Almaas v. Wheeler, 2020 BCPC 51

Citation: Almaas v. Wheeler 2020 BCPC 51 Date: 20200325 File No: 16565 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: RAIANN ALMAAS CLAIMANT AND: MICHAEL DAVID WHEELER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Claimant: N. Wahoski Appearing on his own behalf: M. Wheeler Place of Hearing: Salmon Arm , B.C. Dates of Hearing: November 18, 2019 and January 22, 2020 Date of Judgment: March 25, 2020 [ 1 ] This is an action by Raiann Almaas against Michael David Wheeler for the return of property, being two dogs.

She also claims vet bills she has paid, toys she has purchased, the license for the lifetime of the dogs, and dog food for the prior year. This action was commenced in June 4, 2019.

[2] Michael Wheeler replied to say that he had paid for all of the expenses of the dogs including the purchase of the dogs. In hiscounterclaim, he acknowledges that he and Ms. Almaas purchased the two dogs during the course of their relationship and, uponseparation, agreed to share the custody of the dogs 50/50. He says he kept the dogs after she refused to give him access. When Ms.Almaas had the dogs, she continued to demand that he pay for their daily care and training. As a result, Mr. Wheeler has asserted hisownership of the dogs. [3] Mr.

Wheeler’s counterclaim is $1,300 for the dogs as well as training expenses and the expenses he spent in the prior year. Inote that the total amount Ms. Almaas claims for dogs, vet bills, toys, dog licenses, and dog food amounts to $13,562.52. Mr. Wheeler’stotal claim for the dogs, the training and the dog expenses including the vet bills amounts to $12,187. [4] In her reply to the counterclaim, Ms. Almaas said that she paid for the lifetime license for the dogs from her own money, neveragreed to a 50/50 arrangement, denies refusing access or requiring Mr.

Wheeler to pay the expenses, and claims to have done all of thetraining herself. She also claimed that Mr. Wheeler left the dogs behind when he left the family home sometime after they separated. [5] This is essentially the framework of the claim and counterclaim, although the evidence shifted the landscape somewhat duringthe course of trial. THE LAW [6] The law is clear that dogs, even those purchased in the course of a relationship as a family pet, are property.

It is the nature ofthat property and how ownership of it is determined that is a bit more unique to pet cases than it is to toasters or other inanimate objects.In my decision of Kitchen v. MacDonald, 2012 BCPC 9 , 2012 B.C.P.C. 9 , at para. 2, I quoted from the decision of theOntario Superior Court of Justice in Warnica v. Gering and do so again: [2] This court does not have jurisdiction to make declarations of trust. I have jurisdiction to make a finding of ownership withrespect to the dog.

If I find that it is jointly owned, I have jurisdiction to order that the party who keeps the dog pay the other party halfthe value of the dog. I cannot find that two parties own a dog and then proceed to make orders for “access” to the dog. As stated in anumber of the cases presented to me but most eloquently in the Ontario Superior Court of Justice decision of Warnica v. Gering datedDecember 17, 2004: 19 Of course, any pet is somewhat different, in that it does not readily lend itself to physical division.

A pet could be sold, with theproceeds to be divided in accordance with any determination as to the parties' respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers.14 In my view that would be akin to a custody access/order. Whether in the Family Court or otherwise, I do not believe that any court shouldbe in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise,I respectfully disagree.

Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between themand the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of anyother. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate.

Some mayconsider them to be children; however, they are not children. [7] In Kitchen, the determining factors were who purchased the dog; for whom the dog was purchased; who selected the dog; whoattended to its veterinary appointments and costs; who paid for the associated needs of the dog; who licensed the dog; who paid for thelicenses and how the parties viewed the ownership of the dog. [8] In Thompson v. Thompson, 2005 BCSC 1604 , 2005 B.C.S.C. 1604, Justice Rogers had before him an appeal from aSmall Claims decision regarding the ownership of a dog.

Justice Rogers identified the very problem that we have with these cases arisingfrom relationships at para. 4: [4] As the case was being introduced to him, the learned trial judge astutely perceived a potential problem with the proceeding. Thatwas that the parties had acquired the dog during their marriage and that now that they were separated, who should have possession of thedog was really a matter for division of a family asset in the context of a Family Relations Act proceeding.

The learned trial judge quiteproperly, and much to his credit, expressed doubt over his jurisdiction to decide who should get Charlie. … [9] Again, same considerations went into the assessment of who purchased the dog; what the purchase was for; who picked thedog out; who paid for the expenses associated with the dog; and who had possession of it. [10] In the end result, because of the way in which the family expenses were paid through the joint company, it was an inseverabledivision of property case. The case turned on credibility in the first instance and Justice Rogers found the same on the appeal.

The appealjudge concluded that the trial judge found as a fact Ms. Thompson’s version of events was true and Charlie was a birthday gift to her. [11] In Henderson v. Henderson, 2016 SKQB 282 , 2016 S.K.Q.B. 282 , the Queen’s Bench, in a family law case,was dealing with an application for interim possession of two dogs owned by either one or both of the parties. Again, this is a family lawcase in a court that has jurisdiction over division of property on dissolution of marriage. That is not the case before me. In that decision,the judge considered all of the similar factors addressed in the other cases.

Constructively, Justice Danyliuk said this at paragraphs 22 to24: [22] The initial matter to consider is the current state of the general law pertaining to dealing with pets following thecessation of a relationship. In particular, are dogs to be treated as property or are they to be dealt with as one would deal with children? [23] I say without reservation that the prospect of treating pets as children would be treated holds absolutely noattraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but asfamily.

Certainly that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to actwith emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply thelaw. And for legal purposes, there can be no doubt: Dogs are property.

[24] Granted, dogs and other pets are treated somewhat differently than other personal property. Statutory protectionfor pets exists to prevent them from being treated with cruelty or neglect. On a practical level, most people do not see their pet assomething to be discarded or sold on Kijiji when they are done with it. While that is true, and while there is a distinction betweenanimals and inanimate objects, it is also true that both are property and are not dealt with under child custody principles.

Dogs areroutinely bred and sold for profit. [12] I will take this further and say that in a family court proceeding, dealing with division of assets, superior court judges have theability to make equitable divisions of property. This court has no such jurisdiction either in civil court or family court. In a civil suit, thiscourt is tasked with determining ownership and making the appropriate order that flows from that determination. [13] In Eggberry v. Horn, a civil resolution tribunal decision of May 31, 2018, the adjudicator accepted jurisdiction over the claim asa personal property matter.

She then considered the care and keeping factors related to the dog in question. She cited both Henderson anda decision also provided to me of Brown v. Larochelle, 2017 BCPC 115 , 2017 B.C.P.C. 115. She found that contractualresponsibility for the dog is not determinative of ownership given the joint responsibility for the dog’s care that both parties undertook.She found the dog became a much loved family pet. When Ms. Horn determined she should find a new home for the dog, sherelinquished her ownership rights to Mr. Eggberry. That is not the case before me.

Neither party has relinquished their ownership rightsto the two dogs in question. The adjudicator also determined that as dogs are a special type of property she could consider whetherreturning it to Mr. Eggberry would result in abuse or neglect. She rejected those grounds and found that Mr. Eggberry was the solerightful owner. [14] In the Larochelle decision, the claimant sought possession of a dog named Luna. She alternatively sought an order sharing Lunaon a week on – week off basis. Failing either of those remedies, she sought compensation for her share of the dog.

Judge Cowlingconsidered all of the acquisition, care, and keeping aspects of the ownership of Luna while the couple were together. [15] In circumstances that are very similar to the case before me, the parties stopped living together in September 2015 with theclaimant moving to a new apartment that did not permit pets. In June 2016, the claimant obtained permission from her landlady to havepets and contacted the defendant about sharing possession of Luna, which led to the litigation.

In circumstances not similar to the casebefore me, the defendant maintained that he had paid money to the claimant to resolve matters between them which he believed includedLuna. Judge Cowling cited not only the decisions before me but this relevant passage from Gardiner-Simpson v. Cross, 2008 NSSM 78, 2008 N.S.S.M. 78 at paragraphs 3 to 10: [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 of anyloved 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 the betterproperty claim. [6] The worst result of all would be a conclusion that the dog is joint property. [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 personally) 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 bidding warand 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 the caseof financial assets, but not in the case of something of intangible value. [10] None of these mechanisms would do any justice in the situation before me.

As such, the only practical and humane thing is to do asI propose to do and attempt a principled analysis of the legal ownership. [16] Judge Cowling continues at paragraph 16: [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 (see: Thompson v. Thompson, 2005 BCSC 1604 and McIntosh v.

Daoust, 2016 MBQB 194). [17] He continued to assess the ownership of Luna characterizing it as akin to a partnership or joint venture. He then appliedpartnership law for an equal division of assets on dissolution of the partnership. Having done so, he then determined something akin tothe best interests of Luna and found in favour of the defendant, given his bond with her. [18] I cannot agree that the ownership of a dog can be determined in the context of a partnership over a joint venture in relationship.That is like doing through the back door with division of assets what we cannot do through the front door.

I embrace the remainder of thedecision. BACKGROUND

[ 19 ] The two dogs in question are Aurora and Zeus. Aurora was purchased in 2015 when she was six months old. She is a Pit bull- cross with a Cane Corso. This pup was purchased from a breeder named Rita Beraro. In cross examination, Ms. Almaas was not certain how much had been paid for Aurora. She knew that it was at least $800 but agreed that Mr. Wheeler may also have paid a $100 deposit a week prior to picking up Aurora. [ 20 ] Zeus was purchased in 2016 when he was three months old. He is a Pit bull.

He was acquired from a different breeder. [ 21 ] There are some disputes about the reason for purchasing each of the dogs and the training of them but the underlying substantive facts are not disputed in any great detail. [ 22 ] Ms. Almaas was 27 years old at the commencement of the trial. She now works doing gel nails and is a nanny. She has been doing gel nails for seven years and has been a nanny only for a couple of months. She has also done some other work in a gallery that ended in August 2019. [ 23 ] Ms. Almaas has not always worked. She testified that she and Mr. Wheeler began living together in 2013.

She was living in a basement suite and he moved in with her. He was working in scaffolding at the time and would be going to Alberta for two weeks to two months at a time. Ms. Almaas said this continued throughout the relationship. [ 24 ] The relationship ended in December 2017 and the parties stopped living together in March 2018. Ms. Almaas said that Mr. Wheeler took all of his belongings including the items they purchased while they were together and the gifts he had given her. She remained behind in the residence. [ 25 ] Ms. Almaas agreed in her testimony that Mr. Wheeler paid for the dogs.

She said that he was paying for everything because he had the higher income. He paid the rent, the dentist, food, and everything related to the dogs. It remained unclear throughout the evidence exactly what financial contributions Ms. Almaas might have made but certainly she paid for very little related to the dogs until after Mr. Wheeler moved out. [ 26 ] With respect to the purchase of Aurora, Ms. Almaas testified that she has anxiety and did not want to be alone when Mr. Wheeler was out of town. She wanted a dog to make her feel comfortable and safe. She said it was therefore her idea to get the dog.

She saw a poster that Ms. Beraro had posted listing her puppies for sale. Ms. Almaas contacted Ms. Beraro. She picked out Aurora and saw her twice before Mr. Wheeler came with her on the third occasion to pick up the dog. Ms. Almaas testified that he had no input into the selection of the dog. [ 27 ] Mr. Wheeler said that Ms. Almaas originally wanted a lab-cross. She took a picture of the poster with a blue nose Pit bull on it. He testified that for years he had been talking about wanting such a dog and wanting to do his part to improve their image. When Ms. Almaas sent him the picture, Mr.

Wheeler said that they needed to get one of those dogs and he hounded her to call Ms. Beraro. Apparently, Ms. Beraro told them that a couple of puppies were available but it would require a $100 deposit. He agrees that Ms. Almaas did go to look at the puppy but said that he fell in love with Aurora as quickly as she did. As soon as he came home from that time working away, they went to the breeder and he paid the balance. [ 28 ] Ms. Almaas agreed that there had been a different dog she had wanted to purchase but the vendors had not responded to her until after the parties had already acquired Aurora.

She agreed that this other dog was the one that she really wanted but other people were going to purchase it. Ultimately, she said that she did purchase that dog and her father took it. [ 29 ] Ms. Almaas testified that because Mr. Wheeler was away, it was Ms. Almaas who cared for Aurora. She fed her, played with her, trained her, walked her, and took her everywhere with her. [ 30 ] Ms. Almaas also took the dog to the veterinarian clinic. The veterinarian she saw is her uncle. At the clinic, Ms. Almaas is listed as the client. Ms.

Almaas testified that she took Aurora to the veterinarian each time, but agreed that Mr. Wheeler may have gone with her once or twice. She said he never took Aurora by himself. [ 31 ] Ms. Almaas acquired Aurora’s lifetime license in January 2016 and is listed as the owner. She said the payment was made from a joint account that was mostly Mr. Wheeler’s money but had money from her income as well. [ 32 ] Ms. Almaas also had the dogs tattooed and those tattoos are also registered to her. [ 33 ] When asked why it was Ms. Almaas’ name on the license and with the veterinarian, she said it was because Mr.

Wheeler was out of town and could not do anything. She said if it was not for her they would never have had a dog. [ 34 ] A few months after acquiring Aurora, Ms. Almaas was asked to foster one of Aurora’s brothers, Odie. She and Mr. Wheeler agreed that she could do that thinking it would only be for a month or so. Mr. Wheeler testified that it was just under six months. [ 35 ] Ms. Almaas took Odie to the veterinarian as well and Mr. Wheeler paid all of the expenses associated with the fostered dog. In fact, Ms. Almaas is listed as the client with respect to Odie on the veterinary records.

Neither one of the parties is claiming that either of them owned Odie. [ 36 ] Both Aurora and Ms. Almaas grew very attached to Odie. She said that both she and Aurora were depressed when the dog left. Mr. Wheeler agreed that when Odie was taken back, Aurora was heartbroken and Ms. Almaas was upset too. They went out for ice cream where they saw the poster for more puppies. Ms. Almaas fell in love with Zeus. [ 37 ] Mr. Wheeler agreed that at first he felt they should not get another dog. They had been trying to train Aurora when Odie came along. It was difficult training them together.

He suggested that instead they train one dog and then get another. Ms. Almaas now characterizes this as Mr. Wheeler not wanting a second dog. In any event, Ms. Almaas insisted and so they went to look at the dog. They only visited Zeus the one time before purchasing him. However, Ms. Almaas said that she had picked Zeus as soon as she saw him on the

poster. She and Mr. Wheeler purchased the dog from Matt Johnston. [ 38 ] Ms. Almaas testified that she told Mr. Johnston she wanted the exact dog she had seen on the poster. She testified that Mr. Wheeler did not talk to Mr. Johnston or have any input into which dog was selected. Mr. Wheeler said they needed to see if Aurora would get along with the dog. When Aurora did well with Zeus, Ms. Almaas asked if they could get him. Mr. Wheeler agreed and paid. Ms. Almaas said it was because he had the higher income and he was paying for everything. [ 39 ] After Zeus came home, Ms.

Almaas testified that she did all of the same care and keeping of Zeus that she had done for Aurora. She was not employed at any time when the dogs were purchased but Mr. Wheeler was still working two weeks to two months away in Alberta. Mr. Wheeler disputes that he was ever away for two months at a time. He said the longest he was ever away was 20 days on and eight off. That happened at the beginning of their relationship before they acquired the dogs. [ 40 ] I accept Mr. Wheeler’s evidence. Ms. Almaas was quite vague in most of her evidence both about Mr. Wheeler’s work and her sources of income.

The practical reality is that he worked away, while she stayed home. [ 41 ] Again, Ms. Almaas is listed as the client with the veterinarian. She said she arranged the visits and appointments. She said it varied between her and Mr. Wheeler who paid but agreed that he probably paid the majority. She said she was not working and so it seems unlikely that unless she had some other source of income, she paid anything. [ 42 ] I had a good deal of difficulty with Ms. Almaas’s evidence, this being one example.

