October 14, 2021

Traditionally, engagements gave rise to various legal – not just social or moral – obligations. For example, a woman could sue her faithless fiancé and obtain money damages for her injured feelings and mental distress resultant from his breach of the promise to marry. No equivalent cause of action was available to a man, though. The cause of action for the breach of promise to marry has been abolished in several Canadian provinces, and while it is technically still on the books in New Brunswick, recent judicial pronouncements suggest such a suit would have slim chances of success.

Historically, the question of who gets to keep the engagement ring was tied to the question of fault. If the man was the one to end the engagement, the woman had the right to keep the ring, but if the woman ended the engagement, the ring had to be returned. That is no longer the case today. It no longer matters who ended the engagement or what are the genders of the giver and the recipient of the ring. The decisive question is: was the ring a conditional, or an unconditional gift? Was the ring really given in contemplation – and on the condition – of the marriage taking place? Or was it simply a gift, with no strings attached, given simply on an occasion of the engagement? The intentions of the partiers in the particular case at hand are key.

In short, it is certainly possible (thought not guaranteed) to recover the engagement ring if the engagement falls through. If you are facing this or any other legal issue, please contact us.

August 26, 2021

It is uncontroversial that a commercial host (someone who is paid to serve alcohol) can be held responsible if their drunken guests injure themselves and others. This is a default legal rule. For example, if a bar over-serves a customer, and the customer then drives drunk and injures someone, the victim can sue the bar owner.

No such default rule exists for social hosts. Thus, someone who is injured by a drunk driver usually cannot sue the host of the party where the guilty driver had gotten drunk. However, sometimes a social host can be held responsible, particularly when the party itself was such that it posed an inherent and obvious risk to the public. For example, someone who hosts a boisterous, out-of-control party for hundreds of teenagers and supplies the guests with generous amounts of alcohol and illegal drugs may well end up being liable when the unruly partygoers injure someone. By contrast, a host of a respectable family dinner will likely not be held responsible if a long-lost cousin sneaks one too many a glass of one before setting to drive home, and injures someone as a result. The absence of a hard-and-fast rule means that the outcome of each case will depend on the specific facts.

If you were injured by a drunk driver, are being sued because of a party that you have hosted, or facing other legal issues, please contact us.

May 21, 2021

A Power of Attorney is a document which grants one person (called the “Attorney”) the power to make personal care/medical decisions and/or financial/property-related decisions on behalf of another person (called the “Grantor”). Powers of Attorney can take effective immediately or on a specified date. However, they are often set up to be used when a Grantor loses capacity to make such decisions for themselves, as determined by an Assessor (a medical doctor or Nurse Practitioner).

An Attorney must act honestly and in good faith, exercise reasonable care, and act within the authority granted to them in the Power of Attorney. An Attorney must use the Grantor’s assets only for the benefit of the Grantor and not for their own personal use or anyone else’s use. An Attorney is also expected to keep careful and accurate records of their dealings with the property or finances of the Grantor, including any dealings which may take place when the Grantor still has capacity.

An Attorney is held to a high standard because of the potential power they wield over a Grantor. Ignorance of one’s duties under a Power of Attorney is not an excuse for not complying with them, and Attorneys are expected to educate themselves about their obligations.

Improper record-keeping, misappropriation of funds, or other violations of an Attorney’s duties can result in a court intervening to order the return of the funds, payment of damages from the Attorney to the Grantor, or other remedies.

If you have any questions or concerns about being a Grantor or Attorney, or if you are interested in having a Power of Attorney drafted, we would be happy to assist you.   

April 6, 2021

Under the new Divorce Act, divorced parents (or parents in the middle of divorce proceedings) are subject to different requirements when they want to relocate.

First, the term ‘relocation’ has a legal meaning that is more than merely moving. Relocation in a family law context is a change in the child’s residence that is likely to have a significant impact on their relationship with someone (usually one or both parents) who currently has/is pursuing parenting time or decision-making responsibility concerning the child.

If a child spends the vast majority of their time with the relocating parent, and the other parent opposes the relocation, the opposing parent must prove that relocation would not be in the child’s best interests.

On the other hand, if the child spends substantially equal time with both parents, the parent who wants to relocate has to prove that relocation would be in their child’s best interests.

In the context of relocation, there are specific things that a court will consider when determining a child’s best interests. For example: the reason for the relocation, the impact on the child, and the reasonableness of the relocating parent’s plans concerning parenting time and decision-making responsibility.  

If you have any questions about relocation, other family law issues, or any type of legal problem, please contact us.

February 23, 2021

The current Criminal Code of Canada gives broad discretion to peace officers, including police officers, to demand that a person take a breathalyzer test, including but not limited to the following situations:

  • The officer has reasonable grounds to suspect that the person has some amount of alcohol or drugs in their body and that the person has driven a vehicle within the last three hours;
  • The officer has reasonable grounds to believe that a person has driven while impaired to any degree by alcohol or drugs;
  • The officer has reasonable grounds to believe that within two hours of driving a vehicle, a person has a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

The question of what constitutes “reasonable grounds to suspect” and/or “reasonable grounds to believe” depends on each particular situation as a whole. Some relevant factors include: avoiding eye contact, red or watery or droopy eyes, enlarged pupils, flushed face, stuttered speech, alcohol smell on the breath or coming from the vehicle, open alcohol in the vehicle, fumbling, unsteady walk/wavering, very deliberate or slow movements, erratic or dangerous driving, speeding, a car accident (and the accident scene), and eyewitness reports regarding any of these factors.

