Delloch v. Piche, 2019 BCPC 369

Citation: Delloch v. Piche 2019 BCPC 369 Date: 20191212 File No: L-11132 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil Division BETWEEN: JOSEPH DELLOCH CLAIMANT AND: SYDNEE PICHE DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Appearing on his own behalf: J. Delloch Appearing on her own behalf: S. Piche Place of Hearing: Prince Rupert , B.C. Date of Hearing: December 12, 2019 Date of Judgment: December 12, 2019 [ 1 ] THE COURT: In this proceeding, Joseph Delloch seeks a declaration of his sole ownership of a three-and-a-half-year-old female dog named Bailey.

He also seeks an order of the court that he be given sole possession of Bailey. Sydnee Piche seeks to maintain the possession of Bailey either with an order of the court that she is the sole owner of Bailey or with an order of the court that she is the co- owner of Bailey with Mr. Delloch. Ms. Piche is also prepared to share possession of Bailey with Mr. Delloch, a proposition that Mr. Delloch has rejected.

Notice of Objection [ 2 ] Pursuant to s. 56.1 of the Civil Resolution Tribunal Act , a Notice of Objection was filed by Mr. Delloch and, on July 9, 2019, pursuant to s. 56.2 of the Civil Resolution Tribunal Act , the Civil Resolution Tribunal issued a Certificate of Completion confirming the dispute resolution process in the matter of Joseph Delloch, Applicant, versus Sydnee Piche, Respondent, had been completed. Rule 1.1, Process for Making a Claim of Proceedings Previously Initiated before Civil Resolution Tribunal [ 3 ] Pursuant to Rule 1.1 of the Small Claims Rules , on July 22, 2019, Mr.

Delloch filed a Notice of Civil Resolution Tribunal Claim in the Prince Rupert Registry of the Provincial Court of British Columbia. As such, Mr. Delloch is now the claimant in relation to Prince Rupert Registry File Number L-11132 and Ms. Piche is the defendant. It should be noted that this is not an appeal of the Final Decision made by the Civil Resolution Tribunal. Rather, it is a new hearing and I have not considered the Final Decision made by the Civil Resolution Tribunal member in reaching my conclusion in this case.

Payment into Court for Costs [ 4 ] Pursuant to s. 56.3 of the Civil Resolution Tribunal Act , on August 30, 2019, my brother judge, Wright, made an order that Ms. Piche pay $675 into court as a deposit for costs. On September 12, 2019, Ms. Piche paid the $675 into court.

Settlement Conference [ 5 ] At a Settlement Conference in relation to this matter on September 20, 2019, my brother judge, Stewart, made an order setting out that the direct evidence in this hearing would be limited to affidavits and that any documentary items either party intended to rely upon would have to be attached as exhibits to the affidavits. Oral evidence would be limited to cross-examination only. Affidavits [ 6 ] Ms. Piche filed her affidavit with the court on November 8, 2019. Mr. Delloch filed his affidavit with the court on November 21, 2019.

Neither party made an application to the court during the hearing to cross-examine the other person on their affidavit. Both parties were allowed to make full submissions and argument to the court in support of their positions. [ 7 ] I note that Mr. Delloch attached the Final Decision of the Civil Resolution Tribunal member dated July 5, 2019, as Exhibit 6 to his affidavit. As per s. 56.4 of the Civil Resolution Tribunal Act , he should not have done so.

As such, and as I stated before, I have not considered the Final Decision made by the Civil Resolution Tribunal member in reaching my conclusion in this case. [ 8 ]

Section 56.4 of the Civil Resolution Tribunal Act reads as follows: Disclosing the final decision of the tribunal 56.4 If a claim to which this Division applies is brought to the Provincial Court, the parties may disclose the final decision of the tribunal (

a) to a settlement conference judge, (

b) for the purposes of

section 56.3 [deposit for claims previously adjudicated by civil resolution tribunal], and (

c) to the trial judge, but only after that judge has given a final decision on the amount to be awarded and only for the purposes of assessing penalties. Who Has the Onus on in this Case? [ 9 ] As this is a civil matter, the onus is on the claimant, Mr. Delloch, to prove his claim for ownership of Bailey on a balance of probabilities. This is the standard of proof of a civil case just as the standard for proof in a criminal case is proof beyond a reasonable doubt. The Issues 1. Who is the legal owner of Bailey, the female dog which is the subject matter of this dispute? 2.

