Getting Things Done

I previously had a post called “Is Your Lawyer To Busy?”.   A client has recently switched from a previous firm and the previous firm provided their file.   I was surprised to see that the previous firm had done little to move the lawsuit forward in several years.   The lawsuit was not complicated and since the client was a Plaintiff, it is the Plaintiff’s lawyer’s job to move the Plaintiff’s lawsuit ahead to trial.

I suspect that there are a lot of lawyers that view legal work as just work, and don’t see things from their client’s point of view.   The client wants legal advice, and if a Plaintiff, wants their matter moved ahead until settlement or trial.  They don’t want the lawyer to work on the file at their leisure or when they need billings.  They want things to move ahead.

I won’t claim to be perfect, but I can get a lawsuit moving forward.

David R. Barth

Misrepresentation on Property Disclosure Statement

I sometimes get calls from home buyers who discover that there are problems with the used house they just bought.  Often the problem relates to water in the basement and the Property Disclosure Statement from the seller states that there are no known issues.

The first thing to do is contact your realtor and see if there is anything the seller is willing to do to compensate you.

If the seller is not willing to compensate you, your only remedy is to sue the seller for misrepresentation.

At trial, you and your lawyer will have to provide sufficient evidence to prove that there was an issue in the past and the seller knew about it.  You will also have to provide evidence about the cost of repairs.   Experts are usually required for both.

Keep in mind that you don’t need a lawyer for a Small Claims Court, which can award damages up to $20,000.00.

David R. Barth

Builder’s Liens

I had a happy client with a builder’s lien issue.   With respect to builder’s liens, I have acted for building owners, general contractors, and sub contractors.

Construction can be a dirty business.   If you are a general contractor, and the building owner suddenly decides he doesn’t want to pay you $50,000.00, then not only are you not getting paid, neither are your sub contractors.   $50,000 is a lot of money.

The advice I give out depends on whether you are a building owner, or a contractor.   There are tips and tricks for both sides.   Since I act for both sides, I am not going to advice on this blog.   But if you have a question, send me an e-mail or call my direct line.  I don’t charge for a 20 minute consultation.

David R. Barth

Free Initial Consultation

People often need legal advice but are worried that a lawyer will charge them even if they don’t have a case.

Our firm offers a free 20 minute initial consultation so you don’t have to worry.   If our services aren’t required, or you decide not to hire us, we don’t charge you.

Also, if your lawyer is no longer practicing, call us for a free consultation.

I find that callers are often stressed out at the beginning of the consultation, but once they have discussed their case with me, their stress levels have decreased significantly.

David R. Barth

Billing Clients

There are two ways that lawyers bill their clients for legal fees, either a fixed amount, or based on time spent working on the file.

Lawyers will typically bill a fixed amount for wills and residential real estate transactions.

For everything else a lawyer will charge their hourly rate x time spent.

A lawyer’s time spent includes meeting the client about the file, e-mails and phone calls with the client, preparing documents, and comminicating with opposing counsel.  A client can help reduce their legal fees by efficiently communiciating with their lawyer.   For example, don’t send three e-mails when one will do.  If possible try to give your lawyer the information he needs all at once, and in writing.

Don’t forget that lawyers also have to charge for their expenses and GST and PST in addition to legal fees.   In a real estate transaction, that can often be more than the legal fees.

Clients usually don’t have issues with fixed rate fees, but I do get complaints about other lawyer’s hourly rate fees.  Sometimes they are fair, and sometimes not.  If you think they are not fair, you can ask the Court of Queen’s Bench to assess the bill for fairness.

David R. Barth

Holograph Wills

In Saskatchewan, holograph wills are still legal.   I don’t recommend it, but it is still legal.

Section 8 of The Wills Act, 1996, states:

Holograph Wills

8. A holograph will, wholly in the handwriting of the testator and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by a witness.

The reason I don’t recommend you try to create your own will is because you should get legal advice about the information to put in your will.  Not having the right information can cost your estate thousands of dollars in unnecessary court applications.

