We’ve previously blogged about what happens to pets following a separation or divorce. It is clear that, while recognizing the special place that pets hold in the hearts of their owners, Canadian courts treat pets as property, and any principles applicable to determining custody of children are not applied to pets.

A recent case out of British Columbia has recognized this legal tradition, but also taken a unique approach to the issue of sharing a pet following the end of a serious relationship.

What Happened?

The pet at issue in this case was a 3-year old Korean Jindo dog named Luna.

Luna’s owners are both 25 years old. They began living together in 2014 and arranged to adopt Luna as a rescue dog from South Korea. Luna arrived in Canada in early 2015.  Both owners shared expenses and were generally equally involved in looking after her. In September 2015, the parties stopped living together and Luna’s “mom” moved to a new apartment that did not permit pets. In June 2016, she received permission from her landlord to have a pet, and contacted Luna’s “dad” about sharing possession of Luna.

The Position of Each Pet “Parent”

Lunas “mom” eventually filed a claim seeking possession of Luna. She requested that, in the alternative, Luna should reside with her on a week on/week off basis, or in the further alternative, that she be paid $475 for her half-share of the $950 the couple paid to adopt Luna.

Luna’s “dad” sought to maintain his possession of Luna without granting Luna’s “mom” any of the visitation rights she wanted. He argued that he had paid Luna’s “mom” $2,500 when she moved out to adjust certain matters between them, and he had believed that ownership of Luna was one of those matters.

The Law on Pets

As previously noted, the Canadian legal system treats disputes over pets the same as a dispute over property.

In this case, Justice Cowling noted some principles outlined in previous decision addressing the issue of pet possession following the end of a relationship:

 [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 any loved one.

[4] Emotion notwithstanding, the law continues to regard animals as personal property.  There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Act or the Divorce ActObviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised 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 better property 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 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 personally) 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.

Building upon these principles, Justice Cowling noted as follows:

  • pets will not be treated in a manner such as children;
  • courts are unlikely to consider interim applications for pet possession;
  • Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;
  • that pets are a variant of personal property.

Justice Cowling also noted that there is a legal requirement in Canada that animals, and especially cats and dogs, be treated “humanely” and not like just any inanimate personal possession.

Property, Partnership, and Pets

Justice Cowling further stated that if you were to apply personal property principles to a pet, where someone owns a pet and brings it with them into a relationship or living arrangement, or where someone is gifted a pet during a relationship then, unless there are exceptional circumstances at play, that pet remains their property when they leave that relationship.

In this case, however, Luna was acquired by the parties in what Justice Cowling said “might be characterized as a partnership or joint venture”.

Basic partnership law, generally applicable in the business context, provides for an equal division of assets where a partnership (usually a business partnership) dissolves and requires that partners deal with one another fairly and equitably. Many partners make partnership agreements (similar to prenups) that stipulate what will happen to the business assets if the partnership ever fails. In this case, while the parties could be considered partners there was no such agreement.

One of the basic principles of equity is that “equity presumes that to be done which ought to have been done” (i.e. what should or ought to be done in a given situation). Justice Cowling stated that in this case it could be assumed that if Luna’s “parents” had, at the time they were adopting Luna, thought about what would happen to her if they split up, they would have agreed that any decision about her continued care should take into account her best interests and her humane treatment.

In making his final decision about Luna, Justice Cowling noted the characteristics of the Korean Jindo breed, including the fact that they are incredibly intelligent, exhibit unmatched loyalty, and require strong training, patience, and plenty of long walks and activity.

Justice Cowing noted that, other than the caselaw that suggests joint ownership of a dog is not a good idea, the evidence about Luna and about Korean Jindo’s in general suggests that “time-sharing” of Luna would not be best. There was clear evidence presented that Luna had “cemented her bond” with her “dad” since the parties separated and had been well-cared for by him. In addition, there was no evidence that the parties had intended to include Luna in their $2,500 “property settlement”.

Justice Cowling ultimately did not grant either sole or joint ownership of Luna to Luna’s “mom”, but did grant her the $475 requested in the alternative, as well as costs of $110.

Deciding what to do with a family pet following a separation or divorce can be emotional and stressful. An experienced family lawyer can help parties make decisions and guide them into coming to a mutually satisfactory decision. If you have questions about making decisions about pets following a divorce or separation please contact Jason P. Howie, online or at 519-973-1500.

An Ontario court recently assessed what impact a report from the Office of the Children’s Lawyer can have on a request for temporary custody.

What Happened?

The parents in question have two children together. In 2015, the parents agreed to an order that granted the father access to the children every Sunday, with the condition that the access could not take place at the paternal grandmother’s home.

