IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Keoughan v. Pardy, 2018 NSSM 29
Claim No: SCPH 468233
BETWEEN:
Rose Keoughan
Claimant
-and –
Florence Pardy
Defendant
The Claimant, Rose Keoughan, appeared on her own behalf.
Jeanne Sumbu represented the Defendant, Florence Pardy.
DECISION
(1)
The
parties, Rose Keoughan and Florence (“Flo”) Pardy, each claim ownership of “Jake”,
a French Bulldog purchased when the parties shared accommodations. Ms. Pardy
moved out in February 2017. The women entered into an informal sharing
arrangement which ended in the summer of 2017 when Ms. Pardy came to take Jake
for a visit with her and did not return him.
(2)
What
makes this decision difficult is that it is clear that both women have
developed genuine love and fondness for Jake. Each has spent considerable time
and money attending to his needs, including expensive, time consuming and heart
rendering surgery and other medical requirements. There is also evidence of the
steps they go to provide for the dog’s leisure needs. Each of the two parties
feels she deserves to have him. Regardless of whether I feel that to be true,
that is not the issue. At the conclusion of the hearing before adjourning
court, I felt obliged to comment that Jake is a very fortunate dog. I remain no
less convinced after preparing this decision.
(3)
In
making these comments it is important to remember, as other adjudicators have
pointed out, while pet owners treat their pets and shower affection upon them almost
as one would any member of the family, the law regards them as chattels. Thus,
I must not consider which person’s custody is in the best interests of the dog
as a court would for a child, but who has established ownership, as one would
for a car or a bicycle. Thus, it is the law relating to acquiring and transferring
ownership of personal property rather than custody and access which I must
consider in deciding this matter.
(4)
For the
reasons stated below, I find in favour of Ms. Pardy.
Background
(5)
Despite
the parties’ strong positions opposing each other, most of the facts are not
seriously in dispute.
(6)
Ms. Keoughan
and Ms. Pardy were sharing accommodations during 2015, following the sale of Ms.
Pardy’s house. The two women had a brief relationship before the move, but
after it ended the parties remained friends. Ms. Keoughan is a “dog person” who
owned other dogs, most recently a male pug named “Taz”. Taz passed away in
October 2015, and recognizing her friend’s heartbreak, Ms. Pardy suggested they
get a new dog. She knew a breeder named Nicole MacLellan who had a French
Bulldog, described as the runt of the litter. Ms. Keoughan thought it too soon
after Taz died for a new dog explaining she needed an opportunity to grieve.
She wanted “time to think about it”. On November 11, 2015, they had decided in
favour of getting Jake, each paying $1000 as their equal share for the puppy. Ms.
Pardy picked him up. Once the dog was in their home, on the first day, he
developed diarrhea and became quite ill. Ms. Keoughan stated categorically she
did not want Jake any longer and instructed Ms. Pardy to return him to the
breeder. Ms. MacLellan apparently was willing to accommodate her. However, at
the last minute, Ms. Pardy decided she had grown fond of Jake and intended to keep
the dog for herself. Ms. Keoughan agreed to this arrangement.
(7)
Jake
lived with the women until Ms. Pardy moved out in February 2017. After she
moved out, Ms. Pardy was able to see Jake while she was not at sea. She
retained the key to Ms. Keoughan’s house and was able to come by to pick up
Jake. The friendship became further strained with Ms. Keoughan accusing Ms.
Pardy of drunkenness and other rowdy behaviour around the dog. Sometime in May
or June, 2017, the parties had a disagreement which appeared to have been the
“last straw” for both, so Ms. Pardy returned her house key and a ring that,
depending on who was giving evidence, was either a gift or something she had
taken from the house. She came to get Jake on his birthday, August 15, and did
not return him.
Issues
(8) Based on the evidence, has the Claimant established ownership of Jake?
Evidence
(9)
Several
witnesses were called in addition to the parties. For the most part, their
evidence shows how one or the other of Ms. Keoughan or Ms. Pardy cares for
Jake. I have no doubt that is true. Further, I am certain each of the parties
have stated many unkind and insulting things to each other over the ownership
of the dog, how the other is caring for him and the like. None of that is
relevant. What is relevant are the incidences of ownership as they relate to
Jake.
Evidence of the Claimant
(10)
Rodney
Edward Sampson testified that he recalled when Ms. Pardy moved in with Rose
Keoughan. He recalls seeing Jake for the first time with Ms. Pardy in the spring
of 2016. When asked who bought the dog, her reply was “we did”. He was
surprised Ms. Keoughan wanted another dog. The dog was referred to on-line by
Ms. Keoughan and her friends as “Rose’s Jake” during the time he lived there. Mr.
Sampson acknowledged he was not aware of who was paying for veterinary bills.
