Back

Pet Claim - The Court's Decision on Pet Ownership

November 22, 2021

Nova Scotia

,

Canada

Issue

How do courts determine which spouse keeps possession of the family pet in a divorce proceeding?

Conclusion

The following principles are applicable in deciding pet claim cases:

a. Animals (dogs included) are considered in law to be personal property;

b. Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;

c. Ownership of-and hence the right to possess-an animal is a question of law determined on the facts;

d. Where two persons contest the ownership of an animal, the court will consider such factors as the following:

i. Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;

ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

iv. Who purchased or raised the animal;

v. Who exercised care and control of the animal;

vi. Who bore the burden of the care and comfort of the animal;

vii. Who paid for the expenses of the animal's upkeep;

viii. Whether a gift of the animal was made at any time by the original owner to the other person;

ix. What happened to the animal after the relationship between the contestants changed; and

x. Any other indicia of ownership, or evidence of any agreements, relevant to the issue of who has or should have ownership or both of the animal.

This is not a complete list of factors that might be considered. Nor is any one or more of them necessarily sufficient to establish ownership. And there is more when it comes to animals that are pets. (Kemp v. Osmond)

An arrangement to share “custody” of the family pet is apparently quite common, but this is not a result that is consistent with strict contractual rights. These arrangements only work where there is an agreement to make it work. Where there is no such agreement, even if the court had authority to divide ownership, it would not necessarily be a good idea if the net result was to set the stage for ongoing conflict and repeated visits to the court to act as the referee. (Kemp v. Osmond)

In cases involving pets the determination of ownership may not be enough to resolve a dispute. Certain animals—and in particular cats and dogs—are the subject of intense emotional bonds with humans. The love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss of any loved one. The intensity of this love can lead people to treat pets as if they were children, and hence to expect the law to determine the right to possess an animal based on what they say are the best interests of the animal. That of course is not the current law, though the law may be beginning to recognize that a more nuanced approach to these types of issues may be necessary. Some support for such a nuanced approach may be found in cases involving people who were married, since a pet’s status as family or matrimonial property may ground an order for access to—or possession of—that pet by a former spouse. But the fact that people in a common law relationship may view their pets as akin to children also gives rise to the possibility of agreements—whether express or implied—as to what might happen to the animals in the event the people separate. The law must be alert to the question of what people who are in such a relationship would say about ownership, or possession, or the right of access to those pets in the event their relationship later dissolves. (MacDonald v. Pearl)

A dog is “indivisible” and cannot simply be divided between the parties. If a dog is jointly owned, the court will usually order one co-owner to buy the other out and pay compensation. It can also order the dog to be sold and the proceeds divided. This response is unsatisfying to many people who keep dogs as pets. As for the order where the dog alternates homes - assuming for the moment that the Court can make such orders, they usually cause more problems than they solve. An order for sharing does not end the conflict. Instead it creates a regularly scheduled opportunity for conflict that recurs for the rest of the dog’s life. Every time one party is late for the drop-off, or sick, or on vacation; when the dog is sick and vet bills need to be shared; when the dog is injured in one party’s care—there is an opportunity for conflict. These opportunities can be particularly tempting for former romantic partners who end up in court litigating the ownership of a pet. The courts have extensive experience with this kind of conflict in child-custody disputes. For the parties it means stress, heartache, wasted time, legal fees. For the courts and for the public it consumes valuable judicial resources that could be used resolving other disputes. Courts have long been reluctant to make orders that require ongoing supervision for this reason. This wide-ranging policy concern is not attenuated in the context of former romantic partners fighting over a beloved pet: it is amplified. While expanding the scope of joint ownership seems at first to be progressive and forward thinking, it is unlikely to be a kindness either for the parties or for the public. (Baker v Harmina)

There are two judicial approaches to pet ownership cases. One is to focus on the chain of ownership and look for discrete transactions where ownership changed hands. Another approach would be to take a broader look at the relationship between the parties and the dog, as was done in MacDonald v. Pearl. The second approach significantly loosens the traditional requirement that a party who claims joint ownership should point to a particular transaction where ownership changed hands. The Court should be open to modifying legal doctrines to reflect social realities, but it should not do so without considering the practical implications of the change. The right route is to rely on the narrower traditional approach to determining ownership, as shared dog ownership creates possibilities for the ongoing disputes between owners who have already ended up litigating pet ownership, and these conflicts would continue to impact negatively the lives of owners and consume public resources in adjudicating these disputes. (Baker v Harmina)

In Gardiner-Simpson v. Cross the parties had entered into a "full and final settlement” Separation Agreement found to be enforceable. As the parties' dog was found to be personal property, the issue of ownership of the dog was swept up in the broad intentions of that agreement.

