Tag: lawyer

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

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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.

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

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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).

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

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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.

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Do you know about the Family Law NB website?

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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!

 

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Not all Title Insurance Policies are Created Equally: lender’s title policy vs. owner’s title policy

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You are buying your first home and you have signed so many documents your hand is getting sore. You likely have signed a mortgage, the mortgage covenants, discussed title to the property with your lawyer, arranged for fire insurance; maybe you talked about zoning requirements (depending on your plans for the property); arranged for your down payment on the home; Not to mention that you have been dealing with the logistics of moving—renting a van, picking up pizza and soft drinks to lure your friends in to helping you out; You have been so busy that you probably do not even remember the (likely very brief) conversation you had with your lawyer about title insurance. There can be serious consequences of not being aware of the difference between a Lender’s vs. and Owner’s title insurance policies. What is more concerning is the differences are not easily identified by title insurance companies and require a thorough reading by the counsel and the policy holder.

Here are some basic differences between the two types of title insurance policies:

1. Lender’s policy

A lender’s title insurance policy is usually required by your mortgage company when you purchase a home if you do not have a building location survey. Whereas a survey can  be thousands of dollars, a typical title insurance policy usually costs between $1-200 per policy. This makes title insurance an alluring option for home purchasers rather than spending thousands of dollars when you have already made the (likely) single biggest investment of your lifetime!

Here are some key facts about the lender’s policy:

  • Also known as “loan” policy
  • Lender requires lender’s policy before financing purchase;
  • Only covers the lender’s interests in the property;
  • Types of risks covered:
    • Fraud (signing wrong name on mortgage, etc.);
    • Legal fees in defence of title (ownership issues);
    • Issues regarding priority (other mortgages or judgements registered ahead of bank’s mortgage);
    • Gap coverage (if mortgage not registered on title for a period of time after closing);

2. Owner’s Policy

An owner’s title insurance policy can provide protection against the losses listed in the policy. Some examples could be:

  • someone else owns an interest in your title
  • existing liens against the title
  • violations of municipal zoning by-laws
  • encroachments onto an adjoining property (other than fences and boundary walls)
  • setback violations
  • realty tax arrears
  • outstanding municipal utility charges, provided such charges form a lien on title
  • existing work orders
  • lack of legal access to the property
  • unmarketability of the land due to adverse matters that would have been revealed by an up-to-date survey / RPR/ Building Location Certificate

3. Some helpful links

If the difference between the two types of title insurance policies is still not clear, here are some links that may assist you in further understanding the differences:

 

 

 

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Why should you sign a Power of Attorney?

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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.)

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Tip of the Week! Budget early for costs related to property purchases

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The Real Property Transfer Tax Act requires purchasers of property to pay a one-time tax upon purchase of a property in New Brunswick. On April 1, 2016, the real property transfer tax increased from 0.5 per cent to one percent of the assessed value of a property or the actual purchase price, whichever is higher. This can result in significant increases in closing costs for purchasing a home. For example, transfer taxes on a home purchased for $150,00o would have been $750.00 prior to April 1, 2016. After this date, the transfer taxes would be double at $1,500.  In addition to other closing costs (registration fees, title searches, etc), disbursements related to property purchases can feel unpredictable and overwhelming if you are purchasing a property for the first time.

TIP: Budget early for costs related to property purchases and take the time prior to committing to a purchase to speak with your lawyer about possible costs! This can help you avoid unnecessary stress leading up to what is likely the single most expensive investment most people will make–your home!

 

 

 

 

 

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