COURT FILE NO.: FS-24-40663 DATE: 20241119
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Emanuella Souza Franco, Applicant AND: Richardo Montemurro Franco, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Camila Motta, for the Applicant Robert McGlashan, for the respondent
HEARD: November 12, 2024
Endorsement
Nature of the Motion
[1] This is a motion about which party owns their 10-year-old Yorkshire Terrier named Meg.
[2] The wife brought a motion for a declaration that she owns Meg, and for an order requiring the husband to immediately return Meg to her. Alternatively, the wife seeks an order that she have possession of Meg until further agreement of the parties or court order or that on a temporary basis, the parties share possession of Meg on an alternating week basis, with the exchange to take place on Mondays, to follow the parenting schedule with their daughter.
[3] The husband seeks the same relief as the wife. He argues, however, that this court does not have jurisdiction to order a shared residency schedule for Meg under the law, given that pets are considered property under the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”).
Issues to be Decided
[4] The issues for me to decide on this motion are:
a. Whether the wife or husband owns the dog Meg? b. If the court is not prepared to make an ownership determination on an interim motion, who should have possession of Meg pending trial?
Brief Background
[5] The parties began cohabiting in May 2010 in Brazil.
[6] The wife claims that on April 17, 2014, the husband purchased Meg for her as a gift. She submits that she wanted a dog, she connected the husband with the breeder, they went to the breeder’s home in Brazil together, she picked Meg from the litter, she named the dog, Meg, and he purchased the dog for her. The wife does not dispute that the husband paid for Meg.
[7] The husband claims that he wanted a dog for a long time before he purchased Meg, he was looking for a reliable kennel when the wife told him she knew of a breeder, he managed the negotiations with the breeder, he chose Meg from the litter, and he paid for Meg and, therefore, he owns the dog. He acknowledges that the wife loves the dog but claims that her love for Meg is not connected to ownership of the dog.
[8] The parties subsequently married on June 24, 2017 in Brazil.
[9] They moved to Canada two years later in June 2019.
[10] They have one child, a nine-year old daughter, V.. The child resides equally with the parties pursuant to a 2-2-3-3 parenting schedule.
[11] The parties separated on March 4, 2023.
[12] The wife left the home on March 24, 2023.
[13] Between March 24, 2023 and July 31, 2023, the parties agreed it was in the best interests of their daughter to spend as much time as possible with the dog. They agreed to share possession of Meg on an alternate week basis so that Meg spent the weekends with their daughter. In other words, Meg did not follow the same schedule as their daughter but was always with their daughter on the weekends.
[14] The parties then attempted to reconcile between July 31, 2023 and September 23, 2023, at which point they resumed living together, with their daughter and Meg.
[15] Between September 25, 2023 and November 20, 2023, the parties separated again and they resumed their shared possession of Meg on an alternating week basis, while their daughter had equal parenting time with them.
[16] From October 12, 2023 to October 29, 2023, Meg was left in the exclusive care of the wife while the husband travelled and then moved residences. The husband returned from his trip on October 20, 2023, and did not retrieve Meg from the wife until 9 days later.
[17] On November 20, 2023, the husband advised the wife that he would not return Meg to her. According to the wife, this decision was unilateral and made without notice to her. The husband has had Meg with him exclusively since then.
[18] The wife made a number of attempts to work out a solution with the husband about Meg unsuccessfully.
[19] The wife issued the within Application seeking, among other things, decision-making responsibility for the parties’ daughter, spousal support, child support, decision of net family property and an order declaring Meg is her dog and that she be returned to the wife.
The Law on Pet Ownership
[20] Pets are considered a form of personal property in the law: Duboff v. Simpson, 2021 ONSC 4970, at para. 15.
[21] Accordingly, disputes over a dog’s ownership is determined on the basis of ownership and not on the basis of an animal’s best interests: F.K.L. v. D.M.A.T., 2020 BCSC 1296, at para. 141.
[22] The court in Henderson v. Henderson, 2016 SKQB 282, at paragraph 27, citing Ireland v. Ireland, 2010 SKQB 454, at paragraph 12, states:
[12] It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the court might apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court’s approach in this case to the principles applied to settle child custody disputed must be rejected.
[23] There are two approaches following in the case law regarding the determination of the ownership of a dog. The traditional approach looks at which party purchased the dog and whether there are any discrete transactions where ownership changed: Duboff v. Simpson, at para. 17. Similarly, the decision in Coates v. Dickson, 2021 ONSC 992, references King v. Mann, 2020 ONSC 108, at para. 71, with respect to the traditional approach as described above:
“71 That 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 (…)”
[24] A more expanded approach where the court considers not only purchase and registration but broader factors has developed, as set out in Coates v. Dickson, at para. 8, including, the following:
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 dog.
[25] In Duboff v. Simpson, the court clarified Coates. In Duboff, the parties were in a common law relationship of 4 years. In the first month post separation, the dog, Layla, stayed with Mr. Duboff during the day but slept at Ms. Simpson’s home. Once Mr. Duboff was settled in his new home, the dog began to stay with him full time, with Ms. Simpson only caring for the dog from time to time. When Mr. Duboff started a new relationship, the parties’ relationship sourced and Ms. Simpson did not see the dog for 5 months. Ms. Simpson came across Mr. Duboff’s new partner walking Layla and absconded with the dog, after which Mr. Duboff started court proceedings for Layla’s return. In response, Ms. Simpson sought a declaration that she is Layla’s owner or that she is Layla’s owner under a constructive trust. She also sought a shared residential schedule for Layla.
[26] Papageorgiou, J. in Duboff found that Mr. Duboff was Layla’s owner under either the traditional approach or the more expanded approach. I agree with her statements, at para. 44,
“…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.”
[27] The wife’s sister, Isabella Dias Nogueira de Souza, swore an affidavit, dated October 18, 2024, supporting the fact that Meg is owned by the wife and deposing that the husband has been withholding Meg from her sister since November 2023. Isabella’s affidavit describes that she was very close with both the husband and wife prior to separation. She deposes that she lived with the parties when she first arrived in Canada for 6 months; after the separation, the husband stayed with Isabella at her home for a few days and she helped the husband with the move to his current home in October 2023. Relating to Meg’s ownership, Isabella’s affidavit states as follows:
a. In 2014, the husband gifted Meg to the wife. b. The wife always dreamed of having a Yorkshire and, at the time, the parties did not have a child, so Meg was a companion for the wife while the husband worked long hours. c. The husband initially resisted having a pet due to allergies, so the gift was a surprise for the wife. Meg’s breed is hypoallergenic. d. The wife always played the main role in Meg’s care. While she witnessed the husband also caring for Meg at times, he took a secondary role to the wife and supported the wife’s primary ownership and care of Meg. e. In October 2023, the wife, Isabella, and V. went to Niagara Falls for the weekend and left Meg in the care of the husband. When they returned, she noticed that the husband had not stayed there. Meg had clearly been left alone and not cared for since there were feces in the home and she was out of food and water. f. When the parties moved to Canada, Isabella still lived in Brazil and the wife asked her to care for Meg until she could bring Meg to Canada. When Meg was staying with Isabella, Meg got sick and Isabella communicated with the wife only regarding Meg and the wife sent her funds to cover Meg’s expenses. g. The two agencies with which the husband registered Meg’s microchip in Canada are Animaltag and 24Petwatch and the confirmation forms from both websites show that the husband registered Meg’s microchip on November 21 and 23, 2023, two days before he overheld Meg from the wife. h. After Isabella moved to Canada, she continued to assist the wife with care for Meg, especially, when the wife travelled. All arrangements for Meg’s care were with the wife, not the husband.
Application of the Law to the Facts:
[28] While there may be a temptation to determine what party would be best able to look after a household pet, given that people who have pets generally thing of them as family members, the developed law is that a dog is to be treated as property, and any determination as to question of ownership or right to possess property is to be determined under s.10 of the FLA which states:
10 (1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,
(a) declare the ownership or right to possession; (b) if the property has been disposed of, order payment in compensation for the interest of either party; (c) order that the property be partitioned or sold for the purpose of realizing the interests in it; and (d) order that either or both spouses give security, including a charge on property, for the performance of an obligation imposed by the order,
and may make ancillary orders or give ancillary directions. R.S.O. 1990, c. F.3, s. 10 (1).
[29] I agree with the statement of Papageorgiou, J., in Duboff, at para. 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 (“Warnica”), at para. 28, aff’d , at para. 6.
[30] I find that the wife is the lawful owner of Meg for the following reasons:
a. It is not disputed that the wife connected the husband with the breeder in Brazil and they went together to meet with the breeder. It is disputed as to which of the parties picked Meg from the litter or named her. b. The wife providing the following records which support her being the titled owner of Meg: (i) The agreement of purchase and sale with Meg’s breeder, signed in 2014, which lists the wife as Meg’s owner. (ii) The original microchip registration for Meg in Brazil, which lists the wife as Meg’s owner. (iii) The documentation from Meg’s veterinarian in Brazil which lists the wife as Meg’s owner. (iv) The email confirmation from Meg’s veterinarian in Toronto confirming Meg’s appointment, demonstrating she was responsible for Meg’s care. (v) A declaration from the breeder in Brazil confirming that Meg was the wife’s dog, purchased by the husband for the wife. (vi) The letter from the dog’s groomer in Toronto confirming that the wife is Meg’s owner and the person they dealt with to organize Meg’s grooming. (vii) A copy of the message the husband sent the wife on the day he withheld Meg on November 20, 2023, on WhatsApp which demonstrates that the husband was well versed in the law regarding ownership of pets upon separation in Ontario. The content of the message demonstrates that the husband was unilaterally declaring his “ownership” of Meg since the wife had retained a family law lawyer. The message stated that since she was creating “conflict after conflict and escalating the issues to other levels instead of dealing with them peacefully between us, then, considering that in Ontario pet animals are considered personal property and that, in a separation, it belongs to the one that purchased the animal, therefore, you don’t need to worry about issues related to Meg. She will stay here with me. I remind you that we should use this messenger to deal only with issues related to V. as you requested yourself.”
[31] Using the broader factors set out in Coates v. Dickson the court should look at when determining ownership of a dog, I make the following findings of fact:
Whether the animal was owned or possessed by one of the people before the relationship began;
(i) This is not applicable in this circumstance, as Meg was purchased in 2014 when the parties were common law partners. The wife deposes that Meg was purchased by the husband for her as a gift. This fact is corroborated by the wife’s sister, Isabella, and also by Meg’s breeder. When the parties became married in 2017, Meg was being cared for by the wife primarily.
Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
(i) There is an agreement of purchase and sale signed by the breeder, Elysangela Martins Rodrigues Barbosa, which lists the wife, “Emanuella Dias Nogueria de Souza”, as the “buyer”. The husband disputes that this agreement is legitimate and claims that the copy of the agreement he has in his possession, is only signed by the breeder and not the wife, suggesting that the wife altered the copy of the agreement or purchase and sale she attaches to her affidavit. However, the wife obtained a copy of the agreement of purchase and sale from the breeder, which shows that it was signed only by the breeder and the wife. (ii) The wife attached to her affidavit as an Exhibit, a Declaration from the breeder, dated March 23, 2023, confirming that the wife was the individual who acquired a Yorkshire puppy on April 17, 2024 by contract and the purchase price of the dog was paid for by the husband, who gave it to her, which is why the contract of sale, listed the wife as the buyer. (iii) While the wife’s name is listed on the agreement of purchase and sale, the husband claims this document was not signed contemporaneously when Meg was purchased. He suggests that the wife altered the agreement of purchase and sale and signed it after the separation. Since the agreement of purchase and sale is dated but not witnessed, the husband claims it is not legally binding. (iv) The agreement of purchase and sale sets out if that if there is any doubt or questions arising from the contract, such disputes are to be resolved in San Paulo, Brazil. Accordingly, the husband submits that if there is a question as to the validity of the agreement of purchase and sale that matter should be adjudicated in Brazil and not in Ontario. The court has not been asked to enforce a foreign domestic contract. Accordingly, this statement by the husband is not being considered, particularly, since the husband also claims the agreement, itself, is not binding. In any event, this dispute resolution clause does not add anything to the analysis of ownership. (v) The husband maintains that the wife had a prior relationship with the breeder. He argues this is evidenced by the fact that the wife admits she introduced the husband to the breeder. Further, the husband argues that the breeder’s declaration that Meg was purchased by him as a gift to her was made after the parties’ separated and only days after the wife claims the husband took Meg from her care. In other words, the husband argues the breeder cannot be trusted. Other than introducing the husband to the breeder, the husband did not produce any evidence that the wife has an ongoing relationship with Meg’s breeder beyond the day the parties’ acquired her. I do not accept the husband’s conjecture that the wife and breeder have some sort of ongoing relationship without evidence to support that statement. (vi) The husband also submits that the statement by Meg’s groomer that the wife is Meg’s owner cannot be relied upon because the wife treated Meg as the family dog and this statement is not a reflection of legal ownership. Totally contrary to that statement, is the husband’s claim that since he paid for Meg’s grooming to that groomer, that is evidence that he is the dog’s owner. The statement by the groomer demonstrates that the groomer involved with Meg dealt with the wife and understood that the