Law

In Kemp v. Osmond, 2017 NSSM 25 (CanLII), the following principles for determining ownership of a pet were set out:

1. This is another case where the court is asked to determine ownership of a family pet, in this case, a 9-year old female mixed-breed dog (part duck toller) named Lily.

2. Such cases are being brought before the Small Claims Court because, practically speaking, there is nowhere else for people involved in these kinds of disputes to go.

3. In a more perfect world there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests, and there would be specialized accessible courts to determine the “best interest of the dog,” as there are for children in the Family Courts.

4. In this less perfect world, there is the Small Claims Court operating on principles of property law, treating pets as “chattels” not very different - legally speaking - from the family car.

5. Determining ownership of family pets is not easy for the court, nor necessarily fair to the disputants. Often, as is the case here, neither of the people in this dog’s life one was really concerned about legal ownership until things went wrong. When families break apart, the family dog will usually be awarded to the person with the best case for legal ownership.

6. An arrangement to share “custody” of the family pet is apparently quite common, but this is not a result that is consistent with strict contractual rights. These arrangements only work where there is an agreement to make it work. Where there is no such agreement, even if the court had authority to divide ownership, it would not necessarily be a good idea if the net result was to set the stage for ongoing conflict and repeated visits to the court to act as the referee.

[...]

[25] I have reviewed the following Small Claims Court cases with interest: Gardiner-Simpson v. Cross 2008 NSSM 78 (CanLII); Hawes v. Redmond [2013] NSJ No. 739; Millet v. Murphy [2011] NSJ No. 182. I believe that the following principles are applicable:

a. Animals (dogs included) are considered in law to be personal property;

b. Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;

c. Ownership of-and hence the right to possess-an animal is a question of law determined on the facts;

d. Where two persons contest the ownership of an animal, the court will consider such factors as the following:

i. Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;

ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

iv. Who purchased or raised the animal;

v. Who exercised care and control of the animal;

vi. Who bore the burden of the care and comfort of the animal;

vii. Who paid for the expenses of the animal's upkeep;

viii. Whether a gift of the animal was made at any time by the original owner to the other person;

ix. What happened to the animal after the relationship between the contestants changed; and

x. Any other indicia of ownership, or evidence of any agreements, relevant to the issue of who has or should have ownership or both of the animal.

[26] This is not a complete list of factors that might be considered. Nor is any one or more of them necessarily sufficient to establish ownership. And there is more when it comes to animals that are pets.

[...]

59. It is my conclusion that the Defendant has the better right to ownership of the dog. I believe that the Defendant’s rights crystallized gradually in the years since 2012, and the Claimant’s rights slowly eroded over that same period. The Defendant acted more and more like a primary owner, while the Claimant acted more and more like a secondary owner. While the previous arrangement of having the dog split its time between the two households could have continued, had the parties cooperated, when “push comes to shove” the ownership falls on one side or the other, and in this case it is the Defendant who I find to be the legal owner of Lily.

In MacDonald v. Pearl, 2017 NSSM 5 (CanLII), the existence of an agreement between the parties in relation to pet ownership was considered:

[1] This is a fight between two people over the ownership of two dogs. The dogs were purchased in April 2011 while the claimant and the defendant were living together in Fort McMurray, Alberta. The relationship between the claimant and the defendant, one marked by periods together as well as apart, one characterised by them as rocky and on-again, off-again, finally broke down for good in January 2016. They were at the time living in their respective parents’ homes in Nova Scotia. The dogs were living with Mr MacDonald at the time, with Ms Pearl having access to them from time to time to take them for walks or on weekend getaways. In November 2016 Ms Pearl took the dogs from Mr MacDonald’s parents’ house in Nova Scotia, allegedly for a weekend visit. What she did instead was drive to Alberta, where she now lives with her father and the dogs.

[...]

