out because they are no longer receiving any of the benefit. If you or your spouse are moving out, it is very important to try and reach an agreement on who will be responsible for your ongoing joint expenses.

Moving Back into Family Home

Moving out also does not mean that you lose the right to move back into the family home. If your name is on title or you are on the lease agreement of a rental property, you still have the legal right to move back in. This applies even if you and your spouse are not trying to get back together.

Where one spouse wants to move back in after separation and the other disagrees, either spouse can apply to the Supreme Court of BC for an order for exclusive occupation of the family home. In determining whether to grant an order for exclusive occupation, the court will first determine whether shared use of the home is a practical impossibility. If it is a practical impossibility, the court will then look to see which party should occupy the home on a “balance of convenience”. The court may look at a variety of factors including whether there has been family violence, the income of the parties, and the interests of their children. If there are no significant factors favoring one party, the courts are often reluctant to make an order which changes the status quo. The balance of convenience will often favour the spouse who is currently living in the family home. As a result, if you want to move back in to the family home in the future it can be very important to try and reach an agreement with your spouse before you move out.

We hope that this article has helped you gain a better understanding of your legal rights if you move out after a separation. If you are going through a separation and would like assistance in drafting a separation agreement or going through the legal process, please give us a call at 604-449-7779.

The Duties of a Family Lawyer & Divorce Lawyer in BC

/ Mark-John

If you are going through a divorce in BC or separation, you may be considering seeking advice from a lawyer to better understand your legal rights. Aside from the standard duties and responsibilities of a lawyer, there are a number of special duties which apply specifically to family lawyers when they are advising clients going through divorce or separation. This article outlines the unique legal duties of a family lawyer.

Duty to Discuss Reconciliation

Section 9 of the Divorce Act outlines duties which specifically apply to a lawyer advising clients going through divorce proceedings. First, a family lawyer has a duty to inform their client about the provisions of the Divorce Act that deal with reconciliation of married spouses. A lawyer is also required to discuss with their client the possibility of reconciliation with their spouse, and the availability of marriage counselling or guidance facilities that might be help assist the spouses achieve reconciliation. However, these duties may not apply if the nature of the circumstances show clearly that it would not be appropriate to do so, such as if there has been abuse. These duties are essential as courts will only grant an order for divorce if they are satisfied that there is no possibility of reconciliation between spouses.

Duty to Discuss Alternative Dispute Resolution Processes

A family lawyer has a duty to discuss with their client the availability of alternative dispute resolution processes such as negotiating a separation agreement, mediation, or collaborative divorce. Before doing so, a family lawyer must assess whether there has been family violence that has adversely affected the safety of a member of the family, and whether it may affect that party’s ability to negotiate a fair agreement. After considering the impact of family violence, a family lawyer must discuss the advisability of available alternative dispute resolutions and inform their client of all the facilities and resources available to them. This duty is very important as reaching a resolution outside of court proceedings can save you a great deal of time, resources, and emotional energy.

Duty to Discuss Arrangements Concerning Children

When there are children involved in the divorce in BC or separation in BC, a family lawyer must advise their client that any agreements or court orders regarding custody or parenting arrangements must be made by considering the best interests of the child only. This is essential to discuss as even if an agreement is reached on parenting arrangements, a court may set it aside and replace it if the court determines that it is not in the best interest of the child. If you would like to learn more about how courts determine custody rights, you can check out our post on Child Custody Rights in BC.

We hope that this article has helped you better understand the duties of a family lawyer. If you have any questions or need assistance with your divorce or separation, please do not hesitate to give us a call at 604-449-7779.

What is Alimony? – Family Law Vancouver

/ Mark-John

Alimony is a legal obligation for a former spouse to provide financially for the other spouse after separation. In Canada, alimony is most commonly referred to as spousal support, and is governed by both the Divorce Act, and the provincial act such as the BC Family Law Act. Spousal support can apply to both married spouses and common law spouses, which you can read more about in our post on “How long do you have to be married to get spousal support?”

