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.

 

Top 5 Myths about Family Law disputes

  1. Myth: Behaviour of the other person matters in a divorce hearing as to whether your divorce is granted.

Response: No. Since the June 1, 1986 amendments to the Divorce Act, the sole criterion for divorce is “marriage breakdown.” Divorces are now described as “no fault” in Canada.

  1. Myth: If I do not consult a lawyer and do not respond to legal papers for long enough, the problems will go away.

Response:  False. I often use the analogy that legal issues are like your car. When your change oil light comes on, you can choose to immediately take your car to the shop to get an oil change. Better yet, you may wish to schedule regular maintenance. If you do so, the costs are usually less and the issues are easier to manage. If you disregard your car’s oil change light for too long (I may have some experience in this department), it will likely cause issues with the transmission  and you will end up costing yourself far more time and money. Similarly, legal issues (especially family law issues), never go away. If you owe child support today, you will end up owing more later.

  1. Myth: If I embarrass my (soon to be) former spouse, I can get more out of the divorce.

Response: False. Remember my post here on a case in Ontario, where the judge blasted a couple for spending $500,000 combined fighting with each other about custody issues. Think about that for a moment. $500,000! These were not extremely wealthy people. I believe one was a police officer. This kind of fighting and embarrassment did no one any good.

  1. Myth: I have to go to Court to get what I want.

Response:  False. There are many options available to divorcing couples that can be more cost-efficient, rewarding and effective than court. You may choose to participate in mediation. I have seen this work extremely well and both parties walked away with their sanity and their relationships with their children were strengthened. You may choose to work with collaborative law lawyers, who can bring both parties to the table to ensure that each person’s interests are discussed and solutions are reached that reflect what each person wants out of the divorce.

  1. Myth: Whether you pay child support depends on whether you get access to a child (for the payor) and whether you grant access to the other parent depends on whether they are paying child support.

Response: False. For the most part, child support and custody and access have nothing to do with each other under the Divorce Act, the provincial legislation and the Federal Child Support Guidelines. The exception to this rule is that the amount of child support payable can change depending on whether the access parent has access to a child over 40% of the time over a year pursuant to section 9 of the Federal Child Support Guidelines. Conversely, whether someone pays child support or not should not determine whether they are granted access to their children. I know it’s hard to grant access to someone who doesn’t want to be responsible for his/her child, but you are only hurting the child when you deny access for this reason!

As always, these posts are strictly for educational/information purposes only and do not constitute legal advice. Please consult our Website Disclaimer regarding terms of use and representations. Should you have any specific questions about your situation, please contact us.

 

Why should you sign a Power of Attorney?

A Power of Attorney is a legal document by which one person grants another the right to act on his/her behalf after the donor no longer has the capacity to make decisions. A Power of Attorney can be a useful estate planning tool, especially as we begin to  age and become more concerned about our capacity to make decisions. It can take two main forms: 1. Financial – allowing someone to make key financial decisions for you (pay bills, sell property, etc) and/or 2. Personal Care – allowing someone to make health care decisions on your behalf (medications, treatments, residential care arrangements). In honour of November being National Alzheimer’s disease awareness month in the United States, here are some additional reasons why you may wish to consider signing a Power of Attorney:

1. Costs – It is far more cost effective to sign a Power of Attorney while you have the capacity to do so than for your family members to apply to a court to be appointed as guardians of your estate (similar to Power of Attorney) (hundreds of dollars versus thousands of dollars);

2. Time – It is quicker and easier to sign a Power of Attorney (one or two meetings with your counsel vs. many months of meetings and waiting for your family to apply to a court if you do not have a power of attorney );

3. Flexibility A Power of Attorney can be as flexible or specific as you wish. It is often used for specific purposes over a specified period of time, such as allowing someone to sign property deeds in your absence if you have moved away or are away on vacation when your home sells.

