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 (https://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.

 

 

 

5 tips for home buyers prior to closing!

In the 1986 movie, the Money Pit, a young couple move into a home that is terribly dilapidated. While falling down stairways and leaking bathtubs in this movie are enjoyable for comedic value, no one enjoys these things when they happen to you!

A home is the single largest purchase most people will ever make. Therefore, it is important to take the time to investigate your purchase prior to closing and not be pressured by lawyers, real estate agents or family members. Also, you should be careful not to fall in love with a home (too much) prior to proper inspection. You may be excited about your new home, but if you choose to waive your inspection, miss defects, or close on an “as is where is basis,” disaster may follow. For example, in Anderson v. Lawrence, 2013 NBQB 21, Justice Morrison of the Court of Queen’s Bench of New Brunswick heard the home purchasers’ claim against the vendors’ for negligent and fraudulent misrepresentation. The purchasers suffered serious water damage in their basement and the ceilings in the main floor of the house caused by a leaky roof.

The purchasers had viewed the property prior to purchase and saw water in the basement and detected a musty smell, but were assured by the vendors and a real estate agent that the problems had been solved. There were also issues with the septic system. Finally, the purchasers received 17 acres of land rather than 34 acres, as the vendors represented.

The Court in Anderson, supra held that the vendors both negligently and fraudulently misrepresented the water leakage and the size of the land. As a result, the Court ordered the plaintiffs were entitled to $24,339.49 for costs of repairs and $13,070 for the value of the missing 17 acres of land in addition to interest and legal costs.

This case is a helpful lesson to purchasers of homes to be extremely critical before committing to a purchase. It’s easy to end up with your own version of a money pit! Here are some helpful tips to assist you with the purchase of your home:

1. Hire a licensed property inspector. The cost ranges from $200-$500, but will be worth every penny if your inspector finds issues that you may not be able to see with your own eyes;

2. Use checklists to evaluate the condition of the home. Here is a link to a helpful checklist that you may wish to use to evaluate the condition of the home. As stated in the checklist, it should not be relied upon nor be a replacement for a certified home inspection. We make no representations or warranties about the accuracy of the information either, but believe it is a helpful starting point;

3. Attend the inspection with your licensed inspector. Make sure you attend the home with your inspector and ask lots of questions;

4. Read the inspection report carefully and discuss with you inspector, legal counsel and real estate agent;

5. Research the inspector. Not all inspectors are created equally. Take the time to ask potential inspectors questions about  their experience, qualifications, costs, etc.

She doesn’t want to go on access visits. Do I still need to send her?

Like all family law issues, the question of whether to send a child on an access visit when the child expresses she does not want to go is fraught with difficulties. Courts have determined that the answer is ultimately fact specific. In Geremia v. Harb, 2007 CanLII 1893, Justice Quinn held that a custodial parent must do everything possible, even physically forcing the child, to ensure that the child attends access visits. He stated at follows at paragraph 44:

[44]   Mr. Wilson argues that our law does not require a parent, who wishes to avoid a contempt citation, to physically force a child to go on an access visit. I respectfully disagree with that argument as a general legal principle. Whether a child should be physically forced by the custodial parent to go on an access visit depends upon the facts of the case. Certainly, the force used should not be such as to cause physical harm to the child. And, although the specter of emotional harm is far more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason. Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

(emphasis added)

At paragraph 38 in Germania, Quinn J. quoted Zuber J. in Singer v. Singer regarding situations where a parent is not actively denying access but the child does not wish to go and the parent is not forcing the child to go with the other parent:

[38]   What about cases where the custodial parent insists that he or she did not wilfully refuse access to the other parent but, instead, the child refused to go on the access visit? Two cases were cited by Mr. Wilson on this issue. The first one is Singer v. Singer (1974), 17 R.F.L. 18 (H.C.J.), where a father complained that the mother refused to comply with the terms of an access order. Zuber J. commented, at p. 19: [Counsel] has cited me an American authority, but it sounds very sensible to me and I would be prepared to follow it, that the mere whim of a child, that the child’s preference cannot be the governing factor in these matters.

