On the other hand, when a child is born to an unmarried mother, the mother is automatically given a sole custodianship. With this, the father has no legal right to see their child without a court order. There is no presumption with legal paternity agreements. It means that unmarried fathers, by default, are not assumed to be the biological father of the children.

Nevertheless, unmarried fathers have challenged the termination of their parental rights for the past few decades. Over the course of this blog, we will help you determine the rights of unmarried fathers. Keep reading to learn more.

What is a Paternity Agreement?

If you are married to the mother, there is a legal presumption that you are the father of the child. However, without that marital relationship, there is no legal presumption of paternity. Without legal paternity agreements, an unmarried father has no legal standing to custody and visitation.

The most common way for unmarried fathers to gain paternity agreements is to be acknowledged as a father on the child’s birth certificate. This is usually done at the hospital right after when the baby is born. Alternatively, you can gain this by completing a Voluntary Acknowledgement of Paternity Form. 

If, in any case, the child’s mother does not agree to your paternity, the next step is a legal petition for it. You can proceed to the court for a petition to gain paternity legally. As part of court proceedings, you may need to take a paternity test to prove parental status.

Factors That Courts Consider in Determining Custody and Visitation Rights

The first thing that the courts consider when determining custody and visitation rights are the best interests of the child. Generally, this includes the time spent with each parent, and if each parent is involved in the child’s fostering. Courts do not deprive parents of their rights unless they consider it necessary. Other important factors include:

• Financial Status of Each Parent: Is the parent able to adequately take care of the child in a financial aspect?
• Residence/locality of the Parents: Has the child formed strong attachments with the parent’s local community?
• Moral Character of the Parent: This evaluates whether the parent treats the child with love and respect, and can provide the child with a safe and stable environment

How to Gain Custody Rights

An unmarried man who has established paternity agreements has the same custody rights as a married father. If the single parents are living together, custody rights are not an issue. However, if they get separated, custody rights and arrangements must be established.

Generally, there are two different types of child custody. These are physical and legal. Physical custody refers to a parent’s right to have the child live with them while caring and bonding with the child. Legal custody refers to a parent’s right to make significant decisions for the child. These decisions include the education, healthcare and religion of the child. Custody arrangements vary between sole or joint physical custody and sole or joint legal custody. 

In the same vein, a parent may also have shared legal custody but only child visitation rights. Some parents can also agree to a custody arrangement between them, outside of court proceedings. However, if that isn’t possible, as a father you may need to acquire a family law attorney to seek an official to protect your parental rights. With these proceedings, you can get an enforceable court order that details the child custody rights and arrangement. 

Although some parents can agree on a custody arrangement, others may want to have the agreement approved by the court. With a court order, you can ensure future compliance even if the relationship between you and the mother or your child deteriorates.

If both parties seek court proceedings, are unmarried fathers at a disadvantage throughout the custody litigation? In some countries, there is a presumption that a child should remain with the mother unless the custody is detrimental. With the enactment of the 2011 Child Custody Act, courts are now required to consider sixteen different factors when setting custody. The factors help determine the rights of unmarried fathers.

These factors include the environment and support that each parent can give. It also provides support for extended family and considers whether there is any history of alcohol or drug abuse. Another point it considers is whether each parent encourages contact between the child and the other parent. Lastly it makes allowances for whether each parent meets the physical, emotional, developmental, and educational needs of the child.

What are the Rights of an Unmarried Father?

If you are an unmarried father, there are some crucial things that you need to understand to secure parental rights. It would help if you gained paternity agreements to prove that you are legally the child’s father. 

The failure to establish paternity and prove to the court that you are the biological father may give you no legal rights to a child. If this happens, you have no legal rights to child custody, visitation and the decision-making process for a child’s life.

Below are some rights of an unmarried father who established paternity:

• The right to decide who sees the child and for how long it will take
• The right to restrict visitation
• The right to support the child’s education
• The right to support the child’s medical treatment
• The right to get public benefits for the child

Schedule Your Appointment With Us

At Timothy Fultz Law Office, in Winnipeg, we encourage both parties to iron out their disputes. We know that when families separate, the children also go through a profoundly disruptive time. With our services, we can make this time an easier one for you.

Please schedule an appointment with us by calling our office at 204 410- 8188. You can also contact us with this online form. Good luck!

The post Paternity Agreements: What are the Rights of Unmarried Fathers? appeared first on Timothy Fultz Law Office.

Are you always having disputes with your spouse? Are you planning to get separated but uncertain about having a divorce? Maybe you want to think about it and consider a legal separation. A legal separation is somehow similar to divorce. In a legal separation, you’ll have to negotiate child custody and support, spousal support and the division of your properties. Besides, you are still legally married to your spouse, but can already live separately. 

However, deciding whether to get a legal separation or a divorce is sometimes confusing and challenging. It is crucial to understand the legal and emotional impacts of both options. You and your spouse must weigh the options together with a professional attorney. 

Legal Separation vs. Divorce

Legal separation and divorce have similar and different effects in so many ways. Both legal separation and a divorce legally separates you and your spouse. Whether you choose to have a divorce or legal separation, both of you are still going to live separately. Even your finances are also legally separated. 

If you have children, then you will also require child custody and support agreements. If you have marital assets and debts, you can divide it legally. The court orders all these actions. Getting a divorce and legal separation can create a healthy division in your lives. It also comes with financial regulations and sets reasonable boundaries that can save a family.

The main difference between a divorce and a legal separation is that the former signifies the legal ending of a marriage. It means that if you get a divorce, you are no longer married to your partner. If you are planning to remarry again with someone else, then you are free to do so. It’s like you are living your life again as a single person. 

Whereas, in a legal separation, though you are separated, both of you remain legally married to one another. When it comes to forms or papers, you must continue to mark that you are married. Another thing is, you cannot marry someone else, again. Read further as we explore the specific differences and similarities of divorce and legal separation.

Differences in Legal Separation and Divorce

There are main differences between legally separated and divorced. The most basic and standard distinction is that during a legal separation, you remain married and not in a divorce. When you get a divorce, your marriage is dissolved. Below are some of the other differences:

Marital status

In a legal separation, your marital status is retained, meaning you’re not allowed to marry again. In a divorce, you can remarry again.

Health care and other benefits

Legal separation allows the retention of healthcare and additional benefits, including certain social security benefits. On the contrary, all these benefits are terminated in a divorce.

Rights to properties

Separating on a legal basis preserves your legal rights to property benefits upon the death of your spouse. When you get a divorce, all these rights are extinguished.

Debts/liabilities

If you are legally separated, your spouse still has responsibilities for your debt. However, if you are divorced, your liabilities and obligations are handled during the dissolution process.

Decision-making

Under separation, your spouse is still considered next of kin and can still make medical or financial decisions for you. If you are divorced with your spouse, you are no longer considered next of kin.

Reconciliation 

Reconciliation is more manageable with legal separation than with a divorce. Remember that you cannot undo your divorce. In a divorce, if you want a legal reunification, you need to remarry.

Similarities Between Legal Separation and Divorce

Although there are a lot of differences between the two, there are similarities as well. In both legal separation and divorce proceedings, the court decides the following:

Separation maintenance

Legal separation includes the equivalent of child support and alimony. It also applies in divorce but is distinguished and is usually achieved through a motion pending litigation.

Child custody

Both proceedings include legal rights to guardianship.

Child visitation

Both proceedings have legal rights to visit the child.

Property division

Both legal separation and divorce property division are based on the couple’s situation and decision.

Why Get a Legal Separation Instead of a Divorce?

Choosing whether to get a legal separation or a divorce is often a matter of personal preference. Some people have personal or religious beliefs that do not permit divorce. If you are not allowed to get a divorce, then a legal separation is a good option. When you are legally separated, you remain married, but you can live separately. 

In some cases, a legally separated couple can continue their relationship. With this, both of you stay connected. If you are legally separated, you are still entitled to some benefits, like health, social security and pensions.

Besides, being legally separated can prevent total separation. It allows a couple to resolve all the critical issues in their lives while keeping the marriage going. Also, it is reversible, unlike a divorce that has no going back. Aside from that, when it comes to child custody and support, legal separations are easier. It does not sound as devastating and final as a divorce can seem.

Key Takeaways

The main difference between legal separation and divorce is the marital status and division. In a legal separation, you are still legally married to your spouse though you are living separately. If you do decide to get divorced, you have to go through some necessary legal steps to terminate your marriage. A family attorney with experience handling legal separations can clearly explain the pros and cons of legal separation and divorce.

If you have some questions in mind about divorce and legal separation, you can speak with Timothy Fultz Law Office today. Contact us for an appointment, either by calling us at 204 410- 8188 or sending your email to our Winnipeg office. All things are kept private and confidential. Reach out today!

The post Difference Between Legal Separation and Divorce appeared first on Timothy Fultz Law Office.

A family breakup is a traumatic time for children. The loss of stability and increased uncertainty creates fear and a sense of helplessness. Whatever the challenges you face, for your children it can be worse since they are passive subjects of your partner and your choices. To reduce this uncertainty, you need to discuss and agree on a parenting arrangement.

Is parenting time to be divided, is it shared equally or not, split, is one the primary parent, does that make the other secondary (i.e. access parent), what happens on holidays, what happens when there’s no school, is the arrangement an interim, temporary one or can you make a long term one,  etc.? Is parentage an issue? You get a feel that parenting is not like dividing furniture or property. 

If you’re in a situation where you are separating from your partner, it is important that both of you ensure that you know the factors the court considers because if this is ultimately the direction you go, those of the factors the court looks at to decide. Even if you don’t go to court,  knowledge of legal considerations will help structure your discussions with your ex-partner. 

Related article: What to Consider Before Getting a Divorce

How are Parental Rights Established?

The birth parent is recognized as a parent. The birth parent is the person who gives birth to a child. A person whose sperm resulted in the conception of a child conceived through sexual intercourse is also recognized as a parent unless other factors counter this presumption. 

Several presumptions govern how a parent is determined. A presumption is a conclusion a court can make provided there is no valid reason for claiming the presumption shouldn’t apply. So a court will presume a person is a parent because:

• A person was the birth parent’s spouse (married or common-law, i.e. in a conjugal like relationship) when the child was born.
• The person was married to the child’s birth parent by marriage terminated by death or was nullified within 300 days before the birth or by divorce.
• The person was living in a conjugal relationship with the child’s birth parent before the child’s birth and the child was born within 300 days after they cease to live in a conjugal relationship.
• The person has certified at the child’s birth as a parent of the child under the Vital Statistics Act or similar act in another jurisdiction in Canada. 
• The person is found or recognized by a court of competent jurisdiction outside of Ontario to be a parent of a child.

These are presumptions that can be refuted if the contradictory evidence showing the presumptions are not valid can be established.

If circumstances give rise to more than one presumption, none of the presumptions will apply.

Simply providing sperm as reproductive material or an embryo for use in conception of a child through assisted reproduction will not determine a parent unless he or she is a parent under the other criteria. For example, the presumptions will not apply to a person whose sperm is used to conceive a child through sexual intercourse if, before the child is conceived, the person and the intended birth parent agree in writing that the person does not intend to be a parent of the child. This happens in the case of assisted reproduction. To be excluded as a parent there would have to be a written agreement so that effect before the child is conceived. Accordingly, a casual encounter that results in a child would not allow you to deny parentage which carries with it the obligation to pay child support.