wife was Meg’s owner. The statement from the breeder is indicative of the fact that the wife was responsible for Meg’s grooming which is an aspect of her care. The fact that the husband paid for the grooming is not disputed by the wife, since she acknowledges being financial dependent on the husband. (vii) Meg’s microchip (number 963008000296686) obtained while the parties were still in Brazil, shows that the original microchip registration, dated September 17, 2014, is in the wife’s name, listing her as the “tutor” for Meg. This is the original microchip obtained for the dog in Brazil. The wife also produced an email confirmation she received from Abrachip after she registered Meg’s ownership on September 17, 2014. (viii) The veterinary clinic in Brazil, named Total Vet, in Sao Paulo, has produced records listing the wife as Meg’s owner. (ix) Inconsistent to the husband’s statement in his affidavit that the wife altered the agreement of purchase and sale, the husband claims that the agreement of purchase and sale listing the wife as Meg’s owner was an “oversight” by the breeder. This suggestion means that it was an oversight not only by the husband but also by the breeder. That suggestion is contrary to the agreement itself and the breeder’s declaration. (x) The wife states in her reply affidavit that the husband retained counsel in Brazil who sent a letter to the breeder and that the breeder is now reluctant to further help the wife. While the husband did verify that his counsel sent the breeder notice not to transfer Meg’s ownership for a certain period of time, the statements the breeder told the wife about her reluctance are hearsay. As such, I am not considering this evidence in deciding about Meg’s ownership. However, the production of the agreement of purchase and sale demonstrates to the court that the document signed at the time of Meg’s purchase in 2014 listed the wife as the dog’s owner. (xi) I am not persuaded by the husband’s allegations that the wife signed this agreement and purchase and sale after the separation and after the husband refused to return Meg to her. I am persuaded, however, by the fact that whether the agreement in the husband’s possession was not signed by the wife at the time Meg was acquired as the husband alleges, the agreement lists Meg’s owner as the wife and not the husband in any event. I also find that it is just as probable that the breeder retained the one fully signed copy of the agreement of purchase and sale and the husband’s copy was not fully executed. Either way, the terms of the agreement of purchase and sale are the same. In both documents, the wife is listed as Meg’s owner, and not the husband. (xii) The health certificate document signed when Meg came to Canada from Brazil, dated March 18, 2020, lists the husband as the owner of the dog. The wife deposes that this is because the husband’s mother arranged for a veterinarian to complete this document and because the husband’s command of the English language was superior to hers. That is a plausible explanation. The health certificate, in my view, is not determinant of Meg’s ownership but, rather, as to which of the two parties were able to sign that document to ensure Meg could cross the borders from Brazil to Canada. (xiii) Furthermore, while the wife acknowledges that the health certificate to bring Meg from Brazil to Canada lists the husband as Meg’s owner, this certificate was arranged for in a hasty manner and it was the husband’s mother who asked a friend who was a veterinarian to prepare the paperwork. The Dr. Renata who signed the health certificate was not Meg’s regular vet. The vet documentation confirms that Meg’s vet was Dr. Ricardo.
The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
(i) The parties were common law partners starting in 2010. Meg was acquired in 2014. They were in a committed, intimate relationship at that time. They did not marry until 2017.
Who purchased and/or raised the animal;
(i) The husband purchased Meg. This is not disputed. (ii) Throughout Meg’s life, the wife deposes that she made all arrangements for Meg, including scheduling and taking Meg to her grooming appointments; purchasing supplies for Meg; arranging all of Meg’s vet appointments; feeding Meg, playing with Meg; taking Meg to her vet appointments; and walking Meg. (iii) When the parties moved to Canada, the wife deposes that she asked the husband to attend veterinarian visits with her and Meg because her command of the English language was not as developed as the husband’s and she wanted to make sure she didn’t miss any important information. The husband disputes this and claims both parties have an equal command of the English language. (iv) While the wife acknowledges that the husband is listed as Meg’s owner on most of the Canadian documents, she remained fully involved in all of Meg’s care. This is evidenced by the fact that: (a) Patricia Carriel of Collin & Co. Pet Care, the groomer, wrote a letter dated October 15, 2024, confirming that the wife is the owner of Meg, who has been a client of the grooming company since 2022, referred to them by Manuella Souza Franco. (b) the wife is the individual who sent the appointment confirmation emails from the Westside Animal Hospital in Canada for Meg, evidence by an email sent to the wife, on November 20, 2023 to confirm Meg’s medical appointment. (v) The wife claims that she purchased and paid for supplies for Meg during the relationship and she also paid for Meg’s services. She acknowledges, however, that both she and the husband paid for Meg’s care. (vi) Similarly, the husband deposes that he was financially responsible for Meg throughout their relationship. He argues that he paid for Meg’s wellbeing, healthcare and food. I accept that the husband paid for the majority of Meg’s expenses. However, I do not find that that means he is Meg’s owner. That indicates that the wife was financially dependent on the husband, as reflected in their sworn financial statements, given the disparity in their incomes.
