COURT FILE NO.: 19-96814-00

DATE: 20210208

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ronald William Coates

Anmol Kataruka, for the Applicant

Applicant

• and -

Paula Dickson

Johnathan Pecchia, for the Respondent

Respondent

HEARD: January 29, 2021

MOTION for POSSESSION of DOGS

BALTMAN J.

1For nearly four years, Ronald Coates and Paula Dickson lived with their two black Labrador retrievers, Jazz and Jetta. Now the humans have parted ways, and this case is about who gets to keep the dogs.

Background

2Mr. Coates and Ms. Dickson are in their early 50s and have been cohabiting since July 2016. They married in August 2018 and separated in October 2019. They have continued to live in the matrimonial home while they sort out their financial issues, although there is significant animosity between them.

3One thing they have retained in common is their deep fondness for their two dogs. The couple acquired Jazz in May 2017 as a guard dog, after an attempted home invasion. She is now four years old. Approximately one year later, they acquired Jetta, who is now three.

4This matter came before me as part of a motion wherein both spouses were seeking exclusive possession of the matrimonial home and of both dogs. Ms. Dickson was also seeking interim spousal support. Shortly before the hearing, the parties resolved spousal support and have agreed that Ms. Dickson will move out their home in May of 2021. However, they cannot agree on where the dogs should live. Each spouse claims ownership of both dogs. In the alternative, each seeks one of the dogs, with both spouses preferring Jazz.

5For the reasons set out below, I find Jazz goes to Ms. Dickson, and Jetta to Mr. Coates.

Legal Framework

6However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature.

7That said, the case law reveals two different approaches to determining the ownership of pets. The more traditional, narrow approach turns on who paid for the dog: King v. Mann, 2020 ONSC 108, at para. 71; Warnica v. Gering, [2004] O.J. No. 5396, at paras. 25-28. That approach considers the care and maintenance of the dogs (paying vet bills, purchasing food, walking them, etc.) irrelevant to ownership. Although Warnica was upheld on appeal, the appeal was focussed primarily on whether the hearing judge was entitled to decide the case based on written materials filed during a case conference or whether a trial was needed: 2005 CanLII 30838 (ON CA), [2005] O.J. No. 3655 (C.A.).

8The broader, more contemporary approach looks at the relationship between the parties and the dog. This approach has been adopted in many (but not all) Small Claims Court decisions, which is where these claims are frequently heard given their relatively modest monetary value. The principles are well summarized by Adjudicator W.A. Richardson in MacDonald v. Pearl, 2017 NSSM 5, at para. 25:

a. Animals (including dogs) are considered in law to be personal property;

b. Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;

c. Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;

d. Where two persons contest the ownership of an animal, the court will consider such factors as the following:

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

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

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

iv. Who purchased and/or raised the animal;

v. Who exercised care and control of the animal;

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

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

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

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

x. Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

9That list is not exhaustive; depending on the case, there may be other relevant factors.

10In recent years this broader approach has continued to find favour in various courts: Eggberry v. Horn et al., 2018 BCCRT 224, at para. 31; Oh v. City of Coquitlam, 2018 BCSC 986, at paras. 50-53; Delloch v. Piche, 2019 BCPC 369, at paras. 19-24; and Almaas v. Wheeler, 2020 BCPC 51, at paras. 6-18 and 63-74.

11Those two competing approaches collided in a case that was heard by three successive courts in Newfoundland: Baker v. Harmina, 2018 NLCA 15. Only one dog was in issue there. The trial judge, hearing the matter in Small Claims Court, took the narrow approach, and granted ownership to Mr. Baker, because he paid for the dog.

12Ms. Harmina appealed to the Supreme Court Trial Division. The appeal judge found that the small claims judge had erred in deciding ownership without considering the full context of the parties’ relationship. She concluded that the parties owned the dog jointly and ordered that Mr. Baker (who often worked out of town) should keep the dog while he was in town and Ms. Harmina the rest of the time.

13Mr. Baker’s subsequent appeal to the Newfoundland Court of Appeal resulted in a split decision. The majority preferred the narrower, more traditional approach taken by the small claims judge and expressed the view that joint ownership – particularly where one dog was at issue – would be a highly undesirable result: at paras. 19-27.

14In dissent, Hoegg J.A. accepted that in law dogs are considered property, but agreed with the appeal judge that the dog in issue was jointly owned. She observed that people acquire personal property all the time, usually solely but sometimes jointly, and in so doing “pay little attention to legal rules respecting exactly who is acquiring title to the property”: at para. 49.

15Most importantly, Hoegg J.A. took an expansive, wholistic view of human behaviour vis-á-vis their pets, at para. 52:

Like the SCTD Judge, I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle. In this regard, I see the non-exhaustive list of principles to which the SCTD Judge referred, set out by Adjudicator Richardson … as helpful and relevant to determining the ownership of a dog. [emphasis added].

16That approach was followed by Miller J. in the recent decision of Hutchinson v. Hutchinson, 2019 ONSC 6574. She rejected the notion that “the difficulties which naturally flow from a finding of joint ownership of a pet should themselves preclude such a finding”, and found that the evidence before her “strongly” supports a finding that the dog was “jointly owned”: at paras. 58-65.

17In my view, this broader approach is the correct one. Ownership of a dog is an investment that goes beyond the mere purchase price. It includes the care and maintenance that are an integral part of “owning” the dog. I agree with Hoegg J.A. and Miller J. that separating the purchase price from the upkeep is both artificial and unfair. That is particularly so where, as here, there are two dogs in issue and, assuming the facts support joint ownership, they can be divided. Though in a perfect world dogs who co-reside would remain together, litigation, by definition, almost always involves some compromise.

Evidence and Analysis

18The parties each relied on affidavit evidence on which neither was cross-examined. Although their affidavits conflict in several areas, including details around the purchase and care of the dogs, on any objective view of the evidence both spouses in this case are significantly vested in both dogs. The following factors are particularly relevant:

a. Both dogs were purchased by the parties during their marriage as their family dogs;

b. Although they disagree on the amounts of their respective contributions, both parties have invested financially in the purchase and upkeep of the dogs, including food and veterinary expenses;

c. While each spouse claims to be the primary caregiver for the dogs, both have made significant contributions of time and energy toward their welfare and upkeep, e.g. Mr. Coates has done much of the dog walking while Ms. Dickson has attended to most of the veterinary care;

d. Both parties are listed in official documents connected to the dogs: Ms. Dickson is solely listed as the registered owner at the dogs’ veterinarian, and is the sole registered owner with the City of Brampton Animal Services, while Mr. Coates is listed as the owner of Jazz on the registration certificate issued by the Canadian Kennel Club; and,

e. Both spouses have suffered mental and emotional stress as a result of the separation and believe that the dogs will be therapeutic to their recovery.

19Based on the evidence, I easily conclude that both of the dogs are jointly owned. Both parties have been (more or less) equally involved in looking after them. Simply put, they are family pets. Unfortunately, the parties agree that due to both logistical difficulties and interpersonal conflict they cannot share or jointly maintain the dogs. They will have to be separated.

20Regrettably as well, the parties cannot agree on how to divide the dogs. Each prefers Jazz, who was purchased in response to the attempted break-in of their home. As Jazz appears to have the protective qualities that are particularly important to Ms. Dickson, I find that Jazz should go to Ms. Dickson and Jetta to Mr. Coates.

21In accordance with counsel’s submissions, given the result, the parties shall bear their own costs.

Baltman J.