FREQUENTLY ASKED QUESTIONS

General

Q: My brother has to sign a Power of Attorney but he works long hours, Does he have to come to your office or may I bring his ID for you to witness?
A: He must sign personally in the presence of two witnesses. A witness does not have to be a lawyer. It is preferable for a lawyer to prepare the power of attorney based on your specific instructions and circumstances.

Q: Someone owes me several thousand dollars and I want to sue them to give it back to me, how much would you charge to represent me in court?
A: It depends on the amount sought, the evidence of debt that you have and any possible defenses the debtor has. A claim under $25,000.00 can be commenced in Small Claims Court which is inexpensive and relatively quick.

Business law, commercial law and commercial leases

1. Q: How much does it cost to set up a company?
A. You must pay the legal fees and the government charges which vary from Province to Province. There are different charges for a federal corporation. There would be separate charges for a shareholders’ agreement ( recommended if there is more than one shareholder), for an asset purchase agreement ( if the corporation is acquiring the shareholder’s business ) or if a minute book or seal is required.

2. Q: I want to buy a business, how much do you charge for a transaction?
A: It depends on whether it is a purchase of assets or shares. Do we prepare the offer? How is it being financed? Are there licenses to be transferred and employees to be assumed? Are the premises owned or leased? Are there current outstanding financial obligations? And other questions. Each transaction depends on its own circumstances.

Divorce & Matrimony

1. Q: I’ve lived in a common-law relationship with someone for 10 years. Am I entitled to ½ of the other person’s property?
A: Not necessarily. When dealing with common-law relationships, courts usually use a ‘value received’ approach to determine how to divide assets.

2. Q: How long do I have to wait to get a divorce?
A: It depends on the reason for divorce: if it is because of cruelty or adultery, then as soon as a divorce order is granted. If it is because you have been living separate and apart, it is one year immediately preceding the granting of the divorce order and you had to have lived separate and apart at the commencement of the proceeding except for one attempt at reconciliation not exceeding 90 days.

3. Q: What happens if I marry a second time and my new husband moves into my house? Does he have any rights to my house? I want my children to get my house after I die, what should I do to protect my children’s rights?
A: It depends on the facts. A marriage agreement is a wise precaution and a will should be prepared to reflect your intentions consistent with the marriage contract.

Family Law

Q: I have joint custody of my children with my ex-husband. The children live with me and he pays support. He is trying to get the children to move in with him so that he does not have to pay support. Can he get the custody changed? What can I do to protect myself?
A: It depends on the facts. The best interest of the children is the guiding principle. A change of custody does not always result in a change in child support. Consult with a lawyer who practices Family law.

Q: I want to get a divorce. I have been separated for 15 years but I do not know where my husband is. Can I still get a divorce?
A: Yes you can. Although you must make all diligent efforts to locate your spouse, a court can grant a divorce even without service of the petition, if it is satisfied that all diligent attempts to locate the spouse have been made, that there are no other serious corollary issues that would be affected by the divorce and if it is satisfied that no substantial prejudice would be suffered by the Respondent spouse.

Q: I am getting remarried and have children from a previous relationship. I own a house and have other assets, my fiance has no assets. What should I do to protect my assets?
A: Enter into a marriage contract, preferably before the marriage. Change your will consistent with the terms of the marriage contract. Marriage generally invalidates a previous will.

Q: I am paying child support and spousal support. I am unemployed now and cannot afford to make the payments. What can I do?
A: You can negotiate a change in payments with the recipient and if they are unwilling to negotiate or agree on your proposed terms, apply to the court for a variation. The process varies depending on whether there is an existing court order, or a separation agreement or neither.

Landlord & Tenant

Q: Can a tenant be evicted for not paying rent?
A: For every rent payment made a landlord must provide a tenant with a receipt. The tenant must pay the rent on the agreed upon payment day. If the tenant does not pay the rent on that day the landlord may give the tenant notice to end the tenancy early for non-payment of rent. At the end of the notice period the landlord may make an application to the landlord and tenant board to end the tenancy, evict the tenant, and to collect the unpaid rent. The tenant may pay the rent arrears at any time before the tenancy is ended, otherwise the tenant may be subject to eviction. Persistent late payment of rent is also grounds to terminate the tenancy.

Q: Can a tenant have pets?
A: If the rental unit is in a condominium there may be restrictions on pets. Otherwise the landlord cannot evict a tenant for a having a pet.

Q: Can a tenant be evicted in the winter?
A: Yes, a tenant can be evicted at any time of the year.

Q: Who is responsible for shovelling snow or cutting grass?
A: It is the landlord’s responsibility to shovel snow and cut grass, unless otherwise agreed to in the tenancy agreement.

Q: Can the landlord increase my rent?
A: Yes, the landlord can increase rent once every 12 month period upon giving 90 days’ notice in accordance with the rent increase guideline for that year.

Q: Can the tenant live in the rental unit after the term stated in the tenancy agreement?
A: Yes. If the tenancy agreement the tenant still has the right to continue to occupy the rental unit as long as the tenant has been paying rent and there is no other ground to terminate the tenancy.

Q: Can the landlord evict the tenant without any reason?
A: No. There are specific reasons for a landlord to be able to evict a tenant. If one of those reasons do not exist the tenant cannot be evicted. Contact a staff member at Malicki Sanchez to see if a landlord has a reason to evict a tenant in your case.

Purchase & Sale

Q: What do we do now?
A: We will require a copy of the Agreement of Purchase and Sale. Then someone from our office will contact you for information and a preliminary letter will be sent out to you.

Q: Will Malicki Sanchez Law contact the utilities for me?
A: We do contact utilities. However clients have to contact the utilities also. The account has to be set up by the client.

Q: Do I have to pay for title insurance?
A: Title insurance is required by the mortgage company and the title insurance also protects the client.