Curious Case: Smiths v. Cataraqui Cemetery Company (aka – a Plot to get a Plot)

Here’s a somewhat spooky curious case about three brothers who sued a cemetery for the right to be buried there.

Background:

In 1869, brothers Joseph and Darius Smith purchased the rights to 4 plots at the Cataraqui Cemetary for the sum of $100.00. The purpose of these plots was to be the final resting place for them as well as their family for years to come.

In general, when a person wishes for their remains to be buried or cremated at a cemetery or interred, they purchase the rights to be laid in a plot of land, and not the land itself. Essentially, the person is purchasing the right to be interred in a specific area of the cemetery.

Throughout the years following this purchase, only a handful of Smith family members were buried on this plot, as several members chose to be buried elsewhere. This left a large amount of unused space to be used by future heirs of the Smith family.

Details:

Fast forward almost two centuries to 2013, when three brothers, Allan, Carmon, and Marvin Smith, sued the Cataraqui Cemetery for denying their request to be buried in their ancestor’s plot.

According to the current manager, the cemetery had been under different management when it allowed family members to be buried there without proof of being heirs of Joseph and Darius Smith. He states that just because family members were buried there throughout the years does not mean he will allow others to do so as well without first proving their lineage.

The issue here is that since 1869, over 2000 living heirs existed that would have be equally as entitled to a spot in the plot, so to speak.

Outcome:

The Court’s decision on the matter came down to several points:

  • The Court  looked at the Funeral, Burial and Cremation Services Act (the Act), which came into effect in July of 2012, and replaced the old Cemeteries Act. The Act states that only the interment rights holder has the right to be buried and to decide who is buried in the plots in question. Therefore, the Smith brothers (current) had to prove that they had such a right.
  • The Court found on their deed that Darius and Joseph Smith intended the plots to be handed down to their heirs in a broad manner including anyone in the lineage of either brother. Considering the obvious fact that they bought the rights to 64 plots, what did the cemetery believe they intended on doing with them?
  • The fact that the cemetery had previously permitted over 20 burials of members of the Smith family without proof that they were interment rights holder was also a factor in the decision.
  • Finally, the Court applied the law of estoppel to find that the cemetery’s silence and its acts in permitting other Smith burials without formal proof of interment rights prevents it from now insisting that the applicants prove such rights.

Are you a Landlord or a Tenant looking for information? Check out this site

I attended a Continuing Legal Education session this week on Real Property Law and one of the presenters was the newly named “Chief Residential Tenancies Officer.” I must admit that I had no idea that the Office of the Rentalsman had been recently renamed as the Residential Tenancies Tribunal. The website for this tribunal has lots of information that can be helpful if you are  a tenant or a residential landlord. What is especially helpful are the various forms and resources, which include Form 6 –  Standard Form Residential Lease. I highly recommend that both landlords and tenants spend some time navigating this site and taking advantage of the many resources contained within the site. Here is a link to the site: http://www.snb.ca/RTT-TLL/E/RTT-TLL_E.asp

 

 

Curious Case: Bruni v. Bruni – A “how not” to behave in a family law dispute by being “one dimensional problem solvers”

In this week’s installment of our Curious Case series, we take a look at the Ontario Superior Court of Justice case of Bruni v. Bruni, 2010 ONSC 6568. As stated in our last curious case post here,  real life is often stranger than fiction. This is one of those cases where even the Judge in this case could not withhold his frustrations with the ways in which these parties interacted with one another. While entertaining, the Judge’s comments throughout this case serve as a stern warning to family law litigants to have some modicum of respect for one another.

Background:

Catherine and Larry Bruni separated in 2010 after an 11 year marriage. While in committed relationships with other people, the two separated individuals absolutely loathed one another. There was nothing out of bounds for this couple, from death threats to alienating their children, B and T, against each other.

Details:

Larry sought to set aside the child support provisions in their separation agreement because he felt that Catherine’s partner, Sam, was able to support her and the children. Larry also sought an equalization of net family property. As later stated by the Judge, Larry neglected to read the entire Separation Agreement resulting in disadvantages such as, property rights, rights to his children, and even the rights to independent legal advice.

Catherine responded by requesting variation of the separation agreement by amending child support and access provisions, seeking spousal support, and acquiring contributions to extraordinary expenses.

Catherine would often threaten Larry by stating that “the Hell’s Angels would be knocking on his door at any moment” or that” her family members were on their way to kill him”. She even took matters into her own hands by trying to run him over with her vehicle.

