There has been an increase in the amount of family law cases involving pets – specifically which party keeps the pet on a relationship breakdown.
A recent British Columbia case, again states the law on ownership of a pet. This was a claim for a declaration of ownership of a dog. The judge reviewed Warnica v. Gering, in which the Court noted:
“Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties’ respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers. In my view, that would be akin to a custody access/order. 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 or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.”
The judge then decides that he does not have jurisdiction to make a custody or access order with respect to a dog and a careful review of the evidence indicates that in fact the defendant was the sole owner of the dog and that the plaintiff’s interest was merely a sentimental, one and that does not bestow any right of possession upon him and his claim was dismissed.
In my last blog, I wrote about the hierarchy of decision-makers that the law provides in the event you are incapable of making your own medical decisions and do not have a valid Power of Attorney for Personal Care. The alternative is for an interested person (a friend or relative, most likely), to apply to the court to be appointed as your Guardian “of the person” (which is distinct from a Guardian or Property, discussed in a previous blog).
If you do not have a Power of Attorney for Personal Care and you become incapable of personal care decisions, a guardian of the person may be appointed by the court in the same manner as a guardian of property. A guardian of the person has extensive powers including the power to make decisions regarding your living arrangements, recreational activities, treatment, health care and nutrition.
The Public Guardian and Trustee may be appointed as your temporary guardian of the person where it reasonably believes that you are incapable of managing your person in the same circumstances and by the same procedure in which it may be appointed as temporary guardian of property.
The value of a Power of Attorney for Personal Care is that you can be certain about the choice of person who is to act as your attorney. It is also faster, easier, and less costly to establish than a court-appointed guardianship.
In a previous post, David Mills discussed an Ontario case where service of documents was allowed via facebook. A case from New Brunswick, P. (J.R.) v. D. (D.), has agreed with this method of service and recently allowed service via facebook in a family law matter.
This was a motion before Justice Walsh of the New Brunswick Court of Queen’s Bench, in a custody dispute. The mother suddenly died and the grandparents were making an application for custody. The respondent was the adoptive father of the child. The father was found to be evading service.
The issue for the Court was whether there could be substituted service of the custody application. The Court found that it was in the best interests of justice and the child that service be substituted. The Court went on to find that service of the notice of the application was effected as a result of exchanges between the parties by way of Facebook.
This is yet another decision that reaffirms substituted service can be available by Facebook and perhaps other social network sites.
In the last blog in this series, I discussed Powers of Attorney for Personal Care. What happens if you don’t have one and are then in a situation where medical instructions need to be given and you are incapable of doing so? Who is entitled to give those instructions on your behalf?
If you are unable to give or refuse consent to treatment and you do not have a Power of Attorney for Personal Care, immediate members of your family will have a right by law to make treatment decisions for you. The law provides for a hierarchy of decision-makers: the spouse, then the parents, then the children, then brothers and sisters. If none of your relatives are willing and able to give or refuse consent to treatment, the Office of the Public Guardian and Trustee (a government agency) will make these decisions.
Justice Murray of the Ontario Court of Justice recently made a decision that one party in the litigation could be cross examined by Skype. In Paiva v. Corpening, the party to be cross examined lived in Denmark.
Justice Murray previously ordered that the evidence in chief go in by affidavit, in order to speed up the case and make effective use of the court’s time without losing any of the benefits of oral testimony. When the evidence goes in by affidavit, the affiant must be presented for cross examination. In this case, since the party lives in Denmark, it was requested that the cross examination take place by Skype.
Justice Murray recognized that evidence at trial should be presented orally. However, modern technology, such as Skype, allows instant communication, does not seriously hamper cross examination and allows the judge to observe the demeanour of the witnesses.
There are a number of cases on this issue and they were reviewed by Justice Murray. In the end, Skype was allowed.
A step toward a new technological age in the court!
