Is the legal system backsliding on the lessons learned during the Covid-19 Pandemic?

Posted on 17 February 2023 by Tim Culbert

While loathsome in most ways, the Covid-19 pandemic taught legal professionals many lessons on access to justice. Particularly, we learned that it is not always necessary to meet with clients or colleagues in person when a phone call or Zoom meeting would suffice. Many interim court hearings during the pandemic were conducted by teleconference or in some cases, by video conference. The legal profession as a whole became more flexible on rules regarding filing of documents, attendance at hearings, etc. Courts allowed the filing of many documents electronically, saving legal staff time and client’s money.

However, since the brunt of the pandemic has subsided, the justice system seems to have returned to many of the same practices as before the pandemic. In an interview published in the Canadian Bar Association National magazine on February 16, 2023, the Chief Justice of the Supreme Court of Canada, Richard Wagner, discussed issues of access to justice. A link to this article is available here. In one notable exchange, the Chief Justice stated that he has heard that some courts are returning to the old way of doing things. Chief Justice Wager continues that a lack of resources has likely contributed to courts not implementing technologies that would modernize the justice system. This exchange is quoted in its entirety as follows:

N: You co-chaired the Action Committee on Court Operations in Response to COVID-19, which acknowledged the many advantages of virtual hearings and easing of procedures. We’re now hearing about courts backsliding into old habits, especially in family law matters. Are you worried that we’re taking a step back?

RW: I’ve heard the same thing, that some courts are going back to their old ways of doing things. I think it’s a mistake. I’ve said that COVID-19 was the crisis we needed to realize just how much our system had to be modernized. It would be unfortunate if we went backwards because people claim it’s easier or because they prefer it. We need to build on new technologies. For example, our new Supreme Court portal launched on January 30, which makes it easier for lawyers and people who are self-representing to file documents securely. That’s access to justice.

N: But that’s a luxury for the Supreme Court. Currently, in many jurisdictions, there is a very real lack of resources.

RW: I’ll point to statements by Chief Justice of the Superior Court of Quebec, Marie‑Anne Paquette, who said that the judicial system is held together with “duct tape.” That says it all. And she’s right. The system lacks legal resources. Technology hasn’t advanced sufficiently yet. Employees quit because they aren’t paid enough. For many years now, justice systems in democratic societies have been underfunded—not only in Quebec, not only in Canada, but all over the world. Governments have primarily invested in health and education, and that’s essential, but the justice system has always come second, as if we could just figure it out for ourselves. Judges do indeed figure it out, they are creative people, but they don’t have sufficient resources. There was the COVID pandemic, and there was the 2016 Jordan ruling that came as a warning that we need to invest in the justice system. It needs to be said that provincial governments have made investments, as has the federal government, but it hasn’t been enough. We have a long way to go.

In this author’s opinion, a lack of resources is not a sufficient explanation for why courts have not modernized their systems to strengthen access to justice. While change is always difficult initially, the long-term benefits of e-filing systems, for example, far outweigh the short-term difficulties of implementing these systems. Access to justice must be top of mind when drafting procedural rules for court filings. In one interesting article entitled Electronic Legal Proceedings in Canada, the authors note that many jurisdictions have introduced some form of electronic filing system. Pearce and Younggren reference in this paper that in 2002, the Supreme Court of Canada and the Federal Court of Canada completed a study on electronic filing and 73% of the respondents surveyed stated there would be “significant benefits to the ability to initial court proceedings and file documents electronically.” A link to this paper is available here.

In my opinion, all provinces in Canada (particularly New Brunswick) should conduct a similar study and look at several actions that would increase access to justice, such as: a. electronic filing systems; b. technology allowing counsel and parties to appear by teleconference (and video conference) for certain (non-consequential hearings).

How to fill out a Sworn Financial Statement

Posted on 21 November 2022 by Tim Culbert

Check out our Youtube video on How to fill out a Sworn Financial Statement! Please let us know if these types of videos are helpful to you. We want to make sure we create content that is helpful for our clients and the general public at large.