In 2016, the court requested that the Office of the Children’s Lawyer (OCL) become involved in the ongoing dispute. The OCL’s subsequent report made seven recommendations including:

  • the mother should have sole custody of the children;
  • the father’s access be limited to once per week with professional supervision (either through the Supervised Access Centre or a private agency);
  • the father should be able to call the daughters on Mondays and Thursdays for 5 minutes each to inquire about their week;
  • the father should have the right to get updates as well as school and medical information about the children by calling the children, not attending their school or doctor’s office;

Following their receipt of the report, both parties requested a change to the original 2015 custody order.

The mother requested that the original order be set aside so that the recommendations by the OCL be implemented.

The father brought a motion to expand his access and to remove any conditions on that access. He argued that the issues the OCL identified should be addressed at trial, and that, in any event, the report was biased and could not be used to make a determination about the best interests of the children.

The Court’s Decision

Justice Parent had to determine what weight and relevance should be given to the OCL report in making his decision as to temporary custody.

In support of their respective positions, each parent had relied on the well-established principle that an assessment report should only be considered in exceptional circumstances where immediate action is deemed necessary and should not be relied on in interim/temporary proceedings (i.e. without a full trial) since there would be no opportunity to cross-examine the author of the report on critical elements such the author’s credentials, as well as his or her observations and recommendations.

Justice Parent noted that the OCL report would be seriously considered by the trial judge. The question on the interim custody motion was whether the concerns about the father raised n the report merited the acceptance of all, some, or none of the seven recommendations made. The Justice recognized that the OCL report was very thorough and highlighted the position of each parent vis-à-vis their marriage, the events leading to the separation, their post-separation relationship, their parenting abilities, the children’s adaptation post separation, and mental health issues, among other matters.

Justice Parent also noted that his knowledge about the assessor was limited to the fact that she was an accepted OCL clinician, but had no evidence about her training, experience, or knowledge about crucial issues such as child development, parental alienation and mental health. The Justice further noted that the father’s counsel had not raised any issues regarding the assessor’s qualifications, nor had they sought an adjournment to allow the assessor to the cross-examined, nor was there any indication that cross-examination had been requested before the motion hearing (all of which the father could have done).

Justice Parent found that the assessor had seriously considered the concerns raised by both parents and investigated them. In addition, Justice Parent found that the father had not specifically addressed his actions despite being fully aware of the concerns raised by the assessor in the OCL report. Rather, the father simply maintained his view that his actions were being “blown out of proportion”.

On review of the entire evidentiary record, Justice Parent noted that a serious basis for concern for the children existed and accepted that the OCL’s recommendations for continued supervised access as well as conditions on telephone access were required to protect the best interests of the children. Justice Parent was ultimately satisfied that the mother had met the threshold of establishing that “exceptional circumstances” existed so as to implement some of the OCL’s recommendations. The Justice stopped short of ordering sole custody to the mother at this stage.

If you have questions about child custody, or how to protect the best interests of your children following  a separation, contact experienced Windsor family lawyer, Jason Howie at 519-973-1500 or contact us online

We all have deep-seated fears.  Spiders (my wife).   Heights (me).   Eating meat (my vegan daughter).

There is one deep-seated fear in all newly separated fathers: he will not be an important part of the lives of his children.

I can’t tell you how many times I have heard this worry.  Sometimes it is the very first thing that a client tells me.  Even some of the best and most involved fathers have openly raised this issue as their greatest fear.

So, I am sending out this post not to reassure fathers.  That is like trying to convince someone who is afraid of flying that air travel is statistically safe.  The fear is real, whether realistic or not.

I am sending out this post to the mothers who may be dealing with their first separated Father’s Day.  I have some tips:

  •  Try to find the time to craft a handmade Father’s Day card.  I still keep mine, including the paper necktie!   Your former spouse will know that the kids did not come up with this on their own.  You are sending a very important message that you value his involvement in the life of the children;
  • This may be the first Father’s Day with you in a new relationship.  But the father of your children is worried about being replaced.  A short card or note from you reassuring your former spouse that he will always be their  father will create long-lasting goodwill;
  • If, by any chance, the kids are waking up with their father in a different residence, then have the children face time their father.  The earlier in the morning, the better.
  •   That being said, there is no reason why Father’s Day should not be spent between the children and their father.

These are a couple of tips that I think will help.  But I wasn’t born in La-La Land.   Some of these things may be hard to do, especially if Mother’s Day was not respected.  But we have been told time and time again that nothing is more damaging to children than a less than respectful relationship between mom and dad.  So, bite your tongue, and it may bleed.  But take the step.

If you have questions about child custody and access, or about managing family dynamics following a separation or divorce, call 519-973-1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.

 

The British Columbia Supreme Court has delivered a precedent setting decision on a subject we recently blogged about in Ontario: The ordering of a child to be returned from one parent in Canada to another parent overseas.

In S.C. v. H.S., 2017 BCSC 277, the British Columbia Supreme Court ordered a child who was abducted by her mother and brought to Canada to be returned her father in Taiwan.

