COURT FILE NO.: FS-20-00019568
DATE: 20210714
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Duboff, Applicant
AND:
Natalie Simpson, Respondent
BEFORE: Papageorgiou, J.
COUNSEL: Kristin Whitley, for the Applicant
Richard Niman, Harold Niman, for the Respondent
HEARD: May 17, 2021
ENDORSEMENT
Overview
[1] Layla is a beloved Boxer breed dog born January 1, 2018.
[2] The Applicant, Michael Duboff (“Michael”), is a young lawyer called to the Bar in 2017 and working in Toronto. The respondent, Natalie Simpson (“Natalie”), is also a young lawyer called to the Bar in 2018 and working in Toronto. They were never married and have no children. They were in a common law relationship for four years between 2015 and 2019. They separated in or around September 2019.
[3] There have resolved every issue arising out of their separation amicably except for the ownership of Layla.
[4] Immediately after their separation in September 2019, Layla stayed with Michael during the day but then slept at Natalie’s while Michael moved his things out. As soon as Michael was settled in his new apartment in October 2019 Layla came to stay with him full time.
[5] Between September 2019 and March 2020 their relationship was amicable. During that time, Michael would sometimes leave Layla in Natalie’s care when he was unable to look after her, much like he would do with his brother and others.
[6] Their relationship declined shortly after Michael started a new relationship and the pandemic began in March/April 2020.
[7] Thereafter, Natalie did not see Layla for five months.
[8] Approximately one year after their separation and five months after Natalie had last seen Layla or communicated with Michael, Natalie saw Layla being walked by someone who she did not know on St. Clair Avenue. It was Julieta Mandelbaum (“Juli”), Michael’s new girlfriend. Natalie stopped her car, ran across the street and struck up a conversation with Juli. She then took Layla’s leash and ran across St. Clair Avenue to a car where one of her co-workers was parked. Juli telephoned Michael and followed Natalie, begging for her to return Layla but Natalie put Layla in the car and drove away.
[9] Michael telephoned the police who did not want to become involved as they considered this to be a civil matter.
[10] Michael then commenced this proceeding. He has not seen Layla since the time Natalie took her. Michael seeks a declaration that he is the owner and return of Layla.
[11] Natalie seeks a declaration that she is the sole owner or alternatively constructive trust over Layla’s ownership in her favour and, if appropriate, a shared property residential schedule for Layla.
[12] This matter proceeded by way of summary trial.[^1]
[13] This matter was very important to the parties. Natalie even had two lawyers representing her. Each of Michael’s and Natalie’s closing submissions were approximately 75 pages long.
[14] For the reasons that follow, I declare that Layla is owned by Michael and ordering that Natalie forthwith return Layla to Michael.
The Law
[15] Although pets are often viewed by people as members of their family, in law they are personal property much like other chattels, even when purchased during the course of a relationship. In that regard, they are an indivisible piece of property. The relevant question is ownership, not who wants the dog more or who has more love and affection for the dog, or even who would be the best owner: Brown v. Larochelle, 2017 BCPC 115 (“Brown”), at para. 16; Henderson v. Henderson, 2016 SKQB 282 at paras. 23, 40; Warnica v. Gering, 2004 CanLII 50065 (“Warnica”), at para. 28, aff’d 2005 CanLII 30838, at para. 6.
[16] The court has authority to determine ownership and to provide compensation for harm to property interests: King v. Mann, 2020 ONSC 108 (“King”), at para. 19. The court has no general discretion to redistribute property or alter ownership, but as with other kinds of property there may be issues as to whether a particular piece of property was made a gift or whether it is held in trust for another party, by way of constructive or resulting trust: King, at para. 20.
[17] The traditional approach to determining who owns the dog focuses primarily on who purchased and paid for the dog and whether there are any discrete transactions where ownership changed: Baker v. Hamina, 2018 NLCA 15 (“Baker”), at para. 11; Warnica; Brown, at para. 16.
[18] In the recent case Coates v. Dickson, 2021 ONSC 992, at para. 8, the court took a broader approach to ownership than who purchased the dog, and held that the court should take into account the following when determining the ownership of a dog:
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 the 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.
[19] Under either approach, I find that Michael is the lawful owner for the following reasons.
[20] From the time Michael met Natalie, he had always wanted a dog, particularly a female rescue dog. Michael commenced the search for a dog, and chose Layla, a female rescue dog. He showed pictures of Layla to Natalie. Although Natalie underwent a criminal background check, all members of a household must do so when adopting regardless of who the owner is.
[21] Natalie was working 12 hours per day and often on the weekends and she was not in a position to assist Michael with caring for Layla. She made it clear to Michael in their communications that Layla would be Michael’s responsibility (financial and otherwise). She wrote:
As long as you can tell me you have genuinely thought about this. That you are going to have to try to take the summer off to train this dog and that afterwards she will be an ongoing expense for the next 15 years of our life. You have to think that she will come with us whatever and whenever we move. And that sometimes we won’t be able to go places or do things because of her. If you get all that then I’m comforted.