 In L.C.M. v. B.A.C., 2010 NBQB 127 (CanLII), Walsh J. of the New Brunswick Court of Queen’s Bench quoted paragraph 44 of the Germania case and stated, “In my opinion those comments have application to the modified circumstances in the present case. It cannot be forgotten that S. is only 7 years old. ” However, Walsh J. noted that while the mother’s failure to send the child would normally be of great concern, given the father’s behaviour (unsubstantiated allegations of sexual misconduct) and the mother’s contributions to the alienated situation, an order for contempt was not appropriate. Walsh J. considered the best interests of the child and granted sole custody of the child to the mother but with unsupervised access to the father.

What stands out in these cases is that there are no “hard and fast” rules about whether to send a child on access visits or not. However, absent satisfactory reasons for not sending a child, Justice Quinn’s comments in Germania are instructive: “the job of a parent is to parent.” (emphasis added) In other words, both cases stand for the proposition that custodial parents should not refuse to send children on access visits based on the mere whims of the children in stating that they do not wish to go, unless there are substantiated reasons for refusing to do so. Another key takeaway from these cases is that parents who do not make reasonable attempts to ensure that children attend access visits may face allegations of contempt of court. (see for example, Cashman v. Cashman, 2014 ONSC 3581 (CanLII), distinguishing Germania but providing an instructive discussion of civil contempt in family law matters).

7 Reasons You Should Make a Will (no matter how old you are)

Sometimes the universe presents me with topics to write on. This was one of those weeks. Over the past week, I have spoken to 3 or 4 different people separately about the importance of doing a Last Will and Testament. During one conversation, a colleague and I pondered the reasons why so many people avoid doing their wills. My theory is people simply do not want to think about death and thinking about a will means they must think about death. It’s not a pleasant topic, I admit. But the fact of the matter is that we are all going to die! Yes, that is a little dramatic, but it is true. The old adage is that the only things that are certain in this life are: death and taxes. With that said, here are seven reasons why you should think about doing a will, no matter what your age:

7. Peace of mind: If you do your will now, you will be providing yourself with peace of mind, just by knowing that you have something written down in case you pass away. There are few things more tragic than seeing close family members upset after the loss of a loved one. Add to that the stresses of trying to figure out what documents are needed, funeral arrangements, what to do with property, etc. Having a will does not solve all of these problems, but it is the foundation for your total estate planning package and will alleviate some unnecessary stresses on your family.

6. Costs:  Similar to my comments in a previous article about why a Power of Attorney is important, doing a will now can save costs to you and your estate. If you pass away without a will, you are what’s called “intestate” and a statute called the Devolution of Estates Act (in New Brunswick) kicks in to guide the process your family must go through to have someone appointed to represent your estate (pay your bills, sell your property, gift certain properties to others). This process can be more costly in the long run than probating (proving) a will.

5. Guardianship for you children:  You could include a provision in your will to appoint a guardian or guardians for your children should something happen to you. Only you know your children and who you trust to watch over them the most. A will is an effective way of expressing your wishes for your children as well.

4. Protecting your business: Through the process of drafting a will, people often begin thinking about a succession planning for their business. This might include transitioning your business to a family member. Also, your lawyer and accountant can assist you in thinking about estate freezes and/or family trusts, which can maximize the tax potential of your transition.

3. Complexity:   People seem to build up the process of making a will in their minds into something greater than it really is. In most cases, making a will is not a complex process. You will have to attend your lawyer’s office one or two times (maybe more depending on complexity) and discuss your property, your family and your wishes. Then you will attend your lawyer’s office to sign your will. It is not that difficult, but I recently heard someone say that when she told her workmates that she was going to a lawyer’s office to make a will, one workmate asked: “oh, why, what is wrong with you?”

2. Family Fighting : We have all heard or experienced horror story scenarios with family members fighting over their parent’s properties. While a will cannot guarantee that your family will not be fighting over your property or money, it will certainly reduce the possibility of disagreements. It is more difficult for family members to contest your intentions when they are written clearly in “black and white” in your will.