Who should have possession of Bailey and on what terms? 3. Should the party not awarded ownership or possession of Bailey receive compensation from the other party? The Hearing on December 10, 2019 [ 10 ] The hearing of this matter proceeded before me on December 10, 2019. The evidence was limited to the affidavits of each party as no cross-examination took place. Each of the parties provided argument to me as to who owns Bailey and who should have possession of Bailey.

Both parties agreed that for the purposes of this hearing I have jurisdiction to hear the case, as they were not married or in a common law relationship as that term is understood in British Columbia and, accordingly, the provisions of the Divorce Act and/or the Family Law Act do not apply in this case. [ 11 ] Of note: Mr. Delloch and Ms. Piche were in a romantic relationship that started in August of 2016. The relationship ended sometime in February of 2019. I do not know the exact date of the break-up.

They were not married and, although they lived together for six months, the provisions of the Divorce Act and/or the Family Law Act do not apply.

Issue 1: Who is the Legal Owner of Bailey? [12] On August 20, 2016, Mr. Delloch and Ms. Piche drove together from Prince Rupert, British Columbia, where both of them lived,to the residence of a Mr. Chipman in the Vanderhoof, British Columbia area, an approximate 650-kilometre drive, because Mr. Chipmanhad several puppies for sale. Ms. Piche had negotiated with Mr. Chipman for a female puppy and ultimately decided upon Bailey.Ms. Piche wanted and selected Bailey. [13] When Mr. Delloch and Ms. Piche arrived at Mr. Chipman’s house, Mr. Delloch paid $500 of his own monies to Mr. Chipman forBailey. Subsequently, Mr.

Delloch became the named owner of Bailey for medical procedures at the Prince Rupert Veterinary Hospital.Mr. Delloch also paid for Bailey's medical treatments, vaccinations, and dog food. Although I was not provided with the dollar amountspent by Mr. Delloch on Bailey's medical treatments, vaccinations, and dog food, given the large number of invoices contained in hisaffidavit, I suspect the cost was significant. [14] According to the joint submission of Mr. Delloch’s former co-workers, Scott Duffus, Mike Pierce, Tony Tauber, Trent Adams,and Nathan Lavallee, found at Exhibit 5 of Mr.

Delloch’s affidavit, between August of 2016 and January of 2018, Mr. Delloch wouldbring Bailey with him to work at the District of Port Edward Public Works Yard, secure Bailey in a kennel, and then walk and spendtime with Bailey during his lunch and coffee breaks. [15] On the other hand, according to the joint statement of Mr. Delloch’s former roommates, Nicholas Mcinnis and Sydney Pretty,found at Exhibit I of Ms. Piche's affidavit, in 2017 and 2018, Mr. Delloch worked almost every day and he did not have the time to giveBailey the exercise she needed and, therefore, Ms.

Piche spent more time with Bailey and was Bailey's primary caregiver. [16] On February 15, 2019, Mr. Delloch purchased a $20 pet licence for Bailey from the City of Prince Rupert for licencing purposeswith himself listed as the owner of Bailey. On April 29, 2019, Ms. Piche paid the City of Prince Rupert $40 for a one-year dog licencefor Bailey with herself listed as Bailey's owner. [17] I find from the affidavit materials that prior to the romantic break-up in February of 2019, both parties took care of Baileyincluding socializing her, feeding her, walking her, and spending time with her. Mr.

Delloch provided the money for purchasing andmaintaining Bailey. Definition of "Ownership" [18] The Free Dictionary by Farlex defines "ownership" as "legal title coupled with exclusive legal right to possession.

Co-ownership,however means that more than one person has a legal interest in the same thing." The Merriam-Webster Dictionary defines "ownership"as "1. the state, relation, or fact of being an owner; 2. a group or organization of owners." The Merriam-Webster Dictionary then goes onto define "owner" as "a person who owns something; one who has the legal or rightful title to something; one to whom propertybelongs." The Merriam-Webster Dictionary finally defines the transitive verb "own" as "to have or hold as property; 2. to have power ormastery over." Dogs are Personal Property [19] Some people would like to see the provisions of the Family Law Act, S.B.C. 2001, c. 25, apply to ownership of or access to theirdog after the break-up of a romantic relationship regardless of the fact that there was no marriage or common law relationship as thatterm is understood in British Columbia law.

