An introduction to the Small Claims Court of New Brunswick

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There are different levels of Court in Canada.

Of interest today is the Small Claims Court of New Brunswick. This Court is the responsibility of the province and is governed by the Small Claims Act and the General Regulation.

The Government of New Brunswick’s webpage nicely summarizes the role of our Small Claims Court:

Matters will be heard in the Small Claims Court for actions for debt, damages and/or the return of possession of personal property for an amount up to $12,500. Claims will be heard by an adjudicator (an experienced lawyer) and the process will be somewhat less formal than regular court processes.

Matters over which the Small Claims Court does not have jurisdiction include:

  • Family proceedings;
  • Actions involving title to, or interest in, land;
  • Actions concerning entitlement of a person under a will or on an intestacy; and
  • An action for libel, slander, breach of promise of marriage, malicious arrest, malicious prosecution or false imprisonment.

With a present claim limit of $12,500.00 and a less formal setting, it is common for Claimants, Defendants, and Third Parties to represent themselves. They may obtain legal help with drafting and filing the necessary forms, as well as preparing for the hearing.

Some prefer to leave the work entirely to their lawyer and/or an articling student who will put together the necessary forms and prepare the case, then continue on to represent them at the hearing.

Parties will have to abide by the necessary timelines. Generally, Claimants have 2 years from occurrence of the debt, damages, or loss of personal property to file their claim.

Any Defendant or Third Party has 30 days to respond after receiving the Claim. If either doesn’t respond, the Clerk may enter a judgment against him or her at the request of the Claimant.

At the hearing, which will normally last for no more than 2 and a half hours, the Claimant will be first to speak, introduce any exhibits, and present any witnesses. They will be followed by the Defendant and if necessary, any Third Parties.

Once all arguments have been made, the adjudicator has the option to immediately advise the parties of his or her decision, or to wait and provide it later in a written decision. The written decision must be given to all parties within 6 months of the hearing date. 

If you’re interested in a more detailed understanding of New Brunswick’s Small Claims Court, we recommend you check out the PLEIS (Public Legal Education and Information Service of New Brunswick) webpage which provides a PDF guide for Claimants, Defendants and Third Parties. This can be found here.

If you would like to learn more about how McMath Law can assist you with a Small Claims Court matter, please contact us.

Remy Rosinski, Student-at-law

Cohabitation Agreements and Common-law Relationships

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A Cohabitation Agreement is essentially an agreement between parties who share costs associated with human needs like food and shelter. It might be between friends who want to live together, or, as is most common, partners who want to live together.

For those who are partners, a cohabitation agreement will often deal with more than basic human needs while in a relationship of shared expenses. For example, the agreement may spell out who pays for what, how each partner will or will not contribute to the expenses of the other’s children, how title to property will be held, and how money and property will be divided in the event that the relationship ends.

It is common for cohabitation agreements of partners to include a provision that upon their marriage, the agreement will prevail as a Marriage Contract.

The benefit of a Cohabitation Agreement is that it can help couples outline their legal rights and obligations while in a relationship, and if necessary, after the relationship ends. This is especially helpful for those who are common-law partners as New Brunswick’s law may impose support obligations and/or a division of property that is somewhat similar to, but not the same as, those who are married.

Common-Law Relationships

When does a relationship become “common-law”? This depends on the purpose of the relationship, and the legislation of the province in which the parties reside.

New Brunswick’s Family Services Act confirms that common-law partners are those who are unmarried and either:

  • live together for a minimum of 3 years with one depending on the other for support; or
  • live together for one year in which they have a child together.

If you are in a common-law relationship, s. 112 of the Family Services Act confirms that you may be obligated to provide spousal support, or entitled to receive it, if you apply for the support within one year of separation.  

For example, assume Dick and Jane aren’t married and don’t have children. They have been living together and sharing expenses for 8 years. Dick has always made $150,000 per year, which is added to their joint bank account and used to cover costs of living for both parties, and Jane has always made $20,000.00 per year, which is also added to their shared bank account for costs of living. They live comfortably and vacation often.

Dick and Jane are in a common-law relationship in which Jane is largely dependent on Dick financially. If they separate, Jane may be legally entitled to spousal support from Dick for the years they shared together.

The law does not divide marital property for common-law couples as it does for married couples. If you’re married, you’re presumptively entitled to half of the marital property.

If you’re in a common law relationship, like Dick and Jane, property is generally divided based on whose name it is in. If Dick’s name is on the deed for the house, Dick is presumptively entitled to the house. However, if Jane contributed through finances, labour, or time to develop or maintain it, she may be entitled to a share of the equity based on the extent of her contribution.

This is where a Cohabitation Agreement would be beneficial.

Dick and Jane can establish an agreement at any point in their relationship outlining the rights and obligations of each party while they are together, and if necessary, after the breakdown of their relationship.