5 Ways to Ensure You Don’t End up with a “Moneypit”

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Over the past several years (since the beginning of the Covid pandemic in early 2020), real estate lawyers in New Brunswick have experienced a huge increase in real property transactions. Many of these transactions have involved purchasers from other provinces that sold their homes for significant returns on their investments and purchased properties in New Brunswick for cash. Often, purchasers have not even viewed the properties in person prior to completing the transaction. In some cases, people have viewed a property by videoconferencing technology with their real estate agent. In other cases, purchasers have not viewed the property at all and complete the transaction sight unseen.

Purchasing a home without completing the proper due diligence can lead to all kinds of problems. In the 1986 movie, “The Money Pit,” Tom Hanks and Shelley Long purchased a property that turned out to be far more than they bargained for. We might have laughed at this movie, but there’s nothing funny about paying top dollar for a property only to find out that there are significant issues hiding behind the walls that will cost you more time, money and headaches than you could have ever imagined! Here are 5 ways that you can avoid purchasing your own version of the money pit:

Get a home inspection

A home inspection is one of the easiest ways to ensure peace of mind when purchasing a new home. For a reasonable fee, a property inspector will look through a home and provide you with a report about the issues that must be fixed and some of the issues that should be fixed. You may wish to negotiate with the vendors about the purchase price if they are unwilling to cover the costs of the required repairs. Here are some links to local property inspectors that our clients often use:

Say no to “as is where is”

Many people have purchased properties on an “as is where is” basis over the past several years. This is okay if you are willing to be responsible for any repairs required or issues that arise. However, when you purchase a property on an “as is where is” basis, you are releasing the Vendors from responsibility for most defects. The doctrine of caveat emptor (“let the buyer beware”) typically applies to defects that are not visible. There are some small exceptions to this real in cases of fraud, for example, but we recommend saying no to “as is where is” purchases whenever possible.

Visit the property in person (if possible)

We have seen many people over the past several years purchasing properties either sight unseen or only viewing the properties by video conferencing technology. We recommend visiting the property in person and using a checklist to review common property issues. Better yet, you can avoid many issues with a property if you combine a personal visit with an inspection in #1 above. Here is a link for a free home inspection checklist The Ultimate Home Inspection Checklist for Buyers (with Printable PDF) | REW

Ask for (and review) a Property Disclosure Statement

You will typically receive a property disclosure statement when you are purchasing a property through a real estate agent. There is usually a box you check that states that you “require a property disclosure statement”. This statement has questions regarding defects of which the Vendor may be aware. The answers are typically “yes”, “no”, “n/a” format with an opportunity for the vendor to expand on certain answers. These forms have questions about the foundation, water leaking, roof repairs, electrical, etc. It is important to closely review this disclosure statement and to ask your lawyer and/or real estate agent any questions you may have. If you find latent defects to the property (defects that could not be discovered through ordinary due dilligence) that the vendor did not disclose, you may be able to make a claim against the vendor for misrepresentation and damages to assist you with repairs to the home.

Prepare a list of questions to ask your lawyer at the time of closing

Finally, you should prepare a list of questions to discuss with your lawyer at the time of closing. Some important items that I always like to review with clients;

What does the map look like online? Does it match up with what you thought you were purchasing? Does it match the description in a historical deed?
Is there a subdivision plan that provides detailed dimensions for the land?
Are there any easements on the property? If so, what rights does the easement holder have? (i.e. can they merely walk over the property to get to another property? Is there a shared driveway? Is there an easement to cut wood on the property or access a well or spring?)
Do you plan on possibly operating a business out of the property? Have you checked to ensure the property is appropriately zoned, so that you can do what you want without getting flak from the municipality or neighbours?

As the saying goes: there are no stupid questions. I am always appreciative when clients who attend a meeting to sign closing documents are engaged and ask a lot of questions. I hope you find these suggestions helpful! As always, if you have further questions or wish to schedule a consult, please contact us at 506-325-3333.

Climans v Latner ONCA – A New Definition of Spouse

Posted on 29 September 2020 by Tim Culbert

The Ontario Court of Appeal Redefines “Spouse”

A Commentary on Climans v Latner, 2020 ONCA 554

By Jonathan Martin

The law of spousal support in Canada has changed significantly over the past few decades. Once reserved for legally married individuals, spousal support obligations can now arise from a variety of different relationships, whether they produce children or not. In Climans v Latner, 2020 ONCA 554 [Latner], the Court of Appeal for Ontario endorsed the view that those in a long-term romantic relationship who do not cohabit or produce children may still be eligible for spousal support at the termination of the relationship.