Who exercised care and control of the animal;
(i) Both parties cared for Meg. The wife claims she had care and control of Meg. Isabella’s affidavit confirms that when she looked after Meg and Meg was sick, it was the wife and not the husband who she dealt with. (ii) Even if Isabella’s affidavit is not reliable because she is not arm’s-length to the wife, I find that the fact that the Canadian veterinarian sent the wife the confirming email of Meg’s appointment verifies that she had care and control of Meg, at least to the same extent if not more than the husband. (iii) The husband’s affidavit does not state that he was responsible for looking after who would care for Meg when he and the wife went out of town or were unavailable to do so. (iv) The husband argues that he maintained care and control of Meg. It is correct that the veterinary records in Ontario list the husband as Meg’s owner, along with Meg’s health certificate, dated March 18, 2020, being the document that was used to bring Meg from Brazil to Canada. However, the doctor listed on the health certificate is not Meg’s veterinarian in Brazil. The wife explained that the husband’s mother arranged for a veterinarian in Brazil to sign the health certificate, which makes sense since both the husband and wife were in Canada at the time. The husband did not dispute the wife’s version of events in his affidavit. I am not persuaded that the husband being listed on the health certificate changes the fact that from the time Meg was acquired in 2014, all documents prepared at that point in time, list the wife and not the husband as Meg’s owner. (v) While it is clear that the husband registered Meg’s microchip in Canada listing himself as her owner and that the husband is listed as Meg’s owner at Westside Animal Hospital, where Meg has received veterinary care since they arrived in Canada, I also am not persuaded that this changes the fact that the wife was Meg’s owner. I say this because anyone can register a pet’s microchip in his or her name. Likewise, anyone can register an Animal Tag listing himself or herself as the owner. What is indicative of ownership are the documents that were signed at the time Meg was acquired. Documents after the parties’ separated are not helpful in determining Meg’s ownership, since at that point in time, Meg’s ownership was in dispute.
Who bore the burden of the care and comfort of the animal;
(i) Both parties claim to have looked after Meg. This has been addressed in many of the other factors above.
Who paid for the expenses related to the animal’s upkeep;
(i) Neither party was able to put forward evidence to confirm that he or she paid for Meg’s expenses. It is agreed, however, that the husband paid for the majority of Meg’s costs since the wife maintains that she was financially dependent on the husband and therefore the fact that he paid for Meg’s expenses is not indicative of ownership. I agree.
Whether at any point the animal was gifted by the original owner to the other person;
(i) Again, this is disputed as between the parties. However, the wife’s account that Meg was gifted to her by the husband was verified by Meg’s breeder who is not related to the wife, as is her sister. I find this fact to be compelling.