Usually, more than one of these factors are present and are considered altogether, when a court decides that an officer’s suspicion or belief was reasonable, and that it was appropriate for the officer to have asked for a breathalyzer test to be taken.   For further information, please contact us to speak to one of our lawyers.

January 25, 2021

A property owner has the right to trim branches or other parts of a neighbour’s trees which overhang or encroach onto his own property. This is considered the right to ‘self-help’ and is a remedy to the potential nuisance caused by the encroachment.

There are limits to this right, and a property owner may not be permitted to take any action which damages a tree to the point of destroying it, including a tree which has roots straddling the boundaries of properties.

It is also important to keep in mind that a property owner does not have the right to enter the property of a neighbour at any time, even if he is attempting to trim trees which have encroached onto his own property.

January 4, 2021

Generally speaking, two people living together in a romantic relationship are in a common law relationship. The implications of this type of relationship when it breaks down are different depending on what one person is seeking from the other, the legislation that applies to the situation, and factors such as children or the length of cohabitation. It is important to note that in some contexts common law couples do not have the same rights as legally married couples.

For the purposes of marital property division: in New Brunswick, the division of marital property is regulated by the Marital Property Act, which only applies to married couples. The rights of common law couples are not addressed under this legislation; they are determined according to previous cases from the courts. As a result, dividing up property that was owned or used by a common law couple can be somewhat more complicated when a breakup occurs.

For the purposes of spousal support: in New Brunswick, spousal support is currently determined according to the Family Services Act*and related case law. The right to spousal support is less clear-cut for common law couples than for married couples. A common law spouse must fulfill one of two requirements to claim spousal support after a breakup: they had a biological child together and lived together in a “family relationship of some permanence,” OR they lived together for at least three years in a “family relationship” and one person was “substantially dependent upon the other for support.” Another important thing to keep in mind is that at this time, a common law spouse must seek spousal support within one year of the breakup; after that time, they can no longer make a claim.

* Please note that the Family Services Act will eventually be repealed and replaced by the Family Law Act,but a date has not yet been set for this to happen. Please keep an eye on our website for future updates, and if you have any questions about your rights and obligations under either Act, contact us.

For the purposes of pension division: Most employment-related pensions in New Brunswick are regulated by the Pension Benefits Act, which allows for the division of a pension when a couple breaks up or one of them dies. This Act defines “common law partner” as someone who “was cohabiting in a conjugal relationship… for a continuous period of at least two years” before a breakup occurred or one person died.  This legislation gives common law spouses many of the same rights as married spouses, although if someone with a pension plan has both a common law spouse and a spouse through marriage, the spouse through marriage may take precedence by default in certain contexts.

If you have any questions or concerns regarding marital property, spousal support, pensions, or any other legal matter, please contact us to speak to one of our lawyers.

December 1, 2020

Although the Government of New Brunswick directives for COVID-19 change at a rapid pace, the messaging around parenting time with children has remained the same: it is still a priority.

It is a child’s right to have time with both parents as much as possible and to the extent that it is in their best interests.

Generally speaking, COVID-19 and related government restrictions are not valid reasons for one parent to deny the other parent time with the children. Children may even be entitled to cross provincial or national borders in order to see a parent.

Court orders relating to parenting time are still enforceable.

One of the few exceptions is during a period of self-isolation for either parent’s household, because of travel, exposure, or other reasons. During that time, children cannot travel back and forth between households.

Parents are encouraged to do their best to make arrangements that work best for their family and keep everyone as safe as possible. If issues arise that cannot be resolved, please call and ask to speak to one of our lawyers at Mosher Chedore.  

September 28, 2020

If you have been a property owner in NB for any length of time, you are accustomed to receiving a tax bill around March 1st of each year and having a few weeks to appeal the assessment.  While waiting for the assessment to happen, you would have been obligated to pay the existing bill in the event that the reassessment was not completed by May 31st – the deadline for paying the March 1st bill.

Starting in October, 2020, most property owners will now receive a property assessment notice for 2021.   This is not the tax bill – but just notification of what the assessment amount will be for your property when the invoice is issued in March, 2021.   If you agree with the assessment, nothing needs to be done at this time.  You would wait for the normal March 1st tax bill.  There will be no ability to appeal the March 1st invoice for the 2021 tax year.

If you do not agree with the assessment, you can call 1-888-762-8600; or file a Request for Review (RfR) online at www.myNBpropertyassessment.ca.   You only have until Monday, November 2nd to request this review. 

While most property owners will receive this notice in early October, there will be a second cycle of assessment notices that will be mailed to certain property owners in January 2021. These would be properties that have had changes such as a change in ownership (selling or buying) or new construction later in 2020.  You will have 30 days to file a request for review once this assessment is received.

December 20, 2019

Monday December 23rd – 8:30 – 5:00pm

Tuesday December 24th – 8:30 – 1:00pm

Wednesday December 25th – closed

Thursday December 26th – closed

Friday December 27th – closed

Monday December 30th – 8:30 – 5:00pm

Tuesday December 31st – 8:30 – 5:00pm

Wednesday – January 1st, 2020 – closed

Thursday – January 2nd – 8:30 – 5:00pm

Friday – January 3rd – 8:30 – 5:00pm