Should You Consider A Cohabitation Agreement?

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

A cohabitation agreement is an agreement signed by two unmarried individuals who are living together or intend to live together in the future. When a couple decides to live together, a cohabitation agreement can clearly set out the rights and obligations of each party, either in the event of a breakdown of the relationship or upon the passing of one of the partners.

There are many benefits to entering into a cohabitation agreement, regardless of whether the parties intend to marry or remain in a common law relationship. For the purpose of support obligations, common law couples are defined in Ontario as couples who have lived together continuously for no less than three years, or one year if they are in a relationship of some permanence and have a child together.¹

When it comes to the division of property, there is a distinction between the rights available to common law couples and married couples. If one party in a common law relationship passes away without a will, the surviving common law partner does not have an automatic right to their spouse’s property under the Family Law Act like a married couple would, regardless of the length of their relationship or cohabitation. Rather, they must have the courts determine their share via a claim in equity under a constructive trust, which can be overwhelming, costly and time consuming.
Couples who decide to enter into a cohabitation agreement can ‘bypass’ these legal limitations and set out specifically what property they wish to leave behind to the surviving common law spouse. In the event of a breakdown of the relationship, the parties can, using a cohabitation agreement, contract out of any right or obligation that would otherwise take place without an agreement, including spousal support and the division of property.

For some, entering into a cohabitation agreement under section 53(1) of the Family Law Act may be advantageous, particularly if there is a significant disparity in the parties income, assets or debts. Such agreements can keep these assets separate and have the couple remain financially independent. In the event that the couple decides to marry at a later date, a cohabitation agreement can transition into a marriage contract under section 53(2) of the Family Law Act. ²

When it comes to rights and obligations that both parties wish to contract out of using a cohabitation agreement, section 56 of the Family Law Act is applicable. This section states that a domestic contract, relating to the custody of or access to the child may be set aside and disregarded by the court if, in the opinion of the court, the contract is not in the best interest of the child.³ Further, section 56(4) of the Act states that a domestic contract may also be set aside if (a) a party failed to disclose any significant assets, debts or liabilities, or (b) if a party did not understand the nature or consequence of the domestic contract. Therefore, contingent on the parties satisfying these requirements, their domestic contract will stand in court.

Given that there is no statutory right to the division of property among common law couples, a cohabitation agreement may be entered into by those who wish to remain unmarried and have a division of property regime. It is important to have a qualified and experienced lawyer draft an agreement of this nature, as there are many factors and variables that can affect its validity. Whether you are inquiring about a cohabitation agreement, require one to be drafted, or need it to be reviewed by a lawyer, our team is here to help. At Carson Law our lawyers have many years of experience helping families in Burlington, Ontario and its surrounding areas create these domestic contracts in a cost effective and practical way.

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Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

¹ Ontario Family Law Act, s.29.
² Ontario Family Law Act, s.53(2)
³Ontario Family Law Act, s.56 .

Powers of Attorney and Substitute Decision Making during COVID-19

With all that surrounds COVID-19, we may have started to consider what is important to us and what would happen if we were to suddenly become seriously ill.

With the current restrictions on travel and social gatherings, you may need to re-evaluate if your chosen attorney is best suited for the job. This person should be capable of quickly communicating, getting informed, asking questions and providing consent where necessary as well as know ahead of time what choices you would like to make.

Perhaps ask yourself the following¹:
• Is that person immune-compromised?
• Is that person in quarantine or otherwise vulnerable?
• Will this person be able to safely and effectively perform the necessary functions?
• If you have more than one attorney for unanimous decision-making, is this still achievable?
• If your attorney is a front-line worker, can they still be available when the time comes?

If all else, you should appoint an alternate-decision maker in the event that your attorney becomes incapable or unwilling to act. If neither of these are appointed, to have your money, property and personal care looked after, a next of kin will need to bring a guardianship application before the Court.¹In a normal world, this process is timely and costly. In the world we are currently living in, this could be difficult to execute with all Courts closed and only accepting urgent matters and select applications.

Reminder: For the duration of COVID-19, powers of attorney must be witnessed by two witnesses, but the signing can be done by way of audio-visual communication, with the donor signing remotely and the two witnesses watching and signing by video call. For the remote signing, one of the witnesses must be a lawyer or licensed paralegal.