[27] In cases involving pets the determination of ownership may not be enough to resolve a dispute. Certain animals—and in particular cats and dogs—are the subject of intense emotional bonds with humans. As was noted by Adjudicator Slone in Gardiner-Simpson v. Cross 2008 NSSM 78 at para.3, “[t]he love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss of any loved one.” The intensity of this love can lead people to treat pets as if they were children, and hence to expect the law to determine the right to possess an animal based on what they say are the best interests of the animal: see, for example, Henderson v. Henderson [2016] SJ No. 493, where a separating husband sought interim possession of one of two dogs based on marital property legislation; see also Warnica v. Gering [2004] OJ No. 5396; Kitchen v. MacDonald [2012] BCJ No. 81. That of course is not the current law, though the law may be beginning to recognize that a more nuanced approach to these types of issues may be necessary: Colthard v. Lawrence [2011] OJ No. 6207. Some support for such a nuanced approach may be found in cases involving people who were married, since a pet’s status as family or matrimonial property may ground an order for access to—or possession of—that pet by a former spouse: see, for e.g., Rogers v. Rogers [1980] OJ No. 2229; Gauvin v. Schaeffer [2003] SJ No. 117; Anderson v. Antoine [2006] NWTJ No. 51.

[28] But the fact that people in a common law relationship may view their pets as akin to children also gives rise to the possibility of agreements—whether express or implied—as to what might happen to the animals in the event the people separate. The law must be alert to the question of what people who are in such a relationship would say about ownership, or possession, or the right of access to those pets in the event their relationship later dissolves.

[...]

[39] I will accordingly make an order that Ms Pearl return to Mr MacDonald the Yorkshire terrier known as Daniel. He did not make out a claim for general damages.

In Gardiner-Simpson v. Cross, 2008 NSSM 78 (CanLII), the parties had entered into a "full and final settlement” Separation Agreement found to be enforceable. As the parties' dog was found to be personal property, the issue of ownership of the was swept up in the broad intentions of that agreement:

[1] This case concerns the ownership of a female Boston Terrier named Jersey, which was purchased in or about late November of 2006 as the Claimant and Defendant embarked upon a relatively short-lived cohabitation.

[...]

[37] The conclusion that this was “their” dog rather than “his” or “hers” may be unhelpful, but is inescapable on the facts. The question then becomes whether anything subsequently occurring has changed this joint ownership.

[38] There are facts in this case which have convinced me that the Claimant has legally surrendered her ownership interest, with the result that the Defendant now has a superior claim to Jersey.

[39] When the parties first separated, it appears that the dog was left with the Defendant without any explicit understanding as to what would occur. Although the Claimant eventually began taking Jersey for weekends, it appears that a settled pattern was created whereby the Defendant became the de facto owner. Anyone looking at the situation as at April of 2007 would have concluded that the dog belonged primarily to the Defendant.

[40] As such, when the parties’ Separation Agreement recited that they had “divided their household contents to their mutual satisfaction” and that the Claimant “shall remove herself and her personal belongings from the matrimonial home by 5:00 p.m. on April 9, 2007", I find that in law, they endorsed the status quo, which was that the dog remained with the Defendant. The fact that the Claimant continued to take the dog for every second weekend is consistent with there being an intention to maintain a relationship between the Claimant and Jersey. It is inconsistent with the notion that Jersey was the Claimant’s dog.

[41] The Separation Agreement specifically recites that it is a “full and final settlement between the parties and may be pleaded as a complete defence to any action brought by either party to assert a claim in respect of any matter dealt with by this Agreement.”

[42] The Claimant argues that the “full and final settlement” provision of the Separation Agreement does not apply, because, she says, what is contained therein did not actually reflect their entire agreement.

[43] To illustrate this point, there is nothing in the agreement that specifies that the Defendant would pay money to the Claimant in exchange for a quitclaim deed to the home that they had purchased together. In fact, the Defendant gave the Claimant $1,500.00 at some later point. The facts surrounding this “side deal” were not gone into at length. There was no evidence from either party as to when the arrangement to pay $1,500.00 was agreed to.

[44] If one reads the separation agreement, one would have no inkling that such a payment was contemplated. Unfortunately, there was no evidence to establish whether the payment was contemplated at the time the Separation Agreement was signed or was an afterthought. If it was already agreed to and they signed the agreement which said otherwise, it would be some evidence that the agreement was not intended to be the entire agreement. If the latter, however, all it would mean is that the Defendant made a later commitment to pay the money, which he may not have been legally obligated to do.

