IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         THE COURT (via videoconference): The claimant, Stephen Munce, and the defendant, Lauran Livingston, were engaged. They were living together in a cabin on Sproat Lake near Port Alberni prior to separating in October of 2020. While they were together they acquired a dog, Milo, a Doberman. Since the separation, they have been unable to decide between themselves who should get Milo. The purpose of this trial, five days in length, was to determine Milo's ownership.

[2]         The law in British Columbia is clear that the dog is considered property, albeit a different type of property than other inanimate items. The law is also clear that a pet's ownership can be shared, assuming some owners have ability and some want to engage in sharing. The claimant has indicated that he would be willing to consider sharing ownership. The defendant was very clear that she had no interest in sharing Milo. Given the defendant's position, shared ownership is simply not an option for Milo.

[3]         The issue in this case is who has established the better case for the ownership of Milo taking into account the history of Milo from the time he was acquired until the time he was taken from the claimant by the RCMP and given to the defendant by the RCMP. That change of possession happened in November of 2020. The defendant has remained unwilling to share Milo with the claimant since, other than as provided for in interim orders made during these proceedings.

[4]         I will say at this stage that both the claim and the counterclaim seek damages for general damages and punitive damages. In my view neither of the parties have established anything supporting their claim for general or punitive damages, so I will dismiss that portion of both the claim and the counterclaim.

[5]         Now dealing with possession of Milo since November of 2020. I will discuss the parties' evidence on ownership more fully when reviewing the evidence, but want to discuss how Milo's possession was changed in November of 2020. In October of 2020 when it became clear that the parties' relationship was not going to survive, the defendant moved out of the house that the parties had shared. She left Milo with the claimant. In early November 2020, the claimant advised the defendant that he was leaving the Port Alberni for a few days with Milo. His evidence was that he was leaving to allow the defendant an opportunity to get her belongings from the home they had shared.

[6]         While the claimant was gone, the defendant contacted the police in Port Alberni and filed a complaint of assault. The police attended at the claimant's residence, but the claimant was not present. They left a business card on the door asking that he contact them when he returned to the Port Alberni area. The claimant did as requested. He contacted the police and was arrested for assault and various other charges. He was then released on bail which included terms of having no contact with the defendant. He had possession of Milo throughout this time.

[7]         A few days after his release on bail, he contacted the defendant electronically. The defendant reported this contact to the RCMP. The claimant was contacted by the RCMP, who advised him again that he was under arrest. He was taken to the local RCMP detachment. Milo, in the claimant's possession at the time of the arrest, was taken to the SPCA for safe-keeping. I pause to say that is my term, not the RCMP's. The claimant offered to arrange care for Milo while he was under arrest, but testified that the police would not entertain that suggestion. With the claimant in custody and Milo at the SPCA, the RCMP contacted the defendant. They suggested that she could pick up Milo from the SPCA. She did just that. The defendant has been unwilling to allow the claimant to even visit with Milo since November of 2020, requiring the claimant to seek orders from this court to visit the dog that he was in possession of when he was arrested.

[8]         Before discussing the case more fully, I remind myself of the following. Firstly, the test here is one of a balance of probabilities. The claimant is required to prove his claim on the balance of probabilities; that is, that he has a better claim of ownership of Milo than the defendant does. I am also mindful of the fact that a crime being committed, even if it is a crime against the other party, is not a ban on ownership. Whether the crime is domestic violence or otherwise, it does not preclude animal ownership.

[9]         I also remind myself that since November of 2020 the dog Milo has been with the defendant at the direction of the police.

[10]      Finally, I remind myself that the test in determining the ownership does not require me to necessarily reconcile the vastly different opinions of the parties as to the behaviour during their relationship. I also remind myself that the relationship is clearly one of distrust and dislike and that flavour comes through in the evidence of both parties.

[11]      I will deal very briefly with a few areas of law, firstly, jurisdiction. Both the claimant and the defendant agree the court has jurisdiction to deal with this matter as a property claim. I will say nothing more on this.

[12]      Factors to consider in determining ownership. The courts have struggled to try to determine ownership of dogs. Dogs are considered property, but a different type of property. Judge Ehrcke in Kazcor v. Palfrey, November 30, 2012, B.C. Provincial Court, noted at paragraph 26 that:

[13]      Similarly Judge Chettiar in Sagoo v. Murray, 2016 BCPC 376, at paragraph 28, said:

[14]      In a more recent decision, Almaas v. Wheeler, 2020 BCPC 51, Judge Frame reviewed the law determining competing claims as to the ownership of pets. She noted in paragraph 6 that the determination of pet ownership is more unique than a determination of other inanimate property claims. She noted at paragraph 7 and 9 the factors for the court to consider included: who purchased the dog; who it was purchased for; who selected it; who attended to its veterinary appointments and costs; who paid for the needs of the dog; who paid for the licences; and how the parties viewed the ownership of the dog.

[15]      Dealing with the two-year-old Doberman. He is, in my view, the victim of a struggle between the claimant and the defendant, two people who were in a relationship who had a falling out and are now unable to sort out their competing interests in owning and caring for Milo. The parties were originally from Ontario. They both worked at a Toyota manufacturing facility in Ontario and decided to relocate to British Columbia. They moved to B.C. in October of 2019. They got engaged. In April of 2020, they moved to a cabin on Sproat Lake just outside of Port Alberni. The claimant found work as a volunteer firefighter for the Sproat Lake Fire Department. The defendant found work as a paramedic for the B.C. Ambulance Service in Port Alberni.

[16]      By October of 2020, the relationship was significantly strained. The claimant testified that he asked the defendant to move out, to get her own apartment. He said that he left with Milo to stay in Port Hardy for a few days to allow the defendant time to relocate. Mr. Munce said that when he returned to his cabin on Sproat Lake, the defendant had left. He testified that the police had left a business card on the property asking him to call them. He said that when he did he was arrested and taken into custody on November 6, 2020. He was then released on bail and told not to contact the defendant. The allegations against him, the charges alleged by the defendant, and the terms of the release were included in Exhibit Number 2 filed by the defendant in these proceedings.

[17]      The defendant testified that things were not going well in October of 2020. She said that Mr. Munce was drinking and acting poorly. She testified on October 13, 2020, Mr. Munce poured beer on her and pushed her into a wall. She said that he cut up a suitcase and cut his leg doing so. She testified that she took him to the hospital and that he urged her to tell a false story about how the injury occurred.

[18]      She said that in October she decided to leave the home to stay with friends. She left without Milo. She testified that while she was away the claimant was harassing her and threatening her. She said that when Mr. Munce left for Port Hardy with Milo at the beginning of November, she contacted a friend for advice. She then went to the RCMP and made a complaint. She testified that the RCMP advised her that they would arrest Mr. Munce and release him on bail on an order that prohibited him from contacting her.

[19]      The RCMP did just that. A few days after the claimant was released on bail with a bail term that prevented him from having contact with the defendant, he contacted her electronically. Ms. Livingston notified the police of this breach of bail. The police attended the claimant's residence to arrest him. Milo was at the residence. Mr. Munce testified that he asked to make arrangements to have Milo cared for while he was detained at the police station. He said the police would not allow him to do this.

[20]      Instead, the police took custody of Milo as well. They took Milo to the SPCA apparently for safe-keeping while the claimant was placed under arrest. The defendant testified that she was advised by the RCMP that Milo was at the SPCA and she testified that the police told her that she could pick up Milo at the SPCA. It appears that this process, taking Milo from one person and giving him to another, was orchestrated by the police. It is clear that the claimant did not agree or consent to the release of Milo to the defendant. The defendant said the police called her offering that she could come and pick up Milo from the SPCA. This evidence is troubling, but not the fault of either of the parties.

[21]      Constable Marciano of the Port Alberni RCMP testified about the seizure and release of Milo. She said that she was the domestic violence coordinator with the RCMP in Port Alberni. She testified that, in her policing role, she had spoken to the defendant on November 6th and the defendant alleged that she had been the victim of domestic violence. After speaking to the defendant and not the claimant, she instructed the RCMP officers to arrest the claimant. That is what led to the first arrest on November 6th and to the claimant's release on bail with conditions not to contact the Ms. Livingston.

[22]      Constable Marciano testified that on November 10th or 11th, she spoke to the defendant again and was told that the claimant had sent the defendant text messages in breach of the no-contact terms of the bail. This led to the second arrest of the claimant. Constable Marciano said that some of the text messages included threats to Milo. Constable Marciano testified that she thought the claimant's behaviour might be escalating and that in her role of a domestic violence coordinator, she had seen situations where this type of escalation had led to violence against animals.

[23]      Constable Marciano testified that on November 12th she attended at the SPCA and learned that the claimant and defendant were both owners of Milo. As a result, she advised Ms. Livingston that she could pick up Milo at the SPCA. No effort was made to check out this ownership information with Mr. Munce despite him being present under arrest in the local police cells. Similarly, the claimant was not asked about the alleged text messages, although he was in local police custody at the time.

[24]      I will now deal with ownership of Milo. The cases provided by counsel are instructive and outline the factors that the court should consider in determining ownership of Milo. Before addressing those factors, I pause to say that neither party presents a compelling case that Milo was their dog to the exclusion of the other party. I accept that when Milo was purchased, the relationship was somewhat healthy and that the parties did not address their minds to the current situation - what happens if they split up?

[25]      I also accept that both parties are capable of caring for Milo. Both parties called witnesses to support their assertions that they are capable dog owners. I have no reason to disagree with those views.

[26]      I will now deal with other dogs. The claimant says that prior to acquiring Milo, he owned a Rottweiler and Pit Bull, that he raised the Rottweiler from a puppy until its death of cancer shortly after they moved to British Columbia. I accept that he provided the bulk of the care for the Rottweiler and that the defendant was generally uninvolved in the Rottweiler's life. I also accept that the defendant played no role in putting the Rottweiler down. The Rottweiler was the claimant's dog.

[27]      A little evidence was heard about a Pit Bull owned by the claimant. I understand that the Pit Bull was a rescue dog and the claimant rescued it. Nothing turns on the care of the Pit Bull. The evidence regarding ownership of these two dogs is of little help.

[28]      I will now deal with the evidence regarding choice and care of Milo. The claimant's evidence was that the choice of the Doberman was his. He testified that he wanted a Doberman and the defendant wanted a French bulldog. He testified that his father's friend and two of his friends owned Dobermans and he always wanted a Doberman. The defendant testified that the Doberman was her choice and not his. The Doberman is a dog that is similar to a Rottweiler and a Pit Bull, dogs previously preferred by the claimant. I accept that the Doberman was his choice of dog, the claimant's choice to replace the Rottweiler.

[29]      There was no dispute that the claimant paid the $3,000 purchase price for Milo. The claimant's evidence was that while the parties were together he did the majority of the dog care including exercising of Milo, purchasing food, taking Milo to the vet, paying the vet bills. He testified that he was responsible for providing any necessary medications for Milo.

[30]      The defendant says that she, too, was involved in Milo's care when they were together and that she bought dog food for Milo and involved herself in Milo's care. She acknowledged that the claimant did most of Milo's training, but said that was because he was not working, he had more free time. She also admitted that she did not walk Milo on her own, but said that was because the claimant would not allow her to do so.

[31]      Martin Wheedon [phonetic] was called as a witness by the claimant. He is retired after a 32-year military career. He works as a volunteer fireman at the Sproat Lake Fire Department, as does Mr. Munce. His evidence was that he had seen the claimant walking with Milo on and off leash and that he was comfortable with how Milo was being treated. He had not seen the defendant walking Milo.

[32]      Christine Colbert was called as a witness. She is the claimant's aunt. She testified she had seen the claimant with Milo at her home in Campbell River on several occasions and also seen him with Milo in Port Alberni. She testified that she has also seen the defendant with Milo and it appeared to her that the defendant was not emotionally attached to Milo. In cross-examination, she confirmed that she thought she had a close relationship with the defendant and knew that the parties had discussed the type of dog that they should get. She testified that she knew that the claimant had paid for Milo.

[33]      Don Adams was called as a witness by the defendant. He is a paramedic and works with the defendant. He has been very involved with Milo since Milo was given to the defendant by the RCMP in November of 2020. He testified that he walks Milo nearly every other day, that he provides care for Milo when the defendant is at work. He has seen the defendant care for Milo and has no concerns about her ability to care for Milo.

[34]      I accept, as stated earlier, that both the claimant and the defendant are capable of caring for Milo. I also accept that both were involved in the care of Milo when they were together and accept that both contributed to the expenses involved in Milo's care. I find that the claimant provided the majority of the care and paid the majority of the expenses while the parties were together.

[35]      I will now deal with the best interests of Milo. The defendant, self-represented in these proceedings, provided a number of documents, unnumbered and without tabs, as Exhibit 2 in these proceedings. I say that not as a criticism, but as an explanation for the difficulties that may become apparent in trying to identify particular documents contained within Exhibit 2.

[36]      Starting with criminal proceedings, as stated earlier, the defendant made criminal complaints against the claimant on at least two occasions in November of 2020. Contained within the documents in Exhibit 2 are copies of the bail and probation orders and transcripts of the sentencing proceedings. In the March 11, 2021, sentencing transcripts contained in Exhibit 2, it is clear that the claimant pled guilty to one charge of uttering threats between October 13th and November 11th of 2020, one charge of a possession of a prohibited weapon, November 6, 2020, and one count of breaching terms of his bail by contacting the defendant between November 10 and 11, 2020.

[37]      The threat, as explained by the Crown in the sentencing proceedings, was made around October 17, 2020, by text message. The claimant threatened to destroy the defendant's belongings and said, "I'm way more street smart and dangerous than you are. Don't test me. If I find out it's a dude, I'll get him right in front of you." The weapons charge was for possessing a switchblade-type knife with a spring-loaded blade. The knife was found when the police searched the claimant's cabin after the first arrest on November 6. The breach of bail on November 10th, which resulted in the second arrest and the change in possession of Milo, was for sending a Snapchat text message saying, "You win. You'll never see me again."

[38]      Mr. Munce was sentenced on these three charges in March of 2021. He was given a conditional discharge which included 18 months of probation. The probation order included a term that he have no contact with the defendant. Several months later, the claimant pled guilty to breaching his probation order by consuming alcohol. That offence did not involve the defendant. He received an absolute discharge for that offence.

[39]      In her evidence during the trial, Ms. Livingston claimed that the claimant had more criminal charges pending, that he had breached the no-contact term of his probation order when both parties appeared in their professional capacities, again, a firefighter and a paramedic, at an emergency call sometime in the fall of 2021. Mr. Munce testified that he was unaware of any charges coming from this encounter. I accept that a complaint was made by Ms. Livingston. It appears that the police or the Crown decided that that complaint did not warrant any charges being laid.

[40]      The claimant admits to entering guilty pleas to the charges and to being sentenced in March of 2021, but denies a full understanding of the admitted circumstances outlined in the transcripts of the sentencing proceedings. The claimant says he was just in his lawyer's office, that the lawyer told him to plead guilty, and that he did so on the lawyer's advice. He denies the circumstances of the criminal offences, particularly the threatening charges now. He did not protest the circumstances during the sentencing proceedings. I simply do not accept the claimant's evidence on this point. I find that he admitted to and was sentenced on the charges as summarized above.

[41]      I will now deal with text messages from the claimant to the defendant, again as part of the best interests of Milo. Exhibit 2 includes copies of various messages the defendant claims to have received on her phone from the claimant between April 2020 and November of 2020. Many of the messages are duplicated throughout Exhibit 2. As is often the case with text messages, it is difficult to determine when the texts were sent and in what context. Included within the text message is a message apparently from the claimant threatening "to put Milo down and disappear forever." The same message is found more than once in Exhibit 2, again, apparently copies of the same message, and seems to be a conditional threat of doing something if the defendant releases some videos and thereby destroys the claimant's planned career in law enforcement.

[42]      The claimant denies sending these messages, suggesting that the defendant, who had set up his Apple ID and other accounts, had access to his "system." Without any proof that Ms. Livingston was involved, his evidence suggests that he thinks the defendant, Ms. Livingston, had sent the messages pretending to be the claimant. Ms. Livingston denies sending any text messages to herself under the guise of the claimant. She also denies setting up the claimant's Apple ID and other accounts. She was very clear that she found the idea of her messaging herself repeatedly from April to November without the claimant's knowledge was complete nonsense.

[43]      Again, I do not accept Mr. Munce's evidence about the text messages coming from someone other than Mr. Munce. The volume of the messages and the ongoing conversations as found in Exhibit 2 support the findings that Mr. Munce is the person responsible for sending the text messages. Having made that finding, I also find that the claimant had and has no intention of causing harm to Milo. The efforts that he has made to re-establish a relationship with Milo since Milo was taken from him in November 2020 satisfy me that any inappropriate comments he may have made about Milo were caused by the frustrations he was experiencing at the time as a result of the breakdown of the relationship and the taking of Milo from him by the RCMP, coupled with the defendant's complete unwillingness to allow the claimant to have any contact with Milo.

[44]      As noted earlier, there are many factors that the court needs to consider in determining ownership of a dog, including the dog's best interests. I find that all of the traditional factors, such as choosing the dog, purchasing the dog, paying for the dog's ongoing care, and providing the dog with training and exercise, all of those factors favour the claimant. I find that he paid the full purchase price for the dog and he paid the majority of the dog's related expenses when the parties were together. I also find that when the parties were together, the claimant was the one most likely to exercise and care for the dog.

[45]      The test messages are a significant source of concern to the court. Although the claimant denied sending them, I find that he was the sender. One message suggested that Milo may be put down if certain preconditions are met. As noted earlier, I accept that there is no substance to the supposed threat to Milo.

[46]      Finally, I note that when the parties were separating in October of 2020, the dog ownership fell in favour of the claimant. When the defendant left the home in October 2020, she did not take Milo with her. When the claimant left the home in early November to allow the defendant to gather her belongings, he took Milo with him. The arrangements between the parties, probably unspoken, was that Milo stayed with the claimant. That only changed when the RCMP took Milo from the claimant and gave him to the defendant.

[47]      I find that the claimant has established on a balance of probabilities that he is the owner of Milo. He paid for Milo, provided the majority of care, and had Milo in his possession until he was arrested and Milo was taken from him and given to the defendant. Milo needs to be returned to the claimant.

[48]      How do we propose to do that? Ms. Livingston, I guess that is a question to you to start with. I appreciate you are not happy with the decision, but that is the decision.

[49]      LAURAN LIVINGSTON: He's already with him.

[50]      THE COURT: Pardon me, I did not hear that?

[51]      LAURAN LIVINGSTON: He's already with him.

[52]      THE COURT: Mr. Munce has Milo now?

[53]      LAURAN LIVINGSTON: Yes.

[54]      STEPHEN MUNCE: Yes, it was my 10-day block, Your Honour.

[55]      THE COURT: Okay. Okay. That was one of the issues that I thought might be the most significant. So, having made that determination and the possession being correct as of now, is there anything further from the parties in terms of costs or otherwise or is this a matter that, given the proceedings, everyone should bear their own costs of the proceedings?

[56]      CNSL R. BREDER: Yes --

[57]      LAURAN LIVINGSTON: Well --

[58]      CNSL R. BREDER: -- Your Honour, that would be my submission, each party to bear their own costs. I mean we did -- if we really wanted to, we did offer to settle. I did send an email to Ms. Livingston -- I just wanted to speak to that if I have leave to do so? So I --

[59]      THE COURT: I do not know that we should.

[60]      CNSL R. BREDER: Okay. I will leave it at that.

[61]      THE COURT: Yes.

[62]      CNSL R. BREDER: I was just going to say that, you know, according to the cost rule under Small Claims, my understanding is that the settlement --

[63]      THE COURT: No, no, no, no, no, do not say it.

[64]      CNSL R. BREDER: Okay, okay, okay.

[65]      THE COURT: Thank you.

[66]      CNSL R. BREDER: I will leave it at that.

[67]      THE COURT: Ms. Livingston, do you have any questions other than I appreciate you are not -- you are unhappy with the result and I accept that. That is not surprising, knowing that one of you would be. The usual rule in Small Claims matters is that the party that is successful recovers some costs from the other party. Mr. Munce has said he is not seeking anything from you. So do you have any other questions or concerns?

[68]      LAURAN LIVINGSTON: I have concerns that I paid more than the purchase price in the past two years caring for Milo --

[69]      THE COURT: And in the --

[70]      LAURAN LIVINGSTON: -- and now I'm losing Milo.

[71]      THE COURT: Mr. Munce's response, that would be if you did not want to provide care for the dog for that period, give him to Mr. Munce. I mean that is -- that was --

[72]      LAURAN LIVINGSTON: No, I wanted to because he's my dog.

[73]      THE COURT: Well, he is not your dog now, but you had him for that period of time and would not allow him to go to Mr. Munce. So you cannot say, "I want to keep him, not let you have him, but expect you to pay the costs."

[74]      LAURAN LIVINGSTON: He never asked to have him. That was not -- there -- it is not legitimate, so.

[75]      THE COURT: Well, we have spent the last year or so in court where he has been asking to have him. That could have -- he could have been given back and Mr. Munce would have been -- incurred those expenses while the trial was going on. I think that part is clear. I do not think there is any dispute on that.

[76]      LAURAN LIVINGSTON: We'll agree to disagree on that one.

[77]      THE COURT: Okay. So is there anything further, then?

[78]      CNSL R. BREDER: Your Honour, if I could just get a clear order term, please.

[79]      THE COURT: A what, sorry?

[80]      CNSL R. BREDER: Just an order -- a term for the order, just for the record.

[81]      THE COURT: The terms of the order is that Mr. Munce's claim for the return of Milo to his care is successful. His claim for general and punitive damages is dismissed. Ms. Livingston's counterclaim for general and punitive damages is dismissed; and each of the parties will bear their own costs of these proceedings.