O’Donoghue v. Walker, 2019 BCPC 257

Citation: O’Donoghue v. Walker 2019 BCPC 257 Date: 20190927 File No: C-1863099 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil Division BETWEEN: SUZANNE O'DONOGHUE CLAIMANT AND: BRENDA JEAN WALKER DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. GORDON Appearing on her own behalf: S. O'Donoghue Counsel for the Defendant: R. Breder Place of Hearing: Vancouver , B.C. Date of Hearing: July 19, September 13, 27, 2019 Date of Judgment: September 27, 2019

[ 1 ] THE COURT: Suzanne O'Donoghue brings an Application in this Court essentially to share time with a dog named Akiro. The Application is brought against her former partner, Ms. Brenda Walker. [ 2 ] When the two women had been together, they decided that they wished to adopt a dog together. [ 3 ] Ms.

Walker had had a dog growing up that had been part poodle and had a certain look and, once they decided that they wished to get a dog together, she knew that she wished to have a dog that was similar to the dog that she had had growing up which tragically either passed away or had to be put down while she was away at university. She went on Petfinder and left an alert for a dog in need of adoption that was part poodle. [ 4 ] They were notified about a dog named JoJo and Exhibit 1 is a photograph of the dog who was originally named JoJo and is now Akiro who is a remarkably cute dog. Ms.

Walker has had her DNA tested and her DNA shows that one parent would have been half miniature poodle and half miniature schnauzer and the other parent was likely a fox terrier. [ 5 ] Ms. O'Donoghue filled out the application process and, in answer to a question as to, were the couple to break up, who would have the dog, she indicated to the adopting agency that it would be Ms. Walker. Ms. O'Donoghue paid the fees for the adoption. Ms. Walker entered into the adoption agreement. So Ms. O'Donoghue filled out the application and paid for it, but Ms.

Walker entered into the agreement. [ 6 ] The couple were together for a couple of years with the dog. Ms. O'Donoghue worked out of the house and Ms. Walker worked in the house so she spent more time with the dog and was responsible certainly for walking the dog, mostly, I am assuming, and for making the veterinary appointments and ensuring the dog's general health, not with any specific veterinary concerns, but her overall general health. [ 7 ] The couple broke up. There is an issue between them as to whether they agreed that Ms. Walker would be Akiro's owner or whether Ms. O'Donoghue would be. Ms.

Walker's best argument is the adoption application completed by Ms. O'Donoghue. Ms. O'Donoghue's evidence is that part of their discussion in the break-up was that they would continue to co-own Akiro. The conduct of the parties subsequent to the separation is, in fact, definitive and I accept Ms. O'Donoghue's evidence because the parties did share the dog essentially month-on/month-off. [ 8 ] The issue becomes, then, what is my jurisdiction to deal with the dog? Ms.

Breder has fairly taken this Court through jurisprudence from Courts of the Provincial Court of British Columbia as well as a decision from the Newfoundland Court of Appeal and she has persuasively persuaded me that three of the clauses of ss. (1) of the s. 3 of the Small Claims Act give me jurisdiction.

The first is 3(1)(b), "The Provincial Court has jurisdiction in a claim for recovery of personal property," while pets, but particularly dogs, are very much considered family by the people they live with, in law, they are considered personal property; (d), "relief from opposing claims to personal property," which is what this could be except that it is not because Ms. Walker claims to own Akiro and Ms.

O'Donoghue claims that they both own Akiro, so it is not as if each one is claiming that she is the rightful owner of the dog; and the third is, "specific performance of an agreement relating to personal property or services." [ 9 ] I have no doubt in concluding that at the time that their domestic partnership ended that the two women agreed that they would co-own the dog and that comes from their behaviour for the first almost two years subsequent to the separation where they each had the dog essentially on a month-on/month-off basis depending on their needs. At times in 2018 because of Ms.

O'Donoghue's health issues and Ms. Walker's business travel interfered with times that both women were going to be with the dog. [ 10 ] The issue, then, comes down to, is it in Akiro's best interest that notwithstanding the joint ownership that I have found, that the dog stay with only one or with both people, in effect, that I, pursuant to clause (c), direct specific performance of the agreement that I have found? [ 11 ] Ms. O'Donoghue suffers from bipolar disorder.

She knew that she was unwell, but did not know that she was bipolar and was suffering in 2018, suffering so badly that she could not sleep and, as she says, she was walking all the time. She knew she could not take Akiro with her and could not sleep, knocked on her next-door neighbours' door and said, "There is something wrong with me. Can you please look after Akiro," and went out. Apparently over the course of that night, the neighbours were trying to reach her when she did not come back and they could not find her they eventually contacted Ms. Walker. [ 12 ] What happened in the interim, though, is that Ms.

O'Donoghue came into contact with the police and was clearly so unwell she was taken to St. Paul's Hospital, again, so unwell she was certified and held non-voluntarily in St. Paul's which, for her, was a blessing in disguise because she spent over three weeks in the hospital. Medications were tested upon her to determine her polarity levels and a certain cocktail of medication was found that would maintain equilibrium for her. Once that was found, she was released from the hospital.

She has testified that, since that day, every single day she has been 100 percent compliant with the prescriptions and attends for every medical appointment. [ 13 ] Ms. Walker has testified that there were times when she was concerned for Ms. O'Donoghue's care of the dog, Ms. O'Donoghue's suggestion that it would be all right to take the dog on a motorcycle; Ms.

O'Donoghue's thought, because she did not have an automobile and was working in Richmond, that she could walk the dog from her home in downtown Vancouver to Richmond and then obviously home again after work; and that on more than one occasion the dog’s water bowls were empty. She has also testified that when she got Akiro back once Ms. O'Donoghue was hospitalized that Akiro was limping.

Interestingly, she did not take Akiro to the veterinarian to determine what the cause of that limp was so it could not have been as significant a concern as her counsel wishes me to find. [ 14 ] There is no doubt that both of these women love this dog. I have no doubt about the amount of love they have for the dog and the difficulties they both feel emotionally when they are not with the dog. The issue is, is it in the dog's best interest to be in the shared custody of both of them, and I find that it is 100 percent in Akiro's best interest to be with both of her mothers.

[ 15 ] There are certain conditions upon which she will live with both. [ 16 ] She will have one long walk a day no more than five kilometres.

She will have two short walks later on in the day at different times. [ 17 ] Both homes will have two water bowls that are filled two or three times a day to ensure that she always has water. [ 18 ] If during the course of time that she is with one mother -- and I know I should say "owner," but I am saying "mother," if there is any sign of any illness that person is required to immediately text the other and let the other know. [ 19 ] Both parties agree that month-on/month-off is the best and I am certainly not going to disagree because, in fact, that is the agreement that I have been asked to order specific performance of. [ 20 ] So Ms.

O'Donoghue will at all times take the dog to Swartz Bay and Ms. Walker will at all times take the dog to Tsawwassen. [ 21 ] If at any time that either party cannot be with Akiro for more than a night -- I am saying that because if for whatever reason Ms. Walker is gone for a night, she does not have to bring the dog back from Salt Spring, she can leave the dog with a trusted neighbour, as Ms.

O'Donoghue can, but if either one is going to be away for more than a night, they are obligated to let the other party know and take Akiro to the other party for the time during their four-week period that they will be away, at which point Akiro will be returned back. (REASONS CONCLUDED)