4. Control– The Alberta Law Reform Institute notes that Enduring Powers of Attorney allow people to plan for their incapacity by choosing who they wish to make their decisions:

An EPA (Enduring Power of Attorney) enables people to plan for their own incapacity, giving them the freedom to choose someone whom they feel is most likely to act in their best interests. This sense of control over one’s life after incapacity promotes self-determination and autonomy, and enhances personal dignity. It also helps ease some of the anxiety which people feel knowing they soon lose the ability to manage their own affairs.

– Alberta Law Reform Institute, Enduring Powers of Attorney (Report for Discussion No 7, 1990) at 19-21, cited in Ann Soden, Advising the Older Client (Markham: Lexis Nexis Canada, 2005) at pages 112-113.

As always, you should consult your lawyer for specific questions regarding whether a Power of Attorney is right for you, as there are risks to choosing the wrong person to act as your POA (see my post on theft by enduring Powers of Attorney here.)

It’s a Terrible Life: People involved in custody disputes should heed this Ontario Judge’s words!

1. Justice Alex Pazaratz, an Ontario judge known for his candid and creative writing style, recently blasted two parents involved in a bitter custody dispute over spending a combined $500,000 during the course of the custody litigation when the issues could have easily been resolved between the parties years earlier. Here is a link to a Toronto Sun article referring to this case:

http://www.torontosun.com/2016/03/09/judge-blasts-warring-parents-who-squandered-500000-on-custody-battle

A copy of this case, entitled Jackson v Mayerle, 2016 ONSC 72 (CanLII), is available for free here:

http://www.canlii.org/en/on/onsc/doc/2016/2016onsc72/2016onsc72.html?resultIndex=1


 

2. I recommend all individuals thinking about embarking on a custody battle read this case, especially the following comments made by Judge Pararatz:

CONCLUDING COMMENTS

759     This was the worst type of custody case.

a.The evidence focussed on the bad rather than the good.

b. On who shouldn’t get custody, rather than who should.

c. We spent 36 days debating which parent we have to guard against.

d. Rather than focussing on how we protect and reassure a little girl who didn’t want her parents to be doing any of this.

e. That could have been a brief, pleasant and productive discussion.

760     There’s no doubt the Respondent will be deeply disappointed with the result.

761     But I’m disappointed too. As judges, we all are.

762     Somehow, no matter how hard we try, we don’t seem to be getting the message out to separating parents:

a. Nasty doesn’t work.

b. Withholding the child doesn’t work.

c. Sarcastic e-mails don’t work.

d. Bad-mouthing the other parent doesn’t work.

e. Twisting the child’s life to create a new status quo…doesn’t work.

f. Selfish decisions which may be emotionally satisfying in the short term, never look good in a courtroom.

763     In the classic Christmas movie “It’s a Wonderful Life” there’s an extended fantasy sequence where Jimmy Stewart anguishes over had badly things would have turned out if he’d made a reckless, impulsive decision.

764     Perhaps family court should fund an instructional movie about this type of custody battle. “It’s a Terrible Life.” There could be a fantasy sequence about how happy a child might have been. If only…

 


3. Other notable quotes from Judge Pazaratz quoted by Michele Mandal in the Toronto Sun article are as follows:

Justice Alex Pazaratz’s judgments are considered a must-read by family lawyers.

His literary prowess can be traced back to his days as a newspaper intern before entering law school. A few of his compelling quotes:

“Breaking Bad, meet Breaking Bad Parents,” he wrote about another case in 2014. “The former is an acclaimed fictional TV show … The latter is a sad reality show playing out in family courts across the country.

“Breaking Bad Parents: When smart, loving, caring, sensible mothers and fathers suddenly lose their parental judgment and embark on relentless, nasty litigation, oblivious to the impact on their children.

“Spoiler Alert,” Pazaratz continued. “The main characters in both of these tragedies end up pretty much the same. Miserable. Financially ruined. And worst of all, hurting the children they claimed they were protecting.”