What happened to the animal after the relationship between the litigants changed;
(i) There were two periods of separation for these parties. In the first separation between March 2023 and June 2023, the parties lived separate and apart and they shared Meg. This was not disputed. This is also how the parties addressed their parenting issues. (ii) The husband’s explanation for his agreement to have Meg share her residence with the parties emanated from the fact that V. was not handling the separation well, was expressing thoughts of self-harm, and he did not want to upset her further so he agreed to Meg staying with the wife on a week on/week off basis. (iii) The husband relies on the fact that the wife sent him a text on May 11, 2023 advising that she had “decided to let go of Meg for now” as indicative of the wife giving up ownership of Meg. I do not agree. While a copy of this text was attached to the husband’s affidavit as an Exhibit, the wife provided an explanation that she said that in an emotional state. Even if the wife felt that way about Meg in that moment on May 11, 2023, the parties reconciled and subsequently separated and agreed after the second separation to share Meg, which demonstrates that the husband did not take the wife’s text as reflecting her true intentions regarding Meg. (iv) The parties resumed living together with their daughter and Meg when they reconciled from June/July 2023 to the end of September 2023. (v) According to the husband, he suffered a stress breakdown in September 2023 when the wife told him the marriage was at an end, and was admitted to the hospital, after which he stayed with the wife’s sister, Isabella, for a bit. There is no mention as to where Meg stayed during his admission to the hospital in the husband’s affidavit. The wife deposes that Meg was in her exclusive care. (vi) In October 2023, when the parties separated again, they continued to share possession of Meg. (vii) The parties agree that the husband was away from October 12 to 20, 2023. During this time, Meg was in the exclusive care of the wife. This is not disputed. (viii) When the husband returned to Toronto on October 20, 2023, he did not retrieve Meg immediately. Rather, he left Meg in the wife’s exclusive care for a further 9 days, namely, until October 29, 2023. (ix) If the wife “proved to be an inconsistent caregiver for Meg”, as alleged by the husband in his affidavit, then it makes no sense that the husband would agree to the wife looking after Meg not only while he was away but for a further 9 days when he returned while he was moving into his new accommodation. The husband further states that when he retrieved Meg from the wife on October 29, 2023, it was clear that “she had not been bathed or brushed in weeks.” The husband provided no evidence of this. Further, the husband voluntarily left Meg in the wife’s care for 17 days. For the 9 days between October 20 – 29, 2023, he could easily have visited with Meg or looked in on her but he decided not to, despite being back in Toronto. The husband offers no explanation for this. (x) After October 29, 2023, the parties resumed their shared residency of Meg. This is not disputed by the husband. He deposed that he agreed to share Meg’s residence notwithstanding his concerns “to keep the peace.” I find that the fact that the parties shared Meg’s residence both times that they separated as demonstrative of the fact that the husband was of the view on his best day, that the parties equally owned Meg and that it was in their daughter’s best interests to have time with Meg on the weekends and, on his worst day, the husband agrees that the wife is Meg’s primary caregiver but agreed the dog should overlap with their daughter’s schedule for her best interests. (xi) November 20, 2023, namely eight months after the parties’ first separated, was the first time the husband took the position that he was Meg’s owner to the exclusion of the wife. His affidavit sets out that the husband decided that it was not fair to Meg to send her with the wife for further visits because Meg was being “neglected, unwell, left alone for extended periods of time and going without brushing and bathing.” The husband produces no objective evidence about Meg’s lack of care. He did not produce a letter from the veterinarian expressing concerns about Meg’s care. He did not produce pictures of Meg’s fur/hair being matted or tangled. Moreover, he did not provide any proof of the wife leaving Meg alone for “extended periods of time.” These are bold, large sweeping statements contained in the husband’s affidavit, with no corroborating evidence or detail. (xii) The wife acknowledges that she never transferred Meg’s pedigree’s registration to her name and, therefore, it remains in the breeder’s name. She deposes that the husband recently attempted to have Meg’s pedigree’s registration changed to his name, but since the kennel association required proof of ownership and the agreement of purchase and sale lists the wife as the owner he was not able to do so. Further, the breeder has to authorize a change in pedigree registration and the breeder for Meg has always understood that Meg’s owner is the wife, not the husband. (xiii) The wife swears that on September 20, 2024, the husband’s mother attended at the breeder’s home in Sao Paolo, Brazil and asked the breeder to prepare a new agreement of purchase and sale listing the husband as Meg’s owner. The breeder contacted the wife to advise her what had transpired and told the wife she still retained the original contract in the wife’s name and was not prepared to do what was asked of her by the husband’s mother. (xiv) Although the statements about the husband’s mother and the breeder being contacted by her are hearsay, it is persuasive to me that on September 26, 2024, a Brazilian lawyer on behalf of the husband, sent the breeder a formal extrajudicial notice telling her to “cease and desist” any action for 30 days, to transfer Meg’s ownership to anyone. This evidence was put forward by the husband. (xv) The husband produced a translated copy of texts that took place between him and the breeder where he asked the breeder for the pedigree documents so the pedigree for Meg could be transferred. The breeder explains to the husband that she cannot authorize the transfer of the pedigree to him without the wife’s consent “due to the contract [they] agreed upon”, meaning because the agreement or purchase and sale is in the wife’s name. The breeder’s texts go on to confirm that the wife did not ask for a second copy of the pedigree for Meg. Neither party transferred Meg’s pedigree from the breeder’s name to their name. This action taken on the part of the husband does not demonstrate that the breeder is not independent of the wife as the husband suggests, but rather, demonstrates that the husband was trying to take steps to prove his ownership of Meg, after the fact because he realized the dog’s pedigree was not transferred into his name, and it would have been, if he was listed as Meg’s owner in the agreement of purchase and sale.