[45] On the evidence, I believe that the “full and final settlement” provision of the Separation Agreement is enforceable, and by its terms affords a “complete defence to any action brought by either party to assert a claim in respect of any matter dealt with by this Agreement.”

[46] I find that the dog Jersey was personal property, and the issue of ownership of Jersey was swept up in the broad intentions of that agreement.

[47] As such, I find that the Defendant has the better claim to ownership of Jersey and the claim must be dismissed.

In Faulkner v. Hunt, 2019 NSSM 52 (CanLII), a dog's owner asked friends to keep his dog for a while, while the owner sorted through personal problems. The dog sitters did not want to return the dog when the owner had asked for the dog back. As there was no evidence of a clear intention to form a legally binding contract to transfer the dog, the dog was found to belong to the owner. In the alternative, even within the terms of the purported agreement, the owner had until the end of the year to reclaim his dog, and had attempted to do so. He was entitled to an order for the return of the dog:

[1] This case concerns ownership of a 5-year old English Bulldog named Jaxx.

[2] The Claimant acquired Jaxx as a puppy from his cousin Gina in December 2014. The paper trail with the association that registers this breed is incomplete, but there is no question that the Claimant owned Jaxx and cared for him until about August 2018. His ownership during that period is not open to serious question.

[3] In or about August 2018, the Claimant ran into some personal financial problems and was about to lose his housing. He asked his close friends, the Defendants, if they would be willing to take Jaxx into their home and look after him until the Claimant could get on his feet financially.

[4] What occurred at that time was either some form of an agreement or a loose arrangement, depending on whose version one believes. The Defendants say that under the terms of a binding verbal agreement entered into at that time, ownership of the dog transferred to them in August of 2019. The Claimant says that the arrangements at the time did not rise to the level of an enforceable agreement which could result in him losing ownership of his dog.

[5] The law concerning ownership of animals is succinctly set out by Adjudicator Richardson in MacDonald v. Pearl, 2017 NSSM 5 (CanLII):

[...]

[6] Since the Defendants have no other arguable right to the dog, this case turns on the single question of whether or not there was an enforceable agreement to transfer ownership.

[7] Since the onus to establish such an agreement is on the Defendants, I will consider their evidence first.

[8] The Defendant Gerrid Hunt testified that the Claimant came to him asking that he and his wife look after Jaxx until the Claimant “got back on his feet.”

[...]

[18] In short, I cannot accept that there was any clear intention to form a legally binding contract. No one even took care to make note of the date, which would have been an important element from the point of view of the Defendants.

[19] However, even if I am wrong and there was such an agreement, it is clear that by sometime in July and, at the latest on the date this claim was issued on August 8, 2019, the Claimant was trying without success to redeem his dog. Whether or not he had a suitable place to take the dog is irrelevant. If the year was not up, he had a right to demand the dog. How he would have looked after the dog in the interim was his problem.

[20] I find that the Claimant was within his legal right to demand the return of the dog on August 8, 2019, and I am ordering the dog to be returned to him.

[21] I specifically reject all of the Defendants’ reasons for believing that the Claimant has surrendered his right of ownership, or that his ownership was somehow imperfect. The fact that he did not licence the dog with the City of Halifax is irrelevant. Also irrelevant is the fact that other documentation of ownership may be lacking. I refuse to be drawn into a consideration of whether or not the Claimant was as responsible a pet owner as he could have been prior to turning the dog over to the Defendants in 2018. And lastly, I utterly refuse to be drawn into a consideration of whether or not the Claimant was as good or helpful a friend to Stevie as perhaps the Defendants and Stevie hoped. I note that in her evidence, Stevie was not critical in any specific way of the Claimant and basically said that the arrangement did not work out.

[22] I appreciate that this order will come as a grave disappointment to the Defendants. They and their children are attached to Jaxx. But the argument that they make amounts to a forfeiture, and the law is very disapproving of forfeitures and will strive for a result, where the facts justify it, that does not result in a party forfeiting his legal rights.

[23] The Claimant is entitled to an order for the return of the dog and to the cost of issuing the claim in the amount of $99.70.