FACTS

Lisa Climans and Michael Latner were in a romantic relationship for almost 14 years, starting in 2001. When they met, Lisa was a retired model and marketing employee for a construction company earning about $5,000 per month. Michael Latner was a multi-millionaire businessman. Throughout their relationship, the pair maintained separate homes in Toronto and never moved in together. They kept their finances apart and never owned any property together. Neither self-reported on their income taxes that they were living in a common-law relationship. They had no children together. Both had children from previous marriages.

Mr. Latner was very generous to Ms. Climans throughout their relationship, to the extent that Ms. Climans quit her job shortly after they started dating and never worked again the entire time they were together. They would stay together at Mr. Latner’s cottage in July and August of each year. They spent weekends in Florida in the winter and occasionally for March break. Mr. Latner proposed to Ms. Climans several times but never married, partly because Ms. Climans refused to sign any prenuptial agreements. In many of his letters, Mr. Latner referred to Ms. Climans as Mrs. Latner.

LEGISLATIVE CONTEXT

The Ontario the Family Law Act, RSO 1990 has two different definitions of spouse. For most of the Act, “spouse” means legally married. However, for spousal support, section 29 defines “spouse” as any two people who have cohabited for at least three years or were in a relationship of some permanence that produced a child. New Brunswick’s Family Services Act, SNB 1980, c F-2.2 does not use the term spouse for non-married individuals, but still provides that support must be paid if the parties live continuously together for at least three years or have a child together in a relationship of some permanence living together. Fathers in New Brunswick are also liable to pay support to the mother of their child, regardless of their relationship (over and above support for the child under the Guidelines), should there be need and ability to pay.

The issue in Latner had to do with the definition of “cohabit”, a term defined in the Ontario Family Law Act as meaning to “live together in a conjugal relationship, within or outside of marriage”. It could arguably be said to have the same meaning as the provision for support at section 112(3) of the New Brunswick Family Services Act, which provides support for those “who have lived together continuously… in a family relationship”.

“LIVING TOGETHER”

According to the legislation, two elements are needed in order to fall under the category of living continuously in a conjugal or family relationship. You need (1) to live together, and (2) be in a conjugal or family relationship. In most cases, whether parties are living together is easy to discover. What constitutes a “conjugal or family relationship” presents with more difficulty as you are essentially trying to reconstruct the essence of marriage itself. The courts have over time come to accept a list of criteria that indicate the existence of a conjugal relationship, while stressing that all of them need not be present. These include: sexual and personal behaviour, services, social activities, economic support, children, and the social perception of the couple” (M. v. H., [1999] 2 S.C.R. 3, at paras. 59-60).

On occasion, the courts have had to turn their attention to the question of what constitutes “living together”. It is generally a straight forward exercise, ruling out other explanations for sharing the same roof, such as being roommates or in a landlord/tenant relationship, etc. Sometimes, however, the parties don’t share the same roof. Although this would on the surface appear to bar a claim for spousal support, life is rarely quite that simple. In Campbell v. Szoke [2003] O. J. No. 3471 (Ont. S. C. J.) at para 52, Madam Justice Karakatsanis, now judge of the Supreme Court of Canada found that “the fact that parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children.” This approach makes sense since it would be unreasonable to require that couples always live together. Married people will often live apart for a variety of reasons, including work, immigration barriers, or to care for family members. However, one would expect that the reason for not living together would have some element of necessity to it, as opposed to a mere decision by the parties not to live together. Campbell, however, found that parties who had chosen not to live together mainly because one of them did not want the legal consequences that come from that, had in fact been living together. Several lower court decisions had followed the approach in Campbell. Latner now provides an appellate decision endorsing this line of jurisprudence, which arguably dispenses with the first part of the legislative test altogether.

The decision in Latner was not reached without some difficulty. The legislation is, after all, clear that the parties need to live together. The trial judge admitted that “there needs to be some element of living together under the same roof. The very definition of “cohabit” requires that the parties live together in a conjugal relationship.” The trial judge however found the necessary elements of living together in the various vacations and alternate weekends the parties spent under the same roof. It was not without some difficulty that the Court of Appeal justified this conclusion. A crucial question in determining how long support must be paid is how long the parties cohabited. The Court of Appeal overturned the lower court finding that the parties had “cohabited” during the entire length of their 14-year relationship, since the conclusion that they had cohabited at all was in essence a legal conclusion based on the entirety of their relationship, and not a discreet finding of fact. They had never in fact lived together. The Court of Appeal could therefore not support the trial decision that support should be payed indefinitely based on a 14-year cohabitation. Interestingly, it never provided its own finding of how long the parties cohabited. The Court of Appeal sidestepped this question and ordered that spousal support be payable for ten years. It would have been interesting if the Court had attempted to count or estimate the number of days the parties had actually spent under the same roof, and ordered support based on that time period alone. Perhaps 4 or 5 years of support would have been ordered under that approach.

CONCLUSION

The decision in Latner provides an important precedent for the proposition that romantic couples need not physically live together or have children to claim for spousal support at the end of the relationship. If there is significant and ongoing financial support during the relationship, the parties present as a couple, and they spent any amount of time under the same roof, they could be found to have been “living together in a family relationship”. Given the amounts at issue, it is likely that one of the parties will seek leave to appeal to the Supreme Court of Canada. Stay tuned for future developments.

A Review of the New Power of Attorney Legislation in New Brunswick

Posted on 1 September 2020 by Tim Culbert

1. Introduction

People often make Powers of Attorney to deal with financial (property) and healthcare decisions in the event they become incapacitated by reason of age, accident or other mental infirmity. However, it is surprising how many people do not understand what a power of attorney is for and what are the repercussions creating same. Many frequently asked questions surround powers of attorney, such as: does a power of attorney continue after death?; Is a power of attorney the same as an executor under a Will? Are there different kinds of powers of attorney?

While many provinces have specific legislation related to appointing an enduring power of attorney and the attorney’s duties after appointment, New Brunswick’s power of attorney legislation only recently came into force on July 1, 2020. Indeed, it was the last province in Canada to do so. Prior to this legislation coming into force, lawyers drafting powers of attorney relied on the common law and other statutes for guidance on issues, such as: does this person have capacity to make a power of attorney?; Who can legally act as a power of attorney?; What duties does an Attorney of a power of attorney have to the Grantor?

https://www.cbc.ca/news/canada/new-brunswick/nb-power-of-attorney-legislation-1.4174868

Under the common law, a person has capacity to grant an enduring power of attorney if he or she: a. Is able to understand the basic nature and purpose of the enduring power of attorney; and b. understands the consequences of same (i.e. the Attorney of the power of attorney can make potentially all financial and healthcare decisions for that person, which could cause loss of funds, or decisions that may not be exactly what the Grantor of the power of attorney would make under the circumstances).

The duties of the power of attorney were laid out in various cases in New Brunswick. For example, in LeBouthillier Estate v. Selosse (Appeal by LeBouthillier), 2014 NBCA 68 (QL), B.R. Bell J.A. (as he then was) for the New Brunswick Court of Appeal, outlined the relevant jurisprudence confirming an attorney acting under a power of attorney has a fiduciary duty to the Grantor, meaning the attorney must act in good faith and only in the best interests of the Grantor.

Yet it is difficult to explain with clarity the concept of fiduciary duty to a client without having some specific examples and details about what a power of attorney can and cannot do. Even if the Attorney understands her duties at the time of discussion, she may find herself in trouble later on without some specific guidelines. (for example, see previous post here on misuse of Powers of Attorney).

Add to this the fact that different statutes applied to different aspects of common powers of attorney (i.e. the Infirm Persons Act for personal care provisions and the Property Act for property matters), one can easily understand why powers of attorney could go wrong in executing their duties. (see for example Trites v. Trites and Jones, 2017 NBQB 085, wherein Mr. Justice Rideout of the Court of Queen’s Bench in Moncton ordered the Applicant’s wife and daughter to return two 2016 Toyota RAV4s, which the wife purchased with funds she transferred from her husband’s bank account as his Power Of Attorney.)