Any other indicia of ownership, or evidence of agreement relevant to who has or should have the ownership of the dog.
(i) The documentation that had been produced which was signed contemporaneously when Meg was acquired all point to the wife being Meg’s owner, other than the fact that the husband paid for Meg. (ii) The agreement of purchase and sale, whether fully executed by the wife and breeder, lists the wife as Meg’s owner. (iii) The veterinary records in Brazil list the wife as Meg’s owner. (iv) The microchip registered to Meg in Brazil in September 2014 lists the wife as Meg’s owner (v) The wife alleges that the husband refused to provide her with a copy of Meg’s vaccination records because those records list her as Meg’s owner. The husband confirms that he did not provide the wife with Meg’s vaccination records. He states that he became concerned that the wife was asking for the records because she wanted to make changes to Meg’s registration and asset ownership. It would follow based on the husband’s statements in his affidavit that the vaccination records for Meg, list him as the owner which is why he refused to produce them to the wife. However, the husband did not produce copies of the vaccination records. I draw an adverse inference that the husband did not produce the vaccination records because if he had, they would be another document that lists the wife as Meg’s owner. (vi) The only documents listing the husband as Meg’s owner is the health certificate and the fact that the veterinarian office records in Toronto lists him as the owner. However, the veterinarian’s office also emails confirmation of Meg’s appointment to the wife, indicating that she is the primary caregiver of the dog and owner. (vii) The microchip registrations made by the husband in November 2023 are not evidence that prove he is Meg’s owner. Rather, these are steps proactively taken by the husband after he made a unilateral decision to withhold Meg from the wife, likely to bolster his claims that he is Meg’s owner. Further, registering a microchip with a website, ten years after the microchip was initially implanted in the dog, is not indicia of ownership. Rather, it is indicia of a party trying to make a record to match his narrative. (viii) The groomer’s letter, while not a sworn affidavit, is indicia that the wife looked after Meg’s grooming and arranged Meg’s grooming appointments. That is, in and of itself, indicia of ownership of the dog. (ix) The husband has put forward no third party evidence supporting his position that he is, in fact, Meg’s owner, other than the health certificate signed by a vet to enable Meg to travel from Brazil to Canada. Again, that is not Meg’s regular veterinarian.
Issue Two: Should the court decide the ownership of Meg at an interim stage and if not, where should Meg live pending trial?
[32] In Warnica v. Gering, Timms, J., aptly stated at para. 19 that he did not believe that any court should be in the business of making custody orders for pets. He also states:
“… pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significant exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.”
[33] In Warnica, the court was dealing with a case in which a dog’s ownership was being disputed. In that case, it was not clear whether the parties’ had cohabited. The dog had been adopted for a nominal fee paid for by the respondent and the dog was in the possession of the respondent throughout the parties’ relationship. The parties shared possession of the dog for a few months after separation. The court found that the evidence indicated the respondent owned the dog and dismissed the applicant’s claim at a case conference under r.2(3) of the Family Law Rules and subrule 1.04(1) of the Rules of Civil Procedure.
[34] Timms, J. was concerned about costs. He noted that the applicant “seems to known no reasonable limit” and that “ he had already spent what must amount to several thousand dollars.” The court also noted that if the respondent were to have his way, there would be a trial, with viva voce evidence, to determine firstly the cohabitation and then ownership of the dog. The court stated at para 24,
The parties deserve a just procedure; one that is fair to both parties; one that saves time and expense; one that is appropriate to the importance and complexity of the case and one that devotes appropriate court resources. Three judges have now spent time on this file. That is sufficient. Short of a full-blown trial with contradictory oral evidence and findings of fact by a trial judge, nothing more can be added to allow the court to determine ownership.
[35] The Court of Appeal confirmed the trial judge’s decision:
“6 We agree and on the basis of the trial judge’s findings we would dismiss the claim under rule 16 (12) (c) (iv) of the Family Rules. 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.
[36] In Coates v. Dickson, a final decision regarding the dog was made at a motion. This case had been largely followed. The court dealt with parties that had a short marriage and no children together. In that case, the court had the advantage of dealing with two dogs. Even though it was a motion, Baltman J. decided the dogs were jointly owned and determined that each party should keep one of the dogs. This supports the wife’s position that a final decision should be granted at the motion stage.