In a Newfoundland Court of Appeal decision, Baker v Harmina, 2018 NLCA 15 (CanLII), the Court of Appeal discussed two approaches to pet ownership cases. One is to focus on the chain of ownership and look for discrete transactions where ownership changed hands. Another approach would be to take a broader look at the relationship between the parties and the dog, as was done in MacDonald v. Pearl, 2017 NSSM 5. The second approach significantly loosens the traditional requirement that a party who claims joint ownership should point to a particular transaction where ownership changed hands. The Court should be open to modifying legal doctrines to reflect social realities, but it should not do so without considering the practical implications of the change. The right route is to rely on the narrower traditional approach to determining ownership:

[1] Mya is a cross between a Bernese mountain dog and a poodle. For nearly two years she was treated as a family member by David Baker and Kelsey Harmina. Now they have split up, and this case is about who gets to keep her.

[...]

[12] In the eyes of the law a dog is an item of personal property. That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely). The question is who owns it.

[13] The small claims and appeal decisions present two different models of how a court should determine pet ownership. The small claims judge’s approach focuses on the chain of ownership and looks for discrete transactions where ownership changed hands. Who bought Mya from the breeder? Mr. Baker alone, as he paid for her. Had Mr. Baker given or sold an interest in Mya to Ms. Harmina? No. So Mr. Baker remained the sole owner.

[...]

[15] The appeal judge’s approach takes a broader look at the relationship between the parties and the dog. Instead of looking for a chain of ownership with clear moments of transition, the appeal judge’s reasons emphasize that the parties “picked out the dog together while dating”, that they shared expenses, that Mya spent much of her time alone in Ms. Harmina’s care.

[16] The main authority the appeal judge draws on is MacDonald v. Pearl, 2017 NSSM 5, but a similarly contextual approach is evident in Coulthard v. Lawrence (2011), 219 A.C.W.S. (3d) 891 (Ont. Sup. Ct.) and Rogers v. Rogers (1980), 5 A.C.W.S. (2d) 178 (Ont. Dist. Ct.).

[17] At first glance, this case seems to pit traditional legal doctrine against social realities. The small claims judge’s approach reflects the traditional theory that property only changes hands through deliberate transactions, particularly gifts or purchases. The appeal judge’s approach seems more sensitive to the way in which, over the course of a romantic and domestic partnership, “my” dog can become “our” dog, without any explicit moment of gift or purchase.

[18] The appeal judge’s approach significantly loosens the traditional requirement that a party who claims joint ownership should point to a particular transaction where ownership changed hands. The Court should be open to modifying legal doctrines to reflect social realities, but it should not do so without considering the practical implications of the change.

[19] In this case, the appeal judge’s approach would make it significantly easier to show that a pet is jointly owned in law. It would expand the scope of joint ownership. And this would be unfortunate in many ways, because the legal system is not well equipped to deal with the problems raised by joint ownership of dogs.

[20] A dog is “indivisible” and cannot simply be divided between the parties: Simmonds v. Simmonds, 2005 CanLII 16565 (NL SC), 2005 NLUFC 10, 247 Nfld. & P.E.I.R. 210 at para. 44. If a dog is jointly owned, the court will usually order one co-owner to buy the other out and pay compensation, as in Simmonds. It can also order the dog to be sold and the proceeds divided.

[21] This response is unsatisfying to many people who keep dogs as pets. Neither Ms. Harmina nor Mr. Baker wants Mya for her financial value. They want her as a pet and companion. The Court can declare them joint owners, but it cannot jointly give them what they want.

[22] What about the order under appeal, under which the dog alternates homes? Assuming for the moment that the Court can make such orders, they usually cause more problems than they solve. An order for sharing does not end the conflict. Instead it creates a regularly scheduled opportunity for conflict that recurs for the rest of the dog’s life.

[23] Every time one party is late for the drop-off, or sick, or on vacation; when the dog is sick and vet bills need to be shared; when the dog is injured in one party’s care—there is an opportunity for conflict. These opportunities can be particularly tempting for former romantic partners who end up in court litigating the ownership of a pet.

[24] The courts have extensive experience with this kind of conflict in child-custody disputes. For the parties it means stress, heartache, wasted time, legal fees. For the courts and for the public it consumes valuable judicial resources that could be used resolving other disputes.

[25] Courts have long been reluctant to make orders that require ongoing supervision for this reason: see e.g. Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1 (U.K.H.L.). This wide-ranging policy concern is not attenuated in the context of former romantic partners fighting over a beloved pet: it is amplified.

[26] While expanding the scope of joint ownership seems at first to be progressive and forward thinking, it is unlikely to be a kindness either for the parties or for the public. As Adjudicator Slone said at para. 6 of Gardiner-Simpson v. Cross, 2008 NSSM 78, “The worst result of all would be a conclusion that the dog is joint property.”