He was not aware there was a sharing arrangement between the two once Flo moved
out.
(11)
Catherine
Elizabeth Power described Rose as an avid dog lover. She believes they had Jake
for approximately three years. She was advised by Rose that Flo was encouraging
her to buy the dog. She had seen Ms. Pardy walking the dog many times. She
acknowledged hearing Rose state several times at the time they bought the dog
that she wanted to return Jake as he did not feel like her dog. She indicated Rose
changed her tune as the dog became older and more attached. She conceded it was
Flo who named the dog.
(12)
Rose
Marie Keoughan described her relationship with Ms. Pardy as starting out positively
but she accused Ms. Pardy of gradually becoming controlling. She was originally
very reluctant to have a new dog, however, she relented once she discovered Flo
had found a French bulldog. The dog was acquired on November 11, 2015.
(13) Eventually the two women stopped getting along amid allegations of drunkenness and rowdy behavior. She ordered Ms. Pardy to leave the house. In February or March of 2017 they were looking for a place for Ms. Pardy to rent. She did not see Jake very often between March and August 2017. The final time Ms. Pardy arranged to see Jake, Ms. Pardy left with Jake and did not return.
(14)
Under
cross-examination, she acknowledged she did not originally want the dog although
each of them paid $1000. She confirmed that in discussions with the breeder and
the Defendant. She acknowledged a number of veterinary trips including the bills
in evidence, all made out to Florence Pardy. She discussed an episode where had
a peanut in his nose and, thus, it was necessary to take Jake to the veterinary
college in
Charlottetown. Both she and Ms. Pardy referred to Jake as her little boy. She
did not do any research to acquire Jake. She confirmed Jake had plenty of health
issues. She refused to accept any other money for Jake.
(15)
Florence
Pardy is the Defendant in this matter. She described Rose as a friend with whom
she used to go gambling. Their friendship grew to a relationship which lasted a
short time. She moved in to her place in 2016 as friends, as the relationship
was over. Ms. Keoughan lost Taz in October. She decided it would be a good idea
for Rose to get a new dog as she was still grieving the loss of the pug.
Accordingly, they agreed to a French bulldog named Jake which she acquired from
Nicole MacLellan. She offered to help pay for it because they were still
friends. She confirmed Rose told her she did not want the dog. She spoke with
Nicole to see if she would take Jake back which she
agreed. Ms. Pardy decided that she would take ownership instead, an arrangement
to which everybody agreed. She described the arrangement as both parties being
responsible for food and veterinary bills. She described Jake's health in the
first year, including a number of health related issues. She moved out in
February 2016.
(16) After she moved out, she continued to drop by and see Jake. The arrangements changed near the end of May or June of 2017. Ms. Keoughan no longer wanted Ms. Pardy in her house. She wanted to make arrangements to see Jake on August 15, his birthday. By that time, Ms. Pardy found he was a changed dog and he had developed issues with his feet. Today, that is no longer a problem. She now lives with Margaret Rose Boudreau who helps her out with Jake from time to time.
(17) She spoke of him being with Ms. Boudreau. She confirmed Jake is sometimes in the company of Brogan’s (Ms. Boudreau’s brother) dog. She denies being drunk as Ms. Keoughan alleges.
(18)
Margaret
Rose Boudreau described Florence Pardy as a childhood friend. She knew Rose Keoughan
from the community. She had met Jake when he lived in the house with Ms.
Keoughan and Ms. Pardy. She described Rose’s initial reaction as bitter and
difficult when she was asked about Jake once they acquired him. She did not
want the dog and did not want to name him. Ms. Boudreau described the sharing
relationship as a good one. She takes care of Jake when Ms. Pardy is away.
The Law
(19)
There
have been numerous cases heard in this Court regarding the ownership of pets. Adjudicator
Eric Slone’s analysis in Gardiner-Simpson v. Cross, 2008 NSSM 78
provided guidance for all of the cases, including several others written by
him, Hawes v. Redmond, 2013 NSSM 57 and Kemp v. Osmond, 2017
NSSM 25.
(20)
In Gardiner-Simpson,
he stated the following regarding a disposition where both parties are worthy
of ownership:
“[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 jointly
owned 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. The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Selling the 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 war 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 the case of 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 as I propose to do and
attempt a principled analysis of the legal ownership.”
(21)
In Kemp
v. Osmond, Adjudicator Slone preceded this quote with the following:
“5. Determining ownership of family pets is not easy for the court, nor necessarily fair to the disputants. Often, as is the case here, neither of the people in this dog’s life one was really concerned about legal ownership until things went wrong. When families break apart, the family dog will usually be awarded to the person with the best case for legal ownership.