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Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

¹Morris, S. (2020, April 21). COVID-19 Updates for your Business. Retrieved May 1, 2020, from https://www.mindengross.com/resources/news-events/2020/04/21/substitute-decision-making-during-covid-19-why-you-need-(or-may-need-to-update)-your-power-of-attorney

Amendment to Wills and Powers of Attorney Requirements

On April 23, 2020, the Ontario Government amended an order under s. 7.0.2(4), of the Emergency Management and Civil Protection Act allowing wills and powers of attorney to be witnessed and signed virtually.

First revision is that for both wills and powers of attorney, at least one witness must be a licensee within the meaning of the Law Society Act. The Law Society understands that the Ontario government means this to be an Ontario-licensed lawyer or paralegal at the time of signing.

Second, for wills executed and witnessed virtually, the testator may sign and witnesses may subscribe on separate copies of the will, in counterpart. Likewise, donors and witnesses to powers of attorney for property or personal care that are executed and witnessed virtually may sign on separate copies of the power of attorney, in counterpart.

These changes will remain in place for the duration of Ontario being under a State of Emergency. You can view the order here

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For any questions or concerns, please contact our offices

905.336.8940
info@carsonlaw.ca

Alternative Dispute Resolution during COVID-19

With the Ontario Court of Justice limiting access to courthouses to help prevent the spread of COVID-19, there are still ways to settle a dispute without going to court. This method for resolving a legal dispute outside of the courts is called an Alternative Dispute Resolution (ADR). With the current state of affairs, this may be an appealing option to help parties settle their differences, rather than to wait for the courts to open and be backlogged with cases.

Below are some of the benefits of using the most common forms of Alternative Dispute Resolution, which are: Collaborative Law, Mediation and Arbitration.

Collaborative Law
• Attorney assistance – each participant has their own lawyer ²
• Faster agreements – many cases take 4-6 months²
• Client control – clients decide the terms of their own agreements with help from their Collaborative attorneys. A final agreement will not be reached until both parties agree to it.²
• Maintains privacy – Participants of Collaborative law cases are able to decide what goes into the documents, which will become public record.²
• Preservation of relationships – Collaborative Law helps to focus on communicating with each other instead of attacking.²

Mediation
• A Mediator is an unbiased, impartial person who helps each party in their negotiations to help find mutually acceptable, practical solutions.⁵
• Meetings can be scheduled, depending on each parties’ availability, to occur within days.¹
• Flexible formatting such as regular or on-demand follow up.¹

Arbitration
• Decision of an arbitrator is legally binding, as if it were made by a judge.⁴
• A speedy and customized process tailored to the dispute issue.⁴
• Private proceeding for reputation or business confidentiality .⁴
• Can adhere to the current social distancing requirements.⁴

Alternative Dispute Resolutions are used in a way that is appropriate and best suited for both parties. There are other forms of ADR and the use of a specific method will depend on the nature of that particular dispute.³

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For more information on the benefits of Alternative Dispute Resolutions, please visit any one of the below organizations within Canada that specialize in ADR.

ADR Institute of Canada (ADRIC)
Intellectual Property Institute of Canada (IPIC)
IP Neutrals of Canada

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Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

¹Birnberg, G. (2020, March). The Business Case for Neutral Facilitation in the Days of the Coronavirus (COVID-19). Retrieved April 21, 2020, from https://www.mediate.com/articles/birnberg-neutral-covid.cfm ²Forest, C. (2019, February 20). Benefits of Collaborative Law: Win-Win Agreements. Retrieved April 20, 2020, from https://www.keepoutofcourt.com/benefits-of-collaborative-law/ ³Intellectual Property Office. (2018, September 25). Alternative dispute resolution. Retrieved April 21, 2020, from https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04443.html ⁴Munro,, L. C. (2020, April 2). Arbitration COVID-19 Benefits: Lerners LLP London & Toronto. Retrieved April 21, 2020, from https://www.lerners.ca/lernx/arbitration-covid-19/ ⁵Waterous Holden Amey Hitchon LLP. (2019). Alternatives to Court – ADR. Retrieved April 21, 2020, from http://waterousholden.com/alternatives-to-court-adr/?gclid=Cj0KCQjws_r0BRCwARIsAMxfDRiTkhF4NAcKUaWz46-QOHXqMuK-N51HIuB38GVqssDdNW0hLl3BZcwaAro-EALw_wcB

It's Business As Usual ... It Just Looks A Little Different

For the signing of any legal documents, we will be moving forward with this new two step process:

1. We will be using a video / audio conference platform called “Zoom”, which has been approved by the Law Society of Ontario. Please visit Zoom’s Frequently Asked Questions page for information on how this web-based service works.