[27] The small claims judge was right to rely on the narrower traditional approach to determining ownership. I would uphold his conclusion that Mr. Baker is the sole owner of Mya.

[28] I would also note that, even on the broad view, the small claims judge’s findings of fact about ownership were supported by evidence and deserved deference. An appeal court cannot presume that a relevant factor was not considered just because it was not named. Nor can it use subtle differences in the articulation of legal principles to set aside findings of fact and reweigh the evidence.

Could the Court Order a Constructive Trust?

[29] This case was presented as a dispute about pet ownership, but it can equally be seen as a dispute about the fair division of assets among unmarried partners. That is a live and pressing concern for the courts: see e.g. Dwyer v. Bussey, 2017 NLCA 68.

[30] The appeal judge approached the problem of fair distribution by taking a flexible approach to the legal ownership of particular assets within cohabiting relationships. The currently accepted approach is quite different. The legal ownership of individual assets is determined by the traditional narrow legal rules: the couch I bought is mine, and the money in your chequing account is yours. But afterwards the courts look broadly at the whole picture through the lens of unjust enrichment. If one party is capturing an undue share of assets, the court orders compensation; if one party is walking away with individual assets that ought to be jointly owned, the court orders a constructive trust. See generally Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269.

[31] The substance of Ms. Harmina’s claim fits neatly within the unjust enrichment framework. Mya was originally bought by Mr. Baker, but Ms. Harmina cared for her, fed her, walked her, trained her, and gave her affection. This work conferred a benefit on Mr. Baker at Ms. Harmina’s expense. It is at least arguable that this constitutes unjust enrichment and that the basic requirements for a constructive trust are met: Kerr at paragraphs 36–45 and 50–53.

[32] Nevertheless, assuming that a case for unjust enrichment is made out, I would not impose a constructive trust on Mya in this case. (I do not want to decide this issue, for reasons that will appear below). A constructive trust remains a discretionary remedy, and for the reasons above it would not be appropriate to exercise the court’s discretion to force Mr. Baker and Ms. Harmina to share a dog.

[33] Even if a constructive trust was appropriate, the small claims judge had no jurisdiction to impose one. A constructive trust is not an order for “debt”, “damages”, “specific performance of an agreement”, or the “recovery of personal property” under section 3(1) of the Small Claims Act, RSNL 1990, c. S-16. Instead, it is an equitable remedy changing the ownership of personal property.

[34] If the Small Claims Act did authorize a constructive trust, I would have serious doubts about its constitutionality. In Re: B.C. Family Relations Act, 1982 CanLII 155 (SCC), [1982] 1 S.C.R. 62 at 88–89, Laskin C.J.C., for the majority on this point, struck down a provision allowing a provincial court to grant exclusive possession of a matrimonial home because “adjudicating on proprietary rights” and “the disposition of family assets” is “more conformable to [the jurisdiction] exercised and exercisable by a s. 96 [superior] court than that which may be vested in a Provincial Court”.

[35] The appeal judge reasoned that rule 58.17(2)(d) of the Rules of the Supreme Court, 1986, which says that an appeal court can “make an order that is just”, gave her a broader jurisdiction to grant relief than the small claims judge had. This is contrary to the nature of an appeal court. As Green J.A. said in Popular Shoe Store Ltd. v. Simoni (1997), 1998 CanLII 18099 (NL CA), 163 Nfld. & P.E.I.R. 100 (Nfld. C.A.) at para. 33, “On appeal, the appellate court is limited to granting the relief which was within the jurisdiction of the trial court to grant in the first place.” This limitation is intrinsic to appeal courts and cannot be displaced by rules of procedure.

[36] When an inferior court is powerless to act, it can sometimes seek the aid of a superior court: R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78 at paras. 26–30. Perhaps in some case, a superior court sitting in appeal may conclude that it was an error for the court below not to seek assistance. I will leave that question for another day.

Damages

[37] If Ms. Harmina has a claim in unjust enrichment, then failing a constructive trust she would be entitled to damages. As she did not claim damages, it would not be appropriate for me to finally decide whether she has a claim in unjust enrichment.

Conclusion

[38] I would allow the appeal, dismiss Ms. Harmina’s claim, and would not disturb the no costs order of the appeal judge. As the issues are novel, I would also not order costs in this Court.

Alexsei publishing date:
75