Court File and Parties

COURT FILE NO.: CV-23-00001149-00ES DATE: February 26, 2024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ARLETE CARVALHO IN HER CAPACITY AS ESTATE TRUSTEE FOR THE ESTATE OF LEONARD CARVALHO, DECEASED, Applicant AND: ALIESHA VERMA, Respondent

BEFORE: Justice Laura B. Stewart

COUNSEL: T. Pagliaroli, for the Applicant M. Desa, for the Respondent

HEARD: November 27, 2023, in person at Brampton

Endorsement for Application

RE: POSSESSION OF DOG

Overview and Parties

1Leonard Carvalho (deceased) had two sisters, Arlete and Helga Carvalho. Arlete (“Ms. Carvalho”) is the estate trustee for Leonard’s estate and is the applicant.

2In the years prior to his death, Mr. Carvalho was involved in a relationship with Aliesha Verma (the respondent).

3Mr. Carvalho once owned an American Bull Terrier named Rocco. Rocco died in 2021. In 2022, Mr. Carvalho and Ms. Verma acquired another American Bull Terrier named Rocco Jr.

4Following Mr. Carvalho’s death in November 2022 Ms. Verma took Rocco Jr. to live with her.

5Ms. Carvalho applies to this court for a declaration that the dog was owned by Mr. Carvalho at the time of his death and therefore transferred to Mr. Carvalho’s estate upon his passing and must be returned to the estate trustee.

Procedural History

6This case started as an application by Ms. Verma seeking dependent’s relief. That application was later dismissed, and Ms. Carvalho brought this application (originally styled as a counterapplication) seeking the return of the dog.

7During oral argument, counsel for the parties confirmed that all the materials before me pertained to this single application about the dog. The voluminous materials can be summarized as follows:

	Applicant	Respondent
Pages of material	1691	479
Affidavits	12	13
Cross examinations	13	5

Facts

8Mr. Carvalho lived in a home at 4009 River Mill Way. He was retired. Nestor Petruniak, a friend and employee of Mr. Carvalho, lived in the basement at the time relevant to these events.

9Mr. Carvalho met Ms. Verma in August 2016. There is no question that the two individuals were in a relationship, although there is complete disagreement between the parties about the type of the relationship. Mr. Carvalho and Ms. Verma travelled and socialized together. Ms. Verma stayed at 4009 River Mill Way frequently, although there are several facts which would indicate that this house was not her permanent abode, the most persuasive being text messages between Mr. Carvalho and Ms. Verma which clearly indicate that Ms. Verma was not a resident at certain times. For instance, in a July 14, 2021 communication, Ms. Verma referred to being in Mr. Carvalho’s house three times since “November of last year”. Other text messages from Ms. Verma ask Mr. Carvalho if she might visit the home. There are text messages from May and June 2022 from Ms. Verma indicating that she was dating another person. There is evidence that Ms. Verma was out of the country from mid-July to mid-September 2022.

10The relationship between Mr. Carvalho and Ms. Verma was tempestuous. There were frequent communications indicating that the two people were not getting along and other communications in 2022 indicating that the relationship had cooled (if not ended completely).

11Mr. Carvalho made a will on October 16, 2015 in which he divided his estate between his two sisters (Arlete and Helga) and Zoya Vasilevich, Mr. Carvalho’s former romantic partner. On October 4, 2018, Mr. Carvalho amended the will by way of codicil. The beneficiaries remained the same, but the percentage distribution to each beneficiary changed (the sisters received a larger percentage and Ms. Vasilevich’s percentage was decreased). The codicil was made over two years after Mr. Carvalho met Ms. Verma. Both the will and codicil are silent about pets.

12Ms. Verma is not mentioned in the codicil, but she was aware of the existence of the document and the contents. There are two emails from Ms. Verma (November 26, 2020 and January 15, 2021) indicating that she was aware that Mr. Carvalho was leaving assets to “Zoya”.

13Mr. Carvalho owned two dogs, Juice and Rocco. Juice died sometime before Rocco. Rocco died in March 2021. The evidence is that Mr. Carvalho loved both dogs but was particularly fond of Rocco and wanted to purchase another dog like him.

14The dog which is the subject of this litigation, Rocco Jr., was purchased in Miami on February 22, 2022 while Mr. Carvalho and Ms. Verma were on a trip to Florida. There is disagreement about whether the dog was purchased by Mr. Carvalho, by Ms. Verma, or by Mr. Carvalho as a gift for Ms. Verma. Ms. Verma’s position is that Mr. Carvalho purchased Rocco Jr. for her as a gift.