In the eyes of the law, however, dogs are personal property just like a chair or a car. Threeexamples of this principle are found in the case law: Gardiner-Simpson v. Cross, 2008 NSSM 78 , a 2008 case from NovaScotia, paragraph 1: [1] This case concerns the ownership of a female Boston Terrier named Jersey, which was purchased in or about late November of2006 as the Claimant and Defendant embarked upon a relatively short-lived cohabitation. [2] Both the Claimant and Defendant are very fond of the dog, and they both have arguable cases for ownership. They tried withoutlasting success to share ownership.

As such, the issue of ownership must be decided in favour of one of them, and the other will have toendure the loss of the relationship. [3] The love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss ofany loved one. [4] Emotion notwithstanding, the law continues to regard animals as personal property. There are no special laws governing petownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Act orthe Divorce Act.

Obviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should beraised by the person who loves it more or would provide a better home environment. [5] As such, slightly distasteful as it may be in the case of two loving and devoted pet owners, I must consider which one has thebetter property claim. [6] The worst result of all would be a conclusion that the dog is joint property. [20] In McIntosh v. Daoust, 2016 MBQB 194 , a 2016 case from Manitoba, the learned judge said, "Has the plaintiff provenownership of the dog?" At

chapter 10: [10] The evidence before me on this

summary motion is clear that Fuhrious Finneous was solely owned by the plaintiff prior to hisrelationship with the defendant and that he brought the dog along when he entered into his relationship with the defendant. While adomesticated dog is a living creature, in my opinion, a domesticated dog is nevertheless personal property under our law.

[11] The affection that the defendant and the defendant's children may have for Fuhrious Finneous, and that he may have been treatedas a family dog by the parties while the parties resided together, is not relevant to the determination of ownership of the dog.Furthermore, I disagree with the defendant that the best interests of the dog are relevant to the determination of this matter.

Whileallegations of abuse may be relevant to other legal proceedings which the defendant may wish to explore if there is indeed any basis forsuch allegations, including any investigation or proceedings authorized by The Animal Care Act … they are not relevant here. [12] The evidence before me establishes that the plaintiff was the sole owner of the dog when the parties began their relationship andas admitted by the defendant, his ownership interest continued (albeit jointly with the defendant she alleges) when he entered into hisrelationship with her. [13] In my opinion, the sole issue raised by the defendant relevant to these proceedings is whether there is a verbal contract betweenthe parties that has replaced the plaintiff's sole ownership of Fuhrious Finneous with some form of joint ownership which entitles thedefendant to possession of this dog.

In turn, is this issue of ownership and possession of this dog a genuine issue for trial? [21] In Brown v. Larochelle, a 2017 case, BCPC 115 , which is a 2017 case from here in British Columbia, at

chapter 1: [1] In this proceeding the Claimant seeks possession of a 3 year old Korean Jindo dog named “Luna”. In the alternative, she seeks anorder sharing Luna on a week on/week off basis.

Failing either of the above (and very tertiary in order of preference) she requests $475 incompensation for her half-share of the $950 she and the Defendant paid to adopt Luna. [2] The Defendant seeks to maintain the possession of Luna without any formal order as to the Claimant having visitation rights andacknowledges the financial contribution. … [11] The legal system fundamentally treats issues as to dog ownership the same as a dispute over personal property. … [14] What I extract from the collective wisdom of these cases and some others is as follows: (

a) pets will not be treated in a manner such as children; (

b) courts are unlikely to consider interim applications for pet possession; (

c) Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt; (

d) that pets are a variant of personal property; [15] The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs andcats) be treated “humanely” unlike any inanimate personal possession. [16] In personal property law terms if someone owns a pet and brings that pet into a relationship or if someone is gifted or acquiresprima facie sole possession of a pet during a relationship then absent exceptional circumstances that pet remains their property whenthey leave the relationship … [22] So who owns Bailey?