1. Control: If you are like me, there are likely very few items that are important enough that they should be passed on to specific people. However, if something ever happens to me, I have some sentimental items that I would like certain people to have. It is difficult to ensure that your few important items are distributed as you wish without a will. A will is the best way to ensure that you maintain control over what little you have on this earth.

Do you know about the Family Law NB website?

1. Access to Justice in Canada

Access to justice is a serious problem in Canada for several reasons:

1. many people cannot afford legal services;

2. not enough judges;

3. not enough courthouses;

4. need for streamlining of many legal processes.

See for example, Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil and Family Justice: A Roadmap for Change”, online: (October 2013) Canadian Forum on Civil Justice <https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>

2. PLEIS Family Law NB Website 

One way of increasing access to justice is the use of “self-help” resources and websites, which provide information and step-by-step guides on completing court forms and how to navigate the judicial system. One of my favorite such websites is the Public Legal Education and Information Service of New Brunswick (PLEIS) Website, which houses a plethora of useful information on various areas of the law. Here is a link to PLEIS’ main page. In addition to the links on the main page, PLEIS has a website dedicated to family law information. Here  is a link to the PLEIS family law page. This website has “how-to” guides on filling out Court forms, videos from experienced family law practitioners and information about training sessions and courses available in your area. I have presented at a few of these sessions and bumped into course attendees years later, who mentioned how helpful they found the information.

While websites like the PLEIS website and the Family Law NB website should not be a complete substitute for competent legal advice, they may help you to gather information and narrow down issues before speaking to a lawyer. Also, I have had people attend my office with some of their divorce forms already filled out. This saves them time and money because our office staff can review these documents and make suggestions for revisions without having to start from scratch.

PLEIS Family Law

3. Social Media Options

I am a big believer in social media. If used correctly, one can personalize the information taken in and keep up to date on current events. I would highly recommend anyone interested in learning about Family Law (or any other area for that matter) should follow PLEIS on Facebook and Twitter for courses in your area and general information. Also, take a look around their website, as it is truly a wealth of information to get you started!

 

Tip of the Week: Incorporated business owners — have you remembered to file your annual return?

As the sun begins to shine and we creep ever closer to spring (okay, I’m being optimistic), companies may be coming up on their corporate year ends. Don’t forget that you will receive a notice each year reminding you to fill out your annual return and to file it with Corporate Affairs. Many people confuse the Annual Return with “some sort of financial report” because it occurs around the same time of year as your corporate year end.

Section 85(1) 0f the Business Corporations Act requires the directors of a corporation to call an annual meeting of the shareholders each year not later than eighteen months after

(i) the date of its incorporation, or
(ii) the date of its certificate of amalgamation, in the case of an amalgamated corporation,
and subsequently not later than fifteen months after holding the last preceding annual meeting; and
(b) may at any time call a special meeting of shareholders.
 
The annual general meeting is when the directors should be reporting to the shareholders on the financial status of the corporation. Also, this is when the shareholders elect new directors or affirm past directors. Once you hold the annual general meeting, you are ready to file your annual return, which is basically an up to date statement of the company’s current directors and their contact information.

 

Section 187 of the Business Corporations Act, SNB 1981, c B-9.1  states that “A corporation shall, on or before the last day of the month following the anniversary month of the corporation, send to the Director (of Corporate affairs, not one of your own directors) without notice an annual return in the form provided by the Director signed by a director or an officer of the corporation and the Director shall file it.”

 

It’s easy when the summer months come around to stash the reminder notice from Corporate Affairs in a drawer and forget to file it. If this happens, your corporation will be labeled “intent to dissolve” after a period of time and you will have 60 days to file your return before  the dissolution. It will cost you far more to re-establish the corporation than to file you annual return in the first place ($60 if you file online and $80 if you file in paper format). Here is the link to the New Brunswick Corporate Affairs website with the forms for filing your annual return.

Should you have any questions, pleas do not hesitate to contact us.