She tended to make bold, general and dismissive statements about the financial upkeep, training and care of the dogs, which evidence was sometimes internally inconsistent and often marked by exaggeration. [ 43 ] Mr. Wheeler reminded Ms. Almaas of a time that he had to take Zeus to the vet for a rash and he asked Ms. Almaas to add him to the file. She agreed that this had happened but she had declined to do so. He also asked her whether he had taken the dogs to the veterinarian for their shots. She said that she was there for those.

He also reminded her that she had been opposed to the dogs getting vaccines and he had offered to do it. She recalled this happening and that she had told him no. He had offered to have his mother do the vaccines, but Ms. Almaas did not trust her. [ 44 ] In the text messages produced, Ms. Almaas says that she does not feel Zeus needs his booster shots, likening the immunizations for dogs to vaccines and flu shots for people. Mr. Wheeler pointed out to her that the one Zeus was due for was the parvovirus shot. He said it was not a decision he wanted to make on his own because “they are our babies”.

It is clear from Ms. Almaas’s responses that whether the dogs have their vaccinations is predicated upon whether Mr. Wheeler will pay for them. This discussion followed about which food the dogs should have because of Zeus’ rash. This all transpired in June, 2018 while Mr. Wheeler had the dogs in his possession and had already left the shared home. [ 45 ] Mr. Wheeler also produced to Ms. Almaas an e-transfer of $400 that corresponds with the amount paid to the veterinarian for the tattooing and spaying of Aurora. [ 46 ] Ms. Almaas also purchased Zeus’ lifetime license in August 2017.

She made the payment from the joint account. [ 47 ] Mr. Wheeler showed Ms. Almaas an $870 e-transfer corresponding to Zeus’ neutering and tattooing, as well as for some dog food. She agreed that the extra money could have paid for licensing but also for groceries and rent and storage. [ 48 ] After the separation, Ms. Almaas said that the dogs resided with her until May 2019. She paid for their food, toys, treats, and dog items. She estimated she spent roughly $2,500 on them in that time. [ 49 ] Ms. Almaas said that when Mr. Wheeler moved out in March 2018 the dogs stayed with her.

He took everything he owned and, as I have said before, gifts he purchased for her. He was away working for almost six months after they broke up. I note this includes the time he continued to live in the home. The dogs remained with her for the whole time, but must also have been with him when he was not working for about four of those months. [ 50 ] Mr. Wheeler said that for Ms. Almaas and him, the dogs were their children. After their relationship ended, they were still living together in the same place.

In February following the break up, his family went to Mexico to commemorate the anniversary of his brother’s death. By the time he had returned, Ms. Almaas was seeing someone else and was bringing that new relationship back to the house after they had agreed not to do so. At that point, Mr. Wheeler determined he needed to move out. [ 51 ] When Mr. Wheeler moved out, Ms. Almaas thought that the dogs would remain with her and she had said this to him a number of times, even before the relationship ended. She thought he would have visitation with the dogs.

This speaks volumes about even her perception of his claim to the dogs. [ 52 ] Unfortunately, when Mr. Wheeler was able to find a place in Kelowna, the owner of the house had an in-home day-care. As a result, he was unable to take the dogs with him until Interior Health approved having the dogs in the same home as the day-care. [ 53 ] After that approval came about a month and a half later, Mr. Wheeler messaged Ms. Almaas that he wanted to see the dogs. She let him have them for a week. He had a dozen such visits with the dogs and always returned them. [ 54 ] Mr.

Wheeler also said there was a month when he was working in Fort McMurray that the dogs came and stayed with him. Ms. Almaas disputes this. She said he only took the dogs for a few days while she was at a wedding. [ 55 ] Ultimately, Mr. Wheeler decided that he needed to be home and around family so he told Ms. Almaas this and that he wanted to have the dogs half time. She agreed to discuss this once he was home. Mr. Wheeler said it worked at first but then Ms. Almaas would keep the dogs for two weeks, then three weeks, and then five weeks. He decided this did not work for him because he had paid for the dogs.

When he took the dogs on May 26, 2019, he did not return them. Unless matters have changed since trial, the dogs remain with Mr.

