The Case of the Dog and the Divorcees

This is the interesting case of the Dog and the Divorcees, or to use its correct legal name, the case of Thompson v. Thompson.

It is the story of a married couple, Mr. Thompson and Mrs. Thompson, and their border collie Charlie. When the couple separated, Mr. Thompson ended up keeping Charlie to live at his home, but a dispute ensued over ownership of the dog. This led Mrs. Thompson to seek out the help of the court system.

The case was decided in British Columbia Supreme Court in 2005, but the story begins five years earlier.

In 2000, Mr. and Mrs. Thompson were living together as a married couple in British Columbia. On a day in February of that year, the pair went to a pet store and came home with their new companion, Charlie the border collie. The couple and the dog then lived together in the same home until December 2003, when Mr. and Mrs. Thompson separated.

After the separation, Charlie mostly lived in the home of Mr. Thompson, except for a brief visit where he stayed with Mrs. Thompson.

At some point, a dispute developed between Mr. and Mrs. Thompson over who was the rightful owner of Charlie and who he should live with. It appears it could not be resolved amicably, and Mrs. Thompson started a small claims lawsuit in the Provincial Court of British Columbia. This suit went to trial before Judge Takahashi on August 19th, 2005.

At the trial’s start, Judge Takahashi noted that it was possible the Provincial Court was not the proper venue to decide the matter. This was because, under the British Columbia Family Relations Act, property obtained by a couple during marriage is matrimonial property and, if the relationship later ends and there is a dispute over the property, the matter is supposed to be dealt with in Supreme Court. However, for the sake of expediency, the judge agreed to deal with the matter as long as both parties were aware of the situation and agreed to proceed, which they did.

As the trial proceeded, Mr. Thompson argued the dog was his because he was the one who had paid the pet store in 2000, he was the one who paid for the dog’s food and veterinary care, and the dog lived with him. Mrs. Thompson’s counterargument was that the dog was hers because it had been purchased and given to her as a birthday gift in 2000. In addition, she stated she also looked after Charlie and took him to the vet, and it was not exclusively Mr. Thompson who did this.

Different versions came out during the trial over where and how Charlie was purchased in 2000. According to Mr. Thompson, Charlie had been purchased by himself and he produced a bill of sale from a store as evidence. However, Mrs. Thompson testified that Charlie had been obtained as a trade rather than as a cash purchase – as Mr. and Mrs. Thompson had operated a business together at the time and had offered the pet store some services from their business in exchange for the dog.

In the cross-examination phase of the trial, each party received a chance to question and challenge each other on testimony they had given. It was here that Mrs. Thompson alleged that Mr. Thompson had left two messages on her telephone answering machine, attempting to pressure her to drop her lawsuit. Mr. Thompson denied leaving the messages and so Mrs. Thompson asked the judge for permission to play the tapes, which the judge granted. As the tapes were about to be played, Mr. Thompson stated that he’d never heard them before.

In one of the messages played that day in the courtroom, a man’s voice could be heard telling Mrs. Thompson she would lose her lawsuit because the man had proof the dog was his, in the form of a bill of sale from a particular pet store. In the other message, the man told Mrs. Thompson that there was no point in continuing the lawsuit because Charlie had been struck and killed by a vehicle.

Now, as it turns out, the dog thankfully was not actually struck by a vehicle and was alive and well. Additionally, the dog had never been purchased from the pet store mentioned during the phone call, but rather had been obtained from a different store; and at the trial Mr. Thompson admitted as much, since he had presented a bill of sale from this different store as evidence to support his own case.

Mrs. Thompson argued that the tapes were proof that Mr. Thompson was being dishonest. He had falsely claimed to have a bill of sale from the first store, and then after learning the dog was from the second store, fabricated documentation from that store. Further, she argued he had lied about the dog’s death to have Mrs. Thompson drop her lawsuit.

Mr. Thompson responded that the voice on the tapes was not his, denying the validity of the evidence.

After hearing the evidence and the arguments and counterarguments, Judge Takahashi decided to reserve his judgement, retiring to consider his decision.