On the other hand, Sandra, Larry’s significant other, refused to allow B to contact her mother while in the care of her and Larry, stating that Larry’s time with his children was his and not Catherine’s.

Furthermore, Justice Quinn noted at paragraph 70 of his decision that “[o]n 14 occasions, within 18 months, the parties drew the police into their petty disagreements — a sad commentary on their inability to get along and a shocking abuse of the Niagara Regional Police Service.”

During their trial, Catherine and her partner, Sam, continuously uttered threats in the court room directed towards Larry.

Outcome:

The Judge dismissed Larry’s requests and partially allowed Catherine’s requests by making small changes to the Separation Agreement including typographical errors and the amendments to the amount of child support Larry had to pay.

The judge felt that it had been Larry’s responsibility to read the entire Separation Agreement before signing, and it is due to his own neglect that he is now facing these misfortunes.

JUDGES NOTES WORTH READING:

  1. “A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.”
  2. “When the operator of a motor vehicle yells “jackass” at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter.”
  3. “I confess that I sometimes permit a lengthier hiatus than the schedule of the court might otherwise dictate in order to afford the parties an opportunity to reflect on the trial experience, come to their senses and resolve their difficulties like mature adults. It is touching how a trial judge can retain his naivety even after 15 years on the bench.”
  4. It takes a special level of audacity to utter threats under the roof of the Court House.
  5. I gather that this is Larry’s version of the Big Bang Theory.
  6. My personal favourite excerpt, which is quoted in full:

[15] Some family trees have more barren branches than others.

[16] Larry testified about the many death threats he received from Catherine and members of her family around the time of, and in the months following, separation. I will mention some of them.

[17] In September of 2006, Larry went to live with his father “for a couple of days” to “clear my head”. When he returned to the matrimonial home, the locks had been changed. Larry stated in evidence: “Catherine didn’t want me on the property and her family threatened to have me killed.” [page260]

[18] Larry gave evidence that, less than one month later, Catherine “Tried to run me over with her van.” [See Note 6 below]

[19] On November 21, 2006, Catherine demanded $400 from Larry or her brother was “going to get the Hells Angels after me”. [See Note 7 below]

[20] On February 9, 2007, Catherine told Larry that she wanted him to sign adoption papers so that Sam could adopt their children. [See Note 8 below] Said Larry, “She threatened me with her brothers and Hells Angels again.”

[21] On August 13, 2007, Catherine’s niece (Donna), telephoned Larry “and told me I will get a bullet in my head if I don’t sign the adoption papers. She called back later and told me I’m as good as dead.” She called a third time, “to tell me her father and uncles are coming to kill me”. [See Note 9 below]

[22] The next day, Catherine telephoned Larry and said that she “wanted my truck or her brother and the Hells Angels are coming to get it and me”.

[23] On October 18, 2007, a nautical theme was added. According to Larry, “Donna Taylor, Catherine’s sister-in-law, yelled out her window that I was going to be floating in the canal dead.”

[24] As can be seen, Catherine and her relatives are one- dimensional problem solvers.

If you’re interested in taking a look at this curious case for yourself, here’s the link to the full decision!

https://www.canlii.org/en/on/onsc/doc/2010/2010onsc6568/2010onsc6568.html

 

 

Curious Case: The Squires, The Fitzpatricks and…. a Coyote Head?

Here’s a curious case I wrote about years ago on a personal blog. It’s strange enough to warrant repeating here.

Background: For 20 years, 60-year-old Bill Squires and 75-year-old Anna Squires maintained a close relationship with their neighbor, Mary Fitzpatrick. In 2006, however, Ms. Fitzpatrick passed away and her son, David, became the Squires’ new neighbor.

Details: Friction between the Squires and David began shortly after Ms. Fitzpatrick’s funeral. The Squires had lent photos of Ms. Fitzpatrick to David for display at the funeral and, despite multiple polite requests, the Squires’ photos were never returned. The neighbors’ relationship continued to deteriorate and when the parties disagreed over the care of a strip of grass between their properties, the feud – which could have once been classified as a neighborly dispute – escalated to passive-aggressive outbursts and death threats.

Particularly disconcerting was the morning of November 12, 2007, when the Squires stepped out of the front door of their home to find a dead coyote on the hood of their car. The Squires reported that, when they walked out and saw the horrifying scene, David appeared to wait patiently nearby in his own vehicle. When they looked at David, he drove away slowly, while displaying a satisfied grin on his face.

