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Frequently Asked Questions
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| Table of Contents | |
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| CIVIL LITIGATION | |
| CONSTRUCTION LIENS | |
| FAMILY LAW | |
| LEGAL FEES | |
| RESIDENTIAL REAL ESTATE | |
| WILLS AND ESTATES | |
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| CIVIL LITIGATION | |
| Q. | Do I need a lawyer to sue someone? |
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The courts most people deal with in civil law disputes in Ontario are the Small Claims Court and the Superior Court of Justice. You are not required to have a lawyer to represent you in either of these courts in most cases.
Many people go to Small Claims Court without a lawyer. This court now handles disputes up to $10,000 and is designed for people to represent themselves. In this court you can also be represented by an "agent". This may be a law student, a paralegal or a friend who is not a lawyer, but who is familiar with the court system and can help you present your case For cases involving more than $10,000 you may go to the Superior Court of Justice where you must hire a lawyer or represent yourself. Most people who have a case in this court do hire a lawyer to represent them. If your case involves a company you generally must hire a lawyer to represent the company. |
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| Q. | How long does a court case take? |
| In our experience in the Ottawa courts, cases in the Small Claims Court system generally take about 6 - 12 months. An average civil case in the Superior Court of Justice in Ottawa now takes a couple of years from start to finish. This can vary a great deal however depending on a number of factors such as how complicated the case is and how many parties are involved. | |
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| Q. | If I win the law suit can I recover all of my legal bills from the other person? |
| You should not assume or expect the other side to pay your legal costs. This may seem unfair but most cases settle out of court before a trial and in most settlements each party pays their own lawyers' bills. Even if you win your case after a trial you would generally be awarded "party and party" or "partial indemnity" costs which does not cover all of your bills. The losing party is generally expected to pay about 1/2 - 2/3 of the winning party's costs. Only in very rare cases is the losing party ordered to pay all of the winning party's legal costs. This is called "solicitor and client" or "full indemnity" costs. | |
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| Q. | How do I pick the lawyer best suited to represent me? |
| In choosing a lawyer many people rely upon the recommendations of people they know and trust. You should choose a lawyer who is experienced in the matter which concerns you. You may wish to interview a prospective lawyer and consider the following factors: - Do you feel comfortable with the lawyer. - Do you trust the lawyer's expertise and integrity. -Is the lawyer accessible and available to you. - Is the cost reasonable. | |
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| CONSTRUCTION LIENS | |
| Q. | How long do I have to register a construction lien claim? |
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Generally if you are dealing directly with the property owner, you have 45 days from the time your contract is declared substantially complete, completed or abandoned, or, if you are a subcontractor or a material supplier, 45 days from your last supply of materials or services to a particular project. There are many exceptions to these general rules however and there can be quite a bit of work for your lawyer to do before a lien claim can be properly investigated, prepared and registered so you shouldn't leave it to the last minute. You will be much better off to speak to your lawyer as soon as you suspect possible problems in getting paid so that your lawyer can make sure your lien rights are properly protected.
You can usually give the owner and mortgagee a notice of your lien claim before actually registering a formal lien claim on the title. Usually the earlier this is done the stronger your position will be. If you are working on a federal government owned property these laws do not apply and you probably do not have to register a lien claim, but there are still strict time limits and procedures for getting paid by the government or a bonding company and you should see your lawyer as soon as you suspect problems in getting paid. |
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| Q. | How much does it cost to register a lien claim? |
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At Augustine Bater Polowin LLP we generally charge a fee of $500.00 plus about $150.00 in disbursements and GST to prepare and register a single lien claim against a single residential property. The fee may be higher depending on the complexity of your situation. In such cases, including those involving commercial or multiple properties we can give you an estimate after investigating the nature of your claim.
If you don't settle your lien claim within a couple of weeks after registering your claim on title you will probably have to start a court action and register proof that you have done so on the title to the property. This usually has to be done within 90 days of those same deadlines we just mentioned. We generally charge a fee of $750.00 plus about $250.00 in disbursements and GST for this work in a case of a single lien claim against a single residential property. A lien claim can be a very powerful and useful right in collecting your account.It usually gives you a claim against the owner (unless you were working on leased or rented property) even if you didn't deal with the owner. A valid construction lien usually persuades the owner and the mortgagee to put pressure on the person or company you dealt with to settle with you, because it freezes the flow of money on the project. But if your right to assert a construction lien claim is lost ( eg against the owner or mortgagee) even on a technicality, you might also lose your right to continue the court case you have started against the party you contracted with. You might wish to consider whether other collection options might be appropriate, with or instead of a lien claim, such as an ordinary Small claims court or Superior Court action. You might have a claim for breach of trust against those who handled the project funding and perhaps the individuals who handled the funding. |
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| FAMILY LAW | |
| Q. | I recently separated and I have custody of two children. How do I calculate the amount due to me for child support? |
| Child support is almost always calculated in reference to The Federal Child Support Guidelines (the Guidelines). The Guidelines set out in table form the amount of child support payable for "Basic" child support based upon the income of the payor. There are many factors which affect the quantum of support, but the Guidelines are a starting point for the determination of child support. | |
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| Q. | How much do you charge for an uncontested divorce? |
| Currently the fee charged is $750.00. That amount is subject to change from time to time. In addition to the fee there are disbursements (sums paid to third parties on behalf of the client) in order to complete divorce process and GST. The total bill usually is in the range of $1,000.00. | |
