Custodio v. Pucci Date:, 2012 BCPC 445

Citation: Custodio v. Pucci Date: 20121205 2012 BCPC 0445 File No: 1223287 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARGARET ANN CUSTODIO and ANGELICA NAOMI CUSTODIO CLAIMANTS AND: PAOLO PUCCI and PASQUALE PUCCI DEFENDANTS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Appearing in person: Angelica Custodio Place of Hearing: Vancouver , B.C. Date of Judgment: December 5, 2012

[ 1 ] This is an application for the return of a dog, Manny. I have heard evidence from Ms. Custodio that she and the defendant looked into purchasing Manny, who is a Boxer, and did so in December of 2011. They had originally agreed to share the purchase price of the dog, but the defendant at the end of the day ended up paying for the dog and presented it as a joint gift to the two of them for Christmas last year. [ 2 ] Ms. Custodio has testified that since that time she has had the dog in her care for the majority of the time. She says that she would take the dog with her when she stayed overnight with at Mr.

Pucci's home as they were in a romantic relationship. He took care of the dog when she went on a holiday and sometimes he would take of the dog when she worked a nightshift. [ 3 ] Their relationship ended in late August of this year. They agreed at that time that the dog would be with Ms. Custodio from Mondays to Fridays and Mr. Pucci would have the dog on the weekends. This apparently fell apart recently and Mr. Pucci is now refusing to allow Ms. Custodio to take Manny with her at any time. [ 4 ] Ms.

Custodio has filed with the court today numerous documents indicating that either she or her mother have dealt with all of the medical issues with respect to the dog. The dog, in fact, had an unfortunate medical condition which required almost $5,000 in vet bills and she paid $3,500 of that while Mr. Pucci paid a smaller amount. [ 5 ] The court has jurisdiction under s. 3(1)(

b) of the Act to order the return of a dog as a dog is considered a piece of property. In Watson v. Hayward , a decision of my sister Judge Dhillon, rendered July 2, 2002 reported at 2002 BCPC 259 , she canvassed the legal principles applicable in such a matter. [ 6 ] On such an application the court must consider whether there is an issue to be tried, and I am satisfied on Ms.

Custodio's evidence that there is an issue to be tried, whether she has demonstrated a strong prima facie case and based on the documents and her evidence, if that was accepted by the court, indeed she has a strong prima facie case and likely a strong case at trial. The third issue is whether irreparable harm will result not compensable by damages at common law if the interim order is not granted and, finally, where the balance of convenience lies. [ 7 ] Judge Dhillon distinguished cases involving pets from cases involving inanimate pieces of property.

That case involved a breeder who had reclaimed a dog as a result of what was alleged to be neglect of the dog by the person who had purchased it from the breeder which distinguishes the case on its facts. [ 8 ] However, the real issue here is whether Ms. Custodio will suffer irreparable harm if this order is not granted and whether monetary damages will suffice.

In my view, there is no monetary amount which will suffice to replace the affections the dog has for her or that she has for her pet. [ 9 ] As to the balance of convenience, is there a need for the court to intervene to protect her legal claim and its attendant rights?

I am satisfied, as Judge Dhillon found, that again, when dealing with domestic animals, the court may take into account a broader range of factors. [ 10 ] I will not read it into the record, but there is a lovely quote talking about the relationship between dog and man going back 10,000 and the relationship people have with their pets. [ 11 ] In any event, I accept her evidence. I accept that she has had, based particularly on the medical records and training records and such, the primary care of the dog and I am ordering Manny's return to her. That is to occur within 72 hours.

Failure to return the dog will result in a $500 penalty against Mr. Pucci. (REASONS CONCLUDED)