Outcome: Reportedly, the “first strain” (over the Squires’ photographs of Ms. Fitzpatrick) was amplified due to David’s already-existing feud with his sister, Shelley, over their mother’s estate. When the severity of their situation with David escalated, however, the Squires pressed charges.

The Squires reported the coyote incident to the police and provided video and audio recordings that captured David threatening the Squires. In response, David turned himself in (although he denied having anything to do with the dead coyote) and he was arrested for harassment.

When police officials lost the Squires’ video and audio recordings, the Crown decided not to proceed to trial and the charge against David was withdrawn. The Squires sold their home and moved on with their lives; meanwhile, David filed a civil suit against the Squires and his sister, Shelley, for “malicious prosecution and conspiracy”. Ironically, it was after David had started the new action and the Squires made a counter-claim that the Court finally heard the Squires’ case.

David’s original claims were dismissed and Judge Stinson of the Ontario Superior Court found that David was responsible for leaving the dead coyote on the Squires’ car and that he intentionally aspired to inflict mental distress on the Squires. The judge ordered David to pay the Squires over $166,000 in damages, a lifetime ban of contact with the Squires, additional costs to cover the Squires’ extensive legal fees, and additional funds to cover Shelley’s costs.

Curious about the Case? Check it out for yourself:

Amendments to Family Services Act in NB Considers Grandparents in Custody Matters

The New Brunswick Government recently amended Section 129(3) of the Family Services Act to consider other parties, including grandparents’ access to their children. Section 129(3) of the Act used to state that “upon application the court may order that either parent or any person shall have access to a child”.  The New Brunswick Court of Queen’s Bench referred to this section in cases such as, G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 regarding whether grandparents have rights to access their granchildren. In GG, supra, Madam Justice D’Entremont referred to Morecraft, which stated “[t]here is no automatic right of access to third parties“. In an earlier post (see here), I noted the difficulty the wording of section 129(3) posed to questions regarding grandparent’s access to their grandchildren.

On May 5, 2017, the New Brunswick Government passed the bill–An Act to Amend the Family Services Act. This Act essentially replaces the current section 129(3) with the following:

129(3)Repealed: 2017, c.22, s.1

129(3.1)On application, the court may order, on the basis of the best interests of the child, that either parent, a grandparent, another member of the child’s immediate family or any other person shall have access to a child, whether or not an order for custody has been made with respect to the child.
129(3.2)An order under subsection (3.1) shall be made subject to the terms and conditions that the court determines.
129(3.3)On application by a grandparent or another member of the child’s immediate family, other than a parent or guardian, the court shall take into consideration the willingness of each parent or guardian of the child to facilitate access and the need for making an order for access.
129(3.4)An order under subsection (3.1) may provide that access be exercised in the form of visits, oral or written communication or by any other means of communication.
129(3.5)The court may vary or discharge an order under subsection (3.1) at any time.

These amendments broaden the items a judge must consider when making an order for access to a child to “grandparents” and “another member of the child’s immediate family.” In addition, section 129(3.4) specifies that access may be through visits or other means of communication (likely email, Facetime, Skype, etc.) These are likely welcomed changes for grandparents who have, until now, not been explicitly mentioned. As stated in my post <a href=”http://www.purvisculbertlaw.ca/proposed-changes-to-family-services-act-in-new-brunswick-to-consider-role-of-grandparents/”>here</a>, however, how these amendments affect grandparent’s access to their grandchildren will depend on how courts in New Brunswick interpret and apply these provisions in future

Here are some links to more information on these amendments:
– Copy of An Act to Amend the Family Services Act: http://www.gnb.ca/legis/bill/pdf/58/3/Bill-49.pdf
– Link to status of the bills in NB Legislature: http://www1.gnb.ca/legis/bill/print-e.asp?legi=58&num=3&page=4
– Link to current version of the Family Services Act: https://www.canlii.org/en/nb/laws/stat/snb-1980-c-f-2.2/latest/snb-1980-c-f-2.2.html

Have you taken the “For the Sake of the Children” course?

Separation and divorce can be painful and confusing for all parties involved. This is especially true for the children of separating couples.