David R. Barth

Joint Title with Children

A joint title between spouses is a good way to avoid probate fees between spouses.

However, a joint title with your kids is not always a good idea for the following reasons:

1. You lose control of the property.   Your children will have to consent to any sale and if they want the property for themselves, you have a court battle ahead of you.

2. Your children’s creditors can claim the property and register a judgment against it.

3. Your children’s ex-spouse can claim half of your child’s share of the property.

4. If you have several children on title, and one dies, there is nothing for the grandchildren.   The surviving kids take it all.  All it takes is a car accident.

5. The transfer of non principle-residence property is a disposition for income tax capital gain purposes.

If you are going to put a child onto a joint bank account for you so they can pay your bills, make sure you advise the bank and your child, in writing, whether or not you want that child to get the remaining money when you die, or it belongs to your estate.

Interesting aside, the husband dies and has a bank account in his sole name.   The husband has no will.   The bank refuses to transfer funds to surviving spouse until provided with Letters of Administration.  The lawyer has to be hired and legal fees are incurred.   As stated, the above Joint Title between spouses is a good way to avoid probate fees.

David R. Barth

Separation Agreements

When separating from your spouse fighting in Court is an expensive proposition for both parties, it is much faster and easier to agree than to spend tens of thousands of dollars on lawyers and court costs.

Separation Agreements also have the advantage of certainty. You know the end result, right now.   After months or years of fighting, at Trial a Judge imposes a decision on both parties, and often neither party is happy with it.

Separation Agreements can specify Child Custody, Access, Child Support, Children’s expenses, Spousal Support (or lack thereof), and division of Family Property.   It should be road map of where things are going in the future.

I always tell clients to make sure their spouse will sign before preparing a Separation Agreement.   There is nothing more frustrating than spending hours preparing an agreement that the other spouse won’t sign.

Once the agreement is prepared and both spouses agree to sign it, the other spouse will have to get independant legal advice from a different law firm before they sign.   That’s why separation agreements are so hard to overturn.   Both parties had a lawyer tell you what you were signing before you signed it.

When applying for a Final Divorce, the Judge will want to read the Separation Agreement to make sure everything has been settled.

If you have any questions about Separation Agreements, give me a call.

David R. Barth

Asset and Income Protection

Life Insurance provides your dependents with a replacement for your income when you die.

Disability Insurance provides replacement income if you can’t work.

Marriage and Divorce are also major life events that can have a big impact on your life. Below is a checklist of what you can do legally before you marry or after you separate to protect your income and assets.

Legal Checklist for Divorcing Clients

-spouse not only means married couples, but couples that have lived together for more than 24 months.

__ Separation Agreement (for Family Property)(required for refinancing in one spouses name)

__ Separation Agreement (for Child Custody, Access, and Support)

__ Separation Agreement (for Spousal Support, or lack thereof)

__ New Will (Divorce cancels current Will) (can be done in contemplation of future Divorce)

Legal Checklist for Marrying Clients

__ Inter-spousal Agreement (for division of Family Property and debt on future Separation)

__ Title in Joint or Sole Names (presumption of equal sharing at Separation if in Joint names)

__ Inter-spousal Agreement (Assets owned by one spouse jointly with 3rd party (ex. your business partner))

__ Inter-spousal Agreement (Spousal Support)

__ New Will (Marriage, or living together for two years, cancels your current Will)

David R. Barth

Workplace Harassment

I was talking to a psychologist and we started talking about harassment in the workplace.   I said I came accross it from time to time and my advice was always “Don’t quit.   Whatever, you do, don’t quit.   Talk to a psychologist to help you overcome the harassment.”

The Psychologist said workplace harassment was a common issue.   The Psychologist also said the first piece of advice was “Don’t quit”.

So if you are being harassed at work, don’t quit, and seek professional help.   Your workplace may have counselling available. If you don’t know then ask.

David R. Barth