2. We will be sending the signing package and documents via courier prior to your call. The two couriers we will be using are Purolator and Zoom Service (different business from the above online platform). The package will be marked in all areas where you must sign. Please do not sign any documents prior to the Zoom call, as all signing must take place while on the Zoom video call for verification. During the Zoom call, we will review each page carefully and one at a time. Once we finish the call, we will arrange for the same courier to retrieve the documents from you and return them to our office for final processing of the file.

If you have any questions or concerns, please don’t hesitate to ask.

The Proper Use of Insurance Series - Episode 4

Ryan Carson, owner and founder of Carson Law, sits down with Senior Insurance Specialist, Matthew Stevenson of RBC Insurance, in this four episode series on discussing the use and benefits of Insurance.

To contact Matthew Stevenson, please Click here or call 365-777-2762

The Proper Use of Insurance Series - Episode 3

Ryan Carson, owner and founder of Carson Law, sits down with Senior Insurance Specialist, Matthew Stevenson of RBC Insurance, in this four episode series on discussing the use and benefits of Insurance.

To contact Matthew Stevenson, please Click here or call 365-777-2762

The Proper Use of Insurance Series - Episode 2

Ryan Carson, owner and founder of Carson Law, sits down with Senior Insurance Specialist, Matthew Stevenson of RBC Insurance, in this four episode series on discussing the use and benefits of Insurance.

To contact Matthew Stevenson, please Click here or call 365-777-2762

The Proper Use of Insurance Series - Episode 1

Ryan Carson, owner and founder of Carson Law, sits down with Senior Insurance Specialist, Matthew Stevenson of RBC Insurance, in this four episode series on discussing the use and benefits of Insurance.

To contact Matthew Stevenson, please Click here or call 365-777-2762

Help Yourself Create Certainty - Part 2

Part 2 of our discussion with Matthew Stevenson, Senior Insurance Specialist - RBC Insurance

To contact Matthew Stevenson, please Click here or call 365-777-2762

Help Yourself Create Certainty.

This week we sat down with Matthew Stevenson, Senior Insurance Specialist with RBC Insurance, to discuss the importance of having a proper Will in place.
Ryan goes over the scenario of a couple with a family that has not put in place their final preparations for when they are deceased and the result of that for the existing family members.

To contact Matthew Stevenson, please Click here or call 365-777-2762

End Of A Decade ...

As we approach the end of the decade, Carson Law is able to reflect, and be proud of the following achievements as voted by Three Best Rated!

With Three Best Rated, all businesses face a rigorous 50-point Inspection, which includes everything from checking reviews, ratings, reputation, history, complaints, satisfaction, trust, and cost to the general excellence.

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Best Business Lawyer in Burlington - We provide quality legal advice and customer service in all aspects of Business Law. Transactions are completed in a smooth and respectful manner.

Best Estate Planning Lawyer in Burlington - According to Three Best Rated, Carson Law treats people the way, themselves, would like to be treated ... with respect, dignity, and positive energy. Carson Law can develop a charitable mandate and identity that will connect our client to the communities in which they serve.

Best Real Estate Lawyer in Burlington - Carson Law has a primary focus on Residential & Commerical Real Estate. Cases are handled efficiently using our team based approach model. Our friendly, can-do attitude makes it a value added expereince.

Best Intellectual Property Lawyer in Burlington - The most experienced member of the Carson Law team, James Carson, leads our Intellectual Property division, which focuses on intellectual property matters. As determined by Three Best Rated, Carson Law works with our clients to determine a clear path to protecting your ideas and designs, while establishing and implementing an overall global intellectual property strategy.

    We hope you were able to experience first hand, the dedicated and customer service     oriented work that Carson Law produces. We take being a law firm to the next level.

                                           Hope to see you in the New Year!

Estate Executors: Where to Begin

Being an estate executor can feel overwhelming. A loved one trusted you to carry out their wishes upon their passing. Naturally, you want to make sure that you’re fulfilling this duty to the best of your ability. Where do you begin?