It is important to recognize that you are not the only one hurting while you are going through a divorce. Children often get caught up in arguments and discussions between parents. For the Sake of the Children offers an informative program that helps to educate separating parents about the impact of certain actions on their children. The program reminds us that children are aware of more than we sometimes realize and that it can be very difficult for them to process painful and confusing information, in a healthy way, without the proper support and guidance. In addition, it can be difficult for parents to avoid the temptation to involve their children in their disagreements. For the Sake of the Children can help you to put your differences aside and focus on what really matters–the children!

In Manitoba, it is mandatory for separating parents seeking custody agreements to attend a similar educational program. Here in New Brunswick, however, the program is offered for free to any interested party, but it is not mandatory.

I have personally seen how parents justify using their children as pawns in their battle against eachother. It is not pretty and will ultimately not endear you to a Judge. Remember the words of Ontario Judge Alex Pazaratz in a previous post here.

See below to view the instructional videos shown during the For the Sake of the Children program:

Children: The Experts on Divorce (15 minutes)

https://vimeo.com/11106924

Divorce and Separation: Legal Considerations (19:44 minutes)

https://vimeo.com/11106951

Vignette #1:  Miguel (The Messenger) (7 :27 min.)

https://vimeo.com/10556768

Vignette #2: Nathan (The Exchange) (3 :00 min.)

https://vimeo.com/10556790

Vignette #3: Denise (The Haircut) (6 :39 min.)

https://vimeo.com/10556698

Vignette #4: Jessie (Mom’s house – Dad’s house) (9:41 min.)

https://vimeo.com/10556748

For more information, or to register for the program, check out the following links:

 

For discussion:

  1. Should For the Sake of the Children or a similar program be made mandatory for parents who wish to separate in New Brunswick?
  2. Can you think of any issues that may arise with requiring all parents to attend the program before separating and implementing custodial agreements?

 

 

 

 

Curious Case: It may be cheesy but it’s worth a read!

Note: The following is centered on a case for which the decision was already made and has now been appealed by one of those convicted. Thus, the below description refers only to the case and relevant parties thereof in context of the appeal.

Background: The appellant, Scott Heron, was a police officer with Niagara Regional Police in Ontario. In February, 2012, Mr. Heron was caught in a three year-long heist: smuggling cheese across the border from the U.S. to Canada! The appellant was sentenced to four months in prison for conspiracy involved with smuggling approximately $133,000 worth of cheese, evading approximately $325,000 worth of duty, and breach of trust as a public official (three months for the smuggling conviction and one month for breach of trust). Shortly thereafter, Mr. Heron appealed the decision.

Details: Mr. Heron appealed the trial judge’s decision, not in regard to the smuggling conviction, but only the finding of breach of trust by a public official. The breach of trust conviction was determined, in particular, based on one key factor: the appellant having performed a Canadian Police Information Centre (“CPIC”) check on the license plate of his accomplice, another police officer (the smuggler) on the same day after having been informed that his accomplice thought he was being followed during one of his deliveries.

The appellant argued on appeal that the original verdict was flawed because it assumed there would be only one reason for Mr. Heron to have performed the CIPC check: being to find out whether the smuggling scheme had been compromised and how he may be able to cover his tracks.

Outcome: The Court of Appeal rejected the appeal and confirmed the appellant’s sentences. The Court found that the timing of the CPIC check was simply too significant, especially given that the Applicant put forth no other plausible explanation for the CPIC check. The Court of Appeal agreed with the trial judge on this matter by acknowledging that it would send a discouraging message to the public (that police officers are able to get away with profiting from abuse of their credentials) to decide otherwise.

Curious about the Case? See for yourself:

 

5 tips for preparing for your first meeting with your lawyer about your will

It’s difficult to think about passing away. Many people find it almost as difficult to plan for their eventual demise prior to their first meeting with their estate lawyer. Therefore, here are some useful tips (in no particular order) for preparing for your first meeting with your lawyer about your will:

1.Primary Executor Think about who you want to be the executor of your estate. For couples, each person usually chooses his or her spouse. However, if your spouse is struggling with dementia or poor health, it may be more prudent to name someone else as executor of your estate. This will be the person who is responsible for paying your liabilities and distributing your remaining estate assets according to your wishes. This is a very personal decision. Your executor is the “trustee” of your estate, which requires that person to act only in your estate’s best interests.

2.  Alternate Executor: Plan for an alternate executor, should your first choice predecease you or for some other reason become unwilling or unable to act. I often recommend someone who lives reasonably close to you, making it easier for that person to administer your estate.

