Friday, 4 August 2017

Who got the custody of the dog?

When I was practicing law, I represented clients in family court and a number of the cases that I dealt with was about who got the custody of the children. In this article, I will tell you about a case heard in the Halifax Small Claims court in which the issue was about who got custody of the dog.

In a more perfect world, there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests, and there would be specialized accessible courts to determine the “best interest of the pets,” as there are for children in the Family Courts. 

In our less perfect world, there is the Small Claims Court that operates on principles of property law, treating pets as “chattels” that are not very different, legally speaking from the family car. For this reason, such cases are being brought before the Small Claims Courts because, practically speaking, there is nowhere else for people involved in these kinds of disputes to go to. 

Those of us who have pets, understand just how attached we become to our pets just as they become attached to us.  The love that humans can develop for their pets is no trivial matter and the loss of a pet can be as heartbreaking as the loss of any loved one.

The worst result of all would be a court decision that the dog is joint property. In matrimonial cases, parties often agree to sell jointly owned assets such as material things and split the proceeds.  Selling the dog to an outsider would only double the emotional pain suffered by both parties.

The problem of sharing the pet would take on a Solomonic quality, where sharing an asset (be it a dog or a child) may do harm to both of them if arguments by both spouses are continuous. Even if a court had authority to divide ownership, it would not necessarily be a good idea if the net result was to set the stage for ongoing conflict and repeated visits to the court to act as the referee.

And now, I will tell you about the dog case in the Halifax Small Claims Court.

The Claimant (Sally Kemp) had a long relationship with the SPCA as a volunteer dog walker.  In 2009, along with her (then) young daughters she applied to the SPCA to adopt Lily, then a dog of about two years of age.  Although Sally was in a romantic relationship with the Defendant (Larurie Osmond) at that time, he was not living with the Sally and (she says) played no part in the adoption process. 

Emotion notwithstanding, the law continues to regard animals as personal property.  There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Acts or Divorce Acts.  Obviously there are laws that prohibit cruelty to animals, but there are no specific laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment. Those decisions have to be made by a judge in a court.

Obviously the two claimants in the Halifax case were attached to their pet dog. Both the man and wife each wanted sole custody of their pet that was a year old female mixed-breed dog named Lily.

 Determining ownership of family pets is not easy for the court, nor necessarily fair to the disputants.  Often, as is the case here, neither of the people in this dog’s life one was really concerned about legal ownership until things went wrong.  When families break apart, the family dog will usually be awarded to the person with the best case for legal ownership.

 An arrangement to share “custody” of the family pet is apparently quite common, but this is not a result that is consistent with strict contractual rights.  These arrangements only work where there is an agreement to make it work.  Where there is no such agreement, even if the court had authority to divide ownership, it would not necessarily be a good idea if the net result was to set the stage for ongoing conflict and repeated visits to the court to act as the referee.

As such, a judge must attempt to sort out the parties’ conflicting rights to ownership, based on the evidence the judge hears. And for a variety of reasons, though it is theoretically possible, it would be highly undesirable and unhelpful to arrive at a conclusion that the parties who are at odds with each other become equal, joint owners a pet.

 In September of 2014, the Defendant took Lily supposedly for the weekend, as he often had done however, he refused to return her.  Although Sally considered this unlawful, she did not go to the police or take any other action.  About a year later, she claimed that the Defendant dropped off both dogs, and they resumed a pattern of the dogs spending time in both homes.

 Sometime in 2016, the Defendant returned both dogs to her as he was no longer able to have dogs where he was staying.  Sally understood that she would keep Lily and subsequently made  arrangements for the other dog, Cooper to be “re-homed” with a neighbour.

 Sometime in the spring of 2016, the Defendant had somehow reclaimed Cooper and showed up, wanting to take Lily for a walk along with Cooper.  She says that she insisted that he return Lily to her.

 In October 2016, the Defendant offered to keep Lily while Sally was on vacation, and after Lily spent more time with the Defendant.   

         Sally testified that the Defendant frequently took Lily   to the vet, and seemed to be convinced that Lily had serious health issues.  She disagreed, and believes that Lily was fine and did not need all of this attention.  She accused the Defendant of being obsessed with Lily’s imagined health problems.  She described it as being “over the top.”

The events came to a point on (what she said was) March 24, 2017. Lily had been picked up by Sally.  The Defendant came by and wanted to pick  up Lily.  Sally refused, and a physical altercation occurred between the Defendant and Sally’s current boyfriend.  The police were called.  They told the Defendant to leave the property, which he did.