Based upon the totality of the evidence contained in the two affidavits, I am satisfied, while there was noexpress discussion between Mr. Delloch and Ms. Piche as to who owned Bailey, that the reality of the relationship was such that they areco-owners of Bailey. I appreciate that my finding that Mr. Delloch and Ms. Piche are the joint owners of Bailey is, as the learned judge inGardiner-Simpson v. Cross stated, the worst result, but nevertheless it is the only conclusion that I can make based upon the affidavitevidence and having heard from the parties in argument. Accordingly, I find that Mr. Delloch and Ms.

Piche currently are the co-ownersof Bailey. Issue 2: Moving Forward, Who Should Have Ownership and Possession of Bailey and on What Terms? [23] It is clear to me from the affidavit evidence and from the submissions of the parties that joint ownership and possession of Baileyis not going to work going forward. As I noted earlier, Mr. Delloch is not interested in joint ownership of Bailey with Ms. Piche, nor isMr. Delloch interested in sharing possession of Bailey with Ms. Piche.

Accordingly, I now move on to my determination of who willhave the sole ownership and possession of Bailey moving forward. [24] As further noted by the learned judge in Gardiner-Simpson v. Cross at paragraphs 7, 8, and 9: [7] Jointly owned property presents a peculiar problem for the law. In the case of land, the Partition Act may be used to force jointlyowned real estate to be divided or, if division is not practical, sold. [8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) and split the proceeds.

Theproblem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Sellingthe dog to an outsider would only double the pain. [9] Where there is a desire not to allow the asset out of the family, matrimonial parties will often hold a private auction or biddingwar and the person willing to pay the most will acquire the asset, paying half the highest bid value to the other.

This may be fair in thecase of financial assets, but not in the case of something of intangible value. [25] So how am I to determine who will have sole ownership and possession of Bailey moving forward? I go back to the affidavitmaterials. In particular, I have read and reread not only the entire affidavits, but in particular: 1. the messages between Mr. Chipman and Ms. Piche made at the time Bailey was purchased found at Exhibit A of the affidavit ofMs. Piche; and

2. the messages between Mr. Delloch and Ms. Piche made after the romantic relationship had ended, found at Exhibits D and E of the affidavit of Ms. Piche. [ 26 ] Having given the messages and the rest of the affidavit evidence considerable contemplation, including the fact that both of the parties raised Bailey and love Bailey, I come to the conclusion that legal title coupled with the exclusive right to possession of Bailey will now vest in Ms. Piche. I make this determination based upon my finding that Bailey was purchased jointly by the parties, but for the benefit of Ms. Piche.

As per the messages at Exhibit D of Ms. Piche's affidavit, "She's my dog. You didn't even want her to begin with." [ 27 ] Accordingly, I order that Ms. Piche is, effective today, December 12, 2019, the sole owner of Bailey with the exclusive right to possession of Bailey. Issue 3: Should Mr. Delloch Receive Compensation from Ms. Piche? [ 28 ] Having determined that Ms. Piche is now the legal owner of Bailey, I am prepared to hear from the parties about compensation to Mr. Delloch from Ms. Piche.

We can deal with that now or we -- [ 29 ] JOSEPH DELLOCH: Yes, I would like to. [ 30 ] THE COURT: -- could adjourn and -- [ 31 ] SYDNEE PICHE: No, let us do it now. [ 32 ] THE COURT: -- deal with it at another time. [ 33 ] JOSEPH DELLOCH: This is ridiculous.

Can I add something here? [ 34 ] THE COURT: Please stand to begin with. [ 35 ] JOSEPH DELLOCH: Sorry. [ 36 ] THE COURT: That is okay. [ 37 ] JOSEPH DELLOCH: The fact that she did not pay into the purchase price of the dog to begin with or any of the vet bills or anything for the matter? [ 38 ] THE COURT: I am aware of that and that is why I say we need to now talk about what the appropriate amount of compensation to be paid from her to you is.

