DEBORAH L. FALOON, DIANNA M. ZMUDA v. FLOYD DONOVAN Jr., 2014 NSSM 26

Claim No: 426362 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Faloon v. Thomas-Donovan, 2014 NSSM 26 BETWEEN: DEBORAH L. FALOON, DIANNA M. ZMUDA and FLOYD DONOVAN Jr. Claimants - and - LYNN N. THOMAS-DONOVAN Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearings held at Dartmouth, Nova Scotia on May 27, 2014 Decision rendered on May 28, 2014 APPEARANCES For the Claimants self-represented

For the Defendant self-represented BY THE COURT: 1 The Claimants are the three adult children of the late Floyd Donovan Sr. ’ s first marriage. The Defendant is the woman with whom Mr. Donovan Sr. spent the last twenty-four years of his life, many of them as a married couple. He died in April 2008. 2 The claim concerns the arrangements that were made after Mr. Donovan Sr. ’ s death. The Claimants say that the Defendant, his widow, owes a legal duty to pay for a headstone or plaque to mark the grave site where a portion of his ashes are buried.

The cost would be somewhere between $2,000 and $3,000. 3 I will not recite the facts or the history at great length. The Claimants believe passionately that their late father wished to be buried in the Dartmouth Memorial Gardens, near where his own late mother was buried. I accept without hesitation that he expressed this view at various times, but I also accept that he expressed other intentions at different times to the Defendant. It was her testimony that her late husband wanted to be cremated and for his ashes to be kept and eventually interred with hers.

This might not have happened for a long time as there was a considerable age difference. 4 In the years following their father ’ s death, the Claimants became unhappy with the fact that his ashes were simply being kept by the Defendant. The relationship between the Claimants and the Defendant appears to have been somewhat strained to begin with, and the issue of the ashes made it worse. Various compromises were proposed and tried to help the Claimants achieve the kind of closure that they wanted. The Defendant offered to allow the Claimants to keep the ashes for part of the year. This was not acceptable.

Eventually, under some pressure from some of the Claimants, the Defendant agreed to divide the ashes and allow the Claimants to bury their half. The understanding that the Defendant had was that the ashes would be buried in the same grave as Mr. Donovan Sr. ’ s mother. 5 As it turned out, that was not feasible as there were complications with opening an old grave. So the ashes were buried in a grave plot that had been purchased some years ago by Mr. Donovan Sr. and the Defendant jointly.

The Defendant concedes that this plot had been bought with a view of them both being buried there, but that the plans were up in the air by the time of his death. 6 Under pressure from the Claimants, or some of them, the Defendant agreed to pay the $600-plus cost of burying the ashes. There they remain. There is no headstone or plaque marking the grave, which means that it is not obvious where the grave is, although I am sure it can be located by some coordinates. 7 The Claimants say that the status quo is unacceptable.

The Claimant, Dianna Zmuda, says that she had conversations with the Defendant where the Defendant agreed to pay the cost of the headstone or plaque. 8 The Defendant says that she was being pressured by Dianna (mostly) and that at one point she did say that she would buy a grave marker, although she could not say when she would be able to do that because she did not have the money available.

She said that she only agreed to keep peace, and that she never felt that it was her obligation since her late husband did not want to be buried there. 9 At the trial, I asked the Claimants to be clear about their legal theory of the case. I made sure that they understood that this court has jurisdiction to enforce contracts, but not over what might be characterized as estate matters. So the questions are: a. Was there a contract between the Claimants and the Defendants?

b. Even if a promise was made, is it enforceable? Was there any form of consideration or detrimental reliance? 10 In my view, the Defendant made something of a vague promise (vague in the sense of when she might obtain a marker), and that she did so under a degree of duress. Relationships within families where there have been multiple marriages can be very complex and fraught. The Defendant has a teenaged daughter, who is the half sister of the Claimants, which creates complexity.

To further exacerbate the complexity the Defendant is in a new relationship, which has created some further distance between the Claimants and the Defendant. 11 Such a promise might be enforceable, if there had been a legal duty to perform the promised act in the first place. In my view, there was not. Apparently Mr. Donovan had no will, so there was no estate executor, but as the surviving spouse the Defendant had the presumptive legal authority to decide how her husband ’ s remains would be dealt with - regardless of what might have been the express wishes of the deceased. She decided upon cremation.

There was never a legal duty on her to see the ashes buried. 12 Absent such a duty, the next question is whether the Claimants gave something to the Defendant that could be considered, in law, to amount to consideration. I find that there was no consideration. 13 A last question is whether there was any detrimental reliance, which can sometimes supply the missing element of consideration.

For example, had the Claimants held off (at the Defendant ’ s request or for her benefit) doing something that they were legally entitled to do, on the strength of the promise, the argument could be made that some value was exchanged. On these facts, I do not see it. The most that can be said is that the Defendant tried to buy a little bit of family peace. Looked at another way, and from her point of view, she relented and made the promise because she was simply tired of receiving emails and text messages from Ms. Zmuda. Although Ms.

Zmuda denied that she was doing anything improper in her communication, it is really a matter of perception. From the point of view of the Defendant, she was being pressured to do something that she did not want to do, and which she had no legal duty to do. 14 Even if the missing element of consideration could be found, which I say it cannot, the promise was also too vague to be enforceable. There was no time frame. The promise was “ eventually. ” The Defendant says that she was always prepared to contribute part of the cost, if the Claimants would supply the rest.

Otherwise, it will have to wait until she has the money. Right now, she is strapped (she says) because of her daughter ’ s sporting activities and impending university career. 15 A further obstacle to recovery is the fact that the Claimants have not incurred any expenses. They actually want the Defendant to pay money to a third party, one of the suppliers to the cemetery, to purchase the marker. The court does not have jurisdiction to order parties to pay money to someone who is not actually owed any money and who is not a party to the claim. The Claimants have not suffered a financial loss.

Had they gone out and purchased the marker, they would have been in a position to overcome this obstacle, although their case would still fall short for all of the other reasons set out above. 16 The court has no magic power to solve this family problem. The most I can do is what my duty requires me to do, which is to dismiss this claim. I realize that this does not solve anything. It remains my hope that the parties will find a sensible and healing solution on their own. Eric K. Slone, Adjudicator