15Upon returning to Ontario, Rocco Jr. was registered at the vet as an American Bull Terrier. On the application, the parties spent considerable time and effort analyzing the veterinarian records, pointing to various pieces of information which support their case. Mr. Carvalho was listed as the owner and Ms. Verma was listed as a person caring for the dog.

16Both Mr. Carvalho and Ms. Verma paid for Rocco Jr.’s care, purchasing food and toys. Mr. Carvalho attended obedience classes with the dog (occasionally, Mr. Petruniak attended the classes in place of Mr. Carvalho).

17The dog was trained by Shane Smith. There is disagreement between the parties as to who arranged for the training. Mr. Carvalho arranged and paid for dog walking and grooming services for Rocco Jr.

18Mr. Carvalho died on November 24, 2022. He was 60 years old. The day following his death (November 25, 2022), Ms. Verma attended at Mr. Carvalho’s home and took Rocco Jr. from the backyard. On the same date, Arlete and Helga Carvalho both communicated their position that the dog had been taken improperly by Ms. Verma and should be returned. Rocco Jr. has resided with Ms. Verma since November 25, 2022.

19Ms. Verma did not assert that she owned the dog or that the dog was a gift until after Mr. Carvalho’s death.

Position of the Parties

20The applicant states that Rocco Jr. was owned by Mr. Carvalho. Upon Mr. Carvalho’s death, the dog became part of the estate and should therefore be returned to the estate trustee. The applicant denies that Mr. Carvalho gifted Rocco Jr. to Ms. Verma.

21The respondent, Ms. Verma, argues that she owns Rocco Jr. or, in the alternative, Mr. Carvalho gifted Rocco Jr. to her. In the further alternative, Ms. Verma argues the doctrine of promissory estoppel.

22Having summarized the positions of the parties, it is worth noting what this case is not about. This case is not about the extent of the love and devotion to Mr. Carvalho and/or Rocco Jr. felt by Ms. Carvalho and/or Ms. Verma. This case is also not about the disdain that the parties felt for each other. Litigants are entitled to a fair hearing and impartial adjudication from this court. However, the court does not have to agree with or endorse the motivations of the parties.

23It is clear that both parties cared deeply for Mr. Carvalho and continue to care about Rocco Jr. In order to decide this application, it is not necessary for the court to decide who loved whom more.

Law

Issue One: Ownership of Rocco Jr.

24Dogs are personal property much like other chattels (albeit indivisible), even when purchased during the course of a relationship. The question is one of ownership, not who wants the dog more, who loves the dog more or who would be the best owner. Duboff v. Simpson, 2021 ONSC 4970, at para. 15; Brown v. Larochelle, 2017 BCPC 115, at para. 16; Henderson v. Henderson, 2016 SKQB 282, at paras. 23, 40; Warnica v. Gering, at para. 28, aff’d, at para. 6.

25Traditionally, the question of pet ownership focused narrowly on who paid for the animal. More recent cases have taken a broader approach, looking at the relationship between the parties and the dog and considered a non-exclusive list of factors. Duboff v. Simpson, 2021 ONSC 4970; Coates v. Dickson, 2021 ONSC 992.

26The Coates decision contemplates the following factors:

a. Whether the animal was owned or possessed by one of the people before the relationship began;

b. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

c. The nature of the relationship between people contesting ownership at the time the animal was first acquired;

d. Who purchased and/or raised the animal;

e. Who exercised care and control of the animal;

f. Who bore the burden of the care and comfort of the animal;

g. Who paid for the expenses related to the animal’s upkeep;

h. Whether at any point the animal was gifted by the original owner to the other person;

i. What happened to the animal after the relationship between the litigants changed; and

j. Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal.

27Regardless of whether the traditional or contemporary analysis is used, the evidence demonstrates that Mr. Carvalho owned Rocco Jr. The contemporary factors are assessed below.

Factor A: Was Rocco Jr. owned or possessed by one of the people before the relationship began?

28No. Mr. Carvalho and Ms. Verma began their relationship in August 2016. Rocco Jr. was purchased on February 22, 2022 while the couple was in Florida.

Factor B: Any express or implied agreement as to ownership, made either at the time the animal was acquired or after?

29Rocco Jr. was purchased with $800 cash from Mr. Carvalho. In my view, it is irrelevant who handed the cash to the seller. Ms. Verma describes the cash as “joint”, but the practical reality is that Mr. Carvalho paid for many of the expenditures in the relationship and Ms. Verma conceded that she could not afford all of the ongoing expense for the dog (and argues that part of the gift was that Mr. Carvalho would pay these expenses). There is no evidence from Ms. Verma about to what extent, if any, she contributed to the $800 cash payment.