2. The Enduring Powers of Attorney Act SNB 2019, c 30

The new Enduring Powers of Attorney Act (the “Act”) provides much needed guidance for legal counsel as well as Grantors and Attorneys on different aspects of creating and using powers of attorney. For example, section 2(1) sets out the required capacity for an individual to make a power of attorney:

Capacity

2(1)A person has capacity with respect to a matter or an act if the person is able to

(a) understand the information that is relevant to decisions with respect to the matter or act, and

(b) appreciate the reasonably foreseeable consequences of decisions with respect to the matter or act.

2(2)A person is presumed to have capacity unless it is determined otherwise.

Although this section essentially codifies the common law requirements for capacity, it is helpful to have this information in one location as a reference point. It is also helpful to clarify that capacity is presumed unless determined otherwise.

Section 4, dealing with the validity of a power of attorney, is one of the more notable sections in the new Act because it adds new requirements for counsel to ensure that a power of attorney is valid. This section reads as follows:

Validity

4(1)An enduring power of attorney is valid if

(a) the grantor had the capacity to make it,

(b) it is in writing and is signed and dated by the grantor or, in the circumstances described in subsection (2), by another person,

(c) in the case of an enduring power of attorney in which an attorney for property is appointed or an attorney for property and an attorney for personal care are appointed,

(i) it is signed and dated in the presence of a lawyer, and

(ii) it includes or is accompanied by a written statement by the lawyer declaring that the lawyer

(A) is a practising member of the Law Society of New Brunswick,

(B) reviewed the provisions of the enduring power of attorney with the grantor,

(C) was present when the enduring power of attorney was signed by the grantor or, in the circumstances described in subsection (2), by another person, and

(D) is of the opinion that the grantor had the capacity to make the enduring power of attorney, and

(d) in the case of an enduring power of attorney in which only an attorney for personal care is appointed, it meets the requirements of paragraph (c) or it is signed and dated in the presence of two witnesses, both of whom are adults and neither of whom is the attorney or the spouse, common-law partner or child of the attorney, and it is signed by the two witnesses.

4(2)An enduring power of attorney may be signed and dated by a person on behalf of the grantor if

(a) the grantor is unable to sign and date the enduring power of attorney,

(b) the person signs and dates the enduring power of attorney at the direction and in the presence of the grantor, and

Section 4(1) adds the requirements for lawyers witnessing the signing of powers of attorney to include statements confirming they have turned their mind to the issue of capacity and confirmed in writing that a Grantor has the requisite capacity as set out in section 2(1). While these details should be confirmed each time a lawyer witnesses the signing of a power of attorney anyway, this section helps ensure these tasks are completed, or the power of attorney would be invalid. Section 4(2) is also interesting, as it allows a grantor of a power of attorney to appoint someone else to sign the power of attorney on his/her behalf. It will be interesting to view the future circumstances under which this section is used.

Another interesting section deals with individuals who are prohibited from acting as powers of attorneys:

Prohibited attorneys

6(1)A grantor shall not appoint the following persons as an attorney:

(a) a person who has been convicted of an offence involving dishonesty, unless the enduring power of attorney states that the grantor is aware of the conviction;

(b) a person who provides health care services or support services to the grantor for compensation, unless the person is the spouse, the common-law partner or a relative of the grantor; or

6(2)A grantor shall not appoint an undischarged bankrupt as an attorney for property.

6(3)If a person who is not an adult is appointed as an attorney, the person may only act when the person becomes an adult.

One final section worth noting is section 12, which deals with the duties of attorneys:

Duties of attorneys

12(1)An attorney shall

(a) act honestly and in good faith,

(b) exercise reasonable care, and

12(2)When making a decision on behalf of a grantor who lacks the capacity to make the decision, the attorney shall consult with the grantor, if it is reasonable to do so, and

(a) make the decision in accordance with any relevant instructions given by the grantor when the grantor had capacity,

(b) in the absence of any instructions, make the decision in accordance with the current wishes of the grantor, if the wishes are reasonable,

(c) if the wishes of the grantor cannot be determined or are unreasonable, make the decision that the attorney believes the grantor would make if the grantor had the capacity to make the decision, taking into consideration the values and beliefs of the grantor, or

(d) if the attorney is unable to determine what decision the grantor would make, make the decision that the attorney believes to be in the best interests of the grantor.

12(3)For the purposes of paragraph (2)(a), if a grantor has given instructions that are inconsistent with previous instructions, the attorney shall make the decision in accordance with the most recent instructions.