The case of assisted reproduction involves special considerations. The parties usually enter into detailed agreements that deal with a host of issues, including parentage. In cases of assisted reproduction, whether by natural or artificial means, you should speak with a lawyer before proceeding.

If the couple is married, establishing their parental status is straightforward most of the time. Both parents automatically are considered the child’s parents. For unmarried parents, it can be challenging, although this is not in every case of unmarried couples. To be sure, in common-law situations where a couple is in no less a stable relationship as a married couple, parental status is established just as it is for married couples. 

But if paternity is not established because of the relationship, the unmarried parent may have to establish parental status. Even if the person is the biological father of the child and plays a paternal role in the life of the child, establishing paternity is still necessary. It is different for mothers because their status is established in most cases by reason of being the birth parent. However, that status can be changed, such as when a surrogacy situation is entered into, i.e., where a woman carries the fetus to term on behalf of a couple who will become the legal parents when the child is born.

To establish the parental status after birth, a Statement of Live Birth form is filled out and signed by both parents. However, if for whatever reason the father is not named on the Statement of Live Birth, he may need to file a court application to establish parental status. Usually, genetic testing is needed so that the paternity can be confirmed. 

When the father of the child has been able to obtain paternal status, then he can now pursue parenting of the child in the same way that the mother could. He will also have the obligations for support. 

Factors that Determine Child Custody

Parenting arrangements can be different in every case. There is no one fit for all cases. Parents are free to reach any arrangement that suits their circumstances and can do this in an out of court process, such as mediation, collaborative or traditional negotiations, keeping in mind that the court has ultimate oversight over any arrangement. In most cases where parents reach voluntary arrangements, they can live with, it will be rare that a court would interfere. In fact, considering how bitter parental disputes can become in court, the preference is that parents work out arrangements themselves. However, the court will become involved in cases where the parents cannot reach a parenting arrangement on their own and need a judge to fix the arrangements. 

There are several factors that the court considers when deciding parenting arrangements. The guiding principle is the best interests of the child; this directs the court to consider the child’s overall needs and circumstances, including: 

• The love, affection and emotional ties between the child and each of the parents.
• The length of time the child lived in a stable home environment.
• The ability of the parent to provide guidance, education, necessaries of life and meet special needs. 
• The proposed plan for the child’s care and upbringing.
• The permanence and stability of the family unit, the ability to act as a parent, and the familial relationship between the child and the party to the application. 
• The child’s views and preferences, presuming the child can express them clearly (without the parent’s influence). 
• History of domestic abuse or violence, if any. 

Options for Child Custody

Considering these multiple factors, the judge may grant sole or some form of shared parenting. Parenting and making critical decisions (formerly called custody) can be separated. So for example, the child may live with one parent primarily and spend less time with the other parent (formerly the access parent), but when it comes to making decisions regarding education, health or living the parents may still make these jointly or, alternatively, decision making responsibilities could be split, one parent responsible for decisions in one area, say education, and the other parent for another area, say health.

In cases of domestic violence, a parent could be subject to restricted or supervised access to a child. Domestic violence will impact on the perception of the parent’s ability to parent, particularly if the child has been exposed to the incidents of violence. If there is a history of domestic violence you may expect as part of any parenting plan to show what is being done to deal with the violence.

Next Steps to Take

If you and your partner have decided that separating is the best option for both of you, it is helpful if you can maintain open and respectful communications with each other. 

If you can reach a workable arrangement with your partner, then you can see a lawyer about putting that arrangement into a legal separation agreement. If you and your partner cannot reach an agreement, that may not mean that an out of court agreement is not possible, but it is best that you consult a family lawyer. At that point, you can ask questions about what your next step should be. While a court application may be necessary to start the process, often court cases end in settlements.

As much as possible, try to reduce stress and anxiety for your child. Keep in mind that whatever disagreements or arguments you have with your partner, your child should not be drawn into the dispute. Do not at all costs use your child against your partner. Do not try to influence the child to take sides. You must always keep in mind what’s best for the child, even if this can mean you have to make sacrifices. 

Final Thoughts

A break-up is going to be emotionally draining. And if you can’t reach a parenting agreement, the situation will likely become more stressful. Be prepared for the challenges that will come your way. To ensure that you are doing the right steps, consult with a family lawyer so that you can receive guidance. A lawyer can also direct you to other resources and professional assistance available for steering through the challenges that arise in a parental dispute. Above all, do not be afraid to reach out. 

If you have any questions about your situation and parenting arrangements, feel free to give me a call for more information. 

Related article: 5 Expensive Mistakes to Avoid During a Divorce

The post Child Custody: What if the Parents are Unmarried? appeared first on Timothy Fultz Law Office.

It won’t come as a surprise when I say divorce is a traumatic experience for everyone in the family. Even when you try to hide the details from the kids, they have a way of picking up; they understand more than what you may believe. But do they understand so they don’t feel their world has been completely shaken? You might want to discuss a divorce with a family professional; discuss how you might deal with the kids to reduce feelings of dread and loss. You do not have to go through a divorce alone and the lawyer, in all honesty, may not be the best person for answering questions dealing with the psychological and emotional impact.

Another one it’s helpful to meet with is your accountant if you have one,  or a financial planner so you can get some planning for the financial aspect. A Certified Divorce Financial Analyst (the CDFA designation) addresses the special financial issues of divorce with data to help achieve equitable settlements.

Another financial specialist is a chartered financial divorce specialist (CDFS designation). The CDFS is a financial planning professional with a recognized designation, who has been specially trained in financial projections and the analysis of financial matters involving separation and divorce. A consultation with a financial specialist in divorce situations is a recommended step for planning and dealing with the uncertainty.