Later that day, the Defendant appeared to be hanging about the neighbourhood. Lily was outside, and ran off when the Defendant called for her.  She jumped into his car.  The Defendant has since refused to return Lily, which prompted the Claimant to commence this Claim, seeking Lily’s return to Sally.

         On cross-examination, the Sally refused to concede that the Defendant had been involved in any way with the adoption of Lily. She denied that the purpose in adopting Cooper was as a “companion dog” for Lily.

As for issues surrounding Lily’s health, she conceded that Lily developed occasional “hot spots” which she successfully treated with natural remedies.  She admitted that she had not taken Lily to a vet appointment in more than four years.

         Sally was asked about an email and Facebook post where she had referred to Lily as “your dog” and “your puppy.”  She explained that this was during times when they were trying to strengthen the relationship; she did not mean that he owned Lily. 

She denied that she had spent the majority of her time with the Defendant since he moved out of her home in 2012.  She admitted that she allowed him to have Lily a considerable amount of time, because the Defendant was often out of work and simply had more time on his hands.

She testified that for much of 2015 the Defendant had kept Lily and did not allow her to see the dog. 

She testified that she and the Defendant did not see eye to eye on what should be in Lily’s diet.  The Defendant would often bring Lily to her along with special food, a “concoction” that he had come up with.  She disagreed that Lily needed this particular food.

The Defendant testified that he was part of the adoption process for Lily, although Sally was the named owner in the adoption papers, because she had a stable home, and they agreed it looked better for the SPCA.

He testified that there was no question that they both fell in love with Lily.  He says that, over time, he became the “alpha” in Lily’s pack, while Sally was more passive.  He believed that, based on the dog’s behaviour, any casual onlooker would conclude that Lily was his dog.

He testified that the Claimant often referred to Lily as “your dog,” as evidenced in the email and Facebook post from 2011.

He testified that after he moved out of Sally’s home in 2012, marking the end of their romantic relationship, Lily had stayed with him “90% of the time.” That was probably because he wouldn’t return the dog to Sally.

After he left in 2012, he says he kept the dogs away from the Claimant for several months because he personally needed some space away from Sally.  Eventually, he allowed Lilly to visit with Sally, in part because he recognized the strong bond that Lilly had with Sally’s daughter, Macy.

 Through the years 2012 to 2014, he estimated that Lilly (usually with Cooper) spent between two days every two weeks and two days a week with the Claimant.  He admitted that there was a time when he needed more help from the Claimant, because he was starting a new job with long hours, but he always considered the dogs as his dogs and never intended to give up ownership of his dogs.

The Defendant denied that he ever allowed Cooper to be “re-homed.”  He insisted that it was just a short-term stay with the neighbour “Ron” and that he had no trouble reclaiming Cooper when he was ready to take him back.

 His version of the March 2017 incident was this.  It was March 19th, not the 26th in which he had allowed Sally to take Lily on a family trip to Digby.  A few days later, he was ready to take Lily back, but Sally refused to allow it.  He came to Sally’s house, where Lily was outside.  He whistled, and at this command Lily came and jumped into his car.  There was then an altercation, much of it as described by Sally.  At the suggestion of the police, the Defendant left Lilly   there, but decided to return later in the day.  Without trespassing on Sally’s property, he again whistled and Lily came running and jumped into his car.  He drove away, and Sally has not been permitted to see Lily since then, because Sally feels That the Defendant wants to assert his ownership of Lily.                                             

The Defendant also testified that he has spent thousands of dollars on vet bills over the years.  He produced veterinary records documenting the fact that Lily has had significant health issues, mostly if not all related to allergies. 

One of his concerns about leaving Lily with Sally is that she does not adhere to the special diet that the vet recommended, but is fed kibble and also eats from the cats’ bowls. 

He denied being excessive in his veterinary care, and denied using Lily’s medical needs as lever to continue his relationship with Sally.

Comments of the judge as to the evidence he heard.

Generally speaking, I found the Claimant (Sally) to be a poor historian.  Her evidence was disjointed and failed to touch on many important points.  The Defendant’s evidence was much more cogent.  I attribute some of this to the fact that the Defendant had a lawyer, while the Claimant did not.  I expect Mr. Shannon (The lawyer) helped the Defendant to bring out his story in an more orderly way than he might have done if self-represented.

