The short answer is – possibly. Domestic contracts are agreements that govern the parties’ rights and obligations under family law – such as the ability to claim support or apply for division of property. Domestic contracts include separation agreements, prenuptial agreements, marriage contracts, and so forth.
Generally, the courts say that domestic contracts cannot be disturbed lightly, because they promote stability and are seen as embodiment of the intention of the parties. However, domestic contracts will be disregarded in some circumstances. That is especially true if the party seeking to set the contract aside did not have independent legal advice. But even if both parties had lawyers when the domestic contract was made, it can still be set aside on the grounds of unconscionability – that is, when one party was somehow vulnerable, and the other party took advantage of that. For example, if one party misrepresented their true wealth during the contract negotiations, the other party essentially does not know what they are giving up when they agree to a certain support amount or property division scheme. Such circumstances can help to set the contract aside.
If you are dealing with a separation, a dispute over a domestic contract, or for any other legal issue, please contact us.
A death of a loved one is stressful enough. Worse still if the living cannot agree on what to do with the body. Given the cultural significance of funeral and mourning rites, it is possible for funeral arrangements to become a source of contention. Should the body be buried, or cremated? If buried, where should it be buried? If cremated, who will keep the ashes?
The law establishes a clear decision-making hierarchy when it comes to finding the final resting place for the deceased. The right and the duty to dispose of the remains belongs to the personal representative of the deceased. A personal representative is either the executor named in the will, or, if there is no executor, a court-appointed administrator of the deceased’s estate. If there is no personal representative, then the duty passes on to the next of kin – first to the spouse, then to the parents if there is no spouse, then to other next of kin in order of consanguinity.
Whoever the decision-maker may be, they have the sole authority to decide what happens with the body. They do not need to follow the wishes of the family or even of the deceased. So long as the manner in which the body is disposed is reasonable, the law will not interfere. Thus, for example, if the spouse of a deceased wants a cremation but the parents object on cultural grounds, they likely will not be able to prevent the cremation, because cremation would be considered a reasonable way to dispose of the body. The same is true of related issues – such as deciding in which cemetery to bury the body, or what happens to the ashes if it is cremated.
While the wishes of the deceased can (and normally should) be taken into account, they are not binding. In fact, the personal representative may be required not to follow the deceased’s wishes if they are too extravagant, unreasonable, and expensive in a way that harms the estate’s creditors.
It is possible for someone to acquire the authority over the remains after the burial has been completed. This is especially likely if there is no executor appointed by will. Since it takes a while for a court to appoint an administrator of the estate, the body will most likely be already buried by the next-of-kin before the administrator assumes their office. In such circumstances, it will be difficult for the administrator to undo the funeral arrangements the next-of-kin had chosen. While it is possible to exhume a body, the administrator’s wish to effect a different funeral arrangement most likely will not be considered a good enough reason by the law to permit an exhumation.
For more questions about this or any other legal issue, please contact us.
It is common for spouses to make “mirror” wills, leaving their property to each other, with the provision that the property will go to agreed-upon beneficiaries (such as the children) after both pass away. However, nothing legally prevents one of the spouses from secretly changing their will – before or after the other spouse’s death – in a way inconsistent with the agreement. These concerns can be particularly pressing for a spouse who has children from a previous relationship and who wants to make sure that the surviving step-parent would not disinherit those children. And even when family dynamics are entirely positive, a remarriage of the surviving spouse can disrupt estate planning: a will is automatically revoked by marriage, and the remarried spouse may simply forget to draft a new will to revive the terms agreed upon with the previous deceased spouse.
For all such reasons, some couples want wills that can be changed or revoked only with the knowledge and approval of both spouses. This can be accomplished by so-called “mutual wills”. Essentially, mutual wills are a set of two wills with terms that mirror each other, and which contain clauses stating that the wills cannot be revoked or changed without the consent of both spouses. The non-revocation provisions are considered by law to be a binding contract. If a spouse secretly changes their will in breach of the contract, the beneficiaries under the old will would be able to sue the beneficiaries under the new will and obtain the property they were entitled to under the mutual will. A mutual will survives even when an ordinary will would be revoked by operation of law – e.g. automatic revocation by marriage.
A mutual will can thus provide you with confidence that the estate planning arrangements you make with your spouse will endure after you pass away. It ensures that the people you want to take care of in your wills will be taken care of, while at the same time allowing your spouse to be the owner of the family property while they live. To learn more about mutual wills, or for any other will and estate planning inquiries, please contact us.
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.
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.
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.
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.
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.
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.