Related article: How much does Divorce Cost in Ontario? 

Getting a Divorce or a Legal Separation?

You may think that you’re certain that divorce is what you want. But every lawyer has the legal obligation of pointing out reconciliation as a possibility to be sure that divorce if that is what you want, is really the only option because the breakdown in the relationship is irretrievable.

But you need to keep in mind that the divorce is probably an incidental issue in the legal process. While parenting and support may be termed ancillary to the divorce, legally speaking, they are really at its core. It’s the parenting, property and support, both child and spousal, that create the complications.

The divorce is not always the catalyst for the legal process. Often couples can separate without intending at first to get the divorce; the decision to separate is all that is needed to start discussions about the main concerns about parenting, support and property division. Once these are determined, then the parties finalize their arrangement by getting the divorce order. Often separation takes place even though the couple continues to reside in the same property. If they are separate and apart, they can be separated even though they still live in the home at the same time.

It only takes one to say the relationship is over and you are separated. The couple does not have to decide this together. They may but it can be only one party who decides the relationship is over.

Gather Important Papers and Documents

Once you’ve decided you’re separated or you want to separate, then you need to think about the necessary steps that you need to take before going through the process officially.

You need to collect your financial information. If you know the date of separation you should obtain statements from all accounts and investments as of that date as well as for the date of marriage if you had these accounts and investments as of the date of marriage. The property you own will need to be valued also as of the date of separation. If they were acquired before marriage and owned as of the date of marriage you will need to obtain statements indicating the value as of the date of marriage since this may qualify for an exemption. A Divorce Financial Professional can help you to put together the documentation that eventually will have to be given to your lawyer.

It is recommended to make copies of income statements, several months of your most recent pay stubs, the last 3 years tax returns and notices of assessment (and reassessment), property transfers, mortgage statements, account balances, investments accounts statements, RRSP’s, RESP’s (or RRIF’s), TFSA statements, credit card statements, lines of credit and loans, etc. This will allow you to have the basic documents. This is by no means an exhaustive or complete list of what you will need. Each case is different and the more complex your financial circumstances will require more extensive documentation. Meeting with a lawyer or divorce financial professional will help you clarify what other documentation will have to be collected and produced.

Making Plans About Finances

Separation is expensive. Your choices ranging from how to proceed and the advisors you choose can ultimately affect the cost. There are several legal process alternatives you can choose from, whether mediation, collaborative law, traditional negotiation and court or arbitration. You can consult with a lawyer about what will work best for you, but it probably is a good idea to consider how you will pay and possibly setting aside funds to cover at least the initial costs. If you will have difficulty paying for whatever process you choose, you should speak with a lawyer or family specialist about the issue.

As a basic rule of thumb, it’s probably safe to say if your divorce is contentious or there are complex issues at stake, then it is more likely the costs will be higher. When parties are basically in agreement on the outcome, the cost is lower. When they are fighting over every detail, the cost will be higher. For that reason, you should educate yourself about the different processes at the start before you make any final decision about how to move ahead. Each process will have a different cost. They can run from reasonable to very expensive.

Related article: 5 Expensive Mistakes to Avoid During a Divorce

Final Thoughts

Each divorce is unique. You cannot and should not compare your situation to a friend or family member who got divorced. That’s why when deciding on getting a divorce, the first thing you should do is to seek professional help to guide you through the process. Being prepared will help you steer through the difficulties you will face.

Help is available if you make the effort and take some time to look for it. If you need more information or wish the book a consultation, call Timothy H. Fultz Family Law & Mediation.

Related article: Is collaborative family law right for your divorce?

The post What to Consider Before Getting a Divorce appeared first on Timothy Fultz Law Office.

Events to Consider Hiring a Family Lawyer

Going through Divorce

Divorce is not an easy process for anyone. It can be emotionally, mentally, and financially draining. Nevertheless, if you consult with a family lawyer, you will feel much better knowing that there is someone who is an expert who can help you.

You don’t have to burden yourself with the many laws and proceedings about divorce. When you hire a family law attorney, he or she can guide you in understanding the complex legalities. Some of the things that you have to decide on will be parenting, spousal and child support, and the division of assets.

By hiring a family lawyer, you can rest easy knowing that someone is looking after you and your rights. The lawyer ensures that your rights and interests are being protected.

Related article: Is collaborative family law right for your divorce?

Parenting

Disputes over parenting, decision making and time can be challenging and exhausting for those involved. Adding to the difficulty is the change of language. We no longer talk about custody and access, but parenting time, decision making responsibility, contact orders. It can get confusing particularly when applying these new approaches to your case. But if you have a family lawyer you trust, you will get through the difficult and sometimes bewildering process.

Any issues that you may have can be referred to as alternative dispute resolution processes. Mediation or collaborative approaches. These processes can significantly reduce the stress and costs for resolving parenting issues, often the most bitterly fought and most expensive parts of any family dispute. A surprisingly large number of difficult family disputes over the children can be ironed out thought these alternative processes by having a skilled family lawyer if you hire a family law attorney. 

Guardians

Clients are often confused about what a guardian is and when you need one. A guardian is a person awarded parental responsibilities over a minor. When a guardian is needed, the process can be confusing. Trying to go through it without hiring a family lawyer can be overwhelming. A family lawyer will ensure you have the legal information you need and see that the application is completed correctly.

Whenever you have questions, you can simply consult with your attorney. He or she can explain confusing legal jargon to you and other legal matters. You will feel more confident knowing that someone who is an expert with the law is by your side and ready to help you.

Preparing to Hire a Family Lawyer

By now, you’re considering hiring a family lawyer but maybe you have some questions in mind. You may be thinking about how much hiring a family lawyer costs. What you should know is that lawyers usually charge hourly for their legal services.

However, there are also some lawyers who charge flat rates for some services such as reviews or document drafting. The rates that will apply will be different for every legal service. It will also depend on where you live as well as the complexity of the case.

Most lawyers will work on retainers for an entire matter and all the issues that come up. But if you are concerned about what you can afford some lawyers will work on an unbundled services basis. With unbundled services, you decide what you want the lawyer to do and what you feel you can do yourself. YOu hire a lawyer for a specific task and no more. Once he completes the task he is finished unless you hire him for some other task. This is a way for clients to better control costs. You can speak with your lawyer about if he offers unbundled services and the benefits and drawbacks of going this way.

If you want to know about the fees, don’t hesitate to talk to your lawyer. It’s important that you talk to him or her so you reach a clear understanding and avoid misunderstandings. It is not pleasant to speak about money but it’s a bigger mistake to let it become the elephant in the room.

Related article: Choosing family arbitration to settle your divorce issues

What to Expect from a Family Lawyer?

You can fully expect your family lawyer to be honest and forthright with you; you can expect to get correct legal information and be presented with legal options based on the law and your situation. The results will not always be what you want and your lawyer cannot guarantee results. What you can expect is that your lawyer presents your case in the strongest possible light and gives you choices based on reasonable assessments of all the factors.

In the end, you are the client and make the choices. You can expect your lawyer to give you the information you need to choose what you believe is in your best interests.

Takeaway

When it comes to family issues, you may try to settle things among yourselves. In some cases that works. However, more often than not, they are complex and you will often not be at your best for negotiating and deciding on your own. Having a lawyer you have confidence in can go a long way to support you in this crisis and help you successfully navigate the difficulties.

When you’re ready, don’t hesitate to consult a family lawyer about your case. If you are looking into hiring a family lawyer, call us today!

The post Hiring a Family Lawyer: When to Hire a Family Law Lawyer appeared first on Timothy Fultz Law Office.

They call a few days before the closing, explaining they didn’t know they needed a lawyer. That sometimes happens with people who have come from countries where lawyers are not an integral part of the process of buying or selling homes. For those persons, the procedure here is unusual; however, much it makes sense to us here. 

But these cases are rare and call for the lawyer springing into action quickly to make sure the client can close. These extreme cases only go to highlight why lawyers are critical on real estate deals, no matter how much their role gets downplayed. And sometimes it needs reminding.

Related article: Are you able to Stick to the Negotiations when it gets rough?

WHY DO YOU NEED A LAWYER?

First of all, the agreement of purchase and sale is a contract. It sets out the agreement of what each party is expected to do. Parties are expected to live up to their agreements.

How many times have you read and completed a standard Agreement of Purchase and Sale? What the majority of people focus on is the price, the closing date and financing? What are some likely conditions relating to the condition of the house? Aside from that, you probably are not familiar with the rest of the agreement. The agent does not review this with clients. 

Your real estate lawyer is familiar with all aspects of the agreement that most buyers and sellers consider a preprinted, standard form. And they are right. But your lawyer has probably seen hundreds (if not thousands for the hectic ones).

The lawyer might be aware of all the clauses. He/she has experience in the different complications and variety of situations that can arise during the life of the agreement. The life of the agreement is from the time you sign it to the point you close and get the key and can say it’s your house.

While some real estate agents object to having a lawyer review any agreement before it’s signed, the better agents recognize the need for a lawyer’s input and welcome it. It is only to your advantage that the agent and lawyer can work together. 

So what does a real estate lawyer do for you?

GO OVER THE PURCHASE AGREEMENT BEFORE YOU SIGN

Before you sign the agreement, you can go over it with your lawyer to make sure you understand what your signing and it contains what you need. In addition to the standard printed clauses, most agreements have schedules with the clauses tailored for your specific needs. These schedules are an essential part and shouldn’t be lightly passed over. They normally contain:

• a standard condition for financing, time to arrange and get approval or a commitment;
• a standard condition for a home inspection; and
• several other clauses are dealing with miscellaneous items, such as warranties for the condition of appliances, payment of the balance of the purchase price, special requirements you need to close.

A brief conversation with a lawyer helps you identify what other conditions you may need to protect yourself. The condition gets inserted in the agreement for your protection. It ensures that, if you need something done or require a specific need to meet before you are comfortable to close, whatever you need to do is done so you can close.

So, for example, if you have to sell your home before you can buy, if you don’t include this as a condition, you require to close whether you sell or not. By failing to close, you could be liable for damages. Conditions get included, so you have a way to get out of the agreement without penalty. Your lawyer is to discuss if there are any conditions or terms you need. It might be anything not included in the agreement you are about to sign.

That applies whether you are buying or selling. In both cases, you may want conditions or terms included to ensure you can close and don’t find yourself breaking the agreement because of unexpected events that you might have foreseen. 

Even if your agent has covered as far as you think all the conditions you need, it doesn’t hurt to have a lawyer go over it to make sure you understand what the agreement says but that it says what you think it says. It never hurts to have an extra pair of eyes to make sure.

It sometimes happens that an agent doesn’t include necessary conditions. That happens because, in the excitement about buying or selling, you didn’t consider the circumstances which would make the condition necessary. Speaking with a lawyer is the cooling-off period when you can reconsider with a cooler head.

Your consultation with a lawyer raises issues you may not like to think about, but you need to. It is like going over a checklist. If you can comfortably check off all the items, you can be confident about signing the agreement. If there are some boxes you can’t check off, then you can decide if it’s in your interest to make a change or not.  

