COURT FILE NO.: FS-16-61
DATE: 2016-08-10
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: PENNY DORKA v. SUMERU KUMAR
BEFORE: McSWEENEY J.
COUNSEL: PHILIP VIATER, for the applicant
MICHAEL J. RUHL, for the respondent
HEARD: August 2, 2016
E N D O R S E M E N T
[1] This is a motion brought by the respondent Sumeru Kumar in an ongoing family law property dispute. He seeks the return to his possession of a dog named Casper. It is common ground between the parties that in law the dog is to be treated as a chattel. It is also common ground that the dog has resided with each of the parties for varying lengths of time. Despite evident acrimony between the parties, neither alleges that the other is not capable of looking after the dog. In fact, it appears to be common ground that each has a close bond with the dog Casper.
[2] The parties should have been able to resolve this matter without engaging the court in hearing argument on a motion about who owns the dog and whether possession of the dog should be transferred. Each has previously attempted to enlist the aid of the police in returning the dog to their possession. Each has been unsuccessful in this regard, as there is evidence of shared ownership of the dog. The issue of final ownership cannot be resolved on this motion. The parties confirm that although there are a few other property related matters to be resolved on the application, ownership of the dog Casper is the main issue in their dispute.
[3] The parties were married for less than a year, and do not have children. As stated, they agree that the ownership of Casper is the main issue in dispute. They attempted private mediation in June 2016 without success. Each takes the position that they have all or part ownership of the dog. The court recognizes the case law on the matter of pet ownership which confirms that the family law courts are not to take great time to engage in determining matters of “pet access”. Where, as here, there are no allegations of animal cruelty or any behaviour which falls below that to which a living chattel, such as the dog Casper, is entitled, I direct that the parties move expeditiously to resolve their outstanding matters which will include determination of the ownership of Casper.
[4] Counsel for the applicant Penny Dorka, respondent on the motion, argued emphatically that in law a dog is equivalent to a chattel such as a “toaster”, and that there is no basis for this court to direct that such a chattel be returned from one party to another on an interim basis.
[5] I disagree. Under the Family Law Rules, courts are required to promote resolution of cases in a manner which fair, just, and proportionate to the issues between the parties. I find that in this case Penny Dorka commenced an application for relief including the return of the dog to her on March 14, 2016. After that time, on April 19, 2016, she attended at the respondent Kumar’s home in the evening in his absence, and removed the dog Casper. Casper has been living with her since that date. The court cannot condone such “self-help”. Having first asked the court’s assistance with the return of the dog to her possession, it does not lie with Ms. Dorka to assert that, as she states in her July 15, 2016 affidavit, “there is no urgency to this motion and no reason to waste judicial resources in making an order at this time”. This motion for interim relief arose as a result of the applicant’s removal of Casper from the respondent’s home. Her own action is the genesis of the motion before the court.
[6] Accordingly, pending final resolution of the matter of ownership and other property matters between the parties, I direct that the dog Casper shall be returned to the care of the respondent Kumar. So that this matter is not further protracted by the parties, I direct that they take steps promptly to settle or move this matter ahead.
[7] With regard to costs of this motion, I find that each party has engaged lawyers and the time of the court to deal with interim dog care issues: the applicant has done so by commencing the application filed on March 14, 2016, the respondent has done so today by returning a motion for interim ownership transfer. In these circumstances, each party shall bear their own costs.
[8] Accordingly, I order as follows:
(1.) The applicant is directed to return the dog Casper to Sumeru no later than 5 p.m. on Sunday, August 21, 2016, or such earlier time as may be agreed by the parties;
(2.) In order that this matter proceed in a timely manner, I direct that both parties shall contact the trial coordinator within 15 days of this order to schedule a settlement/trial management conference;
(3.) If the settlement/trial management conference has not been held by January 31, 2017, then the dog Casper is to be returned by Sumeru Kumar to Penny Dorka until the resolution of the issue of dog ownership by settlement or trial.
(4.) If the settlement/trial management conference takes place prior to January 31, 2017, the dog is to remain with Sumeru Kumar until otherwise ordered by the court or agreed by the parties.
[9] There shall be no order as to costs.
Justice L. McSweeney
DATE: August 10, 2016
COURT FILE NO.: FS-16-61
DATE: 2016-08-10
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: SUSAN DORKA v. SUMERU KUMAR
BEFORE: McSweeney, J.
COUNSEL: PHILIP VIATER, for the Applicant
MICHAEL J. RUHL, for the Respondent
ENDORSEMENT
McSweeney, J.
DATE: August 10, 2016