First, and most importantly, take a moment to reflect. Your loved one chose you as their estate executor for a reason—you can do this.

Then, remember that every estate looks different, so there is no one-size-fits-all checklist that every estate executor can follow. However, we’ve put together some suggestions for the first steps all estate executors should take.

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1. Establish a record-keeping process.
   You will want to ensure that you are recording the amount of time that you are spending working on the estate, the activities that you are doing, and the costs that you are incurring. You should keep these records as thoroughly as possible for as long as you are working on the estate. You may need them later on for compensation, tax purposes, or court purposes.

2. Determine whether the deceased had a will.
   If they did have one, locate it and review it. At this point, don’t worry if you’re not sure what everything means. Just ensure that you are the estate executor, and check if the deceased left specific instructions for their funeral and/or burial.

3. If applicable, plan the funeral and/or burial for the deceased.

4. Obtain a death certificate for the deceased.
   Ensure that the provider gives you multiple originals. This step is important, as many of the people and organizations that you work with as an estate executor will require an original death certificate.

5. Secure the deceased’s assets. If possible, prepare an inventory of assets.
   This step is especially urgent if the assets are valuable, perishable, or “mobile” (pets, livestock, etc.). Ensure that these assets are properly secured, and insured if necessary, for the duration of the estate administration. You may wish to have certain assets valuated.

6. Gather information about the trustees and beneficiaries of the estate.
   You will want to ensure that you set up an open line of communication with the trustees and beneficiaries for the duration of the estate administration process. Begin by collecting the full legal names, dates of birth, and contact information of all trustees and beneficiaries.

7. Retain a lawyer.
   They will be able to explain many estate administration matters, like your role as estate executor, the validity and interpretation of the will, the probate of the will, deadlines, and so on. As a professional with estate experience, the lawyer can also guide you in the right direction when it comes to your next steps.

8. Seek financial advice.
   A financial advisor will be able to help you with the specifics of managing the deceased’s finances, taxes, and so on.

From here, you will be able to get into the “nitty-gritty” of estate administration. There will be many more steps that become clear to you throughout the estate administration process—like managing the deceased’s finances, handling the estate administration tax, and ultimately, distributing the assets in the estate—but these steps should give you a strong foundation to guide you through the process.

Please note that this is not a comprehensive guide; it simply covers the steps that you should take to get started. If you are looking for more information, please feel free to contact our office.

How can wills and powers of attorney change over time?

Wills and powers of attorney (POAs) are extremely useful pre-planning documents, because they can provide security and peace of mind in times of ill health, and at the end of a person’s life. But these documents are necessarily written well before we anticipate that we will need to use them. This means that our wills and POAs can become outdated.

In this short article, we’ve flagged a few circumstances where you should consider updating your will and POAs, and we’ve described a few ways that each type of document can be changed.

As always, when you are working with wills and POAs, it is best to retain a lawyer.

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You should consider updating your wills and POAs if:

• You get married or divorced

• Your spouse passes

• You show or your spouse shows early signs of losing capacity

• You have your first child

• All of your children reach the age of majority

• You become estranged from a person named in your will

• You are a business owner and you are selling the business

• You are moving to different province or country

• Your financial situation changes drastically, or your financial wishes change drastically

• You experience other drastic changes in your life

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How can you update your will?

You can update your will in two main ways:
writing a new will, or adding a codicil to your existing will.

A codicil is a document that is read together with the original will. This means that all of your original intentions will still be read when you pass. By contrast, writing an entirely new will means that the original will can be entirely destroyed, without anyone reading it after you pass.

Anyone considering using a codicil should think about whether the contents of the codicil would contradict the contents of the original will, because this kind of inconsistency can lead to people challenging your will after you pass. So, if you are planning on making a relatively small change to your will, like changing your executor or adding a particular gift, a codicil may be the best option for you. On the other hand, if you are planning on making significant changes to your will — such as changing your beneficiaries or what they receive, or changing multiple sections of your will — an entirely new will may be the best option for you.

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 How can you update your POAs?

There is no real process to “tweak” a POA. POAs for property and for personal care are quite short and specific documents. Therefore, if you need to make changes to your POA(s), you will almost certainly need to write entirely new POAs.