Wheeler. [ 56 ] Ms. Almaas said that Mr. Wheeler did not really explain why he would not return the dogs. She believed he was back on drugs. She had told him that if he went back on drugs he would not see the dogs again. She also felt that he was jealous of her new boyfriend spending more time with the dogs. Ms. Almaas called the police but they declined to intervene. She messaged Mr. Wheeler that she was coming to get the dogs but he was not home. [ 57 ] Ms. Almaas said that Mr. Wheeler has anger, depression and drug abuse issues. She said that he has struggled pretty much all of his life with drugs.

She said he cannot take care of the dogs whether it is because of his work or because of his drug abuse. [ 58 ] Mr. Wheeler said that in the last five weeks Ms. Almaas had the dogs Aurora put on almost 10 pounds. Mr. Wheeler said that while he was in Kelowna doing a landscaping job, he was walking 20 kilometres a day at work. Even so, as soon as he got home, he would take the dogs for a walk. Ms. Almaas said she would not walk the dogs because they needed more training. He paid for Ms. Almaas and the dogs to be trained. Ms. Almaas wanted to see a consultant in Kamloops.

The trainer in Kamloops said that Zeus was fine but he could not control Aurora. Yet Mr. Wheeler said that he can take Aurora for a two hour walk with Zeus with no trouble. Importantly to the question of ownership and how the parties viewed that ownership, Ms. Almaas wanted Mr. Wheeler to pay $1,500 for the Kamloops trainer to train Aurora. [ 59 ] Ms. Almaas also cited behaviour changes in the dogs after they started seeing Mr. Wheeler. She said Zeus would cower over noises and when she would reach to pet him. Aurora developed food aggression. They would attack the cats.

The dogs were also soiling on the floor. [ 60 ] Ms. Almaas called Marla Bittner to testify. She is Ms. Almaas’s friend. They met while Ms. Almaas was doing her nails about five years before. She saw Ms. Almaas about once a month and the dogs were always with her. Ms. Bittner was only able to say that she knew Mr. Wheeler worked away and was away a lot. She described Aurora and Zeus as being like Ms. Almaas’s kids. She said Ms. Almaas was awesome with the dogs. Since the dogs have been gone, Ms. Almaas has been really upset. Ms.

Bittner, although I am not satisfied that she is in any position to give this evidence, said that Ms. Almaas did not leave her home for a month. Ms. Bittner’s understanding was that the dogs belonged to both of the parties. So even if Mr. Wheeler was as absent and uninvolved as Ms. Almaas claimed, the public perception they presented was that the dogs were jointly owned. [ 61 ] From Mr. Wheeler’s perspective, Ms. Almaas was a cat person before they acquired the dogs. She already has three cats, which he says are “awesome” and a lot lower maintenance.

In the end result, he assessed it fairly accurately to say that Ms. Almaas spent more time and he spent more money. Now that he is home all of the time, he feels that an arrangement that is half and half is “perfect”. This is something the parties can do on their own, but something the court cannot impose. [ 62 ] Mr. Wheeler also points out that he paid for all of the expenses associated with the dogs until he left in March 2018. He continued to pay expenses related to the dogs while they were in his care as well as paying some money to Ms. Almaas for when the dogs were in her care.

ANALYSIS [ 63 ] If I were to determine ownership entirely upon who paid for and financially supported these dogs from the time of purchase to the time of separation, I would find that Mr. Wheeler was the sole owner of both dogs. As the cases – and common sense – show, this is not the only factor. [ 64 ] Ms. Almaas selected both puppies but required Mr. Wheeler’s agreement not only because he was paying for the dogs, but because he also had specific desires in the kind of dog he would like to have.

That he very sensibly pointed out the difficulties of training two dogs at once does not detract from his agreement or desire to acquire Zeus. [ 65 ] I have no evidence to establish that either dog was purchased as a gift for Ms. Almaas. Mr. Wheeler had a long-standing desire to own dogs of these breeds and Ms. Almaas had a desire for company, first for herself and then for both herself and Aurora. [ 66 ] If I were to determine ownership entirely upon who primarily cared for the dogs and attended to their needs, I would find that Ms. Almaas performed a substantial amount of that care. Certainly, Mr.