12(4)When an attorney for property is acting on behalf of a grantor who has capacity with respect to property and financial affairs, the attorney shall consult with the grantor and act in accordance with the instructions of the grantor.

This section of the Act is particularly interesting, as it requires the Power of Attorney to consult with the Grantor of the Power of Attorney prior to making decisions (if possible).

3. Conclusions

The new Enduring Powers of Attorney Act is a helpful addition to New Brunswick’s legislative landscape. It should help lawyers, Grantors and Attorneys of Powers of Attorney in the future with ensuring the Grantor’s wishes are respected. It will hopefully reduce the amount of misuse of Powers of Attorney, which has unfortunately become a common issue today. Here are some helpful links for more information on this Act:

https://www2.gnb.ca/content/gnb/en/news/news_release.2019.11.0602.html (GNB Press Release regarding Act);
https://www2.gnb.ca/content/dam/gnb/Departments/ag-pg/PDF/en/LawReform/Notes43.pdf (Law Reform Notes 43 (April, 2020), including outline keys sections of the Act);
https://www.canlii.org/en/nb/laws/stat/snb-2019-c-30/latest/snb-2019-c-30.html (link to the Act itself)

Bill C-78 – Amendments to Divorce Act (and other legislation) – The Good, The Bad and the somewhat Redundant?

Posted on 23 June 2019 by Tim Culbert

Introduction

In a post on June 1, 2018, I discussed proposed amendments to the Divorce Act that, if passed, would be the first major changes to the current Act since 1985. I recently attended a Family Law Conference, at which Stéphanie M. Cormier, a lawyer at Actus Law in Moncton, New Brunswick (and Chair of the CBA Family Law group) presented in more detail on the amendments to the Divorce Act (and several other Acts) proposed in Bill-C78. As of April 11, 2019, this bill was in its second reading in the Senate. The focus of this post will be solely on the proposed amendments to the Divorce Act, as these changes are voluminous enough to generate significant discussion. Also, I will not go through each and every amendment in detail. Should you wish to read the Bill in its entirety, you can visit the link here to the House of Commons website version of same. Also, here is a link to the current status of this bill.

Positive Amendments

Firstly, I wish to note that I maintain the same opinions expressed in my June 1, 2018 post that the proposed amendments to the Divorce Act are mostly positive. For example, the amendments include adding a non-exhaustive list of criteria with respect to best interests of the child. This is a positive change in and of itself, as family law practitioners (in New Brunswick anyway) have traditionally had to utilize the criteria contained in the caselaw and in the Family Services Act. Oddly enough, previous versions of the Divorce Act did not include a list of criteria for best interests of the child, even though all decisions regarding care and access to children is based on same. In addition, the proposed amendments would replace terminology related to “custody ” and “access” with “parenting” time. This is a positive change, as terms referring to custody (i.e. “joint” vs. “shared” custody in particular) confuse many people in my experience and these loaded terms often create unnecessary division between separating parents. Moreover, persons other than spouses may apply for contact orders with the children. This is a positive amendment, which follows recent trends in provincial legislation allowing grandparents and other persons to apply for custody or access to children. (for example, see previous posts here , here and here.)

In addition, the amended Act includes provisions to assist courts with divorces that involve family violence. This recognizes an unfortunate pattern in recent years of increased instances of domestic violence in family law disputes.

There are also provisions in the amended Act that provides a framework for dealing with jurisdiction, where a court in one province is dealing with a parent that removes a child from that province.

Questionable Amendments

While there are many positive amendments to the Act, there are some amendments that simply codify what the common law already is. For example, there are new provisions dealing with the duty of legal advisers to discuss reconciliation and alternatives to court with clients. Most family lawyers likely already discuss these options with their clients. Also, there are new provisions dealing with relocating with a child of marriage. These amendments require a parent wishing to move with a child to notify the other parent “in writing at least 60 days before the expected date of the proposed relocation and set out”:

(a) the expected date of the relocation;

(b) the address of the new place of residence and contact information of the person or child, as the case may be; and

(c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised.