30Even accepting Ms. Verma’s evidence that Rocco Jr. was intended to be a gift in February 2022, Mr. Carvalho maintained care and control of Rocco Jr. until the time of his death. Ms. Verma’s access to the dog was entirely dependent on Mr. Carvalho’s agreement and permission. Warnica (Ont. S.C.), at para. 28, aff’d. This is apparent from the electronic communications starting in mid-March 2022, a mere month after the dog was purchased (see table below). In these communications, Ms. Verma does not assert that she owned Rocco Jr.

Factor C: The nature of the relationship between people contesting ownership at the time the animal was first acquired.

31As noted above, Mr. Carvalho and Ms. Verma were in a relationship at the time that Rocco Jr. was purchased. In the application materials and during oral argument, both parties argued extreme and, in my view, unsupported positions regarding the nature of the relationship. The applicant argued that Mr. Carvalho and Ms. Verma were in a transactional relationship which started on a “sugar daddy” website. The respondent argues that she and Mr. Carvalho were in a common law relationship.

32The evidence does not support either position and nor is it necessary to adopt one of these positions in order to decide this case. Mr. Carvalho and Ms. Verma had a relationship which was (based on the text messages) sexual at times. They travelled and socialized together. As noted above, Ms. Verma stayed at Mr. Carvalho’s house, but did not live there permanently. As of March 2022, the relationship was tempestuous, with Mr. Carvalho and Ms. Verma frequently sparring and trading recriminations by text and email.

33For the purposes of this application, I find that the precise nature of the relationship is not relevant. What is clear from the evidence is that Mr. Carvalho and Ms. Verma were close for a period of time, spending considerable time together (including travel) and Ms. Verma staying at Mr. Carvalho’s house for prolonged periods. Whether the relationship was one of friendship, romantic love or business is irrelevant.

34During oral argument, Ms. Verma argued that Ms. Carvalho was focusing on “every private fight” the couple ever had in an effort to tarnish Ms. Verma and Mr. Carvalho’s names. As noted above, the court need not make findings about the motivations of any party in order to decide this case. However, in response to this argument, it is relevant that Mr. Carvalho and Ms. Verma had frequent electronic communications. Ms. Verma did not challenge the veracity of any of the communications submitted by Ms. Carvalho (other than to provide context) and nor did she produce any communications within her control which challenged these materials. The court is entitled to rely on these communications as part of the evidence in this application.

Factor D: Who purchased and/or raised the animal.

35See Factor B above.

Factor E: Who exercised care and control of the animal;

Factor F: Who bore the burden of the care and comfort of the animal; and

Factor G: Who paid for the expenses related to the animal’s upkeep.

36Factors E, F and G can be addressed together. Mr. Carvalho exercised control over Rocco Jr. in that he decided who accessed the animal. Ms. Verma interacted with the dog only with the permission of Mr. Carvalho (whether implicit or explicit).

37Both Mr. Carvalho and Ms. Verma cared for the animal and were comforted by the dog. Both paid expenses related to the dog’s upkeep. Ms. Verma provided a rough accounting of $3,820.90, the majority of which was comprised of an emergency vet bill for $2,215 on an occasion that Rocco Jr. ate raisins which can be poisonous to dogs. There was no specific accounting of costs incurred by Mr. Carvalho, but the practical reality is that Rocco Jr. lived with Mr. Carvalho even when Ms. Verma was not present in the home.

Factor H: Whether at any point the animal was gifted by the original owner to the other person.

38For the detailed reasons below, I find that Rocco Jr. was not gifted to Ms. Verma. While gifting the dog to Ms. Verma may have been contemplated at the time Rocco Jr. was purchased, the gift was never completed in that Mr. Carvalho did not, in fact, relinquish control of the dog to Ms. Verma.

Factor I: What happened to the animal after the relationship between the litigants changed.

39Mr. Carvalho died on November 24, 2022. Ms. Verma was aware that she was not a beneficiary in Mr. Carvalho’s will. Despite this, there is evidence that Ms. Verma told Mr. Petruniak that Mr. Carvalho had left the dog to her in the will.

40Ms. Verma took the dog on November 25, 2022. On the same day, Arlete and Helga Carvalho communicated their position that the dog had been stolen and the dog belonged to the estate.

41On November 26, 2022, Ms. Verma texted Helga that “Leonard told me to keep Rocco when he’s gone”. On this application, Ms. Verma did not offer any independent evidence of this being Mr. Carvalho’s request.

42On February 2, 2023, Ms. Verma then swore an affidavit stating that she and Mr. Carvalho owned Rocco Jr. together.