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| Q. | I am not married to my partner. We have now agreed to separate. Am I entitled to spousal support? |
| Unmarried people may be entitled to spousal support in some circumstances. In order to qualify as a "spouse" for spousal support purposes under the Family Law Act the parties must have either cohabited in a relationship of "some permanence" from which a child is born or have cohabited for three years. If you qualify as a spouse, then you will be entitled to spousal support if you are separated and the respective financial circumstances of you and your spouse justify the payment of spousal support. | |
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| Q. | Is there a table for spousal support similar to the Federal Child Support Guidelines? |
| No. There is no spousal support table. The quantum of spousal support is determined in reference to the provisions of the Family Law Act or the Divorce Act and the cases which have previously addressed this issue in reasonably comparable circumstances. These cases are available in large data banks which can be searched and the results of such searches can provide some guidance. | |
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| LEGAL FEES | |
| Q. | Do staff members of the firm charge for their time in addition to that of the lawyer? |
| There are some staff members who do charge for the time they spend providing paralegal services based on their experience and expertise. Paralegal services are specialized functions in relation to legal work in a particular field. At the present time, the paralegal hourly rates are $100.00 per hour. | |
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| Q. | What is your hourly rate? |
| The hourly rate of the lawyers varies from lawyer to lawyer and is occasionally subject to increase. At the present time, their rates vary from $185.00 to $325.00 per hour. At the time you retain one of the lawyers at Augustine Bater Polowin you will be advised of that lawyers hourly rate and of the hourly rate of the other lawyers in the firm who might work on your file. | |
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| Q. | How does Augustine Bater Polowin charge for legal services? |
| Some legal work (such as wills, some real estate transactions and incorporations) is billed on a fixed fee basis plus disbursements and GST. Other legal work is billed on a quantum meriut basis, that is, on the basis of an hourly rate and the time involved, the complexity, the results and other factors. | |
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| Q. | What are disbursements? |
| Disbursements are payments made by the firm to third parties on behalf of a client. These payments are recorded while work is being conducted on the file and are recovered when a billing is issued. | |
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| Q. | When will I be billed for legal services? |
| Billings for some functions (such as real estate transactions, wills and some corporate work) is issued as a fixed fee at the completion of the matter. In other ongoing matters the client is billed monthly or at certain stages of the case. | |
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| Q. | What is a retainer? |
| The word retainer is used to describe the agreement by the client to "retain" or hire a particular law firm. The word is also used to describe a payment made by a client to a law firm in advance as a deposit to be applied to pay accounts as they are issued. | |
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| Q. | How can I determine at the outset the amount which will be charged for a particular legal matter. |
| It is often impossible to say with certainty at the outset what the legal fees and disbursements will be in a particular matter. The lawyers at Augustine Bater Polowin do their best to assist clients to understand the factors which may affect the legal fees in a particular case and, where possible, will estimate the cost of anticipated legal services for the case or a stage in the case. | |
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| RESIDENTIAL REAL ESTATE | |
| Q. | Why is a lawyer important in a residential real estate purchase transaction? |
| A lawyer can be important at all stages of a residential real estate purchase. Before signing an offer of purchase and sale, your lawyer can review your offer and advise you as to potential difficulties to be avoided later on and to ensure that your interests are protected. For example, your lawyer can include a mortgage escape clause or condition to allow you to cancel the offer if you cannot arrange the financing for your purchase. Once an offer of purchase is accepted, your lawyer will conduct a series of legal inquiries and searches to ensure that on closing you receive good title to the property–in other words, you really own the home and there are no encumbrances to affect your title to the property. Your lawyer will also contact the utility companies to arrange for final meter readings on the day of closing and to have all future billings sent to you. Finally, if there any problems that arise after your purchase–such as a final water bill that the Vendor has not yet paid--your lawyer will be able to get in touch with the Vendor and make the appropriate arrangements for payment. | |
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| Q. | What is title insurance? |
| Title insurance is an insurance policy that protects purchasers and lenders against loss or damage arising from defects in title to their property and other covered title risks existing as of the date of the policy. Title insurance for the owner remains in effect for as long as the homeowner, his or her spouse and his or her heirs owns the insured property. Exclusions to title insurance policies can include such things as environmental hazards and native land claims. | |
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| Q. | What would be an example of loss or damage arising from a defect in title? |
| You may discover that a storage shed on your property is, in fact, over your neighbor's property line. Title insurance will cover the loss you suffer because of having to move your storage shed off of the neighbor's property line. | |
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| WILLS AND ESTATES | |
| Q. | How much does it cost to have a will made? |
| In most cases an estate package for a husband and wife includes a will, a power of attorney for property and a power of attorney for personal care for each individual . At ABP we charge $450 plus GST for this package assuming normal complexity. If your situation is especially complex or unique there may be an additional charge. | |
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| Q. | Why shouldn't I just buy one of the advertised will kits and do it myself? |
| A will does not have to be prepared by a lawyer to be legally effective. However, there are many legal formalities involved in drafting and signing a will. You might leave important things out. Your words might not be clearly understood. Without legal advice you may create problems for the executor responsible for administering the estate and your estate may not be distributed as you intended. We strongly recommend that wills be drafted by lawyers and signed in the presence of lawyers. | |
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