6. An
arrangement to share “custody” of the family pet is apparently quite common,
but this is not a result that is consistent with strict contractual
rights. These arrangements only work where there is an agreement to make
it work. Where there is no such agreement, even if the court had
authority to divide ownership, it would not necessarily be a good idea if the
net result was to set the stage for ongoing conflict and repeated visits to the
court to act as the referee.”
(22)
Ms.
Pardy’s counsel has included with her book of authorities a case from the
British Columbia Provincial Court, Brown v. Larochelle, 2017 BCPC 115
which summarizes the law as follows:
[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 (Underlining mine)
(23)
Finally,
I refer to Adjudicator Augustus Richardson’s analysis in MacDonald v. Pearl,
2017 NSSM 5 where he stated as follows:
“[25] I have reviewed the following Small Claims Court cases with interest: Gardiner-Simpson v. Cross, 2008 NSSM 78; Hawes v. Redmond [2013] NSJ No. 739; Millet v. Murphy [2011] NSJ No. 182. I believe that the following principles are applicable:
a. Animals (dogs included) are considered in law to be personal property;
b. Disputes
between people claiming the right to possess an animal are determined on the
basis of ownership (or agreements as to ownership), not on the basis of the
best interests of the animal;
c. Ownership of-and hence the right to possess-an animal is a question of
law determined on the facts;
d. Where two persons contest the ownership of an animal, the court will consider such factors as the following:
i. Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;
ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
iv. Who purchased or raised the animal;
v. Who exercised care and control of the animal;
vi. Who bore the burden of the care and comfort of the animal;
vii. Who paid for the expenses of the animal's upkeep;
viii. Whether a gift of the animal was made at any time by the original owner to the other person;
ix. What happened to the animal after the relationship between the contestants changed; and
x. Any
other indicia of ownership, or evidence of any agreements, relevant to the
issue of who has or should have ownership or both of the animal.
[26]
This is not a complete list of factors that might be considered. Nor is any one
or more of them necessarily sufficient to establish ownership. And there is
more when it comes to animals that are pets.”
(24)
At
first glance the statements in Brown v. Larochelle and MacDonald v.
Pearl appear inconsistent, but they are not. If a party establishes
ownership of a pet entering a relationship where the parties are not married
(whether romantic or platonic), a pet is treated in the same way as any other
asset when the relationship ends, the owner leaves with the pet. Likewise, if a
gift of the pet is made to one of the parties or one party gives or releases
her or his interest to the other party, that is a gift of the dog and the new owner
has acquired title.
(25)
However,
if a decision cannot be made based on that presumption, such as when the pet is
jointly acquired during the relationship and ownership is clearly shared, one
must then turn to the other factors in the analysis.
Findings
of Fact
(26)
In
looking at the circumstances, Ms. Pardy suggested she and Ms. Keoughan get a
dog. Ms. Keoughan eventually but reluctantly agreed. I find the original
intention was for the dog to be a gift for Ms. Keoughan. However, she decided
it was too soon for a new dog and its inherent issues. She instructed Ms. Pardy
to return Jake to Nicole MacLellan. Ms. Keoughan advised the breeder
accordingly. Ms. Pardy stated she was keeping Jake and Ms. Keoughan agreed.
Curiously, Ms. Keoughan did not ask for her money back, although she could have.
At that point, Ms. Pardy owned Jake outright.
(27)
Once Jake
was adopted, both women loved him unconditionally, treating him in every way
like a family member. Neither wanted to part with him. There are numerous
veterinary bills and correspondence in evidence. Each of Rose and Flo went to
the vet from time to time, either alone or together. It appears Ms. Pardy paid
for much of the veterinary care. Each walked him. Both spent roughly equal time
with Jake, perhaps
Ms. Keoughan spent more as Ms. Pardy had been at sea. After Ms. Pardy moved
out, Ms. Keoughan spent more time with him. Eventually, he was not simply Ms.
Pardy’s dog but a large part of Ms. Keoughan’s life as well. Ms. Sumbu stated
in her submissions that ownership eventually became jointly acquired.
(28)
In a
civil case, the onus is on the Claimant to establish through evidence on the
balance of probabilities that she has the better claim in ownership for Jake. I
find there is much evidence in favour of both women. I find Ms. Pardy’s claim
is the stronger of the two based on her original ownership and her bearing the
larger share of the veterinary bills. If I am wrong in that conclusion, then I
am satisfied to state that the evidence is not sufficient to tip the balance in
Ms. Keoughan’s favour. She has not discharged the onus upon her. The claim is
dismissed.
Summary
(29) In summary, I find the Claimant, Rose Keoughan, has not proven her claim on the balance of probabilities. The claim is hereby dismissed.
Dated at Halifax, NS,
on February 22, 2018;
______________________________
Gregg W. Knudsen, Adjudicator
Original: Court File
Copy: Claimant
(s)
Copy: Defendant(s)