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

December 9, 2019

The short answer is NO. The $2,500 cap on minor personal injuries was abolished in 2013 and was replaced with a new “cap” that changes every year based on inflation. The “cap” for minor personal injuries for 2019 is set at $8,166.67. However, the definition of minor personal injury does not include all injuries, and the cap only applies to your pain and suffering and not to all losses you may incur as a result of the accident. For this reason, it is always advisable to review your rights with a personal injury lawyer who understands what your entitlements are under the insurance laws of the Province for injuries sustained in an accident. Insurance companies employ professionals to protect their interests, you should employ a professional to protect yours! At Mosher Chedore, we offer free consultations for accident victims and take most cases on a contingency fee basis, meaning that you only pay us if we are successful with your claim. If you have been involved in an accident, call us to discuss your rights. Time limits apply in these cases so you should make inquiries as soon as possible before you lose the right to file a claim.

July 9, 2019

Buying a new house is an important purchase, and may be the biggest purchase you ever make. There are several things you want to consider, including legal concerns and consequences. When you purchase a house in New Brunswick not only should you contact a lawyer for advice, you will need to contact a lawyer to make it official. Once you find a house that you would like to make an offer on, you present the seller with an offer to purchase. This offer is often drafted by your real estate agent, but if you are not working with a real estate agent your lawyer can draft it. The offer can either be firm, meaning that there are no conditions to your offer that the buyers or house are bound by, or conditional meaning that the purchase depends on certain conditions. Common conditions include the ability to secure financing, well-water testing, insurability and having the property inspected. If any of the conditions are not met the sale will not take place. You should also include in the offer what items (such as appliances) you want to remain with the property. Once all conditions have been met and there are no outstanding issues, your lawyer will prepare all of the documentation required to close. The closing date is the day that the buyer takes ownership of the property being bought. This is the day you are permitted to move into the purchased property. If you have any further questions or are planning on purchasing a property, contact one of our Mosher Chedore lawyers at (506) 634-1600.

May 29, 2019

All adoptions in New Brunswick of Canadian born children are regulated by the New Brunswick Family Services Act. Under this Act the two broad categories of adoptions are private and ministerial.

  • Private adoptions are where the biological parent(s) know the prospective adoptive parent(s) personally, and they arrange the adoption between themselves.
  • A ministerial adoption is where a child, in the care of the Department of Social Development, is adopted by a party that is generally unknown to the biological parent(s).
  • Whether the adoption is private or ministerial, the Department of Social Development is still involved in the process. The process includes meeting with a lawyer, taking training, having a home assessment and more. This is with the exception of a spousal adoption, where the biological parent’s spouse adopts the child. For a private adoption one of the first steps you will take is contacting a lawyer to send notice to the Department of Social Development that you plan to adopt the specific child. The biological parents will also need to send notice to the Department of Social Development that they plan to place their child for adoption. These notices initiate the Department of Social Development’s involvement in the adoption. The final step is to make an Application to the Court of Queen’s Bench for an adoption Order. The first step in a ministerial adoption is to contact the Department of Social Development to initiate their involvement. Through this type of adoption you can either opt for infant adoption (under 2 years of age), or child and youth adoption. As indicated on their website, an infant adoption has a wait that is several years long.
  • If you are interested in adoption, please contact Mosher Chedore for more information.

April 16, 2019

Answer – Under current Canadian law, in most instances, your primary residence will transfer from your estate tax free while your cottage will be taxable. A cottage, or any other second piece of real estate will be subject to a capital gains tax. The tax amount would be calculated on fifty percent (50%) of the gain in value of the cottage. This is the difference between the market value at the time of your death, and the value at the time you obtained the cottage (subject to a few adjustments for certain improvements). If your intention is to treat the children equally, before making such a bequest, make sure that your estate will have other assets available to pay these capital gains taxes. It is a good idea to clearly indicate in your Last Will and Testament that it is your intention that the cottage is to be transferred with all taxes paid from your estate through other assets. If you don’t believe such funds will be available, you may want to make other arrangements for the distribution of the value in your home and cottage – if your intention is to treat your children equally.