Court File and Parties

COURT FILE NO.: CV-19-1929 DATE: 2020-01-30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Steve Thorpe, Plaintiff AND: Tammy Rinneard, Defendant

BEFORE: The Honourable Madam Justice M.E. Vallee

COUNSEL: Mr. J. Vanden Ende, Counsel for the Plaintiff Mr. L. Blanchett, Counsel for the Defendant

HEARD: January 28, 2020

ENDORSEMENT ON MOTION

[1] The parties began a relationship in 2014. In August 2016, the plaintiff, Mr. Thorpe, purchased two dogs, Bob and Bud. The defendant, Ms. Rinneard, lived in Mr. Thorpe’s residence. Their relationship was tumultuous. She left several times and lived elsewhere. She returned at the end of 2017. In May 2019, an incident occurred between the parties. Mr. Thorpe was charged with a criminal offence. One of his undertakings on release prohibited him from contacting Ms. Rinneard. He was convicted of the offence. One of the terms of his probation also prohibited him from contacting Ms. Rinneard. He attended once at the residence with police assistance to retrieve his belongings but was not permitted to take the dogs. He brings this motion for an interim order for recovery and possession of the dogs and an order granting leave for a writ of delivery for the dogs.

[2] Ms. Rinneard states that Bud is her property. Mr. Thorpe gave him to her around the time of her birthday because her previous dog, who was the same breed, had passed away. She concedes that Mr. Thorpe owns Bob.

Jurisdiction

[3] Ms. Rinneard states that this court does not have jurisdiction over the matter. She asserts that the parties had a common law relationship. She states, “there are a number of issues specifically pertaining to the division of property upon the breakdown of a common-law relationship as well as my spousal support claim and a claim for my interest in the Family Home that need to be addressed in the proper jurisdiction, namely Family Court.” The dogs are property pursuant to the Family Law Act; therefore, the Family Division has jurisdiction.

[4] The record before me shows that there is an issue as to whether the parties resided together for three years in order to be considered spouses. Their cohabitation was sporadic. There is a tenancy agreement that covers part of time period. Police notes regarding an incident in May 2019 state that Ms. Rinneard told police that she was renting a room in the back of the residence from Mr. Thorpe.

[5] Ms. Rinneard has not brought an application in the Family Division. I am not making any determination regarding whether the parties had a common law relationship; however, even if they did, disputes regarding property in common law relationships are determined by ownership. Common law spouses do not have a right to “division of property”. This court can also determine ownership of property. Therefore, I reject Ms. Rinneard’s position regarding jurisdiction.

Test for Interim Recovery of Personal Property

[6] Section 104 of the Courts of Justice Act provides that the court may make such an order when a plaintiff alleges that property is unlawfully detained by the defendant. Rule 44.01(1) states that a plaintiff must provide an affidavit setting out:

a. a description of the property sufficient to make it readily identifiable;

b. the value of the property;

c. that the plaintiff is the owner or lawfully entitled to possession;

d. that the property was unlawfully detained; and,

e. the facts and circumstances giving rise to the unlawful taking or detention.

[7] In Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. 1996 CarswellOnt 193, the court considered the plaintiff’s claim that it owned dies used in manufacturing fibreglass doors that the defendant possessed. In para. 9, the court stated that if the facts upon which the plaintiff relies afford substantial grounds for the claim, then the order should be granted. In para. 23, the court stated that the test “requires a high degree of assurance that the plaintiff will be successful at trial.” In para. 24, the court stated,

Cases in which there is clear documentation supporting the plaintiff are more likely to meet the substantial grounds test. Cases in which straight issues of credibility will determine the action are less likely to meet the test. However, that is not to say that the presence of a credibility issue is fatal to the plaintiff’s success or that a solid “paper trail” is unrebuttable by a defendant. Most cases will fall somewhere in the middle with some but not perfect, documentation and some issues of credibility.

[8] In Clark, the court found substantial grounds for the plaintiff’s claim. It stated that this did not automatically mean that the property should go to the plaintiff. It went on to consider a benefits versus harm analysis and the balance of convenience because the defendant challenged the plaintiff’s motives and argued that the plaintiff wanted to use the defendant’s technology to set up a competing business.

The Defendant’s Position

[9] Regarding the r. 44 factors, Ms. Rinneard agrees that Bud is identifiable and his value has been established. Mr. Thorpe purchased the dogs on August 4, 2016. Her birthday is July 18. She states that Bud’s ownership changed when Mr. Thorpe gave him to her as a birthday gift. She provides a veterinary bill dated March 20, 2017 from O’Sullivan Animal Hospital that identifes Bud as “Bud Laithwaite”. Laithwaite is her maiden name. Ms. Rinneard argues that if Bud was a gift to her, she cannot be unlawfully detaining him.