Wheeler also participated in their care when he was home from work. [ 67 ] It is a fact that Ms. Almaas registered the licenses in her name. By her evidence it was because she was the one who was home to do it. She also registered with the veterinarian in her name. I find this is also as a matter of convenience but also because it was her uncle’s clinic and she also took her cats there. Her registration as a client is not at all a determining factor as she also registered Odie, whom she did not own. Mr. Wheeler has also registered the licenses in his name in Kelowna.

That does not make him the owner. [ 68 ] The most compelling factor in this case is the conduct and communication of the parties. While they were together, they consulted on the purchase, care and keeping of the dogs. They treated the dogs like they were part of their family and presented themselves as joint owners. After separation, they shared the dogs as joint owners would. It is a fact that Mr. Wheeler did not take the dogs with him to Mexico nor to the home he found in Kelowna until he had approval to keep them. [ 69 ] After obtaining that approval, Mr.

Wheeler saw the dogs as frequently as his work would allow. It was not until Ms. Almaas began to withhold the dogs that Mr. Wheeler asserted ownership of them. [ 70 ] Both parties have raised questions about the capacity of the other to care for the dogs. Ms. Almaas has accused Mr. Wheeler of being back on drugs and having anger issues. This evidence was unsatisfactory and struck me entirely as being without basis. Mr. Wheeler acknowledged past drug use but asserts that he is not using now. Even if he is using some kind of drug, it is clear that he is capable of managing both dogs in a healthy manner.

[ 71 ] Ms. Almaas described behaviour issues when the dogs returned home. This evidence was unpersuasive. Behaviour issues in dogs shuttling back and forth between owners can be managed. That the behaviours present only in Ms. Almaas’s home could be as much about the dogs not getting enough exercise or not wanting to be with the cats, as it could be about anything happening when they are out of her care. [ 72 ] Mr. Wheeler accused Ms. Almaas of being unable to care for the dogs because Aurora was gaining weight from not being walked. Ms.

Almaas said this was because she could not manage the behaviours of the dogs together without more training. She expected Mr. Wheeler to pay for that training even though she now says she is the owner. It is a fact that not properly caring for a dog can be abusive. I am not satisfied on the evidence that Ms. Almaas’s limitations amount to abuse. I am satisfied, though, that Ms. Almaas has a struggle caring for both dogs, both financially and physically.

It is not the deciding factor. [ 73 ] The email communications between the parties after separation, the sharing of the dogs after separation and the evidence I have heard in this trial about the acquisition, care and keeping of the dogs up to separation clearly leads me to the conclusion that both parties own these dogs jointly. This is most pronounced in Ms. Almaas’s expectation that Mr. Wheeler would continue to support the cost of keeping and training the dogs after they separated. [ 74 ] In the end result, both parties own these dogs. Ms. Almaas wanted Aurora for company and clearly drew comfort from her.

Mr. Wheeler loves these dogs as well. Zeus captured his heart despite his concerns that Aurora had not yet been fully trained. Both parties have contributed value to the acquisition, care and keeping of these dogs. [ 75 ] Where there is joint ownership of two dogs, the resolution is fairly straightforward. I do not have to do what the court was compelled to do in Warnica or Larochelle. Each party shall have a dog and its possessions. I order that Mr. Wheeler return Aurora to Ms. Almaas together with any records or items specific to Aurora such as her license, collar, bed, leash, etc. I order that Ms.

Almaas – if she has possession of Zeus or any of Zeus’s property – return the same to Mr. Wheeler. I dismiss both the claim and counterclaim for the monetary compensation sought. While Ms. Almaas’s contributions to the dogs is more difficult to quantify, it has value. Mr. Wheeler’s contributions are more quantifiable but also extend beyond the purely financial. [ 76 ] The exchange of the dogs and their possessions must be no later than April 15, 2020.

In saying this, the exchange must occur in a manner that does not violate any orders of any chief medical officer of British Columbia or of Canada in light of the COVID-19 pandemic. In addition, the parties must also comply with social distancing advisories during that exchange. [ 77 ] There shall be no costs to either party. ____________________________ S.D. Frame Provincial Court Judge