Before the agreement is signed, you are free to add; once it’s signed, you can only make a change with the other side’s agreement as an amendment to the agreement. If the other side doesn’t agree to the change, then you are expected to live up to the agreement you signed. Changes can happen after you sign, but there’s no guarantee. If you have to make changes through your lawyer, you may add to your legal costs for closing. 

YOUR LAWYER HELPS TO PLAN FOR CLOSING

Then this is in addition to reviewing the agreement. Your lawyer helps explain what you have to do to close. That includes preparing all the steps related to buying: the financing, arranging title, estimating how much you’ll need to close, how to plan for closing, and what you need to do after closing. A lawyer can advise on all aspects of your deal, including financing and insurance.  

More often than not, the agent’s work gets done once the agreement is signed. After that, your primary contact is your lawyer. The lawyer is there to help close the deal and answer whatever questions you have. When something unexpected happens that can affect your ability to close; your lawyer can help to work out a strategy to deal with the problem. 

Related article: UNBUNDLED LEGAL SERVICE – So you don’t want a lawyer?

WHAT ARE THE LEGAL COSTS TO CLOSE A PURCHASE OR SALE?  

Most real estate lawyers take fixed fees for a real estate closing. The fee varies from lawyer to lawyer and will probably also vary depending on the price of the house. You should not expect fees to be the same for a $600,000 home and a $2,000,000 home. Similarly, you should also expect the Land Transfer Tax to be approximately two times more in Winnipeg than what you would pay for the same priced home out of Winnipeg.

Feel free to call lawyers and ask for quotes on fees. But you need to make sure when you get a quote to ask if the quote is for everything, including disbursements and HST, or only fees for the lawyer. Every file has disbursements. On a purchase, a lawyer has to do searches to make sure you are getting a marketable title.

The costs for the search is not part of the fees. They are a disbursement and just add-ons. If the lawyer does what’s called off title searches, for example, a letter enquiry to the building and zoning department, the city asks for a service fee to provide the information. If the lawyer has to get a tax bill, there is a service fee for the city. These are disbursements. 

On almost all purchases, lenders require an up to date survey or if one isn’t available title insurance. Since practically, no one has up to date surveys on their homes and given the cost for obtaining a survey, few homeowners have one or get one; your lender requires you to obtain title insurance to insure the legal title as of the date of closing.

Title insurance insures for those items affecting the legal title to the property that would have been covered by a lawyer’s title opinion, except that it also protects against items that a lawyer couldn’t discover even after doing all the reasonable searches he’s expected to do. Title insurance is an additional disbursement.

When asking for a quote, always be sure you distinguish between fees and disbursements. If you want an estimate of the gross price, ask for the estimated gross total, i.e. fees, disbursements and HST. If the lawyer wants to break it down, let him do it. But remember, every transaction has the potential for unforeseen developments. These can affect fees and costs. 

The post Tips from a Real Estate Lawyer appeared first on Timothy Fultz Law Office.

A large number of family litigants, maybe the majority, have never heard of a collaborative approach for resolving family disputes and those that have may not have considered it the best way for handling their separation. 

There is a number of reasons. The bitterness is too great or one or both sides feel the need to make the other pay or the need for vindication; some have a deep-seated desire to tell their story to a judge, or some just have a gut feeling may be collaborative is too “soft” or pie-in-the-sky for handling their case.

 This is not an exhaustive list of why separating couples feel the court is the only suitable forum. Sometimes, they are right, the court is where they have to deal with the separation.

But even in cases where court seems the only avenue, at some point, the parties start considering alternatives. For several reasons, the court wears down the parties. 

The length of time to resolve anything, the delays, the increasing costs that gradually eat away at resources and the ability to continue the fight, not to mention the wear and tear on their emotional health and strain on the whole family, especially the children. 

There’s the constant uncertainty, the shifting momentum, the confusion over results that are different from what you expected or what your lawyer told you about possible outcomes; this can come as a shock, particularly when you were convinced your case was so obviously right that how could a judge not see it – all these factors push people at some point to consider alternatives to court, particular alternatives, they dismissed in the beginning as not appropriate or thought not worth considering.

At some point in the litigation, parties will seriously try mediation; this could happen on the eve of trial as a last-ditch effort to avoid a costly trial. As you get closer to trial, people often start thinking about what happens if you lose. 

The parties then often find themselves in a marathon session thrashing out an agreement and making snap decisions because, ultimately, they want to avoid the trial more than test their luck on a throw of the dice in court.

Besides turning to mediation, which is usually the typical alternative option, what many people aren’t aware of is that they can start a collaborative process even after they’re in the middle of a high dispute court file. 

No matter how bitter the language back and forth and threats, ultimately the parties are looking for a negotiated settlement rather than to a pitched battle in court. Will it be difficult? Very likely. The first question before you get into the collaborative process is whether that lawyers will be able to navigate the transition from litigation mode into solution mode. 

Related article: Are you able to Stick to the Negotiations when it gets rough?

What are the advantages of the collaborative process? Why choose it over mediation?

The collaborative process resembles mediation but for a few important differences. For one, the standard collaborative process includes a term that if it does not result in an agreement and the matter goes to court, the parties’ lawyers cannot act on the litigation. This forces each party to change its collaborative lawyer to a new one who had no involvement in the collaborative process. 

Also, any party who wants to leave the collaborative process is bound to give a grace period, usually 30 days, before going to court. This allows the other party to find a lawyer and do preliminary preparation. The collaborative process also typically and freely utilize financial neutrals and family professionals as an integral part of the discussions, which is not the case with mediation. 

These professionals assist the entire process by acting in a neutral capacity keeping the parties focused on the final objectives, providing expertise and advice within their specific areas of specialty. Their participation allows the collaborative process to explore all the drivers of the dispute, areas that the lawyers have no specific expertise or comfort for handling.