I am prepared and I think it appropriate for you to adjourn today for this discussion, to go get your receipts, find out how much money you have actually paid over the years towards Bailey, and then the three of us should continue this and determine what the appropriate amount of compensation is. The other alternative, we can come up with a dollar figure today that you both agree upon and I make a judgment for that amount, but that does not change the fact that my order has been made that Bailey is now the sole property of Ms. Piche. [ 39 ] JOSEPH DELLOCH: Well, the court system is ridiculous.

Yes, sure, we will come back next time. [ 40 ] SYDNEE PICHE: No --- [ 41 ] JOSEPH DELLOCH: A dollar figure, yes. I will figure out all the receipts and everything. I will put all that together. We will -- [ 42 ] THE COURT: Okay. So I am going -- [ 43 ] JOSEPH DELLOCH: I will do that. [ 44 ] THE COURT: -- to make an order right now that the $675 in costs paid by Ms. Piche be released back to Ms. Piche.

Then what we are going to do is we are going to make a determination -- because those are costs, those are not compensation, sir. [ 45 ] JOSEPH DELLOCH: Yes, I realize that. [ 46 ] THE COURT: So that money will go back to her because she was successful in this matter. What we are going to do is I am going to adjourn the two of you to the judicial case manager. At the judicial case manager, you will fix a day to have in front of me a discussion and argument about the appropriate amount of compensation.

I will hear not only on the value of Bailey as of the date of the break-up of the relationship, but also the various expenses that were paid and, if you are unable between the two of you to agree to a dollar figure, again, I will end up making that decision. [ 47 ] JOSEPH DELLOCH: Sure. [ 48 ] SYDNEE PICHE: Can I say something? [ 49 ] THE COURT: Please stand. You may. [ 50 ] SYDNEE PICHE: Can -- well, we have been going through this for so long. I think we should both just figure it out now. Let us move on. Let us stop dragging it on. [ 51 ] JOSEPH DELLOCH: You do not know the dollar figure of anything.

I am sorry. We do not know the dollar figure of anything. [ 52 ] SYDNEE PICHE: You added up five grand, did you not?

[ 53 ] JOSEPH DELLOCH: I will go through it again. [ 54 ] SYDNEE PICHE: Well, let us move on, Joe. Why keep dragging it on? [ 55 ] THE COURT: Okay, okay. No yelling. [ 56 ] JOSEPH DELLOCH: We dragged this on for 11 months and currently it went the wrong decision. So I could have -- I should have broken into your house seven months ago and taken my dog as I should have. [ 57 ] THE COURT: Okay, Mr.

Delloch, please do not say anything you are going to regret later. [ 58 ] JOSEPH DELLOCH: Yes, well, this is a huge waste of time, in my opinion, through work and everything. [ 59 ] SYDNEE PICHE: He came up with a $5,000 -- [ 60 ] THE COURT: I am going to give him the opportunity -- [ 61 ] SYDNEE PICHE: Okay. [ 62 ] THE COURT: -- to put it together. [ 63 ] SYDNEE PICHE: Okay. [ 64 ] THE COURT: Okay? [ 65 ] SYDNEE PICHE: All right. [ 66 ] THE COURT: So what I am doing is I am adjourning the two of you to the judicial case manager's office.

She has a 1-800 number you are going to call and you are going to arrange a date for continuation in front of me. [ 67 ] JOSEPH DELLOCH: I have to? [ 68 ] THE COURT: You both have to because you have to come back on the same date together. [ 69 ] So, Madam Clerk, do you have a form that you can give them? [ 70 ] THE CLERK: Yes, fix a date tomorrow, Your Honour? [ 71 ] THE COURT: We can do that tomorrow. [ 72 ] THE CLERK: You are both available at 1:30 tomorrow -- [ 73 ] SYDNEE PICHE: Yes. [ 74 ] THE CLERK: -- to call? [ 75 ] JOSEPH DELLOCH: Some people have to work. [ 76 ] SYDNEE PICHE: Well, you were the one that did this, so make time for it. [ 77 ] JOSEPH DELLOCH: Shush.

Yes. [ 78 ] THE COURT: Okay. So tomorrow 1:30 by telephone with the judicial case manager. You will set a date in early January. If you can resolve it between the two of you before that, so much the better. If you cannot, I will listen to both of you and I will make a decision. [ 79 ] Thank you to both of you. (REASONS CONCLUDED)