If the child spends the majority of time with the moving parent, then the onus shifts to the responding parent to establish why relocation would not be in the best interests of the child. At paragraphs 26-48 in Gordon v. Goertz, [1996] 2 SCR 27, 1996 CanLII 191 (SCC), the preeminent case regarding mobility in Canada, the Supreme Court dealt with arguments for and against a presumption in favour of the moving parent. On the one hand, the Court cited the following arguments in favour of this presumption:

the principal residence of the child is a normal incident of custody and the court should accordingly defer to the custodial parent (para 34);
the personal freedom of the custodial parent requires that he or she be permitted to decide where to live (para 34);
would make outcomes of variation applications more predictable (para 34);

The Court deals with each of these arguments in succession and ultimately concludes that if Parliament wished that decisions would be made in this way, it would have codified same in the Divorce Act (as it has now): “Had Parliament wished to impose general rules at the expense of individual justice, it could have done so.” (para 38). The Court further notes at paragraph 38 that a presumption in favour of a custodial parent would do little to minimize conflict. Indeed, it may do the opposite and increase conflict.

Between paragraphs 40-48, the Court considered arguments against the presumption in favour of custodial parents in mobility cases:

the child’s best interests may no longer be protected or advanced through the earlier order (para 40);
presumption should as matter of principle be introduced in all matters involving variation? (para 41);
Parliament placed a duty on deciding best interests of children on the judge, not the custodial parent (para 42);
could render inquiry more technical and adversarial than necessary (para 43);
Most importantly, presumption could impair the inquiry into the best interests of the child … in favour of parent’s wishes (para 44);

This final argument against the presumption is the most concerning, as the proposed amendments may unnecessarily complicate mobility cases by focussing too much attention on the parents rather than the children. As the Supreme Court stated in Goertz, supra: “But to begin from the premise that one parent has the prima facie right to take the child where he or she wishes may unduly deflect the focus from the child to its parents.”

Conclusions

Time will only tell what kind of impact these amendments will have, or whether they are simply codifying trends that already exist in cases across Canada. However, as with all legislation, it will be incumbent on lawyers to pay attention to how these changes are interpreted and implemented in various jurisdictions across the country. These amendments appear to be a reality and are likely to come into force in the not-too-distant future. Therefore, we will continue to review the proposed amendments and would be happy to answer any questions you may have regarding same.

First Major Changes to Divorce Act since 1985

Posted on 1 June 2018 by Tim Culbert

On May 22, 2018 the Federal Government introduced Bill C-78, which proposes changes to the Divorce Act. The proposed amendment would be the first significant revision to the Divorce Act since its enactment in 1985.

The changes to the Divorce Act are designed to implement a more “child-focused” approach to family law disputes, rather than an adversarial approach. By removing language like “custody” and “access,” and encouraging dispute resolution, the Act is designed to better promote the interests of the child.

The Minister of Justice, Jody Wilson-Raybould, summarizes the changes as follows:

(a) replace terminology related to custody and access with terminology related to parenting;

(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;

(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;

(d) introduce measures to assist the courts in addressing family violence;

(e) establish a framework for the relocation of a child; and

(f) simplify certain processes, including those related to family support obligations.

If this Bill passes in the House of Commons, the legislation will likely come into force in 2019.

Thus far, most family law practitioners and commentators view the proposed changes positively. However, some state the impact of these amendments will depend on how courts across Canada would apply the new provisions. We note that the common-law in Canada already requires the courts to apply a “child-centric” test and only consider the “best interests of the child” when making decisions regarding custody and access (or “parenting time” rather) (Young v. Young, [1993] S.C.J. No. 112). However, the proposed changes to the terminology should help reduce the “win/lose” mentality of many individuals involved in family law disputes.

To view Bill C-78 in its entirety, check out the link below:

https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/first-reading

To view the Divorce Act (1985), check out the link below:

https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html

Child Support: Can I just pay the child directly?

Posted on 8 March 2018 by Tim Culbert

Not a week goes by that I do not hear the question: “can I pay child support directly to him/her (the child)?”. This question is usually followed by a discussion of why he or she (the other parent) is not spending the child support on the child. In this parent’s theory, the other parent is using the child support funds to go on extravagant trips and other luxury items that are not related to the child’s care. Hence, “why can’t I just pay him/her directly? Then atleast I will know that the funds are going toward the intended purpose.”