How can you fit the collaborative process for your needs?

The collaborative process begins with the signing of a participation agreement. This agreement sets out the rules governing the process. As with any agreement, it can be modified and adapted to suit specific circumstances. 

That is important to understand because going from a court focused process to a collaborative will require amendments to the typical participation agreement, allowing for situations that will normally be contrary to the accepted collaborative principles.

For example, if parties who are in court want to resort to a collaborative process, the risk that they would lose their lawyer if the collaborative process fails might be enough to keep them from entering into the process. In order to start a collaborative process, the participation agreement can be amended to allow each party to retain its lawyer. 

This highlights the principle that the participation agreement, like any other agreement, can be framed and its terms determined ultimately by the parties. Although retaining the lawyers is contrary to a pure collaborative process, there is no legal reason why a non-pure collaborative process cannot be at heart collaborative. 

The agreement can also be changed in other respects. For example, if the collaborative process succeeds in resolving some issues but others remain disputed, the parties can agree on the procedure for returning to court to resolve those disputed items in a cost-effective way. 

This option is not so different from mediation where parties may settle most but not all issues and return to court to decide one or two outstanding areas, as opposed to several times those issues. 

While this may not conform to a pure collaborative process, if it allows the parties to exploit the benefits of the collaborative process to end the dispute, I doubt you will find a lawyer committed to collaborative procedure who would spurn making whatever changes are necessary to the collaborative agreement to get the parties into engaged discussions. The primary focus is to find alternative solutions to what appears an intractable problem

The collaborative agreement is flexible and can be tailored to eliminate features that might have discouraged the parties from resorting to it. Even if the final framework the parties establish offends the purist collaborative approach, the process nevertheless, can effectively be conducted as a collaborative process: this includes reestablishing trust, open, frank discussions, confidentiality, and obtaining the invaluable input of financial and family professionals, all conducted in an environment designed to reduce the level of conflict without belittling the basic lines of disagreement. The parties are not expected to have an agreement at first. The goal is to guide them to an agreement. 

Is your lawyer collaboratively inclined?

An increasing number of family lawyers have taken or are taking collaborative training. Some are strong believers in the process, some are luke-warm adherents, others have never had a collaborative file so they are unaware of its benefits for clients as well as for family practitioners. Some dismiss it as being a soft process, fine when the parties are in agreement on almost everything but not suited for cases where the parties hotly contest all issues.

This view is not true. The collaborative process is as well suited for dealing with conflict as is the court or mediation. However, putting aside the issue of difficult personality types, assuming a complex financial file requiring complex valuations, income assessments, accounting, tax and future cost projections what setting is more suited for fleshing out the complexity and details. 

A public court setting where the parties’ lawyers are haggling in front of a third party or a private setting where all parties can view the materials, get detailed breakdowns and explanations, raise questions and concerns and thoughtfully and jointly obtain whatever additional information and advise they need. 

This is only the financial aspects of a separation. The parenting is sometimes the most hotly contested areas of dispute and stands to benefit the most from what the “collaborative” process brings to the table.

Whether the financial information is simple or complex, however difficult the parenting dispute, the collaborative process, even an impure one, enables the parties so change the environment so that constructive discussions can be rekindled and the framework in which they are negotiating can lead to a finely tailored solution. 

IS THE COLLABORATIVE PROCESS WHIMSY PIE-IN-THE-SKY STUFF BUT NOT FOR ME?

I’ve heard the collaborative process dismissed as being “soft”, meaning great as legal therapy but not suited for hard-nosed negotiations. But the collaborative process is no “softer” than the negotiations of a commercial, labour of whatever other kinds of difficult “hard” negotiation you can imagine. 

If bitter labour and international disputes can be resolved, even when parties are at each other’s throats to begin, why can’t a family dispute, even a bitter one, be settled. A collaborative process however unconventional is premised on the view that parties will ultimately prefer to work out a problem; they stand to mutually gain by agreement. This premise is what will push parties to navigate obstacles, even avert ultimate failure. 

Could the collaborative process fail? Very possibly. No one can say with absolute certainty you will always reach an agreement.   But the chances of reaching one radically improve when parties subscribe to the cornerstone principles of collaboration, even when that collaborative process is a hybrid beast. 

If none of the lawyers are collaboratively trained, the option of turning to that process is probably nil. But with increasing numbers of lawyers completing collaborative training, it may be worth your while to inquire if this option is feasible. You may be surprised to learn not only that a collaborative style process can be explored but that the lawyers will enthusiastically embrace it.

Related article: The disagreement agreement: Putting your separation in writing

The post COURT AND COLLABORATIVE appeared first on Timothy Fultz Law Office.

Related article: 5 expensive mistakes to avoid during a divorce

The Self-Represented Client – The Way to Avoid High Separation Costs?

As a result of the ever-escalating costs, more and more clients choose to represent themselves. This is not always a tactical decision but, increasingly, one of simple economics: they can’t afford anything else, or prefer not to pay but want to conserve as much of their resources as possible. 

But even when you act for yourself you will need help. No one knows everything, but for someone with no experience appearing in court is scary, the formalities will be unlike anything you’ve experienced before – even a high number of lawyers do not have regular trial experience because their clients can’t afford it, except for some relatively small number who are either wealthy enough to pay or too caught up in the fight to see a way out or there are those who unfortunately have no other practical escape and have to go all the way. 

Preparing for court consumes a lot of time in preparation time and planning: 

• How best to tell your story? 
• What will the judge need to hear? 
• What evidence do you have?
• What’s relevant, supports your case,  and what doesn’t?
• How do you get the evidence in?
• How do you structure your case to get the most effective?