There were aspects of both parties’ evidence that would cause me to discount their credibility, to some degree.  Obviously, both parties were heavily biased in their own favour, and tended to colour their evidence accordingly.  Still, in general terms, I found the Claimant to be somewhat more evasive and dismissive of facts that did not support her position.

The evidence is clear that the parties were already in a relationship at the time Lily  was acquired, though they did not live together.  I reject the Claimant’s contention that the Defendant had no involvement in the adoption.  I am more persuaded that the decision to put the documented ownership in the Claimant’s name was mostly for practical purposes.  Had an issue of legal ownership arisen soon after the dog was acquired, it is probable that the Claimant would have had the better argument.  However, the issue is being decided in 2017, not 2009, and a lot of things have happened in the years between then and now.

 I find that there was an implied agreement at the time of acquisition, or soon thereafter, that the Defendant was at least a joint owner.  I doubt that the parties really turned their minds to this issue, but had anyone asked them in 2009 up to 2012 “who owns Lily?” the answer would likely have been “us.”

 The full extent of joint ownership probably did not mature until the parties’ relationship progressed to the point where they lived together, but they were in a romantic relationship throughout, and spent much of their time together.

The Claimant purchased the animal.  I find that, in the early years, the raising of the animal was a joint venture, but after 2012 it was the Defendant who played the much larger role.

Again, the Claimant exercised slightly more care and control initially, but the Defendant’s role increased over the years, and the Defendant became the predominate person exercising care and control. If I had to find a point where the care and control changed, it would be in 2012 when the Defendant moved out of the Claimant’s home into his own place. Over time it was the Defendant who bore the greater burden, in terms of looking after the health and nutritional needs of Lily.  Since 2012, at least, the Defendant has paid the greater share of expenses for Lily.  

I do not find that there was ever a gift made by either to the other.  Gifts are voluntary surrendering of ownership.  That never happened.  If ownership was surrendered by the Claimant, it was not done with the necessary intention to be characterized as a gift.

The evidence is compelling to the effect that Lily’s life changed significantly after 2012.  While there were periods when the Claimant had Lily, I believe the evidence establishes that the majority of Lily’s   time was spent with the Defendant.

My interpretation of the events is that there had been a very loose joint ownership arrangement that changed in 2012.  The Defendant began to exercise possession that would have been inconsistent with joint ownership, in the sense that he only made Lily   available when it suited him to do so.  Also, the Claimant did not push during times when the Defendant refused to make Lily available.

The Defendant asserted primary responsibility for  Lily’s veterinary care and nutrition.  Except for the occasional gesture of asserted rights, the Claimant gradually loosened her ownership rights to the point where, by March 2017, those rights barely existed.

I believe that the Claimant acted as she did on March 19, 2017, because of a realization on her part that she had basically lost Lily.   She determined to assert her right to ownership by refusing to hand her over on that date.

 It is telling and ironic that the immediate, and perhaps ultimate decision was made by Lily  herself.  The Defendant called her, and she came to him and jumped into his car twice.  After the first time, she was returned because of police involvement.  The second time, she heard the Defendant’s call from a distance and took off to be with the Defendant and her buddy, Cooper.

Though this does not really affect the result, one can only wonder how the Claimant could have been so careless as to leave Lily  outside, unleashed, such that she could simply run to the Defendant, after the altercation earlier that day. 


 It is my conclusion that the Defendant has the better right to ownership of the dog.  I believe that the Defendant’s rights crystallized gradually in the years since 2012, and the Claimant’s rights slowly eroded over that same period.  The Defendant acted more and more like a primary owner, while the Claimant acted more and more like a secondary owner.  While the previous arrangement of having the dog split its time between the two households could have continued, had the parties cooperated, when “push comes to shove” the ownership falls on one side or the other, and in this case it is the Defendant who I find to be the legal owner of Lily.   

It is my conclusion that the Defendant has the better right to ownership of the dog.  I believe that the Defendant’s rights crystallized gradually in the years since 2012, and the Claimant’s rights slowly eroded over that same period.  The Defendant acted more and more like a primary owner, while the Claimant acted more and more like a secondary owner.  While the previous arrangement of having the dog split its time between the two households could have continued, had the parties cooperated, when “push comes to shove” the ownership falls on one side or the other, and in this case it is the Defendant who I find to be the legal owner of Lily. The claimant’s claim is dismissed.

These two persons didn’t have a child together but if they did, all I can say is thank god that these two people weren’t fighting over who had the custody of their child. The child would really be the  real  loser in a case like this one. 

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