Brown v. Larochelle Date:, 2017 BCPC 115

Citation: Brown v. Larochelle Date: 20170412 2017 BCPC 115 File No: C79480 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: COURTENAY JOY BROWN CLAIMANT AND: PEARCE FERNANDO LAROCHELLE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING Appearing in person: Courtenay J. Brown Appearing in person: Pearce F. Larochelle Place of Hearing: Nanaimo , B.C.

Date of Hearing: March 27, 2017 Date of Judgment: April 12, 2017 [1] In this proceeding the Claimant seeks possession of a 3 year old Korean Jindo dog named “Luna”. In the alternative, she seeksan order sharing Luna on a week on/week off basis. Failing either of the above (and very tertiary in order of preference) she requests$475 in compensation 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 rightsand acknowledges the financial contribution.

BACKGROUND [3] The Claimant is 25 years old and works as a registered nurse. [4] The Defendant is also 25 years old and works as a refrigeration technician. [5] The parties started living together in 2014 at the Defendant’s residence and while together they arranged, with the assistance ofa mutual friend working in South Korea, to adopt Luna as a rescue dog.

Luna arrived in February of 2015. [6] They both shared any expenses for Luna while they were together and more or less were equally involved in looking after her. [7] In September of 2015 the parties stopped living together with the Claimant moving to a new apartment that did not permit pets. In June of 2016 the Claimant obtained permission from her landlady to have pets and contacted the Defendant about sharing possessionof Luna. [8] That has led to this litigation.

The Claimant says there was an agreement to share Luna when it became possible. [9] The Defendant says he paid $2,500 to the Claimant when she moved out to adjust certain matters between them and hebelieved ownership of Luna was one of those matters. [10] Since September of 2015 the Defendant has had virtually exclusive possession of Luna. The Claimant did take her for somevisits/walks some 5 or 6 times after moving out but has had no contact since some time before June of 2016.

LAW [11] The legal system fundamentally treats issues as to dog ownership the same as a dispute over personal property. (Henderson v.Henderson 2016 SKQB 282, Danyliuk, J.; Warnica v. Gering, 205 CanLII 30838, ONT, C.A.); Ireland v. Ireland, 2010 SKQB 454). [12] Two other cases which are of some relevance to my decision are: MacLean-Beaudet v. Belanger, (ONSCSM) and Rogers v. Rogers

(1980) O.J. No. 2229. [13] I also have had reference to the decision in Gardiner-Simpson v. Cross 2008 NSSM 78 and quote the following from thatdecision: [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. [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 and cats) 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 acquires prima facie sole possession of a pet during a relationship then absent exceptional circumstances that pet remains their property when they leave the relationship (see: Thompson v. Thompson , 2005 BCSC 1604 and McIntosh v.

Daoust , 2016 MBQB 194 ). PET OWNERS AS PARTNERS [ 17 ] In this case, Luna was acquired by the parties not individually by either one but rather as what legally might be characterized as a partnership or joint venture. [ 18 ] Basic partnership law provides for an equal division of assets on dissolution of the partnership. Many partners make agreements as to how they will deal with assets if the partnership winds up. Many, such as here, do not. Partnership law requires that partners deal with each other fairly and equitably.

One of the maxims of the law of equity is: “Equity presumes that to be done which ought to have been done”.

In the context of this case, and having seen and heard the parties, I can assume that if they had directed their minds at the time they acquired Luna or during their joint care of her to what would happen if they split-up they would have agreed that this decision would take into account the best interests of Luna and her humane treatment. [ 19 ] One of the descriptions of the Jindo breed and which is consistent with the evidence in this case is as follows: Originating in South Korea, the Jindo exhibits unmatched loyalty. They are incredibly intelligent dogs with a knack for hunting, tricks and even agility.

They are fastidious and quiet indoors, making them great household pets and companions. The Jindo dog requires strong training, patience, and plenty of long walks. They are a good fit for active individuals and families who have enough time to let their wonderful personalities shine through. [ 20 ] Apart from the law that suggests joint use of a dog should not be ordered the evidence in this case suggests that time-sharing of Luna would not be best for her based on either her breed or individual characteristics.

The evidence is clear that Luna has cemented her bond with the Defendant since the separation of the parties and is well-cared for her by him. I accept that she had an equal bond with the Claimant up until September of 2015. As Luna has been spayed there is no possibility of sharing one of her pups. [ 21 ] It is not clear that the parties intended to include Luna in their “property” settlement of $2,500. [ 22 ] Accordingly, I find that the claim of Ms. Brown for either sole or joint ownership of Luna is unsuccessful.

I do grant the claim for $475 and for costs which I fix at $110. [ 23 ] The Defendant is to pay the Claimant $585 on or before May 30, 2017. I do not consider that the matter merits any order for interest. BY THE COURT ______________________________ The Honourable Judge Cowling, PCJ ADDENDUM 1. A more detailed

summary of pet-law issues can be found at: https://www.donscottlaw.ca/2016/02/29/when-custody-goes-to-the -dogs/ 2. The case of Coulthard v. Lawrence ( 2011 OJ No. 6207 ) paras. 26-29 speaks of the rise of “Pet Trusts” in the US.