Three days later, on August 22nd, 2005, the judge handed down his decision. He ruled that, despite the denials, he was satisfied the voice on the phone message tapes was that of Mr. Thompson, and that the bill of sale he had presented as evidence was false. In conclusion, he ruled in favour of Mrs. Thompson that Charlie was hers and should be returned to her. He also awarded her costs for traveling to pick up the dog and, in October 2005, awarded her a further $1,000 in punitive damages because Mr. Thompson had fabricated evidence.

Mr. Thompson was not prepared to accept this legal defeat, and so he immediately filed an appeal to the British Columbia Supreme Court. This appeal was heard before Justice Rogers on November 14th, 2005.

On appeal, Mr. Thompson claimed that the Provincial Court judge had made several errors that justified overturning his decision. One of these alleged errors was that Judge Takahashi should not have allowed the audio tapes into evidence, because they had not been disclosed to Mr. Thompson before the trial. Normally, in civil proceedings each party is required to disclose its evidence to the other side in advance, to avoid a party being ambushed with “surprise” evidence they have not prepared for. There were some other arguments from Mr. Thompson as well, but that was probably the most consequential.

In the end, Mr. Thompson’s protests were not successful. With regards to his objection about the admission of the audio tapes, Justice Rogers ruled against Mr. Thompson and stated he should have objected to their admission at trial if he had a problem with not receiving them before trial. The justice noted that Mr. Thompson knew he had the right to object to the admission of evidence, because the judge had asked him earlier in the trial if he objected to some documents being admitted without prior disclosure.

His other arguments on appeal were likewise not fruitful, and Justice Rogers dismissed Mr. Thompson’s appeal and confirmed that Mrs. Thompson was the rightful owner of Charlie. The justice also confirmed the $1000 in punitive damages and awarded Mrs. Thompson further costs for the expenses she had incurred to fight Mr. Thompson’s appeal.

So, what does this case tell us? Well, for one that the breakdown of relationships can lead to messy legal disputes, but that is probably not surprising news to most people. But it also demonstrates that, under Canadian law, animals are treated the same as other property during divorce proceedings. Judges will look for who has the best property rights claim to a pet to determine who should keep the animal; and in the Thompson case it was Mrs. Thompson because the court found that it had been given to her as a gift.

Caselaw shows that, except for a few outlier cases, Canadian judges have not treated companion animals in the same way as children. They will not issue orders for shared custody or consider what the impacts on the animal may be when reaching their decisions.

However, this may be beginning to change, at least in British Columbia.

As of January 2024, amendments to the province’s Family Relations Act were brought into force that now give judges a mandate to consider things, other than just pure property rights, when deciding disputes over pets in matrimonial proceedings. The amendments state that judges must now consider any history of animal cruelty, or threats of animal cruelty, as well as who is best able to care for the animal and any emotional attachment that children of the relationship have for the animal. However, the law still prohibits judges from awarding joint custody of pets. Possession must be granted entirely to one party or the other, unless they reach a voluntary out-of-court settlement agreeing to joint possession.

SOURCES:

Legislative Assembly of British Columbia. (2023, April 3). Bill 17 – 2023: Family Law Amendment Act, 2023. Legislative Assembly of British Columbia. https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/42nd-parliament/4th-session/bills/third-reading/gov17-3

Breder, R. (n.d.). Changes to B.C.’s Family Law Act Include Pet Custody Provisions. BarTalk (December 2023 Issue). https://www.cbabc.org/BarTalk/Articles/2023/December/Features/Changes-to-B-C-%E2%80%99s-Family-Law-Act-Include-Pet-Custo

Gertsoyg & Company. (n.d.). Divorce Pet Custody in Canada. Gertsoyg & Company, Comprehensive Legal Services. https://www.yglaw.ca/family-lawyer-vancouver/divorce-pet-custody-canada/

Richter Trial Lawyers. (n.d.). Fighting over Fluffy: Who Gets to Keep the Family Pet? Richter Trial Lawyers. https://richtertriallaw.com/2021/04/29/family_pet/

Thompson v. Thompson, 2005 BCSC 1604 (CanLII), <https://canlii.ca/t/1ptsd>, retrieved on 2024-02-10

VLOG VERSION