[10] The plaintiff questions Ms. Rinneard’s credibility because she states that the parties had a common law relationship whereas the police officer’s notes show that she told him that she was a tenant. Nevertheless, she points out that the occurrence report does not mention a tenancy. Ms. Rinneard states that she and Mr. Thorpe had a heated argument in 2017. He gave Bud to a friend to punish her. The friend returned Bud. She also states that on one occasion, Bud became very ill. Mr. Thorpe refused to pay for the veterinary care because “Bud was my dog.” Ms. Rinneard states that she has witnessed Mr. Thorpe strike the dogs in anger.

[11] Ms. Rinneard states that the balance of convenience favours the dogs’ remaining with her given Mr. Thorpe’s history of violence toward her and violent treatment of the dogs.

Analysis

[12] There is no dispute that the plaintiff purchased Bud on August 4, 2016. The plaintiff states that in mid 2016, the defendant moved out of his residence and did not return until November or December 2017. If that is the case, the defendant moved out shortly after Bud was purchased and did not return for a year and a half. The defendant’s evidence is vague on this point. She states in her affidavit,

Our entire relationship has been tumultuous and there have been numerous accounts of physical abuse toward me at the hands of the Plaintiff that has been documented by incident reports to the Barrie Police.[^1] As a result of the ongoing abuse, there were short periods throughout our relationship where I would move out of the Home and reside with friends or family until the Plaintiff and I would eventually reconcile and I would move back into the Home.

[13] She does not deny that she lived away from the plaintiff for one and a half years. I am left to wonder where Bud was at this time. The defendant states that the dogs have “always remained together”. The plaintiff provided several veterinary bills. Regarding the 2016 bills, which total $1,247.76, I cannot determine whether they relate to Bud because they are made out to Protocol Manufacturing Inc, the plaintiff’s business, and describe the services as “Medical-Personal”.

[14] One of the plaintiff’s veterinary bills is dated March 31, 2017 from Innisfil Veterinary Professional Corporation and is for both dogs’ neutering. The defendant’s veterinary bill for Bud “Laithwaite” is dated March 20, 2017, just eleven days before he was neutered. Based on the record before me, it seems that even if the defendant left the plaintiff’s residence in mid 2016, both she and the plaintiff were paying for his vet bills in 2017.

[15] The test in Clark requires me to be satisfied that that the facts upon which the plaintiff relies afford substantial grounds for the claim, in other words, a high degree of assurance that the plaintiff will be successful at trial. The fact that the defendant does not have any documents to support her claim that Bud was a gift to her is not surprising. Gifts of this sort are often not documented. The plaintiff asserts that the defendant left for one and a half years from mid 2016 to the end of 2017. Mr. Thorpe asserts that Bud is his dog but Ms. Rinneard’s payment of the vet bill calls this into question.

Conclusion

[16] Based on the record before me, although Mr. Thorpe could be successful at trial regarding Bud, I am not satisfied that he has demonstrated substantial grounds, being a high degree of assurance, that he will be. Because substantial grounds have not been demonstrated, the balance of convenience[^2] does not have to be considered.[^3] Accordingly, an interim order for recovery and possession of Bob shall issue in favour of Mr. Thorpe. A writ of delivery shall also issue. Ms. Rinneard shall ensure that no harm comes to Bud. She must retain possession of him up until trial. I see no reason to require her to post security pursuant to r. 44.03.

[17] Because Mr. Thorpe is prohibited from contacting Ms. Rinneard, counsel shall make suitable arrangements for Bob to be delivered to Mr. Thorpe.

Costs

[18] The defendant made an offer to settle; however, it does not comply with r. 48. It was made the day before the motion. In any event, the defendant was less successful than her offer. Because the parties have been equally unsuccessful in that Ms. Rinneard is required to provide Bob to Mr. Thorpe and Mr. Thorpe has been unsuccessful in obtaining Bud, there is no order regarding costs.

Vallee J.

Date: January 30, 2020

[^1]: None of these were provided [^2]: In Clark, the court determined that the plaintiff did have substantial grounds which then required a consideration of whether the property should be turned over to the plaintiff. This engaged an analysis of balance of convenience. [^3]: While an argument could be made that the dogs should not be separated, they are considered to be property. The best interests of property is not an element of the test to be applied.