Curious Case | Purvis Culbert Law

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.

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

Posted on 14 September 2017 by Tim Culbert

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:

“A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.”
“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.”
“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.”
It takes a special level of audacity to utter threats under the roof of the Court House.
I gather that this is Larry’s version of the Big Bang Theory.
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: It may be cheesy but it’s worth a read!

Posted on 20 June 2017 by Tim Culbert

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: