01 June 2016

Adoption Update

It looks like I've found someone - a group really - who is interested in and well-suited to taking this blog over. I hope to make the transition by the beginning of September at the latest. More news to follow.

Update: 8 July 2016

In the very near future, Collaborative Divorce Vancouver will assume control of this blog. CDV is wonderful group of family law lawyers, family therapists and financial specialists who bring are trained in both collaborative settlement processes and mediation and focus on resolving their clients' legal disputes without going to court. I took my collaborative training in BC and was a member of CDV before I left for Alberta, and I am very pleased to have CDV take over my blog.

CDV has kindly agreed to keep all of my old posts, going back to 2008, live and online, and that all new content they post will be available for all to copy, save, reuse and repurpose on the same Creative Commons non-commercial, share-alike licence I've used for the past several years.

Although I'm giving up this blog, for the reasons I described in my post of 27 March 2016, I'm satisfied that it's in good hands and will continue to provide the same sort of insights and analysis readers are used to. I'll be following this blog after it changes hands, and I'm looking forward to the fantastic new content.

My sincere thanks to CDV and to all of my readers over these last eight years. Without your interest, I would never have kept the blog going as long as I did. Thank you.

 - John-Paul Boyd

02 May 2016

Unbundled Family Law Services Project: Help MediateBC with an Important Initiative

MediateBC is in the middle of its Family Unbundled Legal Services Project, an initiative aimed at encouraging more family law lawyers to offer short legal services to support families involved in mediation. Among other things, the project is looking to find out more about how lawyers provide short legal services and how those services are used.

MediateBC is looking for more information from British Columbia family law lawyers as well as from people who have been involved in a family law dispute anywhere in Canada, and invites you to complete a survey that you can find on their website. One survey is provided for family law lawyers, another for families. 

Please help MediateBC gather the data they need for this important initiative and take the time to complete their survey.

31 March 2016

Save the Date! New Course on Difficult Family Law Issues Coming to Vancouver

A new one-day course on difficult family law issues, "A Rock & A Hard Place: Complex Issues in Family Law Practice" is coming to the Pan Pacific in Vancouver, British Columbia in April. The course is being put on by the Trial Lawyers Association of BC and is being chaired by lawyers Magal Huberman and Zara Suleman.

Here's how the promo material from TLABC describes the course:
Family law practice can be challenging. Sometimes (or often) we can have files that have no easy answers. TLABC's 2016 Family Law Seminar A Rock & A Hard Place: Complex Issues in Family Law Practice is designed to address some of the more advanced issues in family law. With problems to solve that are as diverse as our clients, we benefit from the enriching perspectives of the judiciary, family counsel, criminal lawyers, Crown counsel, community advocates, police and the Ministry of Justice.
Faculty include:
  • Megan Ellis, QC and Bill Story, noted Vancouver family law lawyers;
  • The Honourable Judge Patricia Bond, from the Surrey Registry of the BC Provincial Court;
  • Professor Margaret Jackson from Simon Fraser;
  • Vicky Law from Battered Women's Support Services;
  • Dr. Susan Gamache, a marriage and family therapist based in Vancouver;
  • Jack Hittrich, a noted Surrey family law lawyer; and,
  • Penelope Lipsack from the BC Ministry of Justice.
Topics include:
  • family violence and projections orders;
  • using counselling and collaborative tools in litigation; 
  • interjurisdictional issues in custody matters; and,
  • allegations of child alienation.
Here are the details...
Date
22 April 2016
Place
Pan Pacific Hotel, Vancouver
Price
$111.60 to $471.60, varying depending on membership status with TLABC and year of call; additional discounts available to articled students and law students
Register
www.tlabc.org

27 March 2016

Interested in Adopting This Blog?

It's becoming more and more difficult for me to maintain this blog, and I'm looking for a British Columbia family law lawyer who's interested in taking it over. The blog gets between 400 and 600 pageviews per weekday, less on weekends, has 1597 published comments and this is its 383rd post.

Unfortunately, my job at the Canadian Research Institute for Law and the Family is taking up an increasing amount of my time, and I'm afraid I'm just not able to keep this blog as up to date as I'd like to. I'm doing more writing for organizations like Slaw and LawNow, which is letting me focus on theory, access to justice issues and topical public legal education, but is also robbing me of the time I normally have to write here.

Ideally, you'd write an article or two each month focussing on developments in family law, practice and procedure, commonly misunderstood legal issues and common legal needs and so forth. You'd expect that your posts will be read by the bench and bar -- incidentally, this blog was the first legal blog cited in a Canadian court judgment! -- as well as the public, and that you'll occasionally provoke some controversy with your writing. One of the things that's set this blog apart, I think, has been my interest in taking positions on legal issues, not just passively reporting on them or treating bad options as equal to good options. I'd hope that you'd make recommendations, promote best practices and discourage foolish, self-centred behaviour.

You should also expect to reply to two to three comments a week. Most of the comments this blog receives are spam from spell casters (believe it or not), lawyers (for shame), scammers (hardly a surprise) and the illuminati (or so they say). The rest are a mix of genuine commentary that contributes to the dialogue and questions about readers' personal situations. You can't give legal advice through this blog, of course, but you can give legal information.

You'll also need to expect that your writing will be copied and republished. Use of this blog is subject to a Creative Commons licence that allows readers to save, store, copy, reuse, repurpose and republish its contents as they wish, without the need to obtain my permission, subject only to three restrictions: that they do not copy or republish this material for commercial purposes; that they cite this blog as the source of the material they have used; and, that they publish the material they create with material from this blog available for others to copy and republish on the same terms. It will be condition of my transfer of this blog that you continue to publish on the terms of this licence.

Another condition will be that you keep the primary name of the blog as "JP Boyd on Family Law" in order to maintain consistency with the branding of the wikibook of the same name. You can add whatever you'd like to after that to identify it with yourself or your form.

A final condition will be that all articles published prior to you taking the blog over continue to remain published and that I continue, except for guest posts, to be identified as their author. You can of course add whatever editorial comments you want to make to those posts if you take a different view.... as long as you're clearly identified as the author of those comments!

So... anyone interested? If you'd like to talk, call me at my office at 403-261-0341. Otherwise, send me an email at the address you'll find on www.jpboyd.com.

12 January 2016

Save the Date! New Course on the Intersection of Family Law and Psychology Coming to Vancouver

A brand new two-day course, "Assessments and Interventions: The Intersection of Family Law and Psychology," is coming to the Pan Pacific in Vancouver, British Columbia in March. The course is being put on by the Continuing Legal Education Society of BC and the course chairs are myself and Morag MacLeod, a noted Vancouver family law lawyer, and Alyson Jones, a well-known registered clinical counsellor based in West Vancouver. Morag frequently presents for groups including CLEBC and the Trial Lawyers Association of BC. Alyson teaches at the Adler University and presents for the Association of Family and Conciliation Courts.

Here's how the promo material from CLEBC describes the course:
This two-day course, taught by a multidisciplinary faculty of expert lawyers, judges, psychologists, and clinical counsellors, will provide insights and practical guidance on how psychology intersects with family law disputes. 
Day 1 will feature a discussion of childhood developmental psychology, how to craft age-appropriate parenting plans, how children experience separation and conflict, and judicial and therapeutic interventions in family law disputes. 
On Day 2, experts’ forensic reports on children and parenting and the legal and scientific standards that apply to them will be critically examined. The second day will also address the causes of and potential remedies for children’s reluctance to visit a parent after separation, focusing on parental alienation and child estrangement.
Other esteemed faculty include:
This is going to be an excellent course. It is designed for a multidisciplinary audience of lawyers, mental health professionals, mediators, arbitrators, parenting coordinators and judges, and will be relevant for anyone practicing in Canada or the United States whose work involves separating and separated families. Best of all, there's a seat sale on right now that'll give you a whopping discount on the ordinary price.

The present draft of the agendum is available on CLEBC's website. Here are the details...
Dates
10 and 11 March 2016
(Register for both days or either day.)
Place
Pan Pacific Hotel, Vancouver
Price, given for both days
Early bird rate until 11 February 2016
$1,030 regular, in person
$575 students, in person
$910 live webinar
Rate after 11 February 2016
$1,140 regular, in person
$635 students, in person
$1,010 live webinar
Mental health professionals
Special reduced pricing is available, contact the customer service department
Seat sale rate
$740 regular, in person
$610 live webinar
Register
www.cle.bc.ca

30 December 2015

Dealing with Pets after Separation

Family law is about how serious cohabiting relationships start and end, how children are cared for after separation, how the bills are paid after separation, and how the property and debts that accumulated during a relationship are split when it ends. Despite the folks who’d very much like to apply for custody of or access to their pets after separation, the law on custody and access, and guardianship and parenting arrangements, only applies to human children. In the eyes of the law, pets are personal property, like a coffee cup, a cow or a car. I’m not saying this is right, mind you, just that this is how it is; no matter how attached you might be to your pet, your pet is property. As the adjudicator in Gardiner-Simpson v Cross, a 2008 case from Nova Scotia, said:
“[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 [statutes on family law]. Obviously 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.”
The laws that apply to the ownership of pets, both before and after separation, are the same laws that apply to the ownership of all personal property. This even includes the new Family Law Act, to the extent that a pet qualifies as “family property” or “excluded property” under that law; I’ll talk about that in a bit.

I last wrote about this in January 2012, in a post called “Provincial Court Releases Decision on Pet Custody Battles” about the British Columbia case of Kitchen v MacDonald. That post continues to be widely read and has lately been the subject of an increasing number of comments lately, and it seems to me that a summary of the law on the care, control and ownership of pets following separation would be useful.

Before continuing, I’d like to first emphasize the importance of remembering that pets are property, or, to put it another way, pets are not people. If you have an issue about a pet following separation, it will probably help to make a point of mentally substituting “the toaster” for “the dog” when you’re thinking about the problem. Unplugging your emotions from problems like this can often make it easier to work your way through them. I'll take my own advice for the rest of this post.

A. THE BASIC LAW ABOUT PERSONAL PROPERTY

Here are the general rules about owning and co-owning personal property.

1. In general, the person who bought the toaster owns the toaster.

There are some exceptions to this rule, like if you found the toaster wandering the streets or you bought the toaster as a gift for someone else. However, in general, if you bought it, you own it.

If you bought the toaster, you can provide evidence of the purchase, and your ownership, through a sales receipt, or a bank statement or credit card statement, showing the details of the purchase. If you don’t have paper evidence of the transaction, you may be able to demonstrate ownership by being the person:
  1. who is listed as the owner at the vet’s office; 
  2. whose name is on the city ownership licence; or, 
  3. who is identified on a kennel club registration or breeder’s certificate. 
2. In general, a person who receives a toaster as a gift owns the toaster.

Making a gift of something is one of the more common ways, along with selling or trading the property, that an owner of property can transfer ownership to someone else. Someone who buys a toaster, and then gives it to someone else, loses the right to have and use the toaster; the person to whom the toaster is given, on the other hand, becomes the owner of the toaster, and, with ownership, gains the right to have and to use the toaster.

If you received the toaster as a gift, you may be able to prove that ownership of the toaster was gifted to you by providing:
  1. letters, notes or cards that might have accompanied the gift; 
  2. evidence of what the giver said to you about the gift, like “happy birthday, I bought you this ferret;” 
  3. evidence of what the giver said to others about the gift, like “I bought Sandra a ferret for her birthday;” or, 
  4. evidence that the giver has given similar gifts in similar circumstances, like “I give all of my children ferrets for their sixteenth birthdays.” 
As you can see, proving that something was a gift is about proving the intention of the owner to make a gift. The transfer of ownership isn’t a gift without that intention!

Say your boyfriend stops caring for or feeding the toaster, stops taking it for walks and stops taking it to the vet, and say you’ve started doing all those things. Although it’s true that you’re doing all the work, it doesn’t mean he’s necessarily given the toaster to you unless he actually says, “take the toaster, it’s yours.” However, there are some exceptions to this. Read on.

3. You might be able be able claim ownership of toasters that are stray or abandoned.

The basic rule is that an owner’s rights in personal property are never lost unless the owner intends to get rid of the property. But what if the owner of a stray toaster can’t be found? What if the owner has abandoned the toaster?

I won’t say much about owning stray toasters, since this post is about property rights between couples who are separating. I’ll just say that you may be able to keep a toaster that you find, as long as you don’t know who the proper owner is and never find out who the proper owner is. If, over time, you become the person who normally cares for the toaster you might gain a right to have the toaster that is enforceable against everyone else, except the proper owner.

Now it might be possible for you to argue that the proper owner has abandoned the toaster, especially if the owner has stopped caring for or feeding the toaster, stopped taking it for walks and stopped taking it to the vet, and you’ve taken over all those chores. Arguing that your partner has abandoned the toaster can be challenging, however, and it’s up to you to prove that she’s abandoned the toaster.

Here’s how an adjudicator from Nova Scotia described the law of abandonment in the 2014 case of Chiasson v Kennedy:
“[16] … Abandonment occurs when there is ‘a giving up, a total desertion, and absolute relinquishment’ of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property … abandonment involves … an intention to relinquish title, ‘that is, an indifference as to the fate of the chattel, coupled with sufficient acts of divestment’…”
And that, in a nutshell, is what you have to prove to show that your partner has abandoned her toaster.

“Chattel,” by the way, is another term for personal property.

4. If you can’t claim ownership of the toaster even though you’ve been the only one caring for it, you may be able to claim compensation for your contributions.

If you’ve wound up doing a lot of the day-to-day work associated with the toaster or paying for a lot of the toaster’s expenses, like food, vet bills and grooming costs, and you can’t find a way to claim that you own the toaster, you can ask for the next best thing: compensation for your contributions to the maintenance of the toaster. This is called an “unjust enrichment” claim.

Although we normally see unjust enrichment claims in the context of someone’s contributions to “real property,” such as houses, condominiums and cottages, I don’t see any reason why the claim couldn’t be made with respect to personal property. The idea behind claims like this is that you’ve made contributions to property owned by someone else for which you’d normally be paid in some way. There are three things you have to prove to establish unjust enrichment:
  1. the owner was enriched because of your contributions to the toaster (for example by not having to buy toaster food or pay for someone to walk the toaster); 
  2. you lost something as a result of your contributions (like the money you spent feeding the toaster or the money you could have made walking someone else’s toaster); and, 
  3. there is no legal reason for the owner to be enriched by your contributions (like a contract which required you to care for the toaster). 
If you’re successful, you’ll then have to prove the amount by which your efforts enriched the owner. Although you won’t get to keep the toaster, unless there’s no other way for the owner to pay out what he or she owes you, at least you’ll be partially repaid for the time and money you’ve spent on the toaster.

5. More than one person can own a toaster.

Finally, it’s important to know that more that one person can own a toaster, just like more than one person can own a car or a house. This might happen if both people put money into buying the toaster, if the toaster is bought using money from a joint account or if the toaster is bought using money borrowed from a joint credit card. It might also happen if the person buying the toaster meant that both people would own the toaster.

Ideally, you’d prove joint ownership with a sales slip that demonstrates joint contribution to the purchase by saying something like “received for the purchase of Sam, the four-month-old purebred toaster, $100 from Sandra and $100 from Kaitlyn.” This would create a presumption that both of the buyers own the toaster. However, sales slips rarely say anything so useful, and most buyers never think of asking for it. Absent this sort of proof, you’ll need to demonstrate that you both intended to jointly own the toaster. Just like gifts, intention is everything.

Things like sales receipts that show both names (“Sam, sold to Sandra and Kaitlyn for $200”), city licences in both names, statements from joint bank accounts and credit cards showing the purchase all tend to support the argument that both of you meant to jointly own the toaster, but none conclusively prove that this was your shared intention. You might be able to prove you had this intention through:
  1. letters, notes or cards that you might have exchanged around the time of the purchase; 
  2. evidence of what your partner said to you about the purchase (“I’m so happy we bought Sam together”); and, 
  3. evidence of what your partner said to others about the purchase (“Sandra and I bought Sam together”). 
However, it’s not always an advantage to co-own a toaster, as we’ll see in a moment.

B. COURTS THAT CAN DEAL WITH PROPERTY CLAIMS

Okay that’s the important stuff. Assuming this doesn’t help you and your ex come to an understanding, you may find yourself having to go to a mediator, an arbitrator or a judge. If you’re going to court, which can sometimes be cheaper although it’s always a lot slower, the courts you can go to to ask for orders about toasters are:

1. Small Claims Court.

This branch of the Provincial Court is able to deal with disputes about the ownership of personal property under the common law, including the law of contracts but excluding the law of trusts, and under most of the provincial legislation that deals with the ownership of personal property.

The Provincial Court can’t make orders about property under the Family Law Act, however, and if you have other issues relating to your separation you’re likely in Family Court, another branch of the Provincial Court, dealing with those issues under the Family Law Act. That said, I don’t see any particular reason why you couldn’t be in Family Court dealing with support and parenting problems at the same time you’re in Small Claims Court dealing with the toaster.

2. The Supreme Court. 

The Supreme Court can deal with all disputes about the ownership of personal property, including property that may be family property or excluded property under the Family Law Act.

C. ORDERS ABOUT PERSONAL PROPERTY

Alright, so let’s say that you’re in stuck court. That’s too bad, but there you go. The sorts of orders you can and can’t ask the court to make about toasters include these.

Remember that because toasters are personal property, the best interests of the toaster at issue aren’t relevant. Nor is who loves the toaster more or, usually, who would provide the toaster with a better home. What counts is ownership. As the adjudicator in Hawes v Redmond, a 2013 decision from Nova Scotia, put it:
“[26] I have no doubt that the dog currently has a good home with Dr. Hawes and her family, but that is not the point. This case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle.”
Bicycle; toaster. Whatever. 

1. You can’t ask for custody of the toaster.

“Custody” is a Divorce Act term that applies to children. Human children.

What you’re probably looking for is an order that gives you the right to have the toaster that’s enforceable against your ex; more on this a bit later. You might also be asking the court to declare that you’re the owner of the toaster.

2. You can ask the court to make a declaration about who owns the toaster.

If you do this, you're asking the court to decide who the owner of the toaster is. This is helpful when there are doubts about who owns the toaster. Besides, being the owner of the toaster usually lets you say where the toaster lives… like, for example, with you.

If you lose, however, the court will most likely declare that your ex owns the toaster. The court isn’t likely to not make a declaration about who owns the toaster once the issue has been brought up.

3. You can’t ask for access to the toaster.

“Access” is also a Divorce Act term that only applies to human children.

The closest I can put the idea of access into an order about property is an order that would give each person the right to possess the toaster on a regular, alternating basis. Although there’s nothing stopping anyone from agreeing to that in a contract like a separation agreement, and the court would probably make an order like that if everyone agreed to it, the idea of a right to the periodic possession of property doesn’t fit well with the law on personal property or the general principle that court orders should resolve, or at least decrease, the conflict between litigants.

First off, if you’re not the owner of the toaster you don’t have the right to have the toaster, on a periodic basis or otherwise, unless you’ve got a contract with the owner. Second, if you’re the owner and you don’t have a contract requiring you to let someone have the toaster from time to time, there’s nothing I can imagine that could oblige you to do so.

Third, if the two of you both own the toaster and can’t agree to share it, the court won’t make you share it. Here’s what the court said about it in C.S. v D.S., a 2005 case out of Newfoundland and Labrador:
“[44] ... The dog is a matrimonial asset but it is, without being facetious, indivisible. ...”
Accordingly, the court’s options are these:
  1. decide which of you will be entitled to own and keep the toaster, and possibly require the person keeping the toaster to pay compensation to the person who doesn’t get to keep the toaster; or, 
  2. make you sell the toaster, and then divide the sale proceeds between you. 
The compensation potentially payable in the first case would likely be based on the current fair market value of the toaster – what a neutral stranger would pay to buy the toaster, at its current age and in its current health, from you.

4. You can ask the court to make an order about who should possess the toaster.

Owning something is sometimes different than having something. Landlords, for example, own the apartments they rent out but don’t have the right to possess their apartment; the right to have the apartment is what they sell to their renters. Orders for the possession of things are useful because they say that you have the right to have those things, whether you own them or not.

If you’re asking the court for a decision about who owns the toaster, you could ask for an order for the possession of the toaster at the same time and kill two birds with one stone. This will be especially useful if you’re the owner and your ex is keeping the toaster from you.

5. You can’t ask for an order that you jointly own the toaster or continue to jointly own the toaster.

Although you can make an agreement that you’d continue to jointly own the toaster, and the court would probably make an order that you jointly own the toaster with your agreement, the court is not likely to make an order that you jointly own the toaster over someone’s objection. This would create, or perpetuate, pointless conflict. If you can’t agree that both of you will continue to own the toaster together, the court’s options are to:
  1. decide which of you will be entitled to own and keep the toaster, and possibly require the person keeping the toaster to pay compensation to the person who doesn’t get to keep the toaster; or, 
  2. make you sell the toaster, and then divide the sale proceeds between you. 
Again, the compensation potentially payable in the first case would likely be based on the current fair market value of the toaster.

6. You can ask that you be compensated for the money you spent feeding and taking care of the toaster.

If you don’t own the toaster, you can ask the court to make a declaration that the owner of the toaster was unjustly enriched by your contributions to the care and maintenance of the toaster. If the court decides the owner was unjustly enriched, and you can somehow prove what you spent on the toaster and what your non-monetary contributions were worth, the court may then make an order that your be compensated for your contributions. Non-monetary contributions might include taking the toaster for walks, bathing it, grooming it and so on.

Proof of your spending might include grocery bills and receipts from the vet, but few people take the trouble to keep all of these receipts and you’ll likely be out some money. It will be difficult to establish the value of your non-monetary contributions, but you can get some idea by looking at what commercial services charge for things like toaster-walking, grooming and so on.

7. You can ask that you be compensated for the money you put into buying the toaster.

If you’re not the toaster’s owner, or the court isn’t likely to decide that you are, but you still put money into buying the toaster, you can ask to be repaid for what you paid toward its purchase.

This isn’t an unreasonable order to ask for, but I'd imagine that most toasters are depreciating assets. The amount you’d pay for a very young toaster with years of life ahead of it is not what you’d pay for a middle-aged or elderly toaster. If you’re arguing about a four-year-old toaster, should the person keeping it be obliged to give you back your original investment or a proportion of that investment based on the toaster’s current value? The current value might be fairest, especially if you also enjoyed the toaster.

8. You can ask for an order that the toaster be sold, and that the money from the sale be split between you.

This is the scorched-earth option. It’s saying “fine, if I can’t have the toaster, you can’t either.” It reflects your strong emotional bond to the toaster and how upset you are at not being able to keep it, but also disrespects your ex’s emotional bond and attachment to the toaster. It also comes across as rather petty.

The adjudicator in Gardiner-Simpson summarized the problem with this approach as follows:
“[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.”
I can’t imagine too many judges making this sort of order. In fact, I can really only imagine this order being made as a way of signalling the court’s frustration with the behaviour of everyone involved.

D. THE FAMILY LAW ACT

Under the Family Law Act, certain property is excluded from division between married and unmarried spouses, namely property brought into the relationship and certain kinds of property received during the relationship, namely gifts, inheritances and personal court awards. The property spouses share is property brought during the relationship as well as the increase in value of excluded property.

1. Toasters as excluded property.

In most cases, a toaster that’s brought into a relationship will be excluded from division between the spouses and remain the sole property of the owner, as will a toaster that’s inherited by a spouse or a toaster that’s given to one of the spouses during their relationship. Toasters are, however, assets with depreciating value, which means that it most cases there won’t be any increase in the value of a toaster that the owner must share with the other spouse.

Curiously, spouses are also obliged to share family debt, and "family debt" is defined as including “all financial obligations” incurred by a spouse during their relationship. As a result of this definition, debts incurred with respect to excluded property, like a toaster’s unpaid vet bills, might qualify as shared debt that both spouses are responsible for.

2. Toasters as family property.

Toasters bought during a relationship will qualify as family property, as long as the purchases aren’t made using excluded property. Toasters that are family property are subject to “division” between spouses regardless of which spouse bought them.
In family law, family property is usually divided so that each spouse is left with a roughly equal share of the family property (“you keep the car, and I’ll keep the ride-on mower and the Lionel Ritchie boxed CD set”), sold and the proceeds divided between the spouses (“we’ll sell the house, use the sale money to pay out the mortgage and our credit cards, and we’ll split what’s left over between us”), or some combination of the two (“I’ll keep the Lionel Ritchie set, and you keep more of the money from the sale of the house in exchange”). Since selling the toaster isn’t really practical, this means that one of the spouses is going to wind up keeping the toaster and compensating the other for the value of his or her interest in the toaster.

Now, just because toasters may qualify as family property and can be divided under the Family Law Act doesn’t mean they should be divided under the act. In Ireland v Ireland, a 2010 case from Saskatchewan, the parties’ lawyers agreed that a toaster was family property and divisible under the family law legislation, however the court commented that:
“[9] It is an unacceptable waste of these parties’ financial resources, the time and abilities of their two very experienced and capable legal counsel and most importantly the public resource of this Court that a dispute of this kind should occupy all in a one-day trial involving three witnesses, including an expert called by one of the parties. It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources. 
“[10] Except in the most compelling of circumstances (perhaps to avoid a breach of the peace or potential harm that parties may do to one another), the court should not be engaged with interim applications or the trial of an issue such as this.”
Really, the judge’s observation in this case goes beyond dividing toasters by application under the family law legislation; the point that arguing about such claims in court is a waste of litigants’ financial resources seems to me to apply to all court claims involving toasters. As the court said in Warnica v Gering, a 2004 Ontario case:
“[19] … Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised [as property orders] or otherwise. …”
E. RECENT CANADIAN CASES

Here’s a summary of some of the Canadian court decisions on pet custody claims made in the last decade or so. There are very few of them.

1. It was a gift!

In the Hawes v Redmond decision, no one had any documents demonstrating ownership. The dog in wasn’t registered with the city or a kennel club, and the vet bills were paid by whomever brought the dog in. Redmond claimed that Hawes bought the dog as a gift for her, Hawes claimed that the dog was bought as a gift for the family as a whole.
“[23] In the case here, I am satisfied that Dr. Hawes intended to make a gift of [the dog] to Ms. Redmond, at the important time in the analysis - namely at the beginning. I have no doubt that she knew that the dog would be a welcome addition to this very dog-focused household, but she appears to have been principally motivated by a desire to strengthen or salvage her relationship with Ms. Redmond. She used the term gift and connected it to Ms. Redmond’s birthday. Ms. Redmond clearly accepted the gift, and in her Facebook posts presented the dog to her friends as hers, in the singular sense. 
“[24] I find it significant that when Ms. Redmond went to visit her mother, she brought the two dogs that she regarded as hers. She did not bring four dogs (unmanageable though that might have been). All of this clearly points to her belief that the dog had been gifted to her by Dr. Hawes, a belief that Dr. Hawes never sought to deny until the time of separation. 
“[25] On the other side of the equation, there is very little evidence that would negate the gift. The fact that much of the care fell to her, and that the dog would become bonded to Dr. Hawes and her children, is equivocal, as I have noted. This was a function of family dynamics.”
This case shows how important the buyer’s intentions are, in particular the buyer’s intentions when the property purchased, and how people’s beliefs can be inferred from their behaviour.

2. It wasn’t a gift!

A similar problem arose in the Gardiner-Simpson v Cross case. Cross bought the dog and registered it with the city and the vet. Gardiner-Simpson said that Cross bought the dog as a Christmas present for her. Cross said that if the dog was a gift, if was a gift to the family. Either way, Gardiner-Simpson and Cross shared responsibility for the dog while they lived together, and neither refused to participate in the care of the dog on the basis that it wasn’t his or hers.
“[32] The concept of a gift is legally more complex and problematic than most people may realize. The law is suspicious of alleged gifts, especially under circumstances where the donor is no longer alive or otherwise able to corroborate the intention to make a gift. Perhaps sadly, it is more consistent with human nature to find people acting in their own interest and not being motivated by pure generosity. 
“[33] This is not a matter where the alleged donor is unavailable to speak to his intention, so the matter becomes more of a straightforward question of fact, namely: was there a clear intention on the part of the alleged donor … to vest the property interest in [the dog] in [Gardiner-Simpson]? 
“[34] I am unable to conclude on the evidence before me that there was any intention on the part of the [Cross] to make a gift to [Gardiner-Simpson] and vest the property right in her alone. If it was a gift at all, it was a gift to them both. I do not give any real weight to statements allegedly made to family members about [the dog] being the [Cross’] Christmas present to the [Gardiner-Simpson]. I do not accept that that was the true intention. In substance the purchase of the dog was an acquisition for their joint enjoyment. 
“[35] [Cross] purchased the dog in his own name. All of the documents are consistent with that. The dog’s vet records throughout continued to name the [Cross] as her owner. The fact that [Cross] made payments on the credit card does not carry any weight with me, because I accept that this was just a way of splitting the bills equitably. 
“[36] The only supportable conclusion that I can reach is that the ownership interest in the dog was a joint one. Upon her acquisition, [the dog] became the property of both [parties] jointly.”
This case shows that a person’s intention to make a gift must be clear and unequivocal before the buyer will lose ownership of the property. However, in this case, the circumstances also didn’t support the idea that the buyer was the sole owner of the property. In case you’re curious, the court didn’t have to decide who had the better claim to the dog to resolve the joint ownership problem, as the parties had a separation agreement that resolved the issue.

In Kitchen v MacDonald, the issue was whether MacDonald’s father made a gift of a dog to both parties or to just MacDonald. MacDonald was involved in selecting the dog and was solely responsible for taking the dog to the vet, paying the vet bills and registering the dog with the city. However, MacDonald also made sure that Kitchen spent time with the dog and other evidence suggested an attitude that the dog belonged to the two of them.
“[6] … [MacDonald] admits that the dog did spend time with Mr. Kitchen. In fact, she corrected him if he referred to the dog as his, and stopped contact when he posted a photo of ‘his’ dog on the internet. He worked nearby and was willing from time to time to come and take the dog, some times for a few nights at a time. … At trial, Mr. Kitchen acknowledged that he did not play a role in the selection or purchase of the dog. He also acknowledged, although he said that he purchased dog food and other items for use at his home, he did not otherwise contribute to the upkeep of the dog. He believed the dog was his because she called him [the dog’s] daddy, he took care of it often and they treated it as theirs when they were in a relationship. 
“[7] There is uncontroverted evidence that Ms. MacDonald referred to Mr. Kitchen as the dog’s ‘daddy’. There is an undated letter on file as well reporting to be from [the dog] to ‘my daddy’, apparently following a break-up where Ms. MacDonald writes on behalf of the dog that she is sorry she cannot make them a family. It suggests ways that he can come and see the dog while she is out of the house at work. It concludes by saying ‘I know there is no way mommy would ever keep you from seeing me – that’s just not the kind of mommy she is. She wants us to both be happy.’ There were also gifts and cards over the years addressed from the dog to his ‘daddy’. Ms. MacDonald also encouraged Mr. Kitchen continuing to look after the dog during the day. She encouraged the visits and the exercise and the companionship. She was receiving by-law tickets with respect to the barking and it was obviously a relief to her to have someone entertaining the dog to help address this problem. By anthropomorphizing this dog, Ms. MacDonald led Mr. Kitchen to, and Mr. Kitchen allowed himself to be possessed of an expectation that, the dog was ‘the child’ of both of them. This, however, despite the sentimental aspects, does not create a beneficial or legal interest in a dog. 
“[8] … Mr. Kitchen was able to enjoy the benefits of the dog’s companionship without the burdens of its ownership. He was not asked to nor did he expect to contribute to the costs of the dog. In fact, it was her parents who assisted her when she required financial assistance for the care and keeping of the dog. This alone would not resolve the issue of ownership. However, all of the factors in the mix conclusively determine that Deanna MacDonald is the sole owner of the border collie. Richard Kitchen’s interest is merely a sentimental one. That does not bestow any right of possession on him.”
The importance of this case is that emotional interests do not create legal interests. In order for Kitchen to be a joint owner of the dog, MacDonald’s father would have had to have intended to make a gift of the dog to them both.