The Background

The parties in the case had two children together, the youngest being their daughter, who was born in Taiwan after the couple divorced in 2011. The mother moved herself and their son and daughter to Hong Kong. There was litigation in Taiwan as to whether the father in the case was actually the father of the couple’s daughter. However, the mother would not comply with court orders to provide DNA samples, which would have allowed them to determine whether the girl’s father was her genetic parent. In 2015 a Taiwanese court awarded the father with sole custody of both children. While the mother returned their son to Taiwan, she fled to Canada with their daughter and her new husband.

The Hague Convention

Taiwan is not a signatory to the Hague Convention (just as the UAE was not a member in Daji v. Alnaser), which provides member countries with an expeditious method through which to settle cases of international child abduction. As such, the case had to be decided according to B.C.’s Family Law Act, which has only been on the books since 2013.

The mother argued that their daughter had not seen or had contact with her father in over five years, and as such it was in her best interest to continue to live with her mother. However, the mother did not suggest that there was any unfairness in the Taiwanese orders, and admitted that was wrong to disobey them. As such the British Columbia Supreme Court had to refer to the Family Law Act to reconcile the matter.

The Family Law Act

Section 77 of the B.C. Family Law Act allows for a party to petition for the return of a child to another country under certain conditions. The Act states:

(1) This section applies if a court

(a) may not make an order or declines to make an order under section 74 . . . or

(b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.

[13]        Subsection (2) sets out a number of orders that the court may make, including:

(c) order a party to return the child to a place the court considers appropriate . . .

The Court was not asked to, and did not, make an order under Section 74, which pertains to the recognition of extraprovincial orders. The Court went on to find that the child had been wrongfully removed to Canada, satisfying Section 71(1)(b) and ordered that she be returned to her father in Taiwan.

Judicial Comity

In its decision, the Court stated that it would not be in keeping with the intent of the Family Law Act to allow the child to stay in Canada. With no claims of unfairness in the Taiwanese courts and the mother’s admittance of her unilateral decision to disobey those courts’ decisions, the British Columbia Supreme Court applied the principal of judicial comity, the practice of respecting the laws and judicial decisions between one political entity and another.

If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519-973-1500. We can help answer questions such as: what is the child’s habitual residence? Does an existing custody arrangement permit relocation?  Can a relocation be blocked or disputed?

In a dispute over the habitual residence of a child, an Ontario court recently ordered the return of a child to her mother in the United Arab Emirates (UAE) after the father had abducted the child and brought her to Ontario. The court condemned both the abduction and the father’s subsequent actions.

What Happened?

Both the mother and father were born in Aleppo, Syria and are Syrian citizens. The mother has resided in the UAE for her whole life on a series of visas, and the father has also resided (and worked) in the UAE for at least ten years. Neither party could become a UAE citizen, but could remain there by renewing their visas.

The parties were married in the UAE in July 2013; their daughter was born in August 2014. In July 2015 all three immigrated to Canada, where they obtained permanent residency cards. The parties returned to the UAE in September of that same year. The mother claimed that the family had agreed to return to the UAE indefinitely, whereas the father claimed that the family returned to sell their home, and get other affairs in order.

All three parties remained in the UAE until August 2016. On August 15, 2016, the father abducted the daughter from the family home, hid the mother’s passport, and boarded a rushed midnight flight to Canada. The mother attempted to track the father and child down, and was informed by the father’s family that he would be returning to the UAE at the end of September. In late August, the father finally contacted the mother and provided her with the address of where he and the daughter were living. He did not return to the UAE in September as suggested by his family.

The father filed an application for custody in an Ontario court in October 2016. The mother filed a divorce and custody application in the UAE on the day she was served with the father’s application, claiming that she had not done so earlier as she had understood that the father would be returning, and he had continued to pay the lease on the home where they had all been living prior to the abduction. Once she had been served with his application she understood that he would not be returning and that she had to take legal action.

The father retained UAE counsel and opposed the mother’s application. He was granted six adjournments in a short period of time claiming, among others things that both his and the daughter’s passports had been stolen and they could therefore not fly to Dubai.

The father maintained that the daughter could not be returned to the UAE because she had no permanent status there.  The daughter would only be able to stay in the UAE if the mother was able to renew her visa; however, the mother could only do so if she was employed, or was married to an employed person, and that she had only been able to live in the UAE because he had been working there. Since he had left, she would not be able to renew her visa, and therefore, neither could the daughter.

The Hague Convention and the Children’s Law Reform Act

The UAE is not a signatory to the Hague Convention, and therefore it did not apply in this matter. Rather, the relevant legislation was the Children’s Law Reform Act (the CLRA).

