IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Keoughan v. Pardy, 2018 NSSM 29. -and

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1 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Keoughan v. Pardy, 2018 NSSM 29 Claim No: SCPH BETWEEN: Rose Keoughan Claimant -and Florence Pardy Defendant The Claimant, Rose Keoughan, appeared on her own behalf. Jeanne Sumbu represented the Defendant, Florence Pardy. Editorial Notice: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed. 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 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,

2 2 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 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

3 3 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 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, (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 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

4 4 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 (16) After she moved out, she continued to drop by and see Jake. The arrangements changed near the end of May or June of 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

5 5 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 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;

6 6 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

7 7 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: Copy: Copy: Court File Claimant (s) Defendant(s)

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: MacDonald v. Pearl, 2017 NSSM 5

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: MacDonald v. Pearl, 2017 NSSM 5 Claim: SCCH-458548 Registry: Halifax Between: Matthew Daniel MacDonald Claimant and Brittany Elizabeth Louise Pearl Defendant