In Warnica v Gering, the dog in question was found not to have been a gift to Warnica on the basis that Gering bought the dog and the dog had always lived with Gering.
“[26] They do not contest that the dog, a mixed breed, was purchased from the local pound in 1996 for $100. They do not contest that [Gering] purchased the dog. They do not contest that the dog always lived with [Gering], except for a period of a few months after the parties ceased to have a relationship, when they shared possession back and forth. 
“[27] It would seem odd, if the dog was purchased as a gift for [Warnica], that it always lived with [Gering] prior to the termination of the parties’ relationship. Assuming a ‘he said, she said’ situation otherwise, that is the best evidence on the gift allegation and it stands against [Warnica]. 
“[28] It would appear as if [Warnica’s] involvement with the dog was totally dependent upon his relationship with [Gering]. [Warnica] may have spent money for such things as dog food and the like and he may have spent time caring for the dog. I do not consider that to be relevant to who owns the dog.”
Note that Warnica’s contributions to the costs of maintaining the dog didn’t bear on the ownership issue.

3. It’s family property. Who should keep it?

In the Ireland v Ireland case, the parties agreed the dog was family property, as a result of which both of them were entitled to the keep the dog. The question the court had to decide was which of them would be entitled to possess the dog. Both were involved in the dog’s care, both “derived companionship” from the dog and both exercised with the dog.
“[14] In this case, the court awards ownership and possession of [the dog] to Diane for, among other reasons, the following:
1) The evidence convinces me that it was primarily on Diane’s initiative that the parties acquired this pet and that she was principally involved in its early training and care; 
2) Although both parties have become very attached to their pet and share activities with her in their present circumstances, [the dog’s] companionship is more important to Diane than it is to David; 
3) David has his current partner who owns two dogs of the same breed as [the dog]. Although David does not have the same attachment to them, nevertheless he has the benefit of their presence and companionship including the one with whom he runs; 
4) Diane expects to retire from her profession as a nursing manager at the Moose Jaw hospital. She plans to spend extended periods of time in the winter in a “dog friendly” southern United States location. A continuation of the “shared possession” would be unworkable in these circumstances; 
5) The parties have had one or two difficulties during the exchange of [the dog’s] possession which prompted, on one occasion, a threat to call the police. The parties deserve to be spared these interactions, the potential for breaches of the peace and further unacceptable reliance upon public resources to settle disputes between them should they arise.”
Diane was required to pay $350 to David, being half of the dog’s purchase price.

This case suggests some of the factors the court might consider in deciding which spouse should be entitled to keep a family pet, including: the degree of attachment between the spouses and the pet; and, the availability to each spouse of similar pets.

F. SUMMARY

I don't know that there's a particularly meaningful way to wrap up this post, except to emphasize that, in court, pets are property and will be dealt with according to the same laws that apply to all other kinds of personal property. I acknowledge, of course, that the emotional attachments people develop toward their pets makes arguing about Fluffy wholly different than arguing about Aunt Mabel's silver spoon collection. It's exactly this emotional attachment which makes the law on personal property something that's best avoided if at all possible.

If you have a disagreement about the care of your pets after separation, negotiation, mediation and collaborative settlement processes are all better ways of resolving your dispute than court. Although the law is always relevant to how people manage a legal dispute, these out-of-court processes allow you to take into account all of the intangible values, interests and emotions that go into a relationship with a pet in crafting a settlement of your dispute.

The comments to my post "Provincial Court Releases Decision on Pet Custody Battles" demonstrate the huge range of legal problems that couples with pets can have after their romantic relationships have come to an end. If you can't resolve things by talking to each other, please consider hiring a professional to help you find a solution without going to court. The cold and impersonal rules about personal property that apply perfectly well to watches, wheelbarrows and winches aren't likely to acceptably address disputes about pets.

21 October 2015

BCAMI Family Law Arbitrator Training

The British Columbia Arbitration and Mediation Institute is offering training in the arbitration of family law disputes. This five-day, forty-hour course is being run by noted arbitrator Glen Bell, who has long provided the BCAMI's commercial arbitration training, and includes presentations from a number of prominent British Columbia family law lawyers including myself and:
This course will be useful for any lawyer wishing to practice as a family law arbitrator.

I have personally enjoyed arbitrating family law disputes. I appreciate the flexibility the process offers about the style and nature of hearing and the manner in which evidence and arguments are presented, not to mention the intrinsic privacy arbitration provides. Arbitration is a high value alternative to litigation when a family law dispute cannot be settled, and I recommend it to anyone who wishes to keep his or her dirty laundry out of the public spotlight and seeks a speedy resolution.
Dates: 30 November to 4 December 2015 
Place: People's Law School, 900 Howe Street in Vancouver 
Cost: $1,890.00
Note that there may be prerequisites which must be met by those wishing to take the course. This is mentioned on the registration form, but I've been unable to find any details on the BCAMI's website.