[37] In accordance with the primary objective of the FLRs to deal with cases justly which includes ensuring the process if fair to all parties, giving appropriate court resources to the case and saving expense and time. I am persuaded that there is sufficient evidence on the record for the court to determine Meg’s ownership at a motion.
[38] If a trial were to occur for this matter, evidence would be needed from the breeder in Brazil, Meg’s initial veterinarian when the parties were in Brazil, the veterinarian in Ontario and all third parties involved in the care of Meg, including the groomer. This is not a reasonable dedication of the court’s resources, particularly, when judicial resources are scarce and families face months of backlogs before having their cases heard.
[39] As a result of the husband’s self-help actions, he has had exclusive care of Meg since November 2023, for over a year. It is clear from the evidence on record that the parties were successful in agreeing on the shared ownership of Meg after separation, which allowed them both to spend time with the dog, and gave their daughter of having the benefit of having Meg in both of her households. At some point, the husband decided to stop this arrangement.
[40] While there is conflicted evidence regarding which party provided primary care for Meg, there was no clear explanation provided by the husband as to why he denied the wife any time with, or access to, Meg since November 2023, especially, since she made numerous attempts to come to some agreement with respect to time sharing for Meg.
[41] This court has concerns that if the issue of Meg’s ownership is not determined now, further conflict will arise between the parties which will not be in their daughter’s best interests. The evidence appears to be that the husband retained counsel in Brazil to ensure the breeder does not take any steps to transfer Meg’s pedigree. This means the husband has gone to the extent of retaining counsel in Brazil, while also retaining counsel in Canada to deal with the dog’s ownership. The husband’s income is far greater than the wife’s and he, therefore, has a greater ability to fund the litigation regarding Meg’s ownership than she does.
[42] The wife deposes that the husband will not provide her with copies of Meg’s vaccination certificates which list her as Meg’s owner. The husband acknowledges that he will not provide these certificates to the wife. He does not, however, produce copies of these receipts, for which I have drawn an adverse inference.
[43] The husband has also taken steps to register Meg’s microchips in Canada listing himself as the owner to support his position in this case, without taking accountability for the fact that he took these steps after he overheld Meg.
[44] The evidence, taken as a whole, leads me to conclude that the indicia of Meg’s ownership lies with the wife, not the husband.
Costs
[45] The Notice to Profession and Parties for the Toronto Region sets out clearly under Family Matters, B.5. Scheduling Motion Dates at #27 that “a bill of costs shall be filed along with motion materials, if costs are requested by a party on the motion.”
[46] It is noted that the wife filed a bill of costs. The husband did not.
[47] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, at para. 12. The reasonable expectations of the unsuccessful party are a relevant consideration: Delellis v. Delellis, [2005] O.J. No. 4345.
[48] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.
[49] Pursuant to r. 24 of the FLRs, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10. In setting the amount of costs, the court must consider the reasonableness and proportionality the factors listed in r. 24(12) as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.
[50] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.
[51] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant (Selznick v. Selznick, 2013 ONCA 35; Delellis v. Delellis, [2005] O.J. No. 4345, 2005 CarswellOnt 4956 (S.C.J.); Serra, supra; Murray v. Murray (2005), 79 O.R. (3d) 147, [2005] O.J. No. 5379; Guertin v. Guertin, [2015] O.J. No. 4585, 2015 ONSC 5498 (S.C.J.)).
[52] The wife’s counsel bills out at $350 an hour. She spent a total of 18.6 hours on this motion from November 24, 2023 to November 11, 2024. This time included drafting and serving an offer to settle the issue of Meg in late November 2023. The wife’s substantial indemnity costs came to $8,173.74. I find these costs to be reasonable for having to prepare and draft a Notice of Motion, two affidavits, and a Factum for this motion.
[53] In determining the amount of costs that the husband has to pay to the wife, I have considered that, in setting the amount of costs, the court must consider the reasonableness and proportionality of each of the factors contained in rule 24(12)(a)(i) - (vi), inclusive, and any other relevant matter: Rule 24(12).
ORDER
[54] Accordingly, this court makes the following order:
a. An order declaring that Meg is solely owned by the applicant wife pursuant to s.10(1)(a) of the Family Law Act. b. The respondent shall immediately return possession of Meg, and all documents relating to Meg, including vaccination certificates, to the applicant. c. The respondent shall pay the applicant’s costs of this motion, fixed in the sum of $5,000, inclusive of HST, within 30 days of the release of this Endorsement.
M. Kraft, J. Date: November 19, 2024