3. Inventory: Prepare a basic list of your estate. In other words, think about “what is my stuff?” and write down your major assets, including your properties, most prized possessions, cash, banking information, RRSPs, etc. and have an estimated value of these properties. This process makes it easier for your executor to distribute your estate after your passing. This does not need to be (nor should it be) a detailed list of everything you own, but rather a basic outline of your most important assets. Oh, and don’t forget your debts!

4. Detailed Lists?: Most estate lawyers recommend that the will not be too detailed regarding every asset you own (i.e. my grandmother’s teacups to x, my collection of table and chairs to y). However, it is sometimes helpful to create a more detailed list or memo to leave with your will for your executor. This is not necessarily legally binding on your executor, but will certainly assist your executor in giving effect to your wishes

5. Communicate with your executor: It’s important to have a discussion with the person you plan on naming as your executor. I was once approached by an executor that expressed that he had no idea that he was named as his friend’s executor. Unfortunately, relationships can become strained; it can be awkward if the person you have chosen to be your executor has not seen you for many years and did not know that s/he was going to be named as your executor. There is nothing wrong with speaking with your executor in private and saying “I am thinking about naming you as my executor. Are you okay with this? Do you have any questions or concerns?”

Curious Case of The Week: Warring Neighbours and a Manure Pile

Background: In 2001, David and Joan Gallant bought a piece of property in Indian Mountain (Moncton area) from Lee and Shirley Murray. The property is located next-door to the Murrays themselves. The neighbors got along well until November, 2013.

Details: November, 2013 is when the Murrays reportedly dumped an enormous mountain of cow manure—so large, in fact, that at one point it could be spotted by Google Earth—directly beside (and partially on) the Gallants’ property, ending the friendly relationship between the neighbors. The Gallants claim to have asked, on multiple occasions, to have the Murrays remove the heavily odorous heap, only to have their requests ignored for nearly a year and to be met with additional passive-aggressive acts; for example, the couple also used a snow blower to blow snow and rocks onto the Gallants’ property on occasion and let their cattle loose to trample the Gallants’ lawn.

Outcome: In response to the unwelcomed gestures, the Gallants filed a lawsuit against the Murrays, claiming damages for having committed nuisance, trespass, and harassment. On January 19, 2017, Court of Queen’s Bench Justice, George Rideout, ruled in the Gallants’ favor, awarding $15,000 in damages, as well as ordering the Murrays to keep their animals off the Gallants’ property, to refrain from blowing snow, rocks, manure or anything else into their neighbors’ yard, and to keep manure piles 300 meters away from the Gallants’ home. The judge stated, “In my opinion, based on the evidence before the court, the manure was placed where it was for only one purpose, to make Mr. and Mrs. Gallant’s lives miserable.”

Now: The Murrays, unhappy with the verdict, have “vowed to appeal” the decision, but there is no sign of an official appeal to date.

Curious about the Case? See for yourself:

Proposed Changes to Family Services Act in New Brunswick to consider role of Grandparents

The New Brunswick Provincial Government recently announced that it intends to amend the Family Services Act  to include consideration of grandparents in custody and access matters. Here is a link to the press-release for this announcement. Currently the Family Services Act allows “either or both parents or any person, either alone or jointly, with another” to be granted custody of a child. (emphasis mine)

The “any person” has been used in the past to include grandparents, but as you may recall, I wrote in a previous post about the difficulties grandparents face in seeking access to their grandchildren (http://www.purvisculbertlaw.ca/do-grandparents-have-access-rights-to-their-granchildren/. ) Essentially,  parents are–rightfully so I might add–the primary decision makers for their children.  Therefore, absent serious reasons for replacing a parent’s role as primary decision maker (i.e. abuse, neglect), access decisions typically flow through the parents. If parents do not wish for their children to see their grandparents, then it is difficult for Courts to order access.

One key question about the proposed changes will be: Just how will the Provincial Government include reference to grandparents in the Family Services Act? The answer to this question will help determine how beneficial the amendments will be for grandparents involved in custody disputes. As noted in my earlier post, courts apply the “best interests of the child” test to custody matters, so how further inclusion of grandparents in the equation will affect the outcome of custody disputes will depend on how the changes require judges to consider grandparents more than they do already! (see G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271  mentioned in prior post).

Overall, however, this is a welcomed announcement for grandparents. The proof will be in the details and the implementation of the proposed changes.