And these are only some of the questions you will be dealing with. Remember the time you have in front of a judge is limited so you have to make sure you use your time to best effect. The obstacles a self-represented person has to overcome are steep, for some too steep to overcome. Even if your case is strong, going against an experienced lawyer can put you at a disadvantage. So what can you do to even the playing field? This is where unbundled legal services come in.

Related article: How much does Divorce Cost in Ontario? 

What is unbundled Legal Services?

Unbundled legal services is essentially a pay for use system. You don’t hire a lawyer to take control of your file and do whatever they consider necessary while you pay based on time spent at an hourly rate. You are managing your file; you are making the decisions. But you hire a lawyer to assist you on specific tasks, whatever it is you feel you need help on, and you pay only for the services you use. This is not the perfect solution to high-cost family legal costs but it can be an extremely helpful tool.

Related article: Choosing family arbitration to settle your divorce issues

The Different Services Available with Unbundled Services

What kind of services can you hire a lawyer for? Virtually for anything you need help on. For example,

• You can hire a lawyer to prepare specific court documents. Once they are prepared his services are finished. How you pay depends on what you agree with the lawyer. It may be on an hourly rate but it can just as easily be based on a set fee. You negotiate fees directly with the lawyer. 
• If you feel comfortable about preparing your own documents, you may only want a consultation with a lawyer to review them before you file them in court. You pay only for the consultation or specific drafting work. 
• There are a variety of different purposes you might want to use a lawyer. If you break down a file into all the discrete tasks that go into preparation, the only limit on what you can hire a lawyer to help on is what you feel you need help on and what a lawyer’s professional ethical obligations may restrict. But a list of basic items include:

1. To appear on a motion;
2. To Appearing only at trial;
3. To explain specific processes, such as the procedure rules, what to expect when you go to court, the court etiquette; 
4. To prepare legal memos with case law and arguments to help organize and support your positions for the court;
5. To explain the different stages in the process and help you devise strategies for dealing with situations as they arise;
6. To devise negotiating strategies;
7. For coaching and giving behind the scene support;
8. Assisting in interviewing witnesses or how to question;
9. Assisting in brief preparation: case conferences, settlement conferences and trial management conferences.

There is no limit on what services can be provided or how the services break down; you define what you want the lawyer to do for you based on what you identify as your need. If you’re not sure what you will need, you can ask the lawyer for suggestions on what services you will need and what he is prepared to give. The important difference from the traditional lawyer relationship and the unbundled one is that with the unbundled arrangement the lawyer is hired for specific purposes and those alone. When that job is done, you pay for the job and the relationship is over unless you need something else; you don’t have an on-going relationship with the lawyer that you keep paying for.

Related article: Is collaborative family law right for your divorce?

The Unbundled Process – Sometimes called the Limited Scope Retainer

What kind of agreement will you get into with the lawyer?

When you hire a lawyer for unbundled services you will sign an engagement letter, which describes what you’re getting and what not. This is your agreement with the lawyer. This agreement is important because it will set out the job you hired the lawyer for. The lawyer will only do only that job, nothing else. If you hire the lawyer for multiple services those services will be identified; he will do those, not others. 

If you want to have a  lawyer appear for you for a motion, the retainer will specify that purpose. If you need a lawyer for a consultation to help you prepare court documents, the retainer will specify what documents are being prepared.  You remain still the one principally responsible for managing your file, the lawyer is your adviser or consultant giving information you need for making decisions; the lawyer helps you present your case so it looks more professional and persuasive; with the idea, you appear more lawyer-like. 

The engagement agreement with the lawyer makes it clear what you are getting and where the services end. You should not expect to get something more than what you’ve agreed on too. 

Unbundled services are not a complete cure for rising family court costs. But for clients in need, it is a way for them to get legal help while conserving financial resources. With unbundled legal service you can gain some control over legal costs.

Where Can You Use Unbundled Legal Services

Usually, clients resort to unbundled services for matters in court. This is the most expensive field for family conflicts and the most difficult area to control or even estimate what it can cost a client. But there is no reason to restrict the use of court cases. Unbundled services are available for any legal step in a family matter where you need limited but important legal assistance. 

For example, on mediations. With the increased use of mediation to resolve family conflicts, often people go into mediation without having proper legal information. Some people feel because they go to a mediator, there is no need for preparation. Somehow the mediator produces a solution. Nothing could be further from the truth. Successful mediations need all parties to prepare. The most successful is when everyone is informed and can negotiate from an informed good faith position.

Related article: Are you able to Stick to the Negotiations when it gets rough?

While a mediator can give legal information, they cannot give legal information aimed at giving you direction for your specific circumstances. The mediator has to remain neutral and impartial. 

To get information about your circumstances, options and realistic outcomes, you need to consult with a lawyer who can advise for your unique circumstances. For that reason, I always recommend seeing a lawyer before you start a mediation to get an understanding of how it works, what generally your rights and obligations are under the law and what possible negotiation strategies are available. A preliminary consultation with a lawyer is important particularly if you don’t have legal representation on the mediation.

When you are in the mediation there may be stages when a consultation with a lawyer will be recommended. Again, a limited consultation at a reasonable cost may be a relatively low but well-spent expense.

Summary

Unbundled legal services give persons involved in family disputes the ability to gain control over their legal costs. The lawyer helps clients to develop their positions, put together their arguments, and make themselves more presentable which makes them overall more persuasive. Outlandish positions, harmful to anyone trying to get the court’s sympathy and usually made by uninformed litigants, can be avoided. Clients pay only for the services they use so they decide when and what they need.

More and more family lawyers are offering unbundled services. For more information about these services feel free to visit: Ontario’s Family Law Limited Scope Services Project

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