The answer to this question is that courts rarely allow child support payments to be made directly to a child; it is the exception rather than the rule. Courts in Canada have stated that compelling reasons must exist for payments to be made directly to a child. In Mylrea v. Benoit, 2003 CanLII 1975 (ON SC), the Ontario Superior Court responded as follows to a father’s request to set up a trust to pay child support directly to the children:

[31] Mr. Mylrea requests the right to limit the amount of child support that goes directly to Ms. Benoit to the sum of $248.00 each month, with the balance to be paid into a trust account for the benefit of the children. Again, even if I were inclined to do that – and I am not in the least – authority prevents me from doing so. In Simon v. Simon (2000) 1999 CanLII 3818 (ON CA), 1 RFL (5^th) 119 (Ont.C.A.), MacPherson, J.A., in delivering the judgment of the court, said this (at page 134 of the Report):

——-

It may be that in some cases a court imposed trust to secure funds for a child’s future care and education would be appropriate. However, in my view, absent a good reason for imposing a trust, the court should not do so. The presumption should be that a custodial parent will do his or her best to provide for both the child’s immediate needs and his or her future care and education. Unless there is strong evidence establishing the need for a trust (e.g. the misuse of support payments by the custodial parent) I see no reason to interfere with the way in which the parent balances the present and future needs of the child in his or her custody.

(emphasis added)

In L. B. L. v. S. B., 2010 NBQB 339 (CanLII), Justice Walsh of the Court of Queen’s Bench of New Brunswick dealt with a situation where the payor mother was attempting to create her own system of child support payments to her child on the grounds that the father wasted funds meant for the child:

[65] On the totality of the evidence it is clear that the mother cannot stand the thought of paying child support directly to the father, despite the absence of any cogent evidence that the father was wasting the sums that he did receive through garnishment. By any means, by any claim, the mother has now sought to create her own system, to permit her to directly support or reward the children for her own purposes, to ignore the law’s requirements. The receipted claims she made in this case and the claims she has filed with Revenue Canada constitute clear evidence of her present approach. The irony is that the vast majority of the arrears that were terminated in May 2009 were for a period when the mother was having little, if any, contact with the children, and the children would appear to have forever lost this money owed to them (See: Beninger v. Beninger 2009 BCCA 145 (CanLII)).

[66] In these circumstances I apply Swiderski v. Dussault:

While D.B.S. [v. S.R.G. et. al., 2006 SCC 37 (CanLII)] at para. 109, opens the theoretical possibility that the payor parent can justify himself by showing total payments equivalent to the Guidelines amounts, this, I suggest, presupposes candour, openness and satisfactory proof of the amounts. None is present in this case.

There are at least two reasons why payors should not be able to create their own support regimes. The first is that the receiving parent usually has custody, and must be the one to make decisions about the child’s expenditures. A private unilateral scheme operated by the payor can be a method of control which undermines the authority of the custodial parent. The second reason is that the payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record-keeping …

(2009 BCCA 461 (CanLII),at paras. 38, 39) (emphasis added)

These cases stand for the proposition that child support is meant to maintain a child’s permanent home and to cover the incidentals that a custodial parent provides to a child (see Armaz v. van Erp, 2000 CanLII 22585 (ON SC) ). I often explain it this way to clients: just think of how much you might spend on the children or other incidentals if you were still living in the same home with the other parent. Wouldn’t it likely be more than you are spending right now? And regardless of whether these funds go directly toward the children or not, there are certain expenses the other parent must pay to keep the children’s quality of life similar to what they would have experienced if you were living with the children, correct?

As stated earlier, there are some exceptions to this rule, such as when the parents’ relationship is extremely acrimonious and the child lives away at school (see B. (T.T.) v. D. (P.H.), 2014 NBQB 164).

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

Posted on 31 October 2017 by Tim Culbert

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

Posted on 6 October 2017 by Tim Culbert

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: https://www.snb.ca/RTT-TLL/E/RTT-TLL_E.asp

Get a home inspection

Say no to “as is where is”

Visit the property in person (if possible)

Ask for (and review) a Property Disclosure Statement

Prepare a list of questions to ask your lawyer at the time of closing

1. Introduction

2. The Enduring Powers of Attorney Act SNB 2019, c 30

3. Conclusions