Using the CLRA, the three issues that the Court analyzed were:

  • Where was the child “habitually resident” when she arrived in Ontario in August 2016?
  • If the child was not habitually resident in Ontario at that time, does an Ontario court have jurisdiction over this matter?
  • Should an Ontario court exercise its jurisdiction to make a custody order in order to prevent serious harm to the child?

Where is the habitual residence of the child?

With certain exceptions, an Ontario court can only assume jurisdiction over a custody application if the child in question is habitually resident in Ontario.

Here, the onus was on the father to establish the habitual residence of the child. He argued that the daughter is a permanent resident of Canada and lived in Ontario from July to September 2015. The parties only returned to the UAE to put their financial affairs in order with the intention of returning to Ontario to reside. He further argued that since the child obtained permanent residency status in Ontario, she became habitually resident in the province, and did not abandon that habitual residence during the “transitional period” the family had following their return to the UAE. He further argued that he had left the UAE with the mother’s permission and that this was not an abduction.

The mother argued that the child was habitually resident in the UAE since, at the time that the father left with her, all three of them had been living in the UAE. Yes, the parties had immigrated to Canada in 2015, but after less than two months, they decided to return permanently to the UAE. She stated that all objective evidence supported this position: the father was still employed in the UAE, he had rented a fully furnished home on a one year lease starting in March 2016, left all furnishings behind in the apartment when he left for Canada in August 2016, and also left all of the child’s clothing and belongings. Further, there had been no joint plan to return to Canada and there was no evidence, other than the father’s statements, that the mother had ever intended to return to Canada with the child.

The Ontario court found the father’s position “untenable”, and agreed with many of the mother’s arguments.  Therefore, the habitual residence of the mother, the father, and the child at the time that the child was abducted was deemed to be the UAE.

Should the Ontario court accept jurisdiction even if the child is not habitually resident here?

The child was in Ontario when the father’s application for custody was filed. However, all evidence about the child was in the UAE, where she had lived with both parents for almost the entire duration of her life. Prior to the abduction, she had only spent two short months in Ontario in 2015.

The child had no real and substantial connection to Ontario prior to arriving here after she was abducted from the UAE.

Should the court accept jurisdiction to prevent serious harm to the child?

According to the father, the mother had a terrible anger management problem, which had resulted in her physically disciplining the daughter on repeated occasions. He argued that there were no protections against hitting children in the UAE as there were in Ontario, and if the child was returned to the UAE, the mother would beat her with no consequences.

The mother denied any corporal punishment, stating that there had been no evidence of any physical abuse while the child had been living in the UAE. Similarly, there was no evidence that the father had ever complained to anyone about the mother’s alleged physical abuse. Rather, the evidence had established that the mother had cared for the child while the father worked long hours outside the home, and that the child had never been alone with the father until after he kidnapped her. Further, there was a child protection system in the UAE with a similar mandate to children’s aid societies in Ontario.

The court found that the only evidence of the probability of serious harm befalling the child was through covertly made recordings of phone calls the father had with the mother following the abduction, as well as coached videos of the child.

The court warned that there was a “strong public policy” purpose behind not admitting taped phone calls in family law cases. In any event, even if the court were to consider the tapes made by the father, the contents of those tapes were not helpful to his position. The father had made the tapes for the sole purposes of inducing the mother into making an admission that she beat or otherwise hurt the child. This was done at a time when the mother was emotionally desperate and wanting any contact with her child. On the tapes, the father asked the mother leading questions and made her repeatedly insist that she would no longer beat the child. The court found that “if [the mother] had never hit her child before it would not be difficult for her to commit to never doing it again especially if such a statement held out the promise of contact with her child”.

The court ultimately found the father’s actions in creating these tapes “very telling” and condemned his behavior:

He claims not to have abducted the child but he knows that the circumstances of her travel points to abduction. Within a few days after arriving in Ontario, and before telling the mother where her daughter is living, he started to work on building a defense to his actions. He purposely tried to manipulate the mother to create evidence that he thought he could use to argue that there would be a probability of serious harm to the child if she was returned. He knew that he had no such evidence before he made those taped calls. The transcripts show that he is determined to obtain an admission from the mother. The videos, which were described in the parties’ affidavits, show clear evidence of manipulation of this young child. This father removed his 2-year-old daughter from her mother’s primary care and then used his daughter to try and create evidence of physical abuse. I find as a fact that the mother did not physically abuse the child. I find that the father’s actions in manipulating both the mother and the child to be unconscionable and deserving of censure from this court.

The court ordered the child immediately returned to her mother, who would then return her to her “place of habitual residence” in the UAE, and gave Peel Regional Police, the OPP, the RCMP, and Border Services jurisdiction to enforce the order if necessary.

If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519-973-1500. We can help answer questions such as: what is the child’s habitual residence? Does an existing custody arrangement permit relocation?  Can a relocation be blocked or disputed?

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