Examples of what may be in a Cohabitation Agreement include:

  • The expenses of food and shelter that each party will cover;
  • The agreement to (or not to) invest in each other’s children;
  • Each parties’ entitlement to RRSPs or pension plans of the other;
  • How belongings would be divided upon breakdown of the relationship;
  • Support payments that will be provided upon breakdown of the relationship; and
  • Each parties’ entitlement to property upon breakdown of the relationship.

These are only a few examples of what may be covered in a Cohabitation Agreement. It is the parties’ choice as to what else is included.

If you would like to learn more about Cohabitation Agreements and/or common-law relationships, please contact us.

Remy Rosinski, Student-at-Law

 

Dying without a Will in NB

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According to a March 2017 survey done by BMO Estate Planning, 48% of the participating adult Canadians confirmed they did not have a Will. Many people simply don’t write one because they don’t feel they need to. All of their belongings will just pass to their spouse and children, right?

Not necessarily.

In Canada, when you die without a valid Will, that means you’ve died “intestate”. The provincial government then has the right to determine how your estate will be distributed in accordance with the laws of that province. It’s not as easy as a spouse and children simply dividing things as they please.

In New Brunswick, the estate of one who has died intestate is divided in accordance with the Devolution of Estates Act.

Although the goal in enacting such legislation is to provide for a distribution that is in line with what one might expect the deceased would have wanted, this outcome is far from certain. For example, the deceased is not able to benefit a friend or charity. He is not able to make unequal gifts to his children.  He is not able to delay the age at which his children would receive their share beyond the age of majority.  No guardian of children will be provided. The deceased will not have a say over who administers his estate. 

Another problem arises for those in a common-law relationship. The Devolution of Estates Act only recognizes the entitlement of legally married spouses. Though the Provision for Dependants Act allows a dependant like a common-law partner to ask the court for “support” from the estate, the best way to convey a common-law partner’s entitlement is through a Will.

These are only a few of many problems that can arise when someone dies intestate.

Though it is possible for the distribution of an intestate estate to flow easily, this is not always the case.

By drafting a Will, you confirm exactly how you would like your estate to be divided and have some control over when it gets distributed. The effort and expense put into drafting a Will is well spent and will simplify management of your affairs.

If you would like to learn more about Wills, please contact us.

Remy Rosinski, Student-at-Law

How do I become (and stay) a lawyer?

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Confession time: I didn’t fully understand what is required to be a “lawyer” in Canada until I had already enrolled in law school.

After watching the first few episodes of How to Get Away with Murder, I assumed that I’d just have to yell out famous case names in class and occasionally show up at my professor’s door to help solve a murder.

Unfortunately (or perhaps, fortunately), I soon realized I was wrong.

My goal in this post is to give a BRIEF introduction on the requirements to become a lawyer.

It’s important to understand that each province and territory has a different set of requirements, and that there are exceptions for those who studied outside Canada or want to study inside Quebec. To keep this nice and short, I’ll focus on the basic requirements in Canada.

There are 5 main steps to becoming a lawyer in Canada:

1)    Education - The first step in your journey to legal practice is completion of secondary school and at least a few years of study toward a bachelor’s degree. This can be in any topic – Chemistry, English, Music, Business, Theatre, etc. Though you don’t have to complete the bachelor’s degree, most people who apply to law school will complete one, if not more, since this is considered appealing to admission committees.

2)    LSAT – Next, you may need to write the Law School Admission Test. This highly feared test is a time-sensitive examination of your logical reasoning, analytical reasoning, and reading comprehension. A student’s score on the LSAT may determine whether or not they are accepted into a law school in Canada; however, not all Canadian universities require that an LSAT score be given in an application.

3)    Applications – following education and possibly the LSAT, you may want to send out applications to any of the 19 law schools around Canada. It’s important that you research the admission requirements and expectations for the universities you would like to apply to since they all differ. For example, one may request 3 references and a transcript while another may request an LSAT score and an exceptional personal statement.

4)    Pass - Once you’ve been accepted into law school, you must pass the necessary number of courses to complete a law degree i.e. a Juris Doctor. In most Canadian universities, this takes approximately 3 years as a full-time law student.

5)    Articling and Bar Admission – Graduating with a Juris Doctor doesn’t lead directly to lawyer status. You must still continue your legal education as an Articling Student for approximately 1 year, depending on the province or territory in which you do your articles and intend to practice. You may also need to write a Bar exam somewhere in that articling year. In New Brunswick, graduates must article with a law firm for 48 weeks after they acquire their degree. The Articling Student must also pass two courses, each spanning a 2-week period, as well as a final exam in January. Some provinces and territories do not have a Bar exam but instead grade articling students through assignments.

If you’re in good standing when you’ve completed and passed the Bar Admission requirements of the province or territory in which you want to practice, you will be called to the Bar and allowed to practice as a lawyer there. To keep that status, you must follow the necessary code of conduct for lawyers in that province or territory, pay the necessary fees, and fulfill the required yearly hours of further legal education.

 

Remy Rosinski, Student-at-Law

NOTE: This is only a general introduction to legal education and practice. It is important that you research requirements of each university you’re interested in, and each province or territory in which you’d like to practice.