43Given the specific facts of this case (Mr. Carvalho passing away as opposed to a couple separating) this factor is perhaps less important than in family law cases in which two people separate. However, it is notable that there is no evidence of any intention on the part of Mr. Carvalho to bequeath Rocco Jr. to Ms. Verma at any time. At the time of Mr. Carvalho’s death, there is no evidence that the couple were common law spouses.

Factor J: Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal.

44On the facts of this case, three other areas should be noted.

45Status Quo: Ms. Verma has had Rocco Jr. since November 25, 2022 and argues that this is a maintenance of the “status quo” since she was the primary caregiver since February 2022. As noted above, Ms. Verma was not, in fact, the primary caregiver for the dog. The status quo argument should have no bearing on the outcome. The Carvalho sisters informed Ms. Verma on the date that she acquired the dog of their view that the dog has been stolen. While I do not need to adjudicate that particular allegation, Ms. Verma should not receive “credit” for having the dog for the last 15 months when there is a viable argument that the dog should have been with the estate trustee from the date of Mr. Carvalho’s death.

46Best interests: Ms. Verma points to the 2012 Small Claims Court case of Maclean-Beaudet v. Belanger (quoting the 1980 case of Rogers v. Rogers, [1980] O.J. No. 2229 (Ont. Dist. Ct.) (Q.L.)) in support of the proposition that the best interest of the dog is a consideration. The precise quote relied upon by the Small Claims Court states:

In holding that the best interest of the dog is not the prime consideration, I am mindful that a dog has feelings, is capable of affection, needs to be shown affection and that its affection can be alienated; that its needs must be provided for and that, generally, it must be treated humanely and with all due care and attention to its needs and that these factors are to be considered as well in determining the right to possession or access thereto.

47The best interests of Rocco Jr. should not be confused or conflated with which party wants or loves the dog more. There is no evidence in this case that either party would be a poor or unfit custodian for the dog.

48Companion Animal: Ms. Verma argues that Rocco Jr. is her emotional support animal and relies on a note authored by a social worker dated January 18, 2023. At the time of this note, the social worker had only been working with Ms. Verma for one month. The note is vague and does not offer any diagnosis or details, only a passing reference to “symptoms of Ms. Verma’s mental illness”. The note asks that Ms. Verma be permitted to be accompanied by the dog as it is part of her clinical treatment plan and “enhance[s] her ability to function independently” and “helps mitigate the symptoms that she is currently experiencing”. This note lacks detail and is therefore unhelpful to the court. The vague platitudes do not prove that the dog is a legitimate emotional support animal to Ms. Verma.

Issue Two: Did Mr. Carvalho Gift Rocco Jr. to Ms. Verma?

49There are three essential elements of a legally valid gift:

a. An intention to make a gift on the part of the donor without consideration or expectation of remuneration;

b. An acceptance of the gift by the donee; and

c. A sufficient act of delivery or transfer of the property to complete the transaction.

50The onus is on the alleged recipient of the gift to establish all three elements on a balance of probabilities. Houghton-Jukes v. Gough, 2018 ONSC 1525, at para 33.

51The evidence surrounding the purchase of Rocco Jr. is contradictory. There is certainly some evidence that Mr. Carvalho referred to Rocco Jr. as a gift for Ms. Verma (first factor) and that Ms. Verma accepted in the first instance (second factor). I will not review this evidence in detail as it is not necessary to determine the first two factors as the gift argument fails on the third factor.

52Simply put, even assuming that Mr. Carvalho intended to gift Rocco Jr. to Ms. Verma, he did not complete the transaction in any way, shape or form. Ms. Verma interacted with Rocco Jr. and contributed to his care, but Mr. Carvalho maintained possession and control of the dog until his death. Ms. Verma had no evidence in support of the third factor. Some of the evidence that Mr. Carvalho did not transfer Rocco to Ms. Verma includes the following communications between the two people:

Date	Document Type	Parties	Communication
March 16/22	Text	V to C	“I just want to pick up Rocco on Sunday…The only thing I had to look forward to was Rocco. Please. I will never come over to your house or ever contact u again if that’s what u want. Just let me spend the 2 weeks with him until u r back.”
March 22/22	Text	V to C	“…I always get scared 1 day u fill fight with me and I won’t be able to come over and see Rocco…”
April 1/22	Text	V to C	“...I wish Rocco never came into my life either because I love him so much and even he is “yours”. Everything is yours. U win...Like I said I just want Rocco in my life. And no one will love him like me so if u ever think of separating me from Rocco it means u don’t love Rocco. And if u ever want to give him away I will take him…I am taking him to my house…”
April 1/22	Text response	C to V	“do not to[sic] that. he stays at my house. PERIOD.”
April 11/22	Email	V to C	“…I know for a fact u don’t love Rocco…I am in the process of renting a place and I will take him from you within the next month or 2”.
April 11/22	Email Response	C to V	“Rocco is mine. Do not even think about taking him.”
April 14/22	Text	V to C	“If you let me stay over during the long weekend with Rocco I will never bother u again about any of this…I miss him a lot. I can stay in the other room with Rocco…”
May 17/22	Text	V to C	“...I am moving on with my life. My only regret is Rocco because I cannot be his primary care taker. And it’s the poor guys loss. No one will love him like I do. He was very lucky to have me around all the time”.
May 30/22	Email	C to V	“you can go see Rocco now for a couple of hours, please leave by 9pm”
June 27/22	Email	V to C	“It’s 2022. And the problem is we think we have time. I used to think that way until I realized that I’m 32 with no kids and no pets…”
July 14/22	Email & photo	C to V	Attaching photo of Rocco Junior with caption “the only friend that I trust 100%”
Sept 10/22	Email	Between C & V	Trying to set up meeting. C states “I will be at my boat with Rocco at 6 today for a couple of hours”

53All of this evidence illustrates that the dog lived with Mr. Carvalho, and he decided when (and if) Ms. Verma saw the dog. At the time of some of these communications, Ms. Verma was clearly not residing with Mr. Carvalho as she was seeking permission to come “over” to see the dog. On one occasion when Mr. Carvalho granted permission, he asked Ms. Verma to depart by a specific time.

54In April 2022, Ms. Verma indicated that she was in the process of renting housing and intended to come to take the dog to the new home in the next month or two and Mr. Carvalho adamantly refused, describing the dog as “mine”. At no point in any of the communications between Mr. Carvalho and Ms. Verma did Ms. Verma assert that the dog had been gifted to her.

Issue Three: Was there promissory estoppel?

55The respondent’s written legal argument includes one paragraph and one case on promissory estoppel (although the compendium contains additional cases). Promissory estoppel was not addressed in oral argument, other than for counsel to indicate that the argument was being pursued.

56Ms. Verma argues that if the court finds that Mr. Carvalho owned Rocco Jr., his estate should be barred from the claim by the shield of promissory estoppel and that it is “unconscionable to rip this dog from her hands and provide it to the estate trustee as if he were nothing but a piece of furniture.”

57Promissory estoppel is an equitable defence whose elements were address by Sopinka J. in Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 SCR 50 (one of the cases in the respondent’s compendium) and rearticulated by the Supreme Court in Trial Lawyers Association of British Columbia v. Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47, at para. 15 as follows:

a. that the parties be in a legal relationship at the time of the promise or assurance;

b. that the promise or assurance be intended to affect that relationship and to be acted on; and

c. that the other party in fact relied on the promise or assurance. It is implicit that such reliance be to the promisee’s detriment.

58Ms. Carvalho argues that there was no legal relationship between Mr. Carvalho and Ms. Verma. There is certainly no evidence of a settled intention for the couple to be common law spouses. However, it is not necessary to reach a conclusion on the legal relationship point as the estoppel argument fails for want of a promise or assurance. There is no evidence that Mr. Carvalho gifted the dog to Ms. Verma or promised the dog to her in any circumstances (such as upon his death). The essential element of a promise or assurance is missing.

Result

59This court declares that Rocco Jr. was owned by Mr. Carvalho at the time of his death on November 24, 2022 and forms part of his estate.

60Ms. Verma will arrange for Rocco Jr. to be returned to the applicant by Friday, March 15, 2024. The court trusts that the return will be accomplished in a manner which is safe and respectful for all concerned. If the parties require further directions for the return of Rocco Jr., they should contact me through the Brampton trial coordinator’s office.

Costs

61Both parties uploaded costs outlines prior to the hearing date. However, costs were not addressed during oral argument as counsel advised that offers had been exchanged.

62The applicant will serve and file her costs submissions of no more than 2 pages by Friday, March 22, 2024 (five pages, maximum). The respondent will serve and file her costs submissions by Friday, April 5, 2024 (five pages, maximum). If necessary, the applicant can submit a reply by Friday, April 12, 2024 (two pages, maximum).

63All costs submissions should be double-spaced and copied to my judicial assistant (sarah.molina@ontario.ca). The submissions should address all costs factors with a particular emphasis on proportionality. The submissions should also include any offers exchanged by the parties.

Laura B. Stewart J.