DATE: 20050902

DOCKET: C42940

COURT OF APPEAL FOR ONTARIO

RE:

CHRISTOPHER LEWIS WARNICA (Applicant/Appellant) – and – ALLISON GERING (Respondent/Respondent in Appeal)

BEFORE:

LASKIN, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Neil B. Holmes

for the appellant

Meyrick Sandra J.

for the respondent

HEARD & RELEASED ORALLY:

August 30, 2005

On appeal from the order of Justice D. Roger Timms of the Superior Court of Justice dated December 17, 2004.

E N D O R S E M E N T

[1] The Family Court judge presiding at a case conference rendered judgment dismissing this application brought under the Family Law Rules for shared joint custody of a pet dog named Tuxedo under subrule 2(3) of the Family Rules and subrule 1.04(1) of the Rules of Civil Procedure.

[2] The application as first issued on June 25, 2004, alleged that the parties had “dated during the period June 1993 to in or about February 2004.” The respondent issued an answer/claim on July 16, 2004, denying she cohabited with the applicant and claiming custody of the dog.

[3] Confronted with the objection that Family Court would only have jurisdiction in this case if the claim alleged cohabitation and constructive trust, the applicant amended his application to allege that the parties had dated and cohabited and that the respondent held possession of Tuxedo on a constructive trust for the two of them in equal shares.

[4] The case conference judge reviewed the file and expressed his concerns as to jurisdiction and whether this case deserved a full hearing in the Family Court. He gave the parties two weeks to make submissions. After receiving the submissions, he dismissed the application on the basis that the parties “deserve a just procedure; one that is fair to both parties; one that saves time and expense; one that is appropriate to the importance and complexity of the case and one that devotes appropriate court resources.” He added “three judges have now spent time in this file. That is sufficient. Short of a full-blown trial with contradictory oral evidence and findings of fact by a trial judge, nothing more can be added to allow the court to determine ownership.”

[5] In his reasons, the judge alluded to paragraph 16 (12) (c) (iv) of the Family Rules, which allows the Family Court to dismiss or suspend a case because “the case is a waste of time, a nuisance or an abuse of the court’s process.” While he did not rely on that rule, his reasons make clear that he regarded the case as a waste of the Family Court’s time.

[6] We agree and on the basis of the trial judge’s findings we would dismiss the claim under rule 16 (12) (c) (iv) of the Family Rules. Given the unusual nature of this claim and the material before him, the case conference judge was entitled to conclude that the claim would likely fail both on jurisdiction and on the merits, and that in view of the pressing workload of the Family Court the case did not warrant a full trial.

[7] Accordingly, the appeal is dismissed. The parties may make written submissions on the costs of the appeal.

“J.I. Laskin J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”