The purpose of spousal support is to address the economic consequences arising from spousal relationships and the breakdown of those relationships. Whether you or your spouse is entitled to spousal support after separation depends on a variety of factors including the length of the relationship, your financial circumstances, and the roles you may have performed during your relationship. The Supreme Court of Canada has recognized three separate models under which a former spouse may be entitled to spousal support.

  1. Compensatory Support

This model of support compensates a spouse who has suffered economic disadvantages as a result of separation or has contributed to the economic advantages of their former spouse. This often applies where spouses assume “traditional roles” and one spouse is the breadwinner, while the other spouse primarily assumes domestic and child rearing responsibilities. Compensatory support helps to reduce the economic imbalance by compensating a spouse who may have forgone career, educational, and earning opportunities due to their role in the relationship.

  1. Non-Compensatory Support

Also known as “needs-based support”, this entitlement applies where one spouse is unable to support themselves after separation without the assistance of the other. The courts have also interpreted this to include situations where a former spouse will need support because there is a decline in their standard of living from their marital standard. This model recognizes the economic interdependency of spousal relationships and serves to even out the gap between the needs and means of spouses after separation.

  1. Contractual Support

This entitlement results from an agreement between spouses about the payment of spousal support, such as a separation agreement, a prenuptial agreement, or a cohabitation agreement. Agreements setting out spousal support can be very useful to avoid lengthy and expensive court proceedings. However, courts may set aside an agreement and replace it with a different arrangement if they determine that the agreement was not reached in a fair manner, or if the result is significantly unfair to one party.

Once an entitlement to spousal support is determined, the next step is to determine the amount and duration of support. This determination can be complicated and depends on a variety of factors. If you are interested in learning more, you can check out the Spousal Support Advisory Guidelines (SSAG), which are often used by courts for assistance.

We hope this post helps you understand what alimony and spousal support are, and how they apply to you. If you have further questions or need legal assistance with your divorce, separation, or seeking an order for spousal support, please do not hesitate to give us a call at 604-449-7779.

I am separating from my spouse. How do I start court proceedings to resolve issues from my relationship?

/ Mark-John

In order to start court proceedings, you must first determine which court is preferred. In B.C. we have two courts that may be used to commence court proceedings to resolve outstanding relationship issues. The first is the Supreme Court of British Columbia and the second is the Provincial Court of British Columbia.

Which court should I choose?

Provincial Court

The Provincial Court is a lower court and is therefore limited in the type of issues the court can deal with. Some of these issues include, guardianship, parenting responsibilities, parenting time, contact with a child, child support and spousal support. If your issues are one of these, you may consider the Provincial Court as an option to deal with your case.

Some of the issues that the Provincial Court can not deal with involve, divorce orders, property division and pension division.

Some of the benefits of using the Provincial Court instead of the Supreme Court is that the Provincial Court process is less formal, no filing fees for family cases, the court forms are easier for non-lawyers to complete, has fewer and more flexible rules. As a result, Provincial Court has more unrepresented parties.

Supreme Court

The Supreme Court has the jurisdiction to resolve all legal issues relating to the breakdown of your relationship. These include divorce, division of property, parenting etc. This is an advantage in that you would only be required to file in one court to resolve all outstanding issues resulting from the breakdown of your relationship.

The difficulty with Supreme Court is that the court process is more formal and complicated than Provincial Court. It is more difficult to represent yourself in Supreme Court. As a result, more parties are represented by lawyers. Supreme Court also charges filing fees for filing family cases.

Starting an Action in Provincial Court

You can start a case in Provincial Court by completing an Application to Obtain an Order and completing a Financial statement. A Financial statement must be completed if there is a claim for support.

Starting an Action in Supreme Court

To start an action in the Supreme Court, you need to complete and file a Notice of Family Claim or in certain circumstances, a Petition to the court. You may also be required to file a Form 8 Financial Statement if you are claiming support or property division.

 

Should you have any questions about your separation and how you should proceed, please give us a call at 604-449-7779 and we would be honoured to be of assistance.

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.

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.

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.