[22] Michael provided the following records which support him as the titled owner:
i. Adoption application;
ii. Adoption contract which lists Michael as the owner and Natalie as someone who lives in his household. Notably, Natalie was with Michael when they adopted Layla. She was aware that the only name on the adoption papers was Michael’s. She could have asserted an ownership interest at this time but did not;
iii. An email from PetSmart to Michael confirming his adoption details;
iv. Canada Border Services import records. Michael and Natalie had to drive to New York to pick up Layla. Although Natalie accompanied Michael, she waited in the car while he completed all the paperwork which listed him as the owner;
v. Rescue Intake Database;
vi. Toronto Animal Services Licensing and Receipt of Payment;
vii. Microchip Database Registration;
viii. Microchip Records;
ix. Pet Insurance policy and claim records; and
x. Veterinary records.
[23] Michael forwarded most of this documentation, including emails from the adoption agency, and Natalie never took issue with the fact that her name was not shown as an owner. She says that had she known this would be an issue, she would have insisted on being listed as an owner. However, Natalie is a lawyer and she must be taken to understand the importance of title.
[24] Natalie’s name appears in only one document in the veterinarian records, a patient questionnaire where Natalie’s name was added on the form, next to Michael’s under “Owner’s Information”.
[25] Michael paid for the vast majority of Layla’s care and expenses since her adoption and produced invoices totaling $8,706 as follows:
i. Adoption fee;
ii. Canada Border Services Agency fee;
iii. Purchase of leash, dog bed, collar, crate, bowls etc.;
iv. Veterinary expenses;
v. Food and grooming;
vi. The dog walker; and
vii. The dog sitter.
[26] At most, Natalie contributed $771.60 to specific expenses. $400 of this amount relates to veterinarian expenses incurred after the separation when Michael was out of the province for work and Natalie was taking care of Layla. Another $291.54 is for discretionary expenses like expensive dog coats. In a text message, Michael offered to reimburse her for a veterinarian bill but she declined. In contrast, there are no texts or other written communications before me where Natalie offers to pay for Layla’s expenses paid by Michael.
[27] Natalie claims that she indirectly contributed to expenses for Layla through her contribution to the joint account held by her and Michael. She says she contributed disproportionately to their living expenses which then permitted Michael to pay the expenses associated with Layla. However, Michael was able to demonstrate that Natalie’s accounting failed to take into account her own personal expenses paid out of the account and her corresponding deposits to cover those expenses which total over $16,000 as well as other significant transactions that occurred outside the joint account like Michael’s payment of her LawProf fees ($2,260) and a trip to Mexico (over $5,000). After taking into account these amounts, the parties contributed roughly jointly to living expenses (net contributions by Natalie of $27,290.55 compared to net contributions of Michael of $24,333.25).
[28] In any event, the evidence relating to the joint account does not assist Natalie. The parties had a joint account for joint expenses. The fact that almost all expenses except for a $72 grooming fee, and some payments to Pet Mama for food, were paid by Michael and not out of the joint account supports Michael’s overall position. Had they jointly owned Layla, it would have been reasonable for expenses associated with Layla to be paid from the account that they shared for joint expenses and not directly by Michael. With respect to veterinarian expenses, Michael obtained the insurance, submitted all bills and kept any reimbursements.
[29] Michael was also Layla’s primary caregiver because he worked from home beginning June 2018, two months after she was adopted. He trained her, walked her two to three times per day, took her with him whenever possible, took her to her first and almost every other veterinary visit, arranged for the pet insurance and submitted all claims. He was able to do this because he worked from home while Natalie worked 12 hours per day in an office. Natalie did take Layla to work with her at times, but this does not compare with the time which Michael spent with her.
[30] Natalie says that the parties made joint decisions about Layla’s care and this is reflected in numerous text messages where they discuss Layla. Natalie references various emails and texts where she or Michael make general statements that imply joint ownership such as one Facebook message where Michael says, “found a dog for you” or an email to a veterinarian where he writes, “Natalie and I are getting a new puppy.”
[31] I agree with Michael that, in the context of all the other evidence before me, these texts are not evidence of ownership but rather communications between a committed couple. Layla was their family dog, but it does mean that she was jointly owned.
[32] The court was faced with a similar argument in King where the titled spouse made statements like “look what I got you” with reference to the dog, or “I bought it for you.” The court concluded that the statements, given their timing and context, did not indicate any intention to gift of the dog to the other spouse. There was no anniversary or birthday that would prompt a gift and “it would be very odd for the respondent to buy the dog she had long wanted and then immediately give it away to someone”: King, at para. 75. The court concluded, “the parties were living together in a committed relationship at the time and Copper was going to be treated as the family dog”: King, at para. 77.
[33] As well, Natalie had undertaken to provide complete chains of the messages she is relying on so the court could consider the complete context of these communications. She did not comply with that undertaking, and as such I am unable to consider the context of such communications.
[34] When the parties were on a relationship break in July 2019, Michael took Layla with him to Winnipeg for three weeks without any objection from Natalie. Upon his return, Natalie went to visit her family in the United Kingdom, but Layla remained with Michael.
[35] Natalie says that at the time of separation she and Michael had a conversation where they agreed that they owned Layla jointly and would share her care and expenses equally. However, what happened after their separation does not support this. Although Natalie did spend some time with Layla, Layla went to live with Michael after the separation.
[36] In Warnica, the court concluded that even though the separated parties amicably shared possession of the dog back and forth for a few years, this did not change the ownership of the dog. As in the case before me, the non-titled party’s involvement with the dog was totally dependent on the relationship with the owner of the dog. Similarly, in King at para 82, the court concluded that the fact that the respondent allowed the applicant to see the dog when requested did not change the ownership of the dog as the dog was always returned to the owner’s care.
[37] In March/April 2020 when their dispute over Natalie’s time with Layla began, Natalie did not take any action. She admitted that she knew she could have brought a claim in March/April 2020 but did not. Indeed, in an email dated April 28, 2020, she advised Michael that she had received “advice” and was not going to try to see Layla anymore. She essentially walked away. These actions are not the actions of someone who believes they have a legal right to ownership or possession. She did not see Layla for seven months until she took her on St. Claire Avenue.
[38] In my view, there was no joint ownership. Considering all the circumstances, Layla was at all times owned by Michael, even though Natalie loved her very much and continued to spend time with her after their separation.
Constructive Trust
[39] The test for a resulting trust is as follows:
a) There is enrichment;
b) There is a corresponding deprivation;
c) There is no juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 36-39.
[40] Natalie claims she has directly contributed to Layla’s expenses by purchasing clothes and toys for her as well as paying veterinarian expenses and that although Michael contributed more directly, he was benefitted by her greater contributions to their joint account. Her care of Layla also conferred a benefit on Michael.
[41] In Warnica, the titled holder was in possession of the dog and it was the non-titled person who brought the application, ultimately claiming a constructive trust. The case conference judge dismissed the case pursuant to s.16(12)(c)(iv) of the Family Law Rules, O. Reg. 114/99, which permits the court to dismiss a case it if it is “a waste of time, a nuisance or an abuse of the court’s process.” At para. 6, the Court of Appeal agreed that the claim should be dismissed and stated:
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.
[42] Even if the constructive trust argument is tenable at law, in my view, Natalie has not established unjust enrichment. Natalie cared for Layla and spent money on her because she loved her. This did not constitute a deprivation to her; indeed, it was a benefit to her. Further, there is a juristic reason for any benefit which Michael derived. Natalie and Michael were in a committed relationship and they were participating in the care of Michael’s dog together.
[43] As well, a constructive trust is a discretionary remedy and I would not impose one in this case. It would not be appropriate to force Michael to share the dog for policy reasons. Even though a dog is considered property, it is true that it is more than property to most people. However, a dog is not a child. It straddles a difficult place between the two. As property, the court could order that the dog is sold and the parties share the proceeds, which I’m certain neither party would want. Or it could impose some kind of shared schedule, as Natalie requests.
[44] However, courts are not equipped to supervise the sharing of a pet. Orders requiring some kind of shared schedule would encourage cases like this in the context of limited court resources. As well, there are significant wide-ranging policy concerns about ongoing supervision which could be required: King, at paras. 70-71; Baker, at paras. 12, 18, 23-26; Almaas v. Wheeler, 2020 BCPC 51, at para 6.
[45] In this case it would be particularly problematic to make an order that the parties share Layla. When Natalie was interviewed by the police related to this matter, she said that she was afraid of Michael and did not want to see him again. The Order which Natalie seeks would likely result in further conflict.
[46] I have great empathy for Natalie. She clearly loves Layla and is saddened by this situation. She may be comforted by the knowledge that Layla will be going to someone who loves her just as much.
[47] Accordingly:
a) I declare that Layla, a Boxer breed dog born on or about January 1, 2018, and identified by microchip number 985 112 009 828 433, is lawfully owned by Michael Duboff;
b) I order that Natalie Simpson return Layla to Michael Duboff within seven days;
c) If the parties cannot agree on costs, they may make submissions no longer than 5 pages each, Michael Duboff within 7 days and Natalie within 7 days thereafter.
Papageorgiou, J.
Date: July 14, 2021
[^1]: I note that the parties raised many issues which in my view are not relevant to the narrow issue before. A great deal of Natalie’s closing submission related to Michael’s credibility because of his alleged refusal to concede obvious facts, and alleged inconsistencies as well as minor differences between what is in Michael’s pleading and what he testified to. I did not find any of the examples of inconsistencies or his alleged failure to concede obvious facts persuasive. Regarding his testimony, I found his evidence consistent and well supported by contemporaneous documents.
Natalie also cites his failure to mention in his original materials that she attended with him to pick up Layla in New York as a material fact undermining his credibility. I disagree that there is a reasonable argument that this was some intention to deceive the Court or anyone. He could not possibly have thought that she would not have raised this, and I view this as a mere omission. Nothing turns on this. Natalie offers evidence of emails she sent Michael after their dispute began where she asserted an ownership interest. I do not find that persuasive as it was after the fact. Natalie also focused heavily on inconsistencies in Juli’s evidence as to what happened the day Natalie took Layla, as well as Michael’s attempt to have